               IN THE SUPREME COURT OF IOWA
                               No. 11–1865

                         Filed February 17, 2012


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

ROSCOE A. RIES, JR.,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance   commission    recommends       respondent’s   license   be

suspended for six months. LICENSE SUSPENDED.



      Charles L. Harrington and N. Tré Critelli, Des Moines, for

complainant.



      Roscoe A. Ries, Jr., Des Moines, pro se.
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MANSFIELD, Justice.

        An attorney’s failure to return an inadvertent overpayment of fees

forms the basis for this attorney disciplinary proceeding.            This case

comes before us on the report of a division of the Grievance Commission

of the Supreme Court of Iowa.          See Iowa Ct. R. 35.10(1).       The Iowa

Supreme Court Attorney Disciplinary Board alleged the respondent,

Roscoe Ries, Jr., violated Iowa Rule of Professional Conduct 32:1.15(d).

The commission agreed and recommended Ries be suspended from the

practice of law. Upon our consideration of the commission’s findings of

fact, conclusions of law, and recommendations, we also agree that Ries

violated rule 32:1.15(d) and order his license suspended for a period of

thirty days.

        I. Factual and Procedural Background. 1

        Ries has been a licensed Iowa attorney since 1994. In 2006, he left

the law firm where he had been practicing and began practicing alone.

        In January 2009, Ries was retained by Shelly Weigel to represent

her in a dissolution action against her then-husband Michael Weigel.

Mr. Weigel appeared pro se throughout the dissolution proceedings. On

January 23, 2009, Ms. Weigel provided Ries with a $500 retainer. Ries
filed a petition for dissolution on Ms. Weigel’s behalf on January 29,

2009.

        On May 15, 2009, a dissolution decree was approved by the

district court.   Ries continued to have some contact with Ms. Weigel

during the following months on issues related to the dissolution.

        On January 21, 2010, Ries sent Ms. Weigel a final invoice by e-

mail providing a detailed itemization of his time spent and the fees owed.

        1The   relevant facts are not in dispute.      Our factual summary borrows
significantly from the commission’s well-written and succinct report.
                                        3

His cover e-mail explained, “Attached is my invoice showing the total

attorney time on your file was $1,891.50, less your $500.00 retainer,

leaves a balance of $1,391.50.” However, the invoice itself did not reflect

the $500 credit. That was mentioned only in the body of the e-mail.

      Mr. and Ms. Weigel had an agreement in place to divide Ries’s fees.

However, by mistake, they paid Ries based upon the itemized invoice

without noticing the $500 credit referenced in his e-mail.       Thus, in

March 2010, Ms. Weigel sent Ries a check for $994.50, and Mr. Weigel

sent him a check for $897.00, totaling $1,891.50 rather than the correct

amount of $1,391.50.

      Upon learning of the error some time later, the Weigels attempted

to contact Ries, but were unable to reach him. In a letter dated February

2, 2011, Mr. Weigel threatened legal action against Ries if he did not

refund $250 each to Mr. Weigel and Ms. Weigel within ten business days.

Ries failed to respond to the letter.

      On March 3, 2011, the Weigels filed a small claims action for

money damages against Ries in the Polk County District Court. Ries did

not file an answer or appear at the hearing and, as a result, on April 15,

2011, the court entered a default judgment against him for $500 plus

interest and costs.

      At approximately the same time, Mr. Weigel filed a complaint

against Ries with the Board. In a May 1, 2011 response to the Board’s

inquiry, Ries acknowledged the overpayment and informed the Board

that he would refund the $500 plus interest.

      On August 16, 2011, the Board filed a complaint against Ries,

alleging that he violated rule 32:1.15(d).     Ries did not answer the

complaint, nor did he participate in a pretrial scheduling call. He did

appear at the October 24, 2011 hearing convened by a division of the
                                    4

grievance commission. At the hearing, Ries acknowledged he had not yet

repaid the $500. He explained:

      [I]t is simply a matter of not having the wherewithal to do
      it. . . .

             I’m not making any, you know, excuses for that. And I
      would just ask the Board to take that into consideration.
      Like I said, it’s not a scenario where I tried to deceive these
      folks, and they ended up paying more money than what was
      owed, and, you know, upon realizing it those funds had
      already been used to pay bills, and that leaves me in this
      scenario I’m in now.

            ....

            To be honest with you, you know, it’s embarrassment.
      I mean, for a 42-year-old attorney not to have $500 to make
      that refund, it’s just embarrassing.

      Ries also explained he did not appear at the small claims hearing

because he “didn’t contest it.” Ries said that he did not file an answer to

the Board’s complaint or appear for the scheduling hearing because “it

was a matter of being sheerly embarrassed about the whole situation.”

Ries added that he “absolutely” planned to repay the Weigels when he
had funds, but as of the hearing he did not have $100, let alone $500.

Ries said he has been getting support from his girlfriend and friends and

has contemplated filing bankruptcy.

      Following the hearing, the commission issued a report finding that

Ries had violated rule 32:1.15(d), which requires a lawyer to “promptly

deliver to the client or third person any funds or other property that the

client or third person is entitled to receive.”          The commission

recommended a six-month suspension of Ries’s license to practice law.

      II. Scope of Review.

      We review attorney disciplinary proceedings de novo.              Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 793 (Iowa
                                      5

2010). We give respectful consideration to the commission’s findings and

recommendations, but we are not bound by them.            Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010). “The

board has the burden of proving attorney misconduct by a convincing

preponderance of the evidence.” Id.

       III. Review of Alleged Ethical Violation.

       The Board alleged, and the commission found, that Ries violated

rule 32:1.15(d). This rule states:

       Upon receiving funds or other property in which a client or
       third person has an interest, a lawyer shall promptly notify
       the client or third person. Except as stated in this rule or
       otherwise permitted by law or by agreement with the client, a
       lawyer shall promptly deliver to the client or third person
       any funds or other property that the client or third person is
       entitled to receive and, upon request by the client or third
       person, shall promptly render a full accounting regarding
       such property.

Iowa R. Prof’l Conduct 32:1.15(d).

       We agree with the commission and the Board that this case “deals

with   the    somewhat   unique   circumstances     of   an   attorney   being
accidentally overpaid for the services already rendered and therefore

earned.”     No one contends that Ries misled his client into overpaying

him.   His January 21, 2010 e-mail informed Ms. Weigel of the $500

credit. The Weigels simply failed to notice that point and inadvertently

paid $500 more than was due.

       The question then is whether an attorney commits an ethical

violation when he fails to refund an undisputed overpayment after the

overpayment has been brought to his or her attention. We are not aware

of any precedent directly on point.       However, the present situation is

directly covered by the literal language of the rule, which provides that

the attorney “shall promptly deliver to the client or third person any
                                            6

funds or other property that the client or third person is entitled to

receive.” In this case, Ries failed to promptly deliver to the Weigels $500

in funds that they were entitled to receive. See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Boles, 808 N.W.2d 431, 438 (Iowa 2012) (holding an

attorney violated rule 32:1.15(d) when he took four and seventeen

months respectively to refund unearned fees to two separate clients);

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 586–

87 (Iowa 2011) (finding an attorney violated rule 32:1.15(d) by failing to

return advance payments which had not been earned); Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 289 (Iowa 2009)

(finding a failure to promptly return unearned fees violated rule 32:1.15);

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 59–60

(Iowa 2009) (holding that an untimely disbursement of settlement

proceeds violated rule 32:1.15(d)). 2

       IV. Consideration of Appropriate Sanction.

       Having determined that Ries violated rule 32:1.15(d) by failing to

promptly repay funds that were due to a client and the client’s ex-

husband, we must now consider the appropriate sanction.



       2See  also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Plumb, 766 N.W.2d 626, 632
(Iowa 2009) (finding an attorney’s failure to refund the unearned portion of an advance
fee for several months violated former Iowa Code of Professional Responsibility for
Lawyers DR 9–102(B)(4) requiring a lawyer to “[p]romptly pay or deliver to the client as
requested by [the] client the funds . . . in the possession of the lawyer which the client
is entitled to receive”); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d
498, 501–02 (Iowa 2008) (finding that a lawyer’s failure to refund an unused $1000
retainer to his client where no work was performed violated former DR 9–102(B)(4));
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ramey, 746 N.W.2d 50, 55 (Iowa 2008)
(finding a failure to return a retainer where no services were performed violated former
DR 9–102(B)(4)); Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226,
233, 235 (Iowa 2006) (determining that failure to send money to client for over three
years violated former DR 9–102(B)(4)); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Honken, 688 N.W.2d 812, 818–19 (Iowa 2004) (finding a failure to return an unearned
advance fee violated former DR 9–102(B)(4)).
                                     7
            We have repeatedly held that the goal of our ethical
      rules is “ ‘to maintain public confidence in the legal
      profession as well as to provide a policing mechanism for
      poor lawyering.’ ” In deciding an appropriate sanction, we
      consider “ ‘the nature of the violations, protection of the
      public, deterrence of similar misconduct by others, the
      lawyer’s fitness to practice, and [the court’s] duty to uphold
      the integrity of the profession in the eyes of the public.’ ”
      Consideration of aggravating and mitigating circumstances
      present in the disciplinary action is also important.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 530–

31 (Iowa 2011) (internal citations omitted). We also take into account the

sanctions we have imposed in other, similar cases.        See Casey, 761

N.W.2d at 62 (stating that in fashioning the appropriate sanction, “we

look to prior similar cases while remaining cognizant of their limited

usefulness due to the variations in their facts”). “Often, the distinction

between the punishment imposed depends upon the existence of

multiple instances of neglect, past disciplinary problems, and other

companion violations, including uncooperativeness in the disciplinary

investigation.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712

N.W.2d 101, 106 (Iowa 2006).

      The present case does not involve any misrepresentation or

dishonesty, but has resulted in $500 of financial benefit to Ries to which

he was not entitled (and a $500 loss to the Weigels). There is no proof

that Ries was aware he had been overpaid until the Weigels alerted him

to this fact.   Also, while it seems difficult to believe that a practicing

attorney could not come up with $500 to repay a client obligation, we

share the commission’s view that we are “forced to take Mr. Ries at his

word” concerning his indigence.

      Although Ries’s lack of resources could potentially be considered a

mitigating factor for his failure to comply with rule 32:1.15(d), we also

think the commission makes a valid observation: Ries told the Board in
                                      8

May 2011 that he would remedy the situation by repaying the Weigels,

but then failed to do what he had promised. Moreover, as noted by the

commission, Ries failed to return “even a portion of the Weigels’ money.”

Certainly Ries could have paid something as a demonstration of good

faith.

         We agree with the commission that Ries’s failure to respond to the

Board or participate in the pretrial conference should be considered an

aggravating factor.       See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Cunningham, 812 N.W.2d 541, 551 (Iowa 2012) (“Failure to respond to

and cooperate with the Board’s investigation is also an aggravating

factor.”).   And, we agree that Ries’s recent prior reprimand should be

considered another aggravating factor.       See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 110 (Iowa 2012) (treating

two prior reprimands as an aggravating factor even though they were

“somewhat dated”). In 2010, Ries was publicly reprimanded for allowing

two clients’ appeals to be dismissed involuntarily and ignoring numerous

client inquiries about the status of another matter. The common thread

between those matters and the present case is a pattern of ignoring

responsibilities as an attorney and letting events simply run their course.

Clients deserve better.

         Because the facts of this case are somewhat unique, we have no

direct parallel in our precedents. Most of our cases relating to a failure

to promptly return client funds also have presented other significant

ethical lapses and aggravating circumstances. For example, in Wagner,

we imposed a six-month suspension on an attorney who (among other

things) failed to promptly return unearned fees after prematurely taking

probate fee payments for work that was not complete. 768 N.W.2d at

289.     Unlike Ries, Wagner himself brought about the circumstances
                                    9

under which he had control of assets that did not belong to him, and his

case also involved numerous additional violations including neglect,

misrepresentations to the court, and failure to deposit fees in a trust

account. Wagner also had a prior reprimand for neglect and another for

misrepresentation, and there were no mitigating circumstances for his

behavior. Id. at 288–89.

      In Casey, the attorney not only failed to disburse settlement

proceeds for a period of years, he also neglected a personal injury case

and a probate matter, took probate fees to which he was not entitled, and

misrepresented the decedent’s marital status to the court and the Iowa

Department of Revenue and Finance.          761 N.W.2d at 56–57.       We

suspended his license for a period of three months. Id. at 63.

      In Parrish, the attorney withdrew fees from two separate client

trust accounts before they had been earned and without providing a

contemporaneous accounting, then failed to refund the amounts due to

the clients. 801 N.W.2d at 584–85. As here, the refunds still had not

been made as of the date of the hearing. Id. at 585. We suspended this

attorney’s law license for sixty days.   Id. at 590.   Parrish, we believe,

involved more egregious conduct than here. In that case, the attorney

withdrew funds from client retainers on a number of occasions before the

fees had been earned. When it was later determined that the clients were

due refunds, the attorney failed to repay the funds. Id. at 584–85.

      In Boles, the attorney’s ethical transgressions included two distinct

failures to promptly refund unearned advance fees. 808 N.W.2d at 439.

We ordered a thirty-day suspension.      Id. at 443.   By the time of the

hearing, the fees had been repaid, and there were considerable mitigating

factors, but the case involved more than just a failure to repay unearned

fees. We explained that the attorney’s violations “primarily result from
                                       10

his   flagrant,   multiyear    disregard    for   the   billing   and accounting

requirements of our profession.” Id. at 441; see also Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Feeney, 657 N.W.2d 454, 457 (Iowa

2003) (ordering a thirty-day suspension where one of the attorney’s

violations involved a failure to promptly repay client funds); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Gilliam, 560 N.W.2d 1, 3–4

(Iowa 1997) (ordering a thirty-day suspension for an attorney who had

not paid a client her share of a settlement payment, had not deposited a

refund payment in a client trust account, and had various trust account

irregularities, despite the attorney’s lack of a prior disciplinary record

and his good reputation and contributions to his community).

       Upon our review, we conclude that a thirty-day suspension is

appropriate. Although some aggravating factors are present, including a

recent reprimand for neglect, a failure to initially respond to the Board,

and the absence of any attempt to make even a partial refund, this

matter nonetheless involves a single violation without proven dishonesty

or fraudulent conduct.        The genesis of the problem was an accidental

overpayment of a relatively small amount of money.

       V. Disposition.

       We suspend Ries’s license to practice law in the State of Iowa for

thirty days. This suspension applies to all facets of the practice of law.

See Iowa Ct. R. 35.12(3). Ries must comply with Iowa Court Rule 35.22

dealing with the notification of clients and counsel. Ries is also ordered

to pay the Weigels $500 plus interest and costs as adjudged in the small

claims action. No later than five days before the end of the suspension

period, Ries shall provide to the Board proof that this sum has been paid.

The costs of this action are taxed to Ries pursuant to Iowa Court Rule

35.26. Absent an objection by the Board, and under the conditions set
                                   11

forth above, Ries’s license to practice law will be reinstated on the day

after the thirty-day suspension period expires. See Iowa Ct. R. 35.12(2).

      LICENSE SUSPENDED.
