               IN THE SUPREME COURT OF IOWA
                             No. 09–1445

                          Filed May 14, 2010


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

ROSS G. HAUSER,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance     commission   recommends    attorney‟s   license   be

suspended for nine months. LICENSE SUSPENDED.



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

complainant.



      Ross G. Hauser, Cedar Rapids, pro se.
                                     2

WIGGINS, 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 brought a

complaint against the respondent, Ross G. Hauser, alleging multiple

violations of our ethical rules based on his neglect of a client matter.

After a hearing, the grievance commission recommends we suspend

Hauser‟s license to practice law in Iowa indefinitely with no possibility of

reinstatement for nine months. Upon our de novo review, we concur the
respondent violated our ethical rules and suspend his license to practice

law indefinitely with no possibility of reinstatement for six months.

      I. Scope of Review.

      This court reviews lawyer disciplinary proceedings de novo. Iowa

Supreme Ct. Att‟y Disciplinary Bd. v. Dull, 713 N.W.2d 199, 201 (Iowa

2006).   The board‟s burden to prove disciplinary violations is by a

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

Disciplinary Bd. v. Marks, 759 N.W.2d 328, 330 (Iowa 2009).               A

convincing preponderance of the evidence is “ „less than proof beyond a

reasonable doubt, but more than the preponderance standard required

in the usual civil case.‟ ”   Iowa Supreme Ct. Att‟y Disciplinary Bd. v.

D‟Angelo, 710 N.W.2d 226, 230 (Iowa 2006) (quoting Iowa Supreme Ct.

Bd. of Prof‟l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

Weight is afforded the commission‟s findings, but we are not bound by

them. Marks, 759 N.W.2d at 330.

      II. Background Facts and Prior Proceedings.

      Hauser has been practicing law in the state of Iowa for the past
twenty-three years.    During this period of time, the respondent has

received a series of private admonitions, public reprimands, and
                                     3

suspensions.       Beginning in 1988, we have privately admonished him

twice for neglect of legal matters and failure to respond to the board‟s

inquiries. We have publicly reprimanded him three times for neglect of

client matters, failure to respond to the board‟s inquiries, and failure to

return a retainer.     Finally, we have suspended his license five times

between October 2005 and June 2009 for failing to comply with the rules

of the Commission on Continuing Legal Education, failing to comply with

the rules of the Client Security Commission, and failing to respond to the

board‟s inquires.
      This current disciplinary action involves Hauser‟s handling of a

dissolution action.     In 2005 the respondent was retained by Ricky

Clemens to represent Clemens in his dissolution-of-marriage case.        At

the start of the representation, Clemens gave the respondent a $1000

retainer.

      Initially,    Hauser   appeared    to   be   providing    appropriate

representation to his client. He filed an answer to Clemens‟ now ex-wife‟s

dissolution petition and participated in obtaining an agreement on

temporary matters and a pretrial statement. On February 26, 2006, he

attended a mediation session with his client and the opposing party.

Thereafter, however, Hauser did not file any further pleadings or motions

on Clemens‟ behalf.      On July 5, 2006, the respondent and his client

failed to appear at the scheduled trial on the dissolution petition, and the

court entered a default decree. Hauser had not notified Clemens of the

trial date, and Clemens was not aware the trial had occurred until he

received a copy of the dissolution decree in the mail.

      After receiving the decree, Clemens placed numerous telephone
calls to Hauser, which Hauser failed to return. Clemens then employed

another attorney who motioned the district court to get the default
                                         4

judgment set aside. On August 31, 2006, the district court entered an

order denying the motion.     Clemens did not appeal.         He subsequently

filed a complaint against Hauser with the board.

      On April 8, 2008, the board sent Hauser a letter, seeking

information on Clemens‟ complaint.             Hauser never responded.          On

May 14, 2009, the board filed a one-count complaint against Hauser,

alleging   the   respondent   violated       numerous   ethical    rules   in   his

representation of Clemens.       Specifically, the board alleged Hauser

committed ethical violations by ceasing to work on his client‟s case
without taking the proper steps to withdraw; failing to adequately

communicate with his client; failing to notify his client of the trial date;

failing to attend the trial, resulting in a default judgment against his

client; failing to furnish his client with a timely and complete accounting

regarding earned fees; and failing to respond to a request for information

from the board. These acts, the board alleged, established violations of

Iowa Rules of Professional Conduct 32:1.1, requiring a lawyer to provide

competent representation to a client; 32:1.3, requiring a lawyer to act

with reasonable diligence and promptness in representation; 32:1.4,

requiring a lawyer to keep his client reasonably informed and to promptly

comply with reasonable requests for information; 32:1.15, requiring a

lawyer to render a full accounting of client property in his possession;

32:1.16(d), requiring a lawyer, upon withdrawal from representation, to

take appropriate steps to protect his client‟s interests and to return any

unearned fees; 32:8.1(b), requiring a lawyer to respond to lawful

demands for information from the board; and 32:8.4(a) and (d), holding it

is misconduct for a lawyer to violate an ethical rule and to engage in
conduct prejudicial to the administration of justice.             The board also

asserted Hauser violated Iowa Court Rule 45.7, which requires a lawyer
                                     5

to notify his client of the withdrawal of advance fees from the client‟s

trust account.

      Hauser failed to respond to the board‟s complaint, and therefore,

the commission deemed the allegations admitted. Hauser subsequently,

however, responded to a motion to compel discovery. Based upon the

information contained in Hauser‟s responses, the board moved to amend

its complaint to include an additional allegation of trust account

violations due to the respondent‟s failure to keep trust account records

with respect to the advance fee he received from Clemens. See Iowa R.
Prof‟l Conduct 32:1.15(c) (“A lawyer shall deposit into a client trust

account legal fees and expenses that have been paid in advance, to be

withdrawn by the lawyer only as fees are earned or expenses incurred.”);

Iowa Ct. R. 45.2(2) (“A lawyer shall maintain complete records of all

funds . . . of a client coming into the lawyer‟s possession and regularly

account to the client for them.”).       In an order granting the board‟s

request to amend, the commission noted its prior order holding the

initial allegations admitted, but the subsequent allegation was not

deemed admitted, and Hauser would be permitted to present evidence on

this allegation.

      A hearing was held on September 1, 2009, before a division of the

commission.        Because the majority of the allegations were deemed

admitted, the board presented the testimony of Ricky Clemens for the

limited purpose of considering the appropriate sanction.       The focus,

therefore, was on what harm, if any, Clemens sustained from Hauser‟s

representation.
                                         6

       Clemens testified the divorce decree ordered him to pay $560.55

per month in child support.1 This, he contended, was based upon the

child support guidelines worksheet submitted by his ex-wife, which listed

Clemens‟ annual income at $42,785.             Clemens, however, claimed his

annual income was $25,600 in 2006 and $29,100 in 2005.                     No child

support worksheet had been submitted to the district court by Clemens

or by Hauser on Clemens‟ behalf, and Clemens did not present any

evidence in the form of income tax returns. Clemens also asserted his

ex-wife‟s child support worksheet erroneously understated the monthly
premium he paid for health insurance. Based upon these alleged errors,

Clemens believed his child support was set too high.

       As previously noted, Clemens‟ attempt to get the default decree set

aside was unsuccessful. In December 2006 Clemens developed serious

medical problems and was unable to work for approximately four

months. At that time, he hired a third attorney who was successful in

getting his child support obligation modified as of July 2007. Clemens

believed Hauser‟s failure to properly represent him resulted in his

receiving an excessive child support obligation, which in turn required

him to hire different counsel, necessitating additional attorney fees. In

addition, Clemens testified he never received an accounting of the $1000

he paid to Hauser or any refund of any unearned fees from Hauser.

       Hauser testified on his own behalf. He acknowledged his neglect of

the Clemens dissolution matter. In his defense to the allegation of trust

account violations, Hauser submitted three check stubs as evidence of

his depositing Clemens‟ $1000 advance fee payment into his client trust


       1This amount was forty dollars more per month than the temporary support set
by the court. There is no indication in the record that Clemens or Hauser objected to
the temporary support award.
                                           7

account and of his subsequent withdrawals of $400, $300, and $100 in

payments to himself for legal services rendered. The last withdrawal was

dated October 21, 2005. The records do not show, however, how Hauser

earned the fees withdrawn. Upon questioning, he admitted he could not

locate any trust account ledger that may have been kept in this case, but

stated it was his practice to keep such a ledger.

      Hauser also testified to his lengthy history of alcohol abuse. He

acknowledged his alcohol use could have played a factor in prior

disciplinary actions brought against him as well as this one. In the time
leading up to Clemens‟ trial, early 2006, Hauser asserted he was not in

control of his drinking. During this time, he underwent a short period of

self-committal followed by extensive participation in the Alcoholics

Anonymous (AA) program. Although he was able to maintain sobriety for

over eighteen months, Hauser admitted he resumed drinking in January

2008. Hauser testified he has been sober since May 29, 2009, and is

committed to sobriety. He has been attending AA meetings on a regular

basis. He acknowledged clients would suffer if he resumed drinking and

agreed the public needs to be protected from this. His failure to respond

to the board‟s inquiries, he contended, was due to the fact that he

wanted to address his alcohol abuse first before dealing with the ethics

complaint.    Hauser called no other witnesses, but he did try to admit

three letters of support, which the commission rejected due to his failure

to timely present his character evidence by sworn affidavit as required by

Iowa Court Rule 36.14.

      The commission concluded the respondent committed the ethical

violations alleged by the board. It also concluded the respondent was
currently    unfit   to   practice   law       as   evidenced   by   his   ineffective

representation of himself before the commission. In addition to failing to
                                     8

produce complete records regarding his trust account, the commission

noted Hauser failed to follow the rules to allow the admission of letters of

support into evidence. Finally, in considering an appropriate sanction,

the commission found mitigating as well as aggravating circumstances.

It found the respondent‟s presently sober and candid acknowledgement

of the harm caused to his client to be a mitigating factor, while his

numerous prior disciplinary actions and the financial harm caused to his

client were aggravating factors.         Based upon these findings, the

commission recommended Hauser‟s license to practice law be suspended
indefinitely with no possibility of reinstatement for nine months. It also

recommended three conditions be placed upon any application for

reinstatement:    (1) reimbursement of Clemens‟ $1000 advance fee,

(2) Hauser must be evaluated by a licensed health care professional who

verifies his fitness to practice law, and (3) Hauser must furnish evidence

that he will associate with an experienced attorney who can monitor his

practice of law to ensure Hauser is not allowing alcoholism to affect his

practice.

      III. Misconduct and Ethical Violations.

      We agree with the commission the board established by a

convincing preponderance of the evidence Hauser neglected his client‟s

dissolution case, failed to keep his client informed, failed to properly

safeguard and appropriately withdraw his client‟s funds, failed to

appropriately withdraw from representation, failed to properly maintain

trust account records, failed to provide an accurate accounting to his

client and to return unearned fees to his client, and failed to respond to

the board‟s inquires. We also agree, with one exception, these actions
establish violations of the previously enumerated ethical rules. See Iowa

Rs. of Prof‟l Conduct 32:1.3; 32:1.4; 32:1.15(c); 32:1.16(d); 32:8.1(b);
                                    9

32:8.4(a), (d); Iowa Ct. Rs. 45.2(2), .7. We disagree, however, that there

was   clear   and   convincing   evidence   Hauser‟s   conduct   evidenced

incompetence. See Iowa R. Prof‟l Conduct 32:1.1 (requiring a lawyer to

provide competent representation to a client).

      To establish incompetence, the board is required to show the

attorney (1) “did not possess the necessary legal knowledge and skill to

complete the tasks” or (2) “had not made a competent analysis of the

factual and legal elements of the problem[].”     Iowa Supreme Ct. Att‟y

Disciplinary Bd. v. Hoglan, 781 N.W.2d 279, 285 (Iowa 2010).       In this
case, Clemens does not assert Hauser‟s representation, up until the time

of the mediation, had been neglectful or in any other way inadequate.

Thereafter, the evidence supports the conclusion that, due to his

struggles with alcohol, Hauser abandoned his client and his client‟s case.

While this is certainly evidence of serious neglect and numerous rules

violations, it is not evidence of incompetence as defined under our rules.

Therefore, we conclude the board failed to prove by a convincing

preponderance of the evidence attorney incompetence.

      IV. 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, 781 N.W.2d

263, 270 (Iowa 2010). In determining the 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 also consider mitigating and aggravating
                                    10

circumstances.   Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774

N.W.2d 301, 308 (Iowa 2009).

      The primary underlying ethical violation in this case is severe

neglect, which eventually resulted in a total abandonment of the client.

Sanctions for neglect have “typically ranged from a public reprimand to a

six-month suspension.”     Hoglan, 781 N.W.2d at 286.        “ „Often, the

distinction between the punishment imposed depends upon the existence

of multiple instances of neglect, past disciplinary problems, and other

companion violations.‟ ”    Marks, 759 N.W.2d at 332 (quoting Iowa
Supreme Ct. Att‟y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106

(Iowa 2006)).

      In this case, Hauser‟s neglect and abandonment of his client is

compounded by the fact that Hauser made no attempt to notify Clemens

of his decision to abandon representation so that Clemens could engage

new counsel and avoid having a default decree entered against him. See

Iowa Supreme Ct. Att‟y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502

(Iowa 2008) (noting abandonment prior to performing the contracted

legal services resulted in failure to meet the lawful objectives of the

client). These actions were clearly harmful to his client. His failure to

timely return his client‟s paperwork or refund any unearned portion of

the advance fee was also harmful to his client. Id.

      Hauser‟s trust account violations are also a serious matter. See

Iowa Supreme Ct. Att‟y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 287–

88 (Iowa 2009). In the past, the sanction for failure to properly deposit,

to properly account for, and to appropriately return unearned advance

fees has ranged from a public reprimand, see Iowa Supreme Ct. Bd. of
Prof‟l Ethics & Conduct v. Herrera, 560 N.W.2d 592, 594–95 (Iowa 1997),

to a suspension, see Iowa Supreme Ct. Att‟y Disciplinary Bd. v. Earley,
                                     11

729 N.W.2d 437, 444 (Iowa 2007) (Earley I), to a revocation, see D‟Angelo,

710 N.W.2d at 236–37.       In cases warranting a more severe sanction,

additional infractions or other aggravating circumstances were present.

See Earley I, 729 N.W.2d at 443–44 (neglect resulting in harm to clients,

failure to return client‟s property, trust account violations, and prior

reprimand warranted four-month suspension); D’Angelo, 710 N.W.2d at

236–37 (multiple and serious violations, including deliberate conversion

of client funds demands revocation of lawyer‟s license); Iowa Supreme Ct.

Bd. of Prof‟l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 477–78 (Iowa
2003) (illegal fee contract, trust account violations, neglect of client

matter, failure to cooperate with board, and prior admonition warranted

four-month suspension).      In this case, Hauser‟s abandonment of his

client, his prior extensive history of ethical infractions, and his failure to

timely and appropriately respond to the board‟s inquiries, combined with

his trust account violations, warrants the imposition of a more serious

sanction. See Wagner, 768 N.W.2d at 287.

      In fashioning an appropriate sanction, we also consider any

mitigating circumstances.     We have repeatedly held that, “[w]hile . . .

illnesses do not excuse [attorney] misconduct, they can be mitigating

factors and can influence our approach to discipline.”       Carpenter, 781

N.W.2d at 271; accord Hoglan, 781 N.W.2d at 287; Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa 2008).

Hauser candidly admits that he is an alcoholic and further acknowledges

that his clients will suffer if he resumes drinking.     At the time of the

hearing, the respondent testified to his current sobriety and his

involvement with AA, but offered no significant testimony about any prior
treatment or any evidence that he is currently seeking professional

assistance with his alcoholism.        The only evidence of professional
                                    12

treatment is contained in Hauser‟s response to interrogatories, in which

Hauser stated he was diagnosed in August 2009 as being alcohol

dependent. To the extent Hauser acknowledges his alcoholism and has

taken steps to address it through attendance at AA meetings, we

consider these acts in fashioning an appropriate sanction. However, we

are mindful that our primary goal is not to punish the attorney, but “ „to

protect the public . . . from lawyers rendered unfit from any cause.‟ ”

Dull, 713 N.W.2d at 207 (quoting Comm. on Prof‟l Ethics & Conduct v.

Paulos, 410 N.W.2d 260, 261 (Iowa 1987)).
      V. Disposition.

      We have carefully considered Hauser‟s current violations, his prior

history of ethical infractions, and his current fitness to practice law and

conclude the respondent‟s license to practice law should be suspended

indefinitely with no possibility of reinstatement for six months. Prior to

any application for reinstatement, the respondent must provide this

court with an evaluation by a licensed health care professional verifying

his fitness to practice law. In addition, as a condition of reinstatement,

Hauser must confirm that he has accounted to Clemens for the advance

fees paid to him and that he has refunded any unearned fees. See Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kennedy, 684 N.W.2d 256,

261 (Iowa 2004).    If he is unable to provide adequate trust account

documentation, we hold the full retainer must be returned.

      We decline, however, to impose a commission recommendation

that the respondent, prior to application for reinstatement, furnish this

court with evidence that “he will associate with an experienced lawyer

who can monitor his practice of law to ensure [the respondent] is not
allowing his alcoholism to affect his practice and is attending to his

cases.” As we have stated in prior cases, “ „neither the court nor the bar
                                     13

has effective machinery in place for such supervision.‟ ”     Hoglan, 781

N.W.2d at 287 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kirlin,

741 N.W.2d 813, 819 (Iowa 2007)). Requiring the respondent to provide

medical documentation of his fitness to practice law more appropriately

addresses this issue.

        This suspension applies to all facets of the practice of law.   See

Iowa Ct. R. 35.12. Upon any application for reinstatement, Hauser must

establish that he has not practiced law during the suspension period and

that he has in all ways complied with the requirements of Iowa Court
Rule 35.13 and has provided the required notification of clients as

outlined in Iowa Court Rule 35.22.          Prior to any application for

reinstatement, Hauser must provide the board with an evaluation by a

licensed health care professional verifying his fitness to practice law. In

addition, he must also submit documentation that he has refunded any

unearned fees. Costs are taxed to Hauser pursuant to Iowa Court Rule

35.26.

        LICENSE SUSPENDED.

        All justices concur except Ternus, C.J., and Baker, J., who take no

part.
