               IN THE SUPREME COURT OF IOWA
                              No. 13–1965

                          Filed March 28, 2014


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

RONALD L. RICKLEFS,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends a thirty-day suspension of

attorney’s license to practice law. LICENSE SUSPENDED.



      Charles L. Harrington and David J. Grace, Des Moines, for

complainant.



      Ronald L. Ricklefs, Cedar Rapids, pro se.
                                    2

MANSFIELD, Justice.

      This matter 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.   The Iowa Supreme Court Attorney Disciplinary Board (Board)

charged that the respondent, attorney Ronald L. Ricklefs, violated several

of our ethical rules by failing to maintain proper trust account records,

commingling funds, and misrepresenting his trust account practices on

his client security questionnaire.      After hearing the matter, the

commission found most of the alleged violations had occurred and

recommended a thirty-day suspension. Upon our consideration of the

commission’s findings of fact, conclusions of law, and recommendation,

we determine that all but one of the alleged violations took place. Giving

particular consideration to Ricklefs’s failure to rectify his trust account

problems despite a prior audit four years before, we suspend his license

to practice law with no possibility of reinstatement for three months.

      I. Factual Background.

      Ricklefs was admitted to practice law in Iowa in 1978.         He is

currently sixty-one years old and works in Cedar Rapids as a solo

practitioner.

      This case centers on a routine audit performed by the Client

Security Commission on Ricklefs’s client trust account and accounting

records in 2012. The audit showed noncompliance with our rules. Even

more worrisome, many of the same deficiencies had been uncovered in

an audit four years earlier and had been pointed out to Ricklefs, but

Ricklefs had not corrected them. We therefore begin our discussion with

the prior 2008 audit.

      A. The 2008 Audit.        On September 13, 2007, Thomas W.

McGarvey, an auditor with the Client Security Commission, contacted
                                     3

Ricklefs by phone. McGarvey attempted to set up an appointment with

Ricklefs on that day or the following day to conduct an audit of his client

trust account.    Ricklefs said he was not available those days but

proposed meeting late the following week. McGarvey said his schedule

did not permit that, but indicated he would return to Cedar Rapids in

October and contact Ricklefs at that time to set up a meeting.

      Accordingly, McGarvey called Ricklefs on October 10 and proposed

a meeting on either October 17 or 18.        Ricklefs did not respond, so

McGarvey placed a second call on October 15 and insisted the meeting

needed to take place on October 19. Late in the afternoon of October 18,

Ricklefs attempted to reschedule. He indicated his recent transactions

had not been recorded and also claimed he was sick and likely to be out

of the office the following day. Ricklefs asked McGarvey to allow him to

submit the needed documents by mail no later than October 31.

      McGarvey agreed to this plan but proceeded to interview Ricklefs

regarding his accounting practices during the October 18 telephone call.

Ricklefs told McGarvey he had reconciled his bank statements with his

trust account “from time to time” and also said his client ledgers were

reconciled to his trust account balance “in some fashion.”

      McGarvey followed the phone call with a formal written request for

documents on October 23. Ricklefs failed to provide the documents by

the agreed-upon October 31 deadline. Therefore, McGarvey followed up

with a second request for the documents on December 28. He also asked

Ricklefs to explain why he had not provided the documents by the

original deadline. Again, Ricklefs failed to respond.

      On April 23, 2008, McGarvey contacted Ricklefs by telephone and

requested to meet with him at Ricklefs’s office on April 24.       Ricklefs

indicated he was not ready for McGarvey’s visit and his records were not
                                     4

up to date. He also claimed he would be in depositions. After McGarvey

informed Ricklefs he was not in compliance and insisted on meeting with

him within ten days, Ricklefs consented to a May 1 meeting.

         In the course of this audit, Ricklefs provided some client ledger

cards.      However, it became clear that Ricklefs had been writing

numerous checks on his client trust account to cover personal expenses,

including payment of his rent and utilities, payments to his mother, and

payments for medical services. Ricklefs explained that these payments

were made out of earned funds or personal funds he had deposited into

the trust account. Ricklefs declined to answer when asked whether he

had a personal checking account.         In any event, McGarvey concluded

that Ricklefs had been commingling client and personal funds.

McGarvey shared this finding with Ricklefs and provided him with a copy

of the trust account rules. McGarvey also turned in his audit report to

the Client Security Commission, but apparently no action was taken on

it at that time.

         B. The 2012 Audit.      In October 2011, Charles Brinkmeyer,

another auditor with the Client Security Commission, stopped at

Ricklefs’s Cedar Rapids office to try to conduct another routine audit of

Ricklefs’s client trust account records. Brinkmeyer was unsuccessful in

scheduling an audit that day and was provided with a myriad of excuses

from Ricklefs over the following weeks.       Following multiple trips and

phone calls to Ricklefs’s office, Brinkmeyer insisted on meeting with

Ricklefs no later than February 9, 2012. Ricklefs finally agreed to that

date, and the meeting was set.

         Brinkmeyer performed an initial interview and completed part of

the audit during the February 9 meeting.       However, he was unable to
                                     5

conduct a meaningful review because of Ricklefs’s failure “to prepare or

maintain most of the required records.”

      Ricklefs had not regularly retained trust account bank statements.

Ricklefs acknowledged he did not have all the statements and had to

contact the bank to get them. Ricklefs also admitted he did not maintain

a check register.    Instead, he produced a blank register and told

Brinkmeyer he was willing to begin using it immediately.          Brinkmeyer

observed that Ricklefs had retained only carbon copies of checks and

deposit slips in place of a proper checking account register.

      For his client ledger, Ricklefs produced only a single page for a

single client, showing a $300 deposit made by that client on September

26, 2011. No other activity was shown for that client, and the ledger still

reflected the existence of the $300 balance as of the date of the audit.

Brinkmeyer concluded from his discussions that Ricklefs had not

prepared client ledger pages on a regular basis and the single page

provided had been prepared only recently.

      Brinkmeyer determined it would be impossible for Ricklefs to

perform   any   required   monthly    reconciliations   without    the   bank

statements or a check register.      Despite Ricklefs’s claim that he did

monthly reconciliations, the reconciliations attempted by Ricklefs were

“not correct in either form or end result,” and Brinkmeyer noted it was

“apparent he is not in the habit of preparing” the reconciliations. In the

audit report, Brinkmeyer stated he believed “the entries on the six

statements provided to me today reflect his first-ever efforts to complete

such reconciliations.”

      Even though the client ledger detail showed only a $300 balance

and Ricklefs claimed in the initial interview that his trust account

contained only client funds, his trust account had an actual balance of
                                     6

$2243.66. Ricklefs asserted the excess funds were money he had earned

and not yet removed from the account. However, he could not provide

documentation showing where the funds had originally come from.

      As a result of the February 9, 2012 review, Brinkmeyer

enumerated a long list of deficiencies:

      (1) Failure to retain client trust account bank statements[,]

      ....

      (2) Failure to maintain a separate client trust checking
      account (commingling of funds is apparent),

      (3) Failure to maintain a check register,

      (4) Failure to complete      and     maintain   monthly   3-way
      reconciliations,

      (5) Failure to maintain client ledger account detail,

      (6) Failure to satisfactorily identify or explain the source of
      the “excess” amount in his trust account (bank statement vs.
      the client ledger balance as presented to the auditor)[.]

      When Ricklefs signed Brinkmeyer’s audit statement, Brinkmeyer

also requested “preparation and maintenance of a check register,

reconstruction of a client ledger for at least the most recent six months,

and that the attorney provide those documents to [him] no later than
March 31, 2012.”      However, that deadline passed without Ricklefs

providing the additional information.

      Ricklefs finally contacted Brinkmeyer via email on April 17,

apologized for the delay, and provided a five-page handwritten document

entitled “RLR Trust Account Check Ledger.” The document appeared to

be a reconstruction of the check register without the required six-month

reconstruction of a client ledger.        Brinkmeyer responded and called

attention to Ricklefs’s failure to provide all of the requested information.

He commented on Ricklefs’s continued practice of commingling client
                                     7

funds with personal funds and expressed the importance of maintaining

separate accounts.    Additionally, Brinkmeyer provided Ricklefs with a

copy of Iowa Court Rules chapter 45, advised him to become familiar

with the court rules, and told him to properly “reconstruct all client trust

records as required by the Rules, including the check register, client

ledger, and monthly reconciliations for at least the period of July 1, 2011

to the present.” Ricklefs was given a sixty-day deadline to respond to the

request and to set a time to meet with Brinkmeyer again.

      When the sixty-day deadline passed without a response from

Ricklefs, Brinkmeyer emailed him on July 2, 2012, and asked for a

response by the end of business on July 6. Brinkmeyer indicated that if

a response was not received, he would forward his audit file for possible

referral.   Ricklefs responded via email on July 5 and attached a new

document entitled “RLR Trust Account general ledger update” and

several bank statements.        Ricklefs’s submission appeared to be

information that would be contained in a check register and was dated

from March 9, 2012, through June 1, 2012. However, an additional page

provided similar, but overlapping, information from May 11, 2012,

through June 19, 2012, and seemed to have been created from a bank

statement rather than contemporaneously.

      Ricklefs’s email also contained information about the balances

attributable to two clients, while explaining no other client money was

being held.    Several names in the check register that appeared with

deposits did not match the names of any clients Ricklefs had previously

disclosed to Brinkmeyer. The monthly reconciliations and historic client

ledger pages were, once again, not provided.

      Brinkmeyer responded to Ricklefs in a lengthy email on July 19.

He reminded Ricklefs that some requested information was still missing.
                                     8

In addition, he requested additional information about unclear entries on

the check register for both expenses and deposits. Ricklefs was advised

to provide evidence that he had ceased commingling funds and had

completed a formal separation of the trust account funds from all other

funds.    Brinkmeyer also informed Ricklefs that he had reviewed the

reports from Ricklefs’s 2008 audit and was therefore “well aware of his

records issues from that time.” He stated it was apparent that Ricklefs

had “not attempted to improve either [his] record-keeping or [his] trust

account practices” since the 2008 audit.     He went on to state he had

been very lenient with Ricklefs, allowing him more time than necessary

to provide the requested information and prepare the proper records.

Ricklefs was asked to reply promptly and give the matter his immediate

attention.

        Ricklefs still had not responded to Brinkmeyer’s email on July 25,

2012.    At that time, Brinkmeyer sent a message to the director of the

Office of Professional Regulation that outlined the problems with

Ricklefs’s records and the numerous delays experienced during his

attempts to audit Ricklefs’s files. He indicated that he believed Ricklefs

had “done nothing to improve his practices or record-keeping” since the

2008 audit.    He noted the same delay tactics used with McGarvey in

2008 had been employed again. As a result, he requested the Office of

Professional Regulation “consider issuance of a 15-day notice and/or

referral” of Ricklefs “due to his failure to properly prepare or maintain

client trust account records as required, and continuing delays in

providing requested information.”

        Following Brinkmeyer’s email, a delinquency notice was sent to

Ricklefs by the Client Security Commission on August 7, 2012. Ricklefs

responded to the commission by letter on August 22. In it, he indicated
                                     9

he had contacted Brinkmeyer and supplied him with additional

documents as instructed.      He also noted he was “in the process of

reducing the trust account balance” to include only client funds and a

limited amount of personal funds “to avoid a zero balance.”

      Ricklefs went on to assert that his commingling of funds had

stemmed from financial problems related to unpaid medical bills from an

emergency surgery in 2005.      He explained his personal bank account

had been “executed upon approximately seven years ago.” Since then, he

was concerned that any account he established for himself would be

vulnerable to garnishment, and he currently had no personal or business

bank accounts. Ricklefs also said he had no vehicle. Because he had no

business or personal bank account and “limited mobility,” Ricklefs said

he “occasionally lacked means by which to process checks drawn upon

non-local accounts.” Ricklefs added that he commonly made payments

to his mother to reimburse her for the use of her credit card and to pay

her for past advances. Because he was now using his mother’s credit

card regularly to pay for personal and professional expenses, Ricklefs

testified at the hearing that he no longer needed to use checks from the

client trust account for those transactions.

      C. Client   Security    Commission       Form.    During the time

Brinkmeyer was attempting to complete the audit discussed above,

Ricklefs completed and signed his 2012 “Combined Statement and

Questionnaire” for the Client Security Commission. Despite his lack of

recordkeeping and his admitted commingling of personal and client

funds, in the questionnaire Ricklefs indicated that during the 2011

calendar year, he kept all client funds in a separate account, performed

monthly reconciliations of his account with bank statements and client

ledgers, and preserved client fund records for six years.
                                        10

      II. Procedural History.

      The Board filed its complaint against Ricklefs on April 24, 2013.

The complaint began by referring generally to “deficiencies” in the 2008

audit and to Ricklefs’s failure to correct those deficiencies.           In more

detail, the complaint alleged problems with the 2012 audit and with

Ricklefs’s   responses     to    the   2012     Client     Security   Commission

questionnaire. The complaint concluded by alleging Ricklefs had violated

Iowa Rules of Professional Conduct 32:1.15 (safekeeping of property) and

32:8.4(c)    (misconduct        involving    dishonesty,     fraud,   deceit,   or

misrepresentation) and Iowa Court Rules 45.1 (client trust account), 45.2

(action required upon receiving funds, accounting, and records), and

45.7(4) (advance fee and expense payments).

      Ricklefs was served with requests for admissions, requests for

production of documents, and interrogatories.            He did not respond to

them. On July 31, 2013, the Board filed a motion to compel responses to

the document requests and the interrogatories. Ricklefs did not resist

the motion, and the commission ordered him to serve responses no later

than August 30 or else sanctions would be imposed. Ricklefs still did not

respond. As a result, Ricklefs was precluded from offering any witnesses

or evidence other than his own testimony.            He was also barred from

objecting to the Board’s exhibits or from testifying other than in

mitigation. In addition, several facts alleged in the complaint were held

to be established for the purposes of the action.

      During the hearing, Brinkmeyer was the Board’s only witness. He

reviewed the circumstances and findings of the 2012 audit. Brinkmeyer

could not explain why it had taken four years from the unsatisfactory

2008 audit to perform a follow-up audit of Ricklefs.                   Nor could

Brinkmeyer determine that any client had been harmed by Ricklefs’s
                                     11

trust account violations.   As far as he could tell, trust account funds

used for personal expenses had been earned before being removed from

the account. Brinkmeyer also uncovered instances where Ricklefs had

deposited personal funds into the trust account.

       Ricklefs then testified on his own behalf.     He admitted he had

“knowingly violated the rules” by using his trust account for personal

purposes. However, Ricklefs claimed he had subsequently put his trust

account in order, removed all nonclient funds, and “been in compliance”

since he began to use his mother’s credit card for his personal and

professional expenses.

       Ricklefs admitted he still did not have a personal or business

checking account. He restated his belief that if he opened an account, it

would be executed upon because he had substantial unpaid bills, two of

which had been reduced to judgment. He had not sought assistance of a

debtor–creditor attorney to try to resolve his financial issues in order that

he might obtain a personal or business account.

       Despite the absence of harm to any of Ricklefs’s clients, the Board

pointed out that his failure to properly maintain the records for his client

trust account and his commingling of personal funds with client funds

had been ongoing, without improvement, since at least 2008. Ricklefs

closed the hearing by again admitting he had commingled the funds,

while stressing no client funds had ever been jeopardized. He did not

contest the violations and agreed that “a period of suspension . . . is

appropriate.”

       The commission issued its written findings of fact, conclusions of

law,   and   recommended     sanction     on   December   6,   2013.     The

commission’s decision focused on the 2012 audit, referring to the prior
                                          12

2008 audit as an aggravating circumstance. 1                     In doing so, the

commission seemed to follow the lead of the Board, which treated the

2008 audit as a prior incident rather than as a subject of the present

disciplinary hearing. 2 The commission concluded Ricklefs had violated

Iowa Rules of Professional Conduct 32:1.15 and 32:8.4(c) and Iowa Court

Rule 45.1.      The commission recommended that Ricklefs’s license be

suspended for a period of thirty days.

       III. Standard of Review.

       We review attorney disciplinary proceedings de novo. Iowa Ct. R.

35.11(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d

648, 651 (Iowa 2013). The commission’s findings and recommendations

are given respectful consideration, but we are not bound by them. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Laing, 832 N.W.2d 366, 367 (Iowa

2013).

       The Board has the burden to prove the attorney’s misconduct by a

convincing preponderance of the evidence.                 Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Murphy, 800 N.W.2d 37, 42 (Iowa 2011). “Upon proof

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

recommended by the commission.” Id.

       If we find a violation of an ethical rule has occurred, our
       determination of the appropriate sanction is guided by the
       nature of the alleged violations, the need for deterrence,
       protection of the public, maintenance of the reputation of the
       bar as a whole, and [the attorney’s] fitness to continue in the
       practice of law.

Laing, 832 N.W.2d at 367–68 (internal quotation marks omitted).

       1The  commission’s decision stated, we believe incorrectly, that Ricklefs had been
publicly reprimanded in connection with the 2008 audit.
       2The only evidence the Board introduced regarding the 2008 audit was
McGarvey’s audit report.
                                      13

      IV. Review of Alleged Ethical Violations.

      The commission found Ricklefs had committed all but two of the

ethical violations alleged by the Board.     We now consider the alleged

violations.

      A. Trust Account Violations. Iowa Rule of Professional Conduct

32:1.15(a) requires a lawyer to “hold property of clients or third persons

that is in a lawyer’s possession in connection with a representation

separate from the lawyer’s own property.”           Iowa R. Prof’l Conduct

32:1.15(a). Funds must be kept in a separate account and “[c]omplete

records of such account funds . . . shall be kept by the lawyer and shall

be preserved for a period of six years after termination of the

representation.” Id. The comments to the rule state “a lawyer should

maintain on a current basis books and records in accordance with

generally     accepted   accounting   practice   and    comply   with    any

recordkeeping rules established by law or court order.” Id. r. 32:1.15(a)

cmt. 1.

      Rule 32:1.15 also incorporates chapter 45 of the Iowa Court Rules,

which directs an attorney on how to properly maintain a client trust

account. See id. r. 32:1.15(f); Iowa Ct. Rs. ch. 45. An attorney must

keep a clearly designated trust account to hold funds received by the

attorney from clients or third parties.     Iowa Ct. R. 45.1.     “No funds

belonging to the lawyer or law firm may be deposited in this account,”

with the exception of “[f]unds reasonably sufficient to pay or avoid

imposition of fees and charges that are a lawyer’s or law firm’s

responsibility.” Id. r. 45.1(1). Rule 45.2(3)(a) indicates financial records,

including ledger records, bank statements, and check registers, must be

maintained by an attorney for six years following the termination of

representation of a client.    Id. r. 45.2(3)(a).   Rule 45.7(4) states an
                                    14

attorney must notify a client in writing when withdrawing funds for

expenses or fees from the trust account. Id. r. 45.7(4).

      We have previously determined an attorney failed to hold his own

property separate from that of his clients when he “used the trust

account to deposit personal funds and to pay personal and business

expenses.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hall, 728 N.W.2d

383, 387 (Iowa 2007); accord Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Herrera, 560 N.W.2d 592, 594 (Iowa 1997) (“Commingling of

trust funds with the office or personal funds of the lawyer is strictly

prohibited.”).

      In Iowa Supreme Court Board of Professional Ethics & Conduct v.

Sunleaf, an attorney used his trust account for the deposit of earned fees

and for the payment of both personal and business expenses to “hide

funds from the federal internal revenue service which had levied on his

business account for two unpaid payroll tax obligations.” 588 N.W.2d

126, 126 (Iowa 1999). We found his conduct violated former Iowa Code

of Professional Responsibilities for Lawyers DR 9–102(A), the predecessor

to rule 32:1.15(a). See id. at 126–27. We did not consider the attorney’s

“pressing financial problems” a legitimate excuse.         Id. at 127.   As a

treatise points out, the proscription on commingling is partly intended to

protect the client’s property from being levied on by the lawyer’s own

creditors. See 16 Gregory C. Sisk & Mark S. Cady, Iowa Practice: Lawyer

and Judicial Ethics § 5:15(b), at 510 (2013).       Had an alert creditor

learned of Ricklefs’s practice of keeping his personal funds in his client

trust account, it might have attempted to levy on that account. Ricklefs

violated rule 32:1.15(a) and rule 45.1.

      Additionally, we recently found an attorney violated rule 45.2 when

she failed to keep, with any regularity, a list of clients and the balance
                                          15

each client had in her trust account and was unable to identify the

sources of many of the deposits to her trust account. Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Kersenbrock, 821 N.W.2d 415, 419–20 (Iowa

2012). In that case, the auditor noted “entries in the manual ledger were

sporadic and the trust account register was incomplete.” Id. at 420; see

also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wengert, 790 N.W.2d 94,

100 (Iowa 2010) (noting an attorney violated this rule when an auditor

“found it was impossible to reconcile the [attorney’s trust] account” as

the attorney had commingled funds, kept inadequate records, and failed

to complete reconciliations); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Hauser, 782 N.W.2d 147, 152–53 (Iowa 2010) (finding a violation of this

rule when an attorney claimed he regularly maintained client trust

account ledgers, but was unable to produce any ledger for the client in

question); Comm. on Prof’l Ethics & Conduct v. Behnke, 486 N.W.2d 275,

278 (Iowa 1992) (“Behnke’s management of the money in his trust

account and his failure to reconcile his trust account checkbook

balances with bank statements are also violations of our ethical rules.”).

       Similar transgressions occurred here.           There is no question that

Ricklefs failed to maintain a check register or client ledgers, did not

regularly perform reconciliations, and did not retain bank statements.

Hence, he violated rule 45.2(3)(a). 3

       The Board also alleged that Ricklefs failed to notify clients when

withdrawing funds from his trust account as required by rule 45.7(4).

The commission did not find a violation of this rule. We agree with the

commission here. Such activity may have occurred, but the subject was

       3The  commission found that Ricklefs had failed to maintain adequate trust
account records but did not specifically determine that Ricklefs had violated rule 45.2
as alleged by the Board. We find a violation of this rule.
                                         16

simply not explored at the disciplinary hearing. No references were made

to specific clients or specific withdrawals that were alleged to have been

made without notification. Therefore, on this record, we cannot find a

violation of rule 45.7(4).

      B. Dishonesty. “It is professional misconduct for a lawyer to . . .

engage    in    conduct      involving        dishonesty,   fraud,   deceit,   or

misrepresentation.” Iowa R. Prof’l Conduct 32:8.4(c). “The Board must

prove the attorney acted with some level of scienter greater than

negligence.” Kersenbrock, 821 N.W.2d at 421.

      In Kersenbrock, we found a violation of this rule when an attorney

falsely certified she had properly performed trust accounting procedures

in her annual client security questionnaire. Id. Her verified response

stated she kept client funds separate from her own and performed

monthly reconciliations of her trust account with her client ledger

balances and bank statements, but the record showed she could not

have possibly reconciled the accounts because of the inadequacy of her

records. Id.; see also Clarity, 838 N.W.2d at 656–57 (finding a violation

of rule 32:8.4(c) when an attorney falsely certified on his annual

questionnaire that all retainers had been deposited into a trust account);

Wengert, 790 N.W.2d at 100 (“Wengert’s false certification that her trust

account was properly reconciled . . . violated rule 32:8.4(c) . . . .”); Hall,

728 N.W.2d at 387 (finding an attorney who commingled personal funds

with trust account funds committed a further ethical violation when he

“knowingly misrepresented the nature of at least one trust account

transaction to the Client Security Commission auditor”).

      Here, Ricklefs submitted a client security questionnaire in 2012

certifying that, for the preceding calendar year, he had kept all client

funds in a separate account from his personal funds, performed monthly
                                         17

reconciliations of his trust account with bank statements and client

ledgers, and preserved client fund records for six years. Additionally, on

February 9, 2012, Ricklefs told the Client Security Commission’s auditor

that nonclient funds were not kept in his trust account and that he

reconciled the bank statement to the check register each month.

      These statements were intended to mislead the Client Security

Commission. Ricklefs later admitted he did not keep a check register for

his trust account and further admitted he regularly kept personal funds

in that account. It is equally apparent that Ricklefs did not keep client

ledgers,   retain   copies   of   bank    statements,   or   perform   monthly

reconciliations.     We find his knowingly false statements on the

questionnaire and to the auditor violated rule 32:8.4(c).

      V. Consideration of Appropriate Sanction.

      Having found the foregoing rule violations, we now consider the

appropriate sanction.        While there is no template of sanctions for

attorney misconduct, “we try to achieve consistency with our prior cases

when determining the proper sanction.”             Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010). When

deciding the 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.” Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 102 (Iowa 2010) (internal

quotation marks omitted). We also take into account any “aggravating

and mitigating circumstances present in the disciplinary action.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 588 (Iowa

2011). “Although we respectfully consider the discipline recommended

by the Commission, the final decision on the appropriate sanction is for
                                     18

this court.”   Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wright, 840

N.W.2d 295, 300 (Iowa 2013) (internal quotation marks omitted).

      As we have said recently regarding trust account violations,

             This case primarily involves trust account violations.
      “Sanctions for trust account and accounting violations span
      from suspensions of several months where the violations
      were compounded by severe neglect, misrepresentation, or
      failure to cooperate, to a public reprimand when the
      attorney, in an isolated instance, failed to deposit funds into
      his trust account because he believed the fees to be earned.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 442
(Iowa 2012) (citations omitted) (compiling cases). In the cases warranting

more serious discipline, additional violations or other aggravating

circumstances were present. Id.

      In this case, Ricklefs improperly handled his trust account,

commingled client funds with his own, failed to maintain proper records,

and also knowingly misrepresented that he was engaged in appropriate

trust account practices.     His disregard for the rules governing trust

accounts predated the 2008 audit and, despite being instructed to

comply with the rules after the initial audit, continued through the

period of the 2012 audit without improvement.             Ricklefs himself

conceded at the commission hearing that a period of suspension was

appropriate.

      We also deem Ricklefs’s efforts to stall the 2012 audit and his

failure to cooperate with the auditor and the Board aggravating factors.

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cunningham, 812 N.W.2d

541, 551 (Iowa 2012) (noting the failure to cooperate with the Board’s

investigation is an aggravating factor).

      An additional aggravating factor is Ricklefs’s past disciplinary

history. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCuskey, 814
                                      19

N.W.2d 250, 258 (Iowa 2012) (“Prior discipline is [an] aggravating factor

we consider in determining the appropriate sanction.”).             Ricklefs

previously received two public reprimands: one in 1998 for failing to

provide a response to a Board inquiry after requesting two extensions,

and one in 2007 for neglect and lack of diligence during the

representation of a client.      In addition, although Ricklefs was not

sanctioned as a result of the 2008 audit, we agree with the commission

that it is certainly an aggravating factor. See Boles, 808 N.W.2d at 442

(“A pattern of misconduct is an aggravating factor.”); see also Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Khowassah, 837 N.W.2d 649, 658

(Iowa 2013) (noting that while private admonishments are not discipline

per se, they can be an aggravating factor because “they put attorneys on

notice not to repeat the conduct”). Ricklefs knew what he needed to do

after the 2008 audit but failed to do it.

      We also consider the mitigating factors in this case.       As noted

above, there are no indications any clients suffered harm.              See

Kersenbrock, 821 N.W.2d at 422 (finding lack of client harm to be a

mitigating circumstance); Boles, 808 N.W.2d at 442 (indicating lack of

harm to clients is a mitigating factor).         Additionally, Ricklefs took

responsibility for his actions before the commission and admitted his

violations.   See Kersenbrock, 821 N.W.2d at 422 (noting the taking of

responsibility for actions is a mitigating factor).

      In determining the appropriate sanction in this case, we draw

guidance from the following attorney discipline cases involving trust

account violations.

      In Kersenbrock, we encountered a similar pattern of pervasive trust

account violations. The attorney failed to deposit clients’ retainers into a

trust account, did not keep adequate trust account records, prematurely
                                       20

withdrew fees in a probate case, and misrepresented her trust fund

practices on her annual client security questionnaire. Kersenbrock, 821

N.W.2d at 419–21. There were mitigating circumstances: no clients were

harmed, Kersenbrock had no disciplinary history, and she had

acknowledged the inadequacies in her accounting practices and taken

steps to correct the problems. Id. at 422. We suspended her law license

for thirty days. Id.

      In Sunleaf, we were confronted with an attorney who, like Ricklefs,

used his trust account as a conduit for personal funds in order to avoid

creditor claims against his personal assets. 588 N.W.2d at 126. Sunleaf,

like Ricklefs, also falsified his client security questionnaire response. Id.

at 127. There was no evidence of misappropriation of client funds, and

the misconduct was “an aberration, wholly out of plumb with Sunleaf’s

many years of practice which appear to have been honorable.” Id. We

approved a public reprimand while indicating the case was a close call

between a reprimand and a suspension. Id. at 126–27.

      In Boles, we found an attorney’s “flagrant, multiyear disregard for

the billing and accounting requirements of our profession” warranted a

thirty-day suspension of his license to practice. 808 N.W.2d at 441, 443.

In that case, the attorney “withdrew unearned fees, delayed responding

to client requests for accurate billings, and failed to promptly refund

unearned fees.” Id. at 441. The situation was compounded by neglect of

a client matter.       Id.   However, we also considered as an important

mitigating factor the evidence that the attorney had “corrected his

practices to avoid reoccurrence,” and noted the attorney had no trust

account problems in the approximately four years leading up to his

hearing.   Id. at 442.       Further mitigating factors included Boles’s full

cooperation with the Board’s investigation, his extensive pro bono
                                        21

practice, and the fact that no clients were harmed “apart from the

delayed refunds.” Id.

       Hall involved an attorney who repeatedly mismanaged his trust

account, using it to deposit and withdraw personal funds, while not

maintaining a proper ledger of deposits and withdrawals. 728 N.W.2d at

385.      At times, the attorney “used the trust account more for his

personal dealings than for client matters.” Id. He also repeatedly failed

to respond to Board inquiries in response to various complaints, forged

client signatures, made various misrepresentations, and neglected cases.

Id. at 385–86.     There was no evidence of misappropriation of client

funds.     Id. at 386.    Nonetheless, we suspended the attorney’s license

indefinitely with no possibility of reinstatement for twelve months. Id. at

389.

       In Clarity, an attorney failed to deposit advance fees into his trust

account, failed to provide an accounting to his clients (even after the

clients    requested     one),   made   misrepresentations   in   his   certified

responses to his Client Security Commission questionnaire, neglected

client matters resulting in the arrests and incarceration of several

clients, and charged an unreasonable fee. 838 N.W.2d at 655–60. In

addition, he had three recent private admonishments. Id. at 662. We

suspended his license for one year with no possibility of reinstatement.

Id. at 663.

       Iowa Supreme Court Attorney Disciplinary Board v. Powell involved

an attorney who “basically ignored the rules and procedures for

maintaining a trust account over a prolonged period of time.”               830

N.W.2d 355, 357 (Iowa 2013).            Client funds were deposited into the

attorney’s operating account, the attorney frequently paid funds to

himself when he needed money before the fees were actually earned, and
                                     22

the attorney failed to adequately manage the bookkeeping practices of

the firm. Id. Because of a $43,000 trust account shortage, we had to

temporarily suspend the attorney and appoint a trustee to take control of

the attorney’s trust account. Id. at 356. Although no client funds were

ultimately lost, there were “years of utter disregard by Powell for the trust

fund rules and practices.”       Id. at 359.     Powell also had a prior

disciplinary record. Id. at 356. We did take into account the attorney’s

prior seven-month interim suspension and ultimately imposed an

indefinite suspension with no possibility of reinstatement for three

months. Id. at 359–60.

      In Parrish, a sixty-day suspension was considered the appropriate

sanction for an attorney who “withdrew funds from his trust account

before they were earned, failed to promptly notify his clients of the

withdrawals, did not earn the amounts withdrawn, and did not return

the remainder of funds upon request.”        Parrish, 801 N.W.2d at 583.

Parrish’s disciplinary history included six private admonitions, all of

which related to a “failure to provide an itemization of services provided,”

and at least two of which involved withdrawal of funds in excess of the

fees earned.   Id. at 589.   We concluded the attorney’s conduct over a

period of ten years had “developed into a pattern of violating the Iowa

Rules of Professional Conduct and the rules of this court relating to the

administration of trust accounts.” Id. The refusal or inability to return

client funds was considered an aggravating factor, while the attorney’s

taking responsibility for his actions, taking steps to correct the

accounting issues, community involvement, and pro bono work were

considered mitigating factors. Id.

      We believe this case warrants a stiffer sanction than we imposed in

Kersenbrock, Sunleaf, or Boles.      Unlike those attorneys, Ricklefs was
                                         23

given a second chance after the 2008 audit but did not mend his ways.

And some of the mitigating circumstances present in those cases are

absent here. Ricklefs tried to delay and deflect the investigation of his

trust account practices virtually up until the December 2013 disciplinary

hearing.

      At the same time, the sum total of violations in this case is not

comparable to what happened in Hall or Clarity. There is no indication

that the quality of Ricklefs’s legal work for his clients was ever

compromised.        Unlike those two cases, this case involves purely trust

account violations and related misrepresentations.

      Parrish and Powell are closer parallels to this case.           Ricklefs’s

refusal to correct his trust account practices for years after he was

informed of his deficient recordkeeping is similar to what transpired in

Parrish, where the attorney did not modify his inadequate trust account

and billing practices despite several private admonitions, and Powell,

where the attorney basically ignored proper trust account procedures for

years. One could argue that Parrish and Powell are more egregious than

the present case. There the attorneys repeatedly withdrew funds before

they were earned—an arguably more serious matter than running

personal funds through a trust account.              On the other hand, the

misrepresentations in this case could potentially justify a more severe

sanction.    Balancing these considerations, we think the sanction here

ought to be in the range of sanctions imposed in Parrish and Powell.

      In light of all the foregoing, and particularly Ricklefs’s complete

failure to address the problems noted in the 2008 audit, we believe his

license    should    be   indefinitely   suspended   with   no   possibility   of

reinstatement for three months.
                                    24

      VI. Conclusion.

      We suspend Ricklefs’s license to practice law in this state with no

possibility of reinstatement for three months from the date of the filing of

this opinion. This suspension shall apply to all facets of the practice of

law. See Iowa Ct. R. 35.13(3). Ricklefs must comply with the notification

requirements of Iowa Court Rule 35.23.              Upon application for

reinstatement, Ricklefs shall have the burden to show that he has not

practiced law during the period of suspension and that he meets the

requirements of Iowa Court Rule 35.14. The costs of this proceeding are

assessed against Ricklefs pursuant to rule 35.27(1).

      LICENSE SUSPENDED.
