                  IN THE SUPREME COURT OF IOWA
                                No. 09–1074

                            Filed April 23, 2010


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

THEODORE R. HOGLAN,

      Respondent.



      On review of the report of the Grievance Commission of the Supreme

Court of Iowa.



      Grievance    commission   recommends     attorney   receive   a   public

reprimand. LICENSE SUSPENDED.



      Charles L. Harrington and Wendell J. Harms, for complainant.



      Robert G. Tully, West Des Moines, for respondent.
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PER CURIAM.

        This matter comes before the court on the report of a division of the

Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10.

The Iowa Supreme Court Disciplinary Board alleged the respondent,

Theodore R. Hoglan, violated ethical rules by neglecting several client

matters resulting in the dismissal of three appeals for failure to prosecute

and the dismissal of one claim for failure to perfect an administrative appeal.

The grievance commission found Hoglan violated the Iowa Rules of

Professional Conduct and recommended a public reprimand.             Upon our

respectful consideration of the findings of fact, conclusions of law, and

recommendation of the commission, we find the respondent committed

several ethical violations and suspend his license to practice law for thirty

days.

        I. Standard of Review.

        We review attorney disciplinary proceedings de novo. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 (Iowa 2009).         The

commission’s     findings   and   recommendations      are   given   respectful

consideration, but we are not bound by them. Id. The board has the burden

of proving attorney misconduct by a convincing preponderance of the

evidence.    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conrad, 723 N.W.2d

791, 792 (Iowa 2006). As frequently stated, “ ‘[t]his burden is less than proof

beyond a reasonable doubt, but more than the preponderance standard

required in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)). Upon proof of

misconduct, the court may impose a lesser or greater sanction than that

recommended by the commission. Id.
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      II. Factual Background.

      The respondent has been practicing law in Iowa since 1983. During

this time, he has engaged in private practice of a general nature.          Four

separate matters comprise the current disciplinary action. We will consider

each charge separately.

      A. Viles Appeal. In November 2006, Hoglan filed a notice of appeal

on behalf of Joseph M. Viles, as Trustee of the Bear Creek Recreational

Trust, in a case involving an administrative search warrant. On January 5,

2007, a notice of default was issued for failure to file and serve the combined

certificate. The combined certificate was subsequently filed. On March 20,

2007, Hoglan filed an application for extension of time to file the page proof

brief and designation of appendix. The request noted, inter alia, that Hoglan

was suffering from serious back problems.            On June 7, 2007, after two

notices of default and one extension, Viles’ appeal was ultimately dismissed

for want of prosecution.

      As a result of the dismissal, the board alleged Hoglan violated the

following provisions of the Iowa Rules of Professional Conduct: 32:1.1 (“A

lawyer shall provide competent representation to a client.”), 32:1.3 (“A lawyer

shall act with reasonable diligence and promptness in representing a

client.”), 32:1.16(a)(2) (“[A] lawyer shall . . . withdraw from the representation

of a client if . . . the lawyer’s physical or mental condition materially impairs

the lawyer’s ability to represent the client[.]”), 32:3.2 (“A lawyer shall make

reasonable efforts to expedite litigation consistent with the interests of the

client.”), 32:8.4(a) (“It is professional misconduct for a lawyer to . . . violate

. . . the Iowa Rules of Professional Conduct[.]”), and 32:8.4(d) (“It is

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

prejudicial to the administration of justice[.]”).
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      B. Kurth Appeal. In 2006, Hoglan represented plaintiffs James and

Peggy Kurth in a personal injury claim. After the jury returned a verdict in

favor of the defendant, the respondent advised the Kurths to appeal. Hoglan

filed a notice of appeal on October 27, 2006. On November 20, 2006, Hoglan

filed the combined certificate in which he certified he had ordered the

transcript, although he later stated he asked the court reporter to postpone

preparation of the transcript because negotiations were ongoing. Thereafter,

as in the Viles’ case, the appeal languished. A request for an extension was

denied, and on May 23, 2007, the clerk’s office issued a notice of default for

failure to file and serve the proof brief and to designate the appendix

contents.   When the default was not corrected, the court dismissed the

Kurths’ appeal for want of prosecution.         As a result of the dismissal, the

board alleged further violations of ethical rules 32:1.1, 32:1.3, 32:1.16(a)(2),

32:3.2, and 32:8.4(a) and (d).      In addition, because it concluded Hoglan

failed to communicate to the Kurths that their appeal had been dismissed,

the board alleged Hoglan violated rule 32:1.4(a)(3) (“A lawyer shall . . . keep

the client reasonably informed about the status of the matter[.]”) and rule

32:8.4(c) (“It is professional misconduct for a lawyer to . . . engage in conduct

involving dishonesty, fraud, deceit, or misrepresentation[.]”).

      C. Keeler Appeal.       On December 29, 2006, the respondent filed a

notice of appeal on behalf of his client, Kent Keeler. Keeler’s employment-

discrimination claim against his former employer had been dismissed by the

trial court on summary judgment.              After a series of continuances, on

October 9, 2007,     the   appeal   was   ultimately    dismissed   for   want   of

prosecution. Based on Hoglan’s failure to prosecute his client’s appeal, the

board alleged he violated the same ethical rules enumerated in relation to

the Viles’ appeal.
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      D. Stanley Disability Administrative Appeal. In September 2003,

Patrick Stanley hired the respondent to represent him with regards to his

social security disability claim.     After a series of denials of the claim, on

October 18, 2006, Hoglan prepared a request for a review of the latest

hearing decision. Although Hoglan asserted the document was delivered to

the local social security office in Marshalltown, he was unable to produce

any evidence the appeal had been perfected with the Appeals Council of the

Office of Disability Adjudication and Review. Moreover, Hoglan did not look

at the client file again until January 2008 when Stanley filed his complaint.

The board concluded Hoglan’s failure to timely file Stanley’s appeal and his

failure to respond to his client’s subsequent inquiries violated ethical rules

32:1.1, 32:1.3, 32:1.4(a)(3), 32:1.4(a)(4) (“A lawyer shall . . . promptly comply

with reasonable requests for information[.]”), 32:1.16(a)(2), 32:3.2, and

32:8.4(a) and (d).

    III. Prior Proceedings.

    A hearing before a division of the grievance commission was held on

February 20, 2009. The respondent testified on his own behalf about each

of the four claims.

      Hoglan testified he believed all four appeals to be meritorious. With

regards to the three appellate cases dismissed for want of prosecution,

Hoglan acknowledged that he failed to perfect the appeals. He also testified

that he did not attempt to get the appeals reinstated because he did not

believe, based upon his prior experience, that reinstatement would be

successful.     Hoglan disputed, however, that he failed to timely appeal

Stanley’s     social   security   claim,   asserting   he   believed   the   appeal

documentation requesting the required transcript had been timely submitted

to the social security office. Nevertheless, he acknowledged the appeal had

not been processed. Because Stanley had obtained new legal representation,
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Hoglan did not take any further action. Hoglan also disputed assertions that

he failed to adequately communicate with his client, stating that, while he

may not have returned every single phone call, he returned calls when it was

appropriate to do so.      He further disputed that he failed to appropriately

pursue his client’s claim, noting the transcript request, a necessary

preliminary to the appeal, often takes more than a year. Because he believed

he had made this request, he could take no further action until the

transcript was received.

         In an effort to explain his dilatory handling of these cases, Hoglan

testified to his chronic back problems and the effect these conditions had on

his legal practice. In 1973, while still in high school, Hoglan was diagnosed

with Scheuermann’s disease, a degenerative bone condition.       This disease

affected his thoracic spine, causing spinal deformity and chronic pain. In

1997, Hoglan was diagnosed with a herniated disk of the lower lumbar

spine.     Since then, Hoglan testified, he has undergone a series of back

surgeries, unrelated to the Scheuermann’s disease.       From February 2007

through the summer of 2007, Hoglan underwent three back surgeries.          It

was during this period of time that all four cases ultimately dismissed were

pending.

         Hoglan also acknowledged that on January 2, 2007, he was publically

reprimanded for neglecting two client matters resulting in the dismissal of an

appeal to this court and the dismissal of an administrative appeal.      Both

dismissals occurred in May 2006.

         In addition to Hoglan’s testimony, the depositions of Joseph Viles,

James Kurth, Peggy Kurth, Kent Keeler, and Patrick Stanley were entered

into evidence.     In pertinent part, Viles testified:   (1) that he was not

disappointed in Hoglan’s representation, (2) that Hoglan notified him verbally

of the dismissal prior to the board’s letter to Viles informing Viles of the
                                             7

board’s investigation, 1 and (3) that he—Viles—continues to use Hoglan’s

services.     The Kurths’ testimonies were similar.            Although James Kurth

could not be sure when Hoglan notified them that their appeal had been

dismissed, Peggy Kurth testified it was before they received the board’s letter.

Both testified they were not angry with Hoglan and that they continue to use

his services. Keeler’s testimony was also favorable to Hoglan. He testified

that Hoglan notified him of the dismissal of his appeal prior to the board’s

letter of inquiry and that Hoglan admitted the dismissal was his mistake.

Keeler also stated he was not angry with Hoglan.

       Stanley’s deposition testimony was also provided to the commission.

In his deposition, Stanley testified he hired Hoglan in September 2003 to

represent him in his attempt to obtain social security disability benefits. At

that time, Stanley’s initial request for benefits had been denied. In August

2004, the Department denied Stanley’s requests for reconsideration of the

denial. Hoglan then filed a request for a hearing by an administrative law

judge (ALJ). The hearing was held in March 2006. After receiving the ALJ’s

denial on September 25, 2006, Stanley contacted Hoglan and asked him to

file an appeal. Hoglan, Stanley stated, told him it was already done. After

that, Stanley claimed Hoglan did little to communicate with him about his
appeal, other than to tell him the appeal could take up to two years. Stanley

further asserted that his numerous attempts at communicating with Hoglan

in 2007 were, with the exception of two times, unsuccessful.                     In 2007,

through his own inquiry with the Social Security Department, Stanley

learned his appeal had not been processed, and the Department considered


       1The  Viles, Kurth, and Keeler matters were referred to the board pursuant to Iowa
Rule of Appellate Procedure 6.19(3) (now rule 6.1006(1)(b) (2009)), which required the clerk
of court to forward certified copies of the docket of dismissed appeals to the attorney
disciplinary board. In the case of the Stanley matter, Stanley filed a complaint with the
board.
                                      8

his disability benefits claim to be closed or inactive. According to Stanley,

his current attorney is trying to get the Department to waive the

noncompliance in the filing of the appeal.

       IV. Ethical Violations.

       We agree the board has proven Hoglan’s conduct violated ethical rules

32:1.3 (requiring reasonable diligence and promptness), 32:1.16(a)(2)

(requiring lawyer to withdraw from representation if the lawyer’s physical or

mental condition materially impairs the lawyer’s ability to represent the

client), 32:3.2 (requiring lawyer to make reasonable efforts to expedite

litigation consistent with his client’s interests), 32:8.4(a) (finding it

misconduct to violate an ethical rule), and 32:8.4(d) (finding it misconduct

for a lawyer to engage in conduct that is prejudicial to the administration of

justice).   In all four cases, the board has proven by a convincing

preponderance of the evidence that Hoglan’s failure to prosecute the

aforementioned appeals evinces neglect.      As we have frequently stated,

neglect involves “a consistent failure to perform those obligations that a

lawyer has assumed, or a conscious disregard for the responsibilities a

lawyer owes to a client.” See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct

v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004).

       We disagree, however, that the board has satisfactorily established

that Hoglan failed to provide competent representation in the four cases.

Under Iowa Rule of Professional Conduct 32:1.1, a lawyer is required to

provide competent representation to a client.      The rule further defines

“competent representation” as a requirement the attorney possesses “the

legal knowledge, skill, thoroughness, and preparation reasonably necessary

for the representation.”   Iowa R. Prof’l Conduct 32:1.1.    A review of the

comment to this rule reveals the focus of the rule is twofold:        first, it

addresses whether the lawyer has the requisite knowledge and skill to
                                      9

handle the matter in question (legal knowledge and skill); and second, it

concerns whether the lawyer has competently handled a matter through his

inquiry into and analysis of the factual and legal elements of the problem

(thoroughness and preparation). See id. cmts. [1], [5].

      Although the board has established that Hoglan’s handling of all four

matters was dilatory, no evidence was presented that Hoglan did not possess

the necessary legal knowledge and skill to complete the tasks or that he had

not made a competent analysis of the factual and legal elements of the

problems. Compare Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768

N.W.2d 279, 286 (Iowa 2009) (holding board failed to establish attorney did

not provide competent representation when there was no evidence the

attorney did not possess the necessary legal knowledge and skill to complete

the task, only evidence that the representation had been slow), with Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 700–01 (Iowa

2008) (finding attorney’s improper preparation of probate matters and

acknowledgment that she knew little about probating an estate and less

about taxes, combined with procrastination and failure to communicate with

her client, evinced incompetence under the Iowa Code of Professional

Responsibility for Lawyers and the Iowa Rules of Professional Conduct).

Therefore, we cannot conclude Hoglan violated rule 32:1.1.

      We also agree with the commission that the board failed to establish

Hoglan violated rules 32:1.4(a)(3) and 32:8.4(c) in his handling of the Kurth

matter and rule 32:1.4(a)(4) in his handling of the Stanley matter.         As

previously noted, rule 32:1.4(a)(3) requires an attorney to keep his clients

reasonably informed about the status of their matter, rule 32:1.4(a)(4)

requires a lawyer to promptly comply with reasonable requests for

information, and rule 32:8.4(c) provides that it is professional misconduct for

a lawyer to engage in conduct involving dishonesty, fraud, deceit, or
                                       10

misrepresentation.    See Iowa Rs. of Prof’l Conduct 32:1.4(a)(3), .4(a)(4);

32:8.4(c).

      The board contends Hoglan failed to keep the Kurths informed

regarding the status of their appeal in violation of rule 32:1.4(a)(3) and that

this failure was deceitful in violation of rule 32:8.4(c).         The Kurths’

depositions do not, however, support this claim. James Kurth testified that

he could not remember when Hoglan notified them their appeal had been

dismissed. However, Peggy Kurth testified Hoglan informed them before they

received notification from the board.    Moreover, neither Kurth complained

Hoglan had not kept them reasonably informed about the status of their

appeal. The board failed, therefore, to establish violations of these rules.

      The board also contends Hoglan failed to promptly reply to Stanley’s

requests for information in violation of rule 32:1.4(a)(4).    While it is clear

Hoglan did not respond as frequently to his client’s inquiries as his client

would have liked, there was also credible evidence Hoglan did reply to

reasonable requests for information. Therefore, we cannot conclude there is

clear and convincing evidence Hoglan violated rule 32:1.4(a)(4).

      V. Sanction.

      “There is no standard sanction for a particular type of misconduct,

and though prior cases can be instructive, we ultimately determine an

appropriate sanction based on the particular circumstances of each case.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, ___ N.W.2d ___, ___

(Iowa 2010).   In determining an appropriate sanction, we look to several

factors, including “the nature of the violations, the need for deterrence,

protection of the public, maintenance of the reputation of the Bar as a whole,

and the violator’s fitness to continue to practice law.” Iowa Supreme Ct. Bd.

of Prof’l Ethics & Conduct v. Ramey, 639 N.W.2d 243, 245 (Iowa 2002). We
                                         11

also consider mitigating and aggravating circumstances. Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 308 (Iowa 2009).

        The essence of the respondent’s ethical violations is neglect of client

matters.     When attorney misconduct involves neglect, sanctions have

typically ranged from a public reprimand to a six-month suspension. Casey,

761 N.W.2d at 61. “ ‘Often, the distinction between the punishment imposed

depends upon the existence of multiple instances of neglect, past

disciplinary problems, and other companion violations.’ ” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (quoting

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106

(Iowa    2006)).    Another   important        consideration    in    determining   the

appropriate sanction is the resulting harm to the clients. Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa

2001) (noting “harm to a client is an aggravating circumstance that warrants

a more serious sanction”).

        In this case, the commission recommended Hoglan receive a public

reprimand. In support of this sanction, the commission noted Hoglan’s prior

excellent professional record and his recognition of his current wrongdoing.

It also concluded the acts that resulted in Hoglan’s prior public reprimand

occurred during the same period of time as the current claims.                      The

commission found that, had it been aware of the current matters that

comprise     the   present   complaint    at     the   time    of    the   commission’s

consideration of the prior matter, the result would most likely have been no

different. Under these circumstances, the commission concluded a public

reprimand was an appropriate sanction.

        We do not agree that a public reprimand is the proper sanction in this

case. Hoglan engaged in multiple instances of neglect. Even though three of

Hoglan’s clients do not hold his actions against him, all four clients were
                                      12

harmed by the dismissal of their appeals. Moreover, with regard to Stanley’s

claim, Hoglan admitted that, even if Stanley can reapply for benefits, if

successful, the date of onset of disability would be from the date of

reapplication and not the initial application date. In other words, a failure to

timely appeal could result in a loss of back benefits, thus resulting in

additional harm to Stanley.

      We also do not concur that a public reprimand is warranted because

the current acts of neglect occurred within the same two-and-one-half-year

time period that included the two acts of neglect that were the subject of the

prior public reprimand.    As noted previously, the prior public reprimand

involved the respondent’s disregard of default notices resulting in the

dismissal of two appeals.     In pertinent part, the reprimand advised the

respondent:

      Your explanation that you suffered medical problems during the
      relevant time period was not an excuse, since Iowa R. Prof’l
      Conduct 32:1.[16](a)(2) requires withdrawal from representation
      when “the lawyer’s physical or mental condition materially
      impairs the lawyer’s ability to represent the client.”

The prior public reprimand was dated January 2, 2007, and filed March 21,

2007. Therefore, Hoglan was on notice of his obligation to withdraw from

representation from at least March 21, 2007, when he knew he could not

adequately represent his client due to a physical impairment.           Yet, he

thereafter allowed the Viles, Kurth, and Keeler appeals to be dismissed

without withdrawing from his representation of these clients.       The goal of

deterring other lawyers from similar conduct would not be advanced if we

ignore this fact.

      We also consider Hoglan’s health problems in formulating an

appropriate sanction. While illnesses do not excuse misconduct, they can be

mitigating factors and can influence our approach to discipline. See Curtis,
                                      13

749 N.W.2d at 703 (holding depression a mitigating circumstance in a

disciplinary case that resulted in a one-year suspension for neglect, client

trust account violations, and dishonesty to client); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006) (holding severe

depression and anxiety constituted mitigating circumstances considered in

disciplinary action resulting in two-year suspension for multiple acts of

misconduct, including neglect, misrepresentation, and client trust account

violations). Therefore, we take Hoglan’s severe back problems into account

when imposing discipline.

      Based upon all of these circumstances, we conclude suspension of the

respondent’s license, rather than a second public reprimand, is warranted

and suspend Hoglan’s license for thirty days. We will reinstate the

respondent's license to practice law upon the expiration of the thirty-day

suspension, subject to the limitations of Iowa Court Rule 35.12(2). See Iowa

Ct. R. 35.12 (allowing for automatic reinstatement for suspension period not

exceeding sixty days).     However, given Hoglan’s severe back problems, we

conclude it necessary that Hoglan provide this court with evidence of his

physical competency to practice law.       Therefore, prior to any automatic

reinstatement, Hoglan must provide an evaluation from a licensed health

care professional verifying his fitness to practice law.   See McCann, 712

N.W.2d at 97 (requiring evaluation of respondent who suffered from

depression and anxiety).

      Finally, we decline to impose a commission recommendation that we

restrict Hoglan’s practice by requiring him to have cocounsel of record in all

appellate matters for a period of three years. As we have previously noted in

prior cases, “neither the court nor the bar has effective machinery in place

for such supervision.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kirlin, 741

N.W.2d 813, 819 (Iowa 2007). It was not established that Hoglan’s dilatory
                                      14

handling of these appellate matters was related to his competence in

appellate practice, but rather was, at the time, a result of his inability to

handle legal practice in general due to his incapacitating back problems.

Requiring Hoglan to provide medical verification of his fitness to practice law

more appropriately addresses this issue.

      VI. Conclusion.

      We suspend Hoglan’s license to practice law for thirty days.        This

suspension shall apply to all facets of the practice of law as provided in Iowa

Court Rule 35.12(3) and requires notification of clients as outlined in Iowa

Court Rule 35.22.     Prior to any automatic reinstatement, Hoglan must

establish his physical competency by providing this court with an evaluation

from a licensed health care professional verifying his fitness to practice law.

Costs are taxed to Hoglan pursuant to Iowa Court Rule 35.26. Automatic

reinstatement shall not be ordered until all costs are paid.       Iowa Ct. R.

35.12(2).

      LICENSE SUSPENDED.

      All justices concur except Wiggins, J., who takes no part.

      This opinion shall be published.
