                IN THE SUPREME COURT OF IOWA
                               No. 19–0249

                             Filed May 3, 2019


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

DONALD H. CAPOTOSTO,

      Respondent.



      On review of the report of the Iowa Supreme Court Grievance

Commission.



      In this attorney disciplinary action, the grievance commission

recommends a sixty-day suspension. LICENSE SUSPENDED.



      Tara van Brederode and Amanda K. Robinson, Des Moines, for

complainant.



      John     D.   Brown,   Emmetsburg,   and   Donald   H.   Capotosto,

West Bend, pro se, for respondent.
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CADY, Chief Justice.

      This case is before us on review from a report and recommendation

of a division of the Iowa Supreme Court Grievance Commission

concerning attorney Donald Capotosto.        The report found Capotosto

committed ethical violations and recommended he be suspended from

the practice of law for sixty days. We find Capotosto violated the Iowa

Rules of Professional Conduct by neglecting several probate cases. We

suspend his license to practice law in Iowa for sixty days.

      I. Background Facts and Proceedings.

      Donald Capotosto is an Iowa attorney admitted to practice law in

1973. He resides and maintains a private practice in West Bend, Iowa.

In addition to his private practice, he regularly accepts court-appointed

criminal and juvenile cases.      This disciplinary proceeding involves

Capotosto’s conduct in handling several probate cases and his failure to

cure numerous delinquencies.

      On December 21, 2018, Capotosto and the Iowa Supreme Court

Attorney Disciplinary Board jointly filed a stipulation of facts and rule

violations. Capotosto stipulated that he allowed six probate estates to

become delinquent and violated Iowa Rules of Professional Conduct

32:1.3; 32:1.4(a)(3), (4); and 32:8.4(d). The parties also stipulated that

Capotosto entered into a deferral agreement (the Agreement) on March

14, 2018.

      Pursuant to the Agreement, Capotosto was required to remedy all

delinquencies by June 1, 2018, or, alternatively, withdraw from the

cases. The terms of the Agreement also required Capotosto to complete

six hours of continuing legal education in the area of probate law and

submit quarterly reports to the Board documenting his compliance with

the conditions. The Agreement prohibited Capotosto from commencing
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probate work on estates for which he was not already the attorney of

record. Capotosto acknowledged that failure to meet the conditions of

the Agreement would result in disciplinary actions against him.

      Capotosto failed to comply with the requirements of the Agreement.

He did not cure or withdraw from the already delinquent probate estates.

Moreover, Capotosto opened additional probate estates, causing the

number of delinquent cases to increase from five to twelve by the time of

the grievance commission hearing. He also failed to file quarterly reports

as required under the Agreement.

      Capotosto has been previously subjected to disciplinary action. In

January 2015, he was publically reprimanded for allowing several

probate estates to become delinquent.        In January 2016, he was

temporarily suspended for failing to respond to a complaint from the

Board.

      II. Board Complaint and Commission Grievance Report.

      Following Capotosto’s failure to comply with the Agreement’s

terms, the Board recommended a minimum sanction of a six-month

license suspension.   It further recommended that Capotosto be barred

from handling probate cases in the future.

      The commission found Capotosto violated the rules set forth in the

stipulation.   It also identified numerous aggravating factors, including

failing to cure delinquencies, failing to withdraw from the cases, opening

of new estates, and receiving new notices of delinquency; a public

reprimand in 2015; a temporary suspension in 2016; and the absence of

a succession plan. It also recognized several mitigating circumstances,

including letters of support and his willingness to accept court-appointed

cases. It also observed that he completed substantial work on all of the
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cases. Ultimately, the commission concluded Capotosto should receive a

sixty-day suspension.

      III. Standard of Review.

      We review attorney disciplinary proceedings de novo.                 Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 913 (Iowa

2011).   While we are not bound by the commission’s findings and

recommendations, we do give them respectful consideration.           Id.   The

Board must prove the misconduct by a convincing preponderance of the

evidence. Id.

      IV. Violation.

      A. Rule 32:1.3.      Rule 32:1.3 states, “A lawyer shall act with

reasonable diligence and promptness in representing a client.” Iowa R.

Prof’l Conduct 32:1.3. Typically, an attorney does not violate the rule by

missing one deadline.       Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012).             Instead, an ethical

violation “arises when a lawyer ‘repeatedly fail[s] to perform required

functions as attorney for the executor, repeatedly fail[s] to meet

deadlines, and fail[s] to close the estate within a reasonable period of

time.’ ” Id. (alterations in original) (quoting Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002)). We

have previously found that attorneys violate this rule when they fail to

close a probate estate and receiving multiple delinquencies.                See

Van Ginkel, 809 N.W.2d at 102 (finding an “obvious” violation based on

attorney’s “consistent failure” to perform duties resulting in multiple

delinquencies in one estate case); see also Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (holding the

attorney’s failure to cure multiple delinquencies in multiple cases

resulted in a rule 32:1.3 violation).
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      In this case, the Board found Capotosto was negligent, and his

conduct resulted in multiple delinquencies across multiple estate cases.

Throughout this action, the number of delinquent cases rose from five to

nine and finally to twelve by the time of the commission’s hearing. At

least one estate from the reprimand in 2015 remains open and

delinquent.    Clearly, Capotosto’s actions demonstrate a consistent and

continuous pattern of neglect.     Even though many of the estates were

close to completion, Capotosto still failed to act with reasonable diligence

and promptness by not completing his tasks. For these reasons, we find

Capotosto violated rule 32:1.3.

      B. Rule 32:1.4. Rule 32:1.4 sets forth the expectations of lawyers

in their communications with clients. Subsection (a)(3) provides that “[a]

lawyer shall . . . keep the client reasonably informed about the status of

the matter.”    Iowa R. Prof’l Conduct 32:1.4(a)(3).   Further, subsection

(a)(4) states that “[a] lawyer shall . . . promptly comply with reasonable

requests for information.” Id. r. 32:1.4(a)(4).

      We have concluded attorneys violate both subsections (a)(3) and

(a)(4) by failing to keep their clients informed about the status of their

case and neglecting to respond to client inquiries.      Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Ryan, 863 N.W.2d 20, 26 (Iowa 2015); see also

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 537–

38 (Iowa 2013) (concluding attorney violated rule 32:1.4(a) because he

did not properly notify clients of court dates and was inaccessible and

unresponsive to inquiring clients).       Thus, an attorney’s failure to

communicate may violate both his duty to provide clients with

information and his duty to respond promptly to a request.

      Capotosto admitted that in some instances he did not adequately

communicate with clients about the status of their case and failed to
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respond to their requests for information.           Accordingly, we find

respondent violated rules 32:1.4(a)(3) and 32:1.4(a)(4).

       C. Rule 32:8.4(d). Rule 32:8.4 provides that “[i]t is professional

misconduct for a lawyer to . . . engage in conduct that is prejudicial to

the administration of justice.” Iowa R. Prof’l Conduct 32:8.4(d). Acts are

considered prejudicial when they violate “the well-understood norms and

conventions of the practice of law,” Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Stansberry, 922 N.W.2d 591, 597 (Iowa 2019) (quoting Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768

(Iowa 2010)), hindering the efficiency and operation of our court system.

       We have consistently held an attorney’s misconduct causing

prolonged or additional court proceedings violates this rule.        See, e.g.,

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169,

180 (Iowa 2013).      For example, in Van Ginkel, we noted the attorney’s

multiyear   procrastination    resulted   in   “issuing    orders,   extending

deadlines, and cleaning up the probate proceedings.”          809 N.W.2d at

103.     This unnecessary expenditure of “valuable judicial and staff

resources” violated rule 32:8.4(d). Id.

       Similarly, Capotosto’s continued negligence needlessly expended

judicial resources.    The Board’s brief on the issue of sanctions cited

thirty-eight delinquencies between six probate estates. The issuance of

delinquency notices, particularly at this volume, is an unnecessary

expenditure of valuable judicial time.

       In an attempt to encourage Capotosto to rectify the delinquencies,

the parties entered into the Agreement. He did not comply with any of its

terms.    The formation of the Agreement, as well as the Board and

commission’s intervention, also constitute the use of judicial resources.

Accordingly, we find Capotosto’s sustained negligence in his numerous
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probate cases hindered the efficiency of our judicial system in violation of

rule 32:8.4(d).

         V. Sanctions.

         “There is no standard sanction for particular types of misconduct.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 660

(Iowa 2013). While prior cases are instructive, “we ultimately determine

an appropriate sanction based on the particular circumstances of each

case.”    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d

437, 443 (Iowa 2007).         The commission recommended a sixty-day

suspension for Capotosto’s transgression, a lesser sanction than the

Board’s     six-month    recommendation.      We     must   now   decide   the

appropriate course of disciplinary action.

         A. Neglect.      “Prolonged   inattention    to    probate   matters

undermines the public’s confidence in the legal profession and is

contrary to the foregoing canons of professional responsibility.” Comm.

on Prof’l Ethics & Conduct v. Haney, 435 N.W.2d 742, 743 (Iowa 1989).

Generally, sanctions for attorney misconduct involving neglect have

ranged from a public reprimand to a six-month license suspension.

Lickiss, 786 N.W.2d at 868.         Normally, probate neglect cases that

warrant “sanctions on the high end of the spectrum are accompanied by

various aggravating factors.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Ochs, 804 N.W.2d 720, 722 (Iowa 2011). These aggravating factors may

include “multiple instances of neglect, other past disciplinary action, and

companion violations such as dishonesty to clients and the court, failure

to cooperate with the Board’s investigation, and mishandling client

funds.” Id.

         In Ochs, a disciplinary case involving an attorney’s neglect, we

imposed a thirty-day suspension.       Id. at 723.    Our analysis centered
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almost entirely on the prolonged failure by the attorney to rectify ten

delinquent cases.      Id. at 722.     We noted the case did “not involve

aggravating circumstances such as misrepresentation or violations of

court orders found in many neglect cases in which we have imposed

lengthy suspensions.” Id.

      Capotosto suggests that the sanction in this case should be similar

to Ochs, considering the sheer number of estates involved in the matter.

He compares his twelve delinquent estate cases to the ten cases in

Ochs. 1   Based on the number of neglect cases, it may appear that

Capotosto should receive a similar sanction to that handed down to

Ochs. However, this case is different from Ochs, in which our primary

consideration was the mere neglect of multiple cases.                  Although

Capotosto’s case does not involve serious aggravating factors, such as

misrepresentation or premature fee collections, there are other factors

that warrant a lengthier sanction.

      B. Prior Reprimand.          “Prior discipline is another aggravating

factor we consider in determining the appropriate sanction.”                Iowa

Supreme Ct. Att’y Disciplinary Bd. v. McCuskey, 814 N.W.2d 250, 258

(Iowa 2012); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal,

841 N.W.2d 114, 127 (Iowa 2013).            Prior misconduct is particularly

relevant when an attorney commits conduct in a client matter after

already being disciplined in that matter. See Dolezal, 841 N.W.2d at 128.

That is, “one would expect that the initial discipline . . . would have

prompted the respondent to attend to his clients’ legal matters.” Lickiss,

786 N.W.2d at 869–70.

      1Capotosto originally argued he should receive a similar sanction to Ochs

because he only had six neglected probate cases, compared to Ochs’s mishandling of
seven estates, two guardianships, and one conservatorship. While the number of
Capotosto’s neglected cases was once less than Ochs’s, it now exceeds it.
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      Prior to this action, Capotosto was subject to reprimand on two

occasions.   He was publicly reprimanded in 2015 for his neglect of

probate cases.     In 2016, he was temporarily suspended for failing to

respond to a Board complaint. One of the cases included in the 2015

reprimand is at issue in the present case.       We consider these prior

reprimands and regard the further neglect of an earlier case as an

aggravating circumstance in this case.

      C. Other Aggravating Factors.           The commission identified

Capotosto’s failure to comply with the Agreement’s terms as an

aggravating circumstance.      In Committee on Professional Ethics &

Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981) (en banc), we

examined an attorney’s failure to fulfill his promise to timely complete

probate matters.    “[W]hile we do not imply such representations were

deceitful, we deem the breach of them to be significant.” Id.

      Similarly, Capotosto’s stipulation to the Agreement was a promise

to perform tasks mandated by the Board. The Agreement required him

to cure all delinquent cases, withdraw from the cases if he did not cure

them, refrain from opening new cases, provide quarterly reports, and

attend and complete six hours of CLE in the area of probate. Capotosto

did not comply with any of these terms. This inaction, at the very least,

demonstrates a disregard for the Board’s authority.             It further

disadvantages the clients and beneficiaries who fell victim to Capotosto’s

neglect.   See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 723

N.W.2d 439, 442 (Iowa 2006) (stating harm to a client may also be

considered an aggravating factor).       Accordingly, we find Capotosto’s

failure to comply with the terms of the Agreement an aggravating factor.

      D. Mitigating Factors.      Our determination of the appropriate

disciplinary action also includes consideration of mitigating factors.
                                        10

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 831 N.W.2d 194, 201

(Iowa 2013). The commission listed the following as mitigating factors:

letters written on Capotosto’s behalf, his willingness to accept court-

appointed cases, and the fact that he completed substantial work on

most of the cases.

      A judge and a county attorney submitted compelling letters on

Capotosto’s behalf. While neither were able to comment on his probate

work, they held his professional abilities and his utility to the community

in   high   regard.    Significantly,    the    letters   explained   Capotosto’s

importance as one of few attorneys willing to accept court-appointed

assignments in a five-county area.

      I would be hamstrung and hobbled in delivering justice and
      resolving my cases if Mr. Capotosto were prevented from
      serving as opposing counsel in Palo Alto County non-probate
      cases . . . . If he were prevented from acting as counsel in
      those counties (other than in probate matters) the judicial
      operations in these counties would be severely and adversely
      disturbed.

      We find these declarations of Capotosto’s value to the legal

communities he serves to be significant. While Capotosto has violated

multiple rules of professional conduct, he has also upheld our aim to
“devote professional time and resources and use civic influence to ensure

equal access to our system of justice for all those who because of

economic or social barriers cannot afford or secure adequate legal

counsel.” Iowa R. of Prof’l Conduct ch. 32 pmbl. [6]. This commitment is

vital to our legal community and is worthy of our consideration.

      Finally,   the   commission       noted     Capotosto     has    completed

substantial work in all of the delinquent cases, needing only to send

notices and obtain final orders.               The commission characterized
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Capotosto’s failure to complete these final tasks as a “mental block.” We

agree.

         The letters submitted on Capotosto’s behalf and his willingness to

accept court appointments demonstrate his competency, collegiality, and

commitment to Iowa’s legal community. Yet, he has been incapable of

completing his clients’ probate matters, despite entering into the

Agreement and threats of reprimand. His neglect of the probate cases is

not indicative of his general ability to perform as a zealous advocate in

other matters, but it remains a potential impediment to his ability to

practice law successfully in the future.

         Upon consideration of the commission’s findings and facts of this

case, we conclude a sixty-day suspension of respondent’s license to

practice law is the appropriate sanction. This sanction conforms to the

recommendation of the commission and is consistent with our prior

cases.

         VI. Disposition.

         We suspend the license of Donald H. Capotosto to practice law in

this state for sixty days from the filing of this opinion. This suspension

shall apply to all facets of the practice of law. See Iowa Ct. R. 34.23(3).

Capotosto shall comply with all requirements of the court rules

associated with his suspension. See id. rs. 34.23(2)–(4), .24(1)–(2). The

costs of this proceeding are assessed against Capotosto. Id. r. 36.24(1).

         LICENSE SUSPENDED.
