              IN THE SUPREME COURT OF IOWA
                              No. 18–0535

                        Filed September 21, 2018


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

DENNIS R. MATHAHS,

      Respondent.


      On review of the report of the Iowa Supreme Court Grievance

Commission.



      The grievance commission recommends we suspend an attorney’s

license to practice law in this state based on the attorney’s charging and

collecting of excessive fees and his failure to supervise his nonlawyer

employee. LICENSE SUSPENDED.



      Tara van Brederode and Wendell J. Harms, for complainant.


      Leon F. Spies of Spies, Pavelich & Foley, Iowa City, for respondent.
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WIGGINS, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against an attorney, alleging numerous violations of the Iowa

Rules of Professional Conduct while the attorney performed legal services

for the Iowa State Public Defender (SPD). A panel of the Iowa Supreme

Court Grievance Commission found that the attorney’s conduct violated

our rules.

      Based on the attorney’s violation of our rules, the commission

recommended we suspend his license to practice law in this state for

forty-five days. On our de novo review, we find the attorney violated the

provisions of our rules.    We disagree, however, with the length of the

recommended suspension. We suspend the attorney’s license to practice

law in Iowa for sixty days from the date of the filing of this opinion.

      I. Scope of Review.

      We review attorney disciplinary proceedings de novo.                Iowa

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

2013).    The Board must prove ethical violations by a convincing

preponderance of the evidence. Id. at 368. A convincing preponderance

of the evidence lies between the typical preponderance standard in a civil

case and proof beyond a reasonable doubt in a criminal case.              Iowa

Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 522 (Iowa

2017).   We may impose a greater or lesser sanction than what the

commission has recommended upon proof of an ethical violation. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d 659, 662 (Iowa

2017). The commission’s findings and recommendations do not bind us,

although we respectfully consider them. Id.
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      II. Background Facts and Proceedings.

      On June 23, 2017, the Board filed a complaint against Dennis

Mathahs alleging a number of violations of the Iowa Rules of Professional

Conduct. On August 28, the Board filed a recasted complaint alleging

the same rule violations. On September 13, Mathahs filed a motion to

dismiss, claiming the doctrine of laches.    Specifically, Mathahs argued

the Board delayed for more than four years in bringing its complaint

after he had self-reported his misconduct in April 2013 and such delay

unduly prejudiced his ability to defend himself.        The Board resisted

Mathahs’s motion to dismiss, arguing the delay was reasonable.        The

commission overruled Mathahs’s motion to dismiss.          The Board then

filed an amended recasted complaint alleging the same rule violations

that the Board had alleged in its original complaint.

      On December 29, the Board and Mathahs entered into a joint

stipulation pursuant to Iowa Court Rule 36.16. In the stipulation, the

parties agreed to the relevant facts and the rule violations. The parties

also agreed to waive a formal hearing.         On January 5, 2018, the

commission approved and accepted the stipulation with the condition of

commencing a hearing as scheduled on January 10, for the purpose of

admitting evidence regarding the appropriate sanction for the agreed

upon violations of rule 32:1.5(a) and 32:5.3(b).

      Stipulations of facts bind the parties. Iowa Ct. R. 36.16(2); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 532 (Iowa

2013).   We construe such stipulations “with reference to their subject

matter and in light of the surrounding circumstances and the whole

record, including the state of the pleadings and issues involved.” Nelson,

838 N.W.2d at 532 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Knopf, 793 N.W.2d 525, 528 (Iowa 2011)). With stipulations conceding
                                      4

rule violations, however, “we will only enforce the stipulation[s] if there is

sufficient legal consideration.”   Id.    Based on the stipulations of the

parties and our de novo review of the record, we make the following

findings of fact.

      Mathahs has practiced law in Iowa since 2001. Upon obtaining his

law license, Mathahs has practiced mostly from an office in Marengo.

Although he practiced with a firm for a brief period after becoming an

attorney, Mathahs has been in a solo practice for most of his career.

      In October 2001, the SPD and Mathahs entered into a contract

whereby Mathahs would provide legal services to indigent adults and

juveniles in certain Iowa counties. The contract initially specified that

Mathahs would provide services in seven counties. Through a series of

renewals, the geographic scope increased to as many as nineteen

counties. Mathahs testified his SPD work eventually constituted more

than ninety-nine percent of his practice. The parties agree Mathahs was

very busy and performed his representation of indigents and juveniles

satisfactorily. Mathahs continued in this line of work until the expiration

of his most recent contract with the SPD on May 1, 2013. Since that

time, Mathahs has not been under contract with the SPD.

      To receive payment from the SPD for his services, Mathahs was

required to submit General Accounting Expenditure (GAX) forms to the

SPD detailing the dates, specific services performed, and the amount of

time for each service. Mathahs was also required to submit itemization

of expenses, including mileage. The GAX form requires the submitter to

certify the following:

            I, the undersigned attorney, certify that I have
      completed my services under the appointment; that I have
      not received nor have I entered into any agreement to receive
      compensation for these services, direct or indirect, from any
                                    5
      source other than the State Public Defender; and that the
      above information summarizes the services and expenses for
      which I am entitled to payment. I further state that an
      itemized statement of services and expenses is attached
      hereto and a copy has been provided to my client.

At least two SPD employees review each GAX form before approving it.

      On March 1, 2013, Samuel Langholz from the SPD wrote to

Mathahs about his concerns over the accuracy of the hours and mileage

expenses recorded on Mathahs’s GAX forms.           Langholz wrote that

Mathahs had claimed more than 3000 hours and had received more than

$180,000 in fiscal year 2010 (July 1, 2009, to June 30, 2010).

      Langholz and Mathahs met on March 7 to discuss the matter. On

March 24, Mathahs wrote to Langholz to explain the inaccuracies and

discrepancies in his GAX forms. After acknowledging he had signed the

GAX forms and accepting responsibility for the incorrect information,

Mathahs explained how the errors had occurred.

      With regard to the excessive hours, Mathahs explained it was the

result of inattentiveness on the part of his legal secretary.    Mathahs

attributed his secretary’s inattentiveness to the brutal murder of her ex-

husband.   He stated he could not fire her because her ex-husband’s

death had ended child support and left her with no income.

      Mathahs further explained he had instructed his secretary as to

her duties by dictation on cassette tapes and had told her to work from

the dictation sequentially.   Each tape contained information regarding

not only billings but also all correspondence, motions, reports to the

court, and other matters. She would listen to the tapes and transcribe

the correspondence, motions, and reports but would put the billing off

until later. She would then go back and listen to the same tapes, fast-

forwarding through the correspondence, motions, and reports she had

already completed to get to the parts about billing. Because she skipped
                                     6

around when transcribing the dictation, she would bunch together time

from many different dates into one date instead of recording the time as

hours spent over the course of many days. According to Mathahs, after

becoming aware of her mistakes, he told her to stop skipping around, but

she failed to comply. The secretary also haphazardly entered the dates of

service, and thus the dates of service on the GAX forms often did not

correspond to the dates Mathahs had done the actual work.

      With regard to the excessive mileage expenses, Mathahs explained

that beginning in 2009, he made single trips for several clients and

erroneously billed each client for the total mileage.

      On April 23, Langholz rejected Mathahs’s explanation of his fee

reimbursement claims based on the number of hours Mathahs had

allegedly   worked    and    Mathahs’s     explanation   of   his   mileage

reimbursement claims.        On April 26, Mathahs self-reported his

misconduct in a letter to the Board. The Board received the letter on

April 29.

      On September 23, 2015, after investigating the overpayments by

the SPD to Mathahs, the attorney general’s office informed the SPD that

the Iowa Department of Justice and Division of Criminal Investigation

found no provable evidence of intent to steal or defraud, and Mathahs’s

explanations were contrite and did not contradict any documentary

evidence.

      Based on Mathahs’s misconduct, the Board filed a complaint,

alleging a number of violations of the Iowa Rules of Professional Conduct.

Relevant to this appeal are rules 32:1.5(a) (unreasonable fees or

expenses) and 32:5.3(b) (lack of supervision over a nonlawyer employed

by a lawyer).    On January 5, 2018, the commission approved and

accepted the stipulation with the condition of commencing a hearing as
                                       7

scheduled.     The commission held the hearing on January 10.             On

March 27, the commission entered its findings of fact, conclusions of

law, and recommendations.         The commission found Mathahs violated

rules 32:1.5(a) and 32:5.3(b).

      Mathahs did not appeal but submitted a statement regarding

sanctions, asserting that a suspension greater than fifteen days was

unwarranted.    See Iowa Ct. R. 36.21.       We discuss additional facts as

necessary.

      III. Laches.

      Laches     constitutes     “an   ‘equitable   doctrine   premised   on

unreasonable delay in asserting a right, which causes disadvantage or

prejudice to another.’ ”       See Comm. on Prof’l Ethics & Conduct v.

Wunschel, 461 N.W.2d 840, 846 (Iowa 1990) (quoting First Fed. Sav. &

Loan Ass’n v. Blass, 316 N.W.2d 411, 414 (Iowa 1982)).            “Prejudice

‘cannot be inferred merely from the passage of time.’ ”          Id. (quoting

Cullinan v. Cullinan, 226 N.W.2d 33, 36 (Iowa 1975)).          The party so

contending carries the burden of proving prejudice by clear and

convincing evidence. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Mulford, 625 N.W.2d 672, 680 (Iowa 2001).

      We have stated, “Some, but not all, jurisdictions that have

considered the question [of laches] allow a lawyer to assert such a

defense in a disciplinary proceeding.” See Wunschel, 461 N.W.2d at 846.

Iowa is one of the jurisdictions that so allow. See id. (applying the rules

applicable to the laches defense to the facts of the case and finding the

attorney could not prevail on this theory because his presented evidence

failed to establish the requisite prejudice).

      Our review of the parties’ stipulation reveals no evidence to

support allegations of prejudice. See Iowa Supreme Ct. Att’y Disciplinary
                                     8

Bd. v. Wintroub, 745 N.W.2d 469, 476 (Iowa 2008) (finding the attorney

made only generalized arguments that he had been prejudiced); Mulford,

625 N.W.2d at 680 (finding the attorney failed to prove prejudice by clear

and convincing evidence).

      Additionally, Iowa Court Rule 36.21 provides,

      If no appeal is taken . . . the supreme court will set a date for
      submission of the grievance commission report.               The
      supreme court will notify the parties that they may file
      written statements with the supreme court in support of or
      in opposition to the discipline the grievance commission
      recommends. . . . Upon submission, the supreme court will
      proceed to review de novo the record made before the
      grievance commission and determine the matter without oral
      argument or further notice to the parties.

Iowa Ct. R. 36.21. According to this rule, we only review the commission

report and the record made before the commission. Id. There is nothing

in the report regarding laches.    Furthermore, Mathahs did not appeal

under rule 36.22 the laches ruling overturning his motion to dismiss.

Accordingly, we will not consider the laches issue any further.

      IV. Ethical Violations.

      A. Prohibition Against Unreasonable Fees—Rule 32:1.5(a).

This rule provides, “A lawyer shall not make an agreement for, charge, or

collect an unreasonable fee or an unreasonable amount for expenses, or

violate any restrictions imposed by law.”         Iowa R. Prof’l Conduct

32:1.5(a). The rule lists specific factors in determining whether a fee is

unreasonable; however, the factors “are not exclusive[,]” and the fees

charged must be “reasonable under the circumstances.” Id. cmt. 1.

      The Board used three frames of reference to show that Mathahs

improperly billed the SPD. First, from November 18, 2008, to March 2,

2011, Mathahs double-billed 25.4 hours for his representation of five

clients. These hours do not include travel. At a contract rate of $60 per
                                       9

hour, these hours amount to an overpayment of $1524. Second, from

July 1, 2009, through June 30, 2011, Mathahs claimed duplicate

mileages totaling 20,206 miles, which at thirty-five cents per mile would

amount to $7072.10. Third, during fiscal year 2010, Mathahs claimed

$186,219 in fees (3103.65 hours multiplied by $60) and $15,788.85 for

mileage expenses (45,111 miles multiplied by thirty-five cents).            The

Board argued billing more than 3000 hours in a twelve-month period

was not believable.

        The stipulation shows Mathahs agreed that he double-billed the

five clients.    Furthermore, Mathahs’s mileage expense claims from

July 1, 2009, through June 30, 2011, far exceed what Mathahs could

reasonably claim. In his April 23, 2013 letter, Langholz wrote,

               You regularly billed multiple clients for the full mileage
        to the same location on the same day. And on some of these
        days[,] you also billed mileage to multiple other locations as
        well, often billing for the full trip to each location even when
        you took only a single trip. On two days[,] you billed more
        than [1000] miles . . . . On twenty-six days, you claimed
        mileage expenses for three or more trips to the same county
        courthouse in the same day. And on four occasions, you
        billed the same client twice for the same trip to the same
        courthouse in different cases.

Mathahs had a reasonable claim to receive compensation for the

expenses incurred to make a work-related trip; however, he did not have

a reasonable claim to receive compensation multiple times for the

expenses incurred for the same trip.

        Additionally, we agree with the commission that although the

Board presented no evidence by which the commission could determine

the validity of the hours claimed, the total number of hours that Mathahs

claimed to have worked on SPD work alone during FY 2010 is unusually

high.    At the commission hearing, Mathahs explained the inordinate

number of hours for which he was paid resulted from receiving
                                   10

compensation for time that he had logged in previous years when the

cases lasted more than one year but had not been billed until the case

was finished.

      For the very reason that attorneys could bill longer cases upon

completion, Langholz also looked at the claims data. Specifically, in his

April 23 letter, Langholz detailed the number of hours Mathahs had

billed on certain days. On at least sixty-nine days, Mathahs had billed

more than sixteen hours in the day. These days included six days in

which Mathahs had billed more than twenty-four hours and twenty days

in which he had billed twenty hours or more. Langholz wrote, “Your time

records do not reflect that the surrounding days were unusually low as

would be expected if these high billing days were merely the result of

data entry errors.” Langholz further wrote, “And the aggregate billing of

[3000] hours in one calendar year further casts doubt on [your]

explanation [of careless data entry by the secretary].”    Based on his

investigation, Langholz concluded it was not appropriate to renew

Mathahs’s contract with the SPD. We think the time records in tandem

with the excessive hours claimed in FY 2010 show that Mathahs

unreasonably billed the SPD.

      Finally, Mathahs conceded he billed the SPD for excessive hours

and mileage and reimbursed the state for some of the excessive fees and

mileage expenses he billed. Based on the record, we conclude the Board

proved by a convincing preponderance of the evidence that Mathahs

violated rule 32:1.5(a).

      B. Responsibilities   Regarding    Nonlawyer    Assistance—Rule

32:5.3(b). This rule provides,

            With respect to a nonlawyer employed or retained by
      or associated with a lawyer:
                                    11
            ....

            (b) a lawyer having direct supervisory authority over
      the nonlawyer shall make reasonable efforts to ensure that
      the person’s conduct is compatible with the professional
      obligations of the lawyer[.]

Id. r. 32:5.3(b). Rule 32:1.0 defines “reasonable” or “reasonably” as “the

conduct of a reasonably prudent and competent lawyer.” Id. r. 32:1.0(h).

      Comment 2 to rule 32:5.3 states in part,

            [2] Lawyers generally employ assistants in their
      practice . . . .    Such assistants, whether employees or
      independent contractors, act for the lawyer in rendition of
      the lawyer’s professional services. A lawyer must give such
      assistants       appropriate instruction  and   supervision
      concerning the ethical aspects of their employment,
      particularly regarding the obligation not to disclose
      information relating to representation of the client, and
      should be responsible for their work product. The measures
      employed in supervising nonlawyers should take account of
      the fact that they do not have legal training and are not
      subject to professional discipline.

Id. r. 32:5.3 cmt. 2. When a nonlawyer makes a mistake that is not a

direct consequence of the attorney’s inattentive supervision, the attorney

does not violate rule 32:5.3. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Dunahoo, 799 N.W.2d 524, 534 (Iowa 2011).

      In Iowa Supreme Court Attorney Disciplinary Board v. Barnhill,

847 N.W.2d 466 (Iowa 2014), we suspended an attorney’s license for

sixty days for violating rule 32:5.3, among other ethics rules. Id. at 481–

82, 488.    We reasoned the attorney knew the office manager had

previously embezzled from the law firm, yet the attorney allowed the

office manager to handle the client’s trust account without reasonable

supervision. Id. at 481. In fact, the attorney authorized and directed the

office manager to pay the client’s bills and sign the attorney’s name on

trust account checks. Id. The office manager completed these actions

without supervision from the attorney. Id.
                                      12

      Like the attorney in Barnhill, Mathahs failed to make reasonable

efforts to ensure his secretary’s conduct conformed to the professional

obligations of a lawyer. He had no other billing system and relied on his

secretary to properly interpret and transcribe his dictation.       Mathahs

knew of her diminished mental state and lack of attentiveness at work

because of her ex-husband’s murder. Yet upon finding billing errors, he

simply instructed her to listen to the dictations sequentially and

continued to allow her to prepare his GAX forms. A reasonably prudent

lawyer in Mathahs’s shoes would have taken more care to ascertain that

his secretary did not repeat her mistakes, especially when she began

working remotely and Mathahs found it difficult to monitor her

compliance with office procedures. Mathahs ultimately failed to ensure

the accuracy of the GAX forms his secretary completed. We conclude the

Board proved by a convincing preponderance of the evidence that

Mathahs violated rule 32:5.3(b).

      V. Sanction.

      In imposing the appropriate sanction, we consider “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

(alteration in original) (quoting Comm. on Prof’l Ethics & Conduct v.

Kaufman, 515 N.W.2d 28, 30 (Iowa 1994)). We also consider mitigating

and aggravating factors.      Id. at 374.   “[W]e look to prior similar cases

while remaining cognizant of their limited usefulness due to the

variations in their facts.”    Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Casey, 761 N.W.2d 53, 62 (Iowa 2009).           We ultimately determine an

appropriate sanction based on the particular facts of each case because

there is no standard sanction for a particular type of misconduct. Iowa
                                   13

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

2011).

      We take Mathahs’s violations seriously.      His lack of adequate

supervision over his secretary resulted in the submission of erroneous

GAX forms. We sanctioned an attorney for sixty days when the attorney

failed to reasonably supervise her employee in violation of rule 32:5.3(b)

among other ethical violations. Barnhill, 847 N.W.2d at 481–82, 488.

      Sanctions for charging and collecting unreasonable fees generally

range from sixty days to two years. See Laing, 832 N.W.2d at 373, 375

(suspending the attorneys’ licenses for eighteen months for charging and

submitting claims for excessive fees in managing their client’s assets,

drafting annual conservator’s reports, and preparing tax returns); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Carty, 738 N.W.2d 622, 624–25

(Iowa 2007) (imposing sixty-day license suspension for accepting the full

probate fee before filing the final report, collecting an illegal and

excessive fee by failing to amend his ordinary fee claim when the gross

value of the estate was reduced, and collecting duplicate fees for

extraordinary services that included ordinary services for which he had

been compensated); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Lane, 642 N.W.2d 296, 297–98, 300–02 (Iowa 2002) (imposing six-month

license suspension when attorney requested excessive attorney fees for

allegedly spending eighty hours to write a brief that he had plagiarized);

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hoffman, 572 N.W.2d

904, 909–10 (Iowa 1997) (imposing six-month suspension when attorney

tried to mislead the commission and the supreme court with untenable

excuses for requesting over $37,000 in attorney fees after spending only

twenty hours on a claim); Comm. on Prof’l Ethics & Conduct v.

Zimmerman, 465 N.W.2d 288, 291–93 (Iowa 1991) (suspending an
                                    14

attorney’s license for six months for submitting an application requesting

legal fees that duplicated nonlegal administrative fees and requesting

fees for 89.75 hours of legal service when in actuality the attorney had

spent only 19.5 hours on preparing legal matters while his legal assistant

spent 39.85 hours on bookkeeping and report preparation); Comm. on

Prof’l Ethics & Conduct v. Coddington, 360 N.W.2d 823, 824–26 (Iowa

1985) (suspending a license for two years when the attorney paid himself

a total of $33,600 from conservatorship funds before district court

approval of the fees and the court only approved $18,600 of those fees).

      We recognized the responsibility of lawyers to avoid billing errors in

connection with SPD contract work in Iowa Supreme Court Board of

Professional Ethics & Conduct v. Tofflemire, 689 N.W.2d 83 (Iowa 2004).

In Tofflemire, an attorney worked fulltime for the Iowa Workforce

Development (IWD) and engaged as a contract attorney with the SPD. Id.

at 86. Upon learning that the attorney earned $97,438 in 2000 for SPD

work, the commissioner of labor initiated an investigation covering the

period from January 1, 2000, through September 15, 2000. Id. at 87.

The commissioner found on twenty-six occasions the attorney took sick

leave from the IWD while claiming to perform SPD work, billed

substantial hours of work to the SPD on days she allegedly worked eight-

or ten-hour days for the IWD, and on some days billed in excess of

twenty-four hours for a given date. Id. The commissioner terminated the

attorney for abusing the IWD sick-leave policy, deliberately falsifying

timesheets, and lying when confronted about the discrepancies. Id. at

88.

      At the commission hearing, the attorney testified she used block-

and-summary billing. Id. at 89. In other words, she would reconstruct

time and billing records for a given case after she completed the work.
                                       15

Id. We agreed with the commission that it was impossible to reconstruct

accurate billing records when a substantial amount of time had passed

since the attorney’s completion of the work.        Id. at 90.   We gave little

faith to her block-and-summary billing explanation because the claims

she had submitted to the SPD did not reflect that system. Id. at 92–93.

Rather,   the   submitted     claims   made    it   appear   that    she    had

contemporaneously made the detailed billings. Id.

      Moreover, the commission showed particular concern regarding

two incidents involving sick leave. Id. at 91. In the first incident, the

attorney claimed nine hours of sick leave with IWD because of an

infected fingernail and billed six hours of work to the SPD. Id. In the

second incident, the attorney claimed sick leave allegedly to attend a

relative’s funeral.   Id.    In both incidents, the attorney made court

appearances on behalf of her SPD clients. Id. The commission found

and we agreed that the timing of the court appearances and the timing of

the sick leaves reflected planning rather than mere coincidence because

the dates of the court appearances had been on the attorney’s calendar

before she claimed sick leave. Id.

      The attorney in Tofflemire not only billed excessive fees but also

altered checks and abused her employer’s sick-leave policy. Id. at 91–92.

Additionally,   she   gave   evasive   and   untruthful   testimony    at   the

commission hearing. Id. at 92. We found her block-and-summary billing

explanation “bogus.” Id. at 93. The attorney also failed to appreciate the

wrongfulness of her actions and in fact maintained she did nothing

wrong. Id. She attempted to shift blame from herself to other persons,

maintaining that her refusal to sign the ethics complaint against the

former deputy commissioner elicited her coworkers at the IWD to

conspire against her. Id.
                                      16

        Furthermore, we took particular issue with the attorney’s “repeated

deception.” Id. at 94. Specifically, the attorney made the claim forms

appear as if she had prepared them contemporaneously, attached false

carbon copies of checks to her claim forms on eight occasions, and

claimed sick leave when in fact she was well enough to perform SPD

work.    Id.   She continued her deception into the hearing.     Id.   After

considering the aggravating and mitigating factors, we suspended the

attorney’s license for two years. Id. at 95.

        The case before us is distinguishable from Tofflemire. Unlike the

attorney in Tofflemire who showed no actual appreciation for her

wrongdoing and blamed her coworkers as having a vendetta against her,

Mathahs recognizes the full extent of his inaccurate billing practices and

takes responsibility for his misconduct. Additionally, in concluding that

a two-year suspension was appropriate in Tofflemire, we highlighted the

attorney’s “repeated deception.” Id. at 94. Notably, in contrast to the

attorney in Tofflemire who gave evasive and untruthful answers, Mathahs

cooperated with the Board’s investigation and was truthful in his

answers. Accordingly, imposing a two-year suspension would be clearly

excessive in light of the facts of this case.

        Carty provides some guidance on the length of the suspension we

ought to impose in this case.       We recognize Carty is a probate case;

however, it involves illegal and excessive fees. 738 N.W.2d at 628. In

Carty, we suspended an attorney’s license for sixty days and ordered him

to repay to the trust the $6165 that he had improperly received. Id. at

625. We observed the attorney had a prior public reprimand and never

took any remedial action to return the excessive ordinary fees and the

duplicate extraordinary fees he had charged and collected. Id. at 622–23,

625. We noted the violations resulted in part from miscommunication
                                    17

between the attorney and his new secretary but concluded this

circumstance did not excuse him from his ethical violations. Id. at 624.

      Deception would undoubtedly compound the nature and extent of

the alleged ethical violations.   See Hoffman, 572 N.W.2d at 909 (“[The

attorney’s] ethical violation in attempting to collect an excessive fee is

compounded by his attempt to mislead the grievance commission and

this court with untenable excuses for seeking such a fee.”); see also

Lane, 642 N.W.2d at 302 (stating “[h]onesty is fundamental to the

functioning of the legal profession” and finding the attorney intended to

deceive when he requested excessive attorney fees for a plagiarized brief);

Zimmerman, 465 N.W.2d at 292–93 (stating the attorney knowingly

misled the court in order to obtain excessive fees and incorporating this

fact as an aggravating factor).

      Unlike in Tofflemire and as in Carty, misrepresentation and

deception are absent from this case. The attorney general’s (AG) office

closed the criminal investigation of Mathahs without filing any charges.

The AG could not find proof beyond a reasonable doubt that Mathahs

intended to steal from or defraud the SPD.      First, the AG found that

Mathahs’s billable hours on an annual average basis were high but

believable. Moreover, it could not locate any billings for events or work

that did not actually occur. Second, the AG stated the circumstances

showed an alternative explanation to intentional theft: Mathahs’s

secretary was responsible for billing based on Mathahs’s dictation. The

AG noted the secretary’s personal life and professional attention had

plummeted during her employment under Mathahs since the murder of

her ex-husband. Third, there appeared to be some relationship between

the murder and the beginning of the duplicate mileage billings. Fourth,

the former secretary had told the new secretary to bill mileage for each
                                     18

client while Mathahs instructed the new secretary to only bill for each

trip.   Fifth, when Mathahs hired the new secretary, excessive mileage

billing declined. The AG therefore found the new secretary’s story about

correcting the billing practice more credible. Thus, the AG concluded the

billing errors appeared much more like accidental and less like

intentional theft.

        Moreover, the parties stipulated that Mathahs did not violate rules

32:8.4(b) and 32:8.4(c) and provided no facts to support a violation of

these rules. Iowa R. Prof’l Conduct 32:8.4(b) (prohibiting a lawyer from

“commit[ting] a criminal act that reflects adversely on the lawyer’s

honesty, trustworthiness, or fitness as a lawyer in other respects”); id. r.

32:8.4(c) (prohibiting a lawyer from “engag[ing] in conduct involving

dishonesty, fraud, deceit, or misrepresentation”).

        Based on the caselaw and the facts of this case, we think a

sanction of sixty days or less may be appropriate. Before deciding on the

exact sanction, we now turn to the mitigating and aggravating factors

present in this case.

        A. Mitigating    Factors.     Mathahs     fully   cooperated   with

investigations by the Board, the SPD, and the Iowa state auditor. See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Qualley, 828 N.W.2d 282, 294

(Iowa 2013) (stating cooperation mitigates the sanction).     For example,

upon Langholz’s request, Mathahs withdrew from his cases.

        The cooperation, however, followed the commencement of the

SPD’s investigation, which made the filing of the Board’s complaint

inevitable.    See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barry,

908 N.W.2d 217, 231 (Iowa 2018) (stating the attorney’s “remorse and

cooperation came on the coattails of the clerk of court’s discovery of his

[wrongdoing]” and “[t]he chronology tends to deflate consideration of
                                        19

remorse and cooperation as mitigating factors.” (quoting Iowa Supreme

Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 467 (Iowa 2014)

(second quote))).     Mathahs self-reported after Langholz expressed his

suspicions   over     the     billing   practices    and   rejected    Mathahs’s

explanations. Although we could give deflated credit to Mathahs’s self-

reporting and cooperation, because of his sincere acceptance of

responsibility, we opt to give him full credit.        Compare id. (finding the

attorney’s ambivalent letter reflected “an oxymoronic, but all too familiar,

combination of self-serving justifications and sincere explanations for his

actions” and giving deflated credit to the attorney for his cooperation),

with Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871 N.W.2d 109,

122 (Iowa 2015) (considering the attorney’s “sincere acceptance of

responsibility as a mitigating factor” (emphasis added)).

      Mathahs       also    acknowledged     his    personal   and    professional

responsibility for the billing errors. See Nelson, 838 N.W.2d at 542 (“An

attorney’s acknowledgment of ethical violations is a mitigating factor.”);

Tofflemire, 689 N.W.2d at 93 (“A mitigating factor is the attorney’s

recognition of some wrongdoing.”); cf. Lane, 642 N.W.2d at 302 (finding

the attorney recognized some wrongdoing yet failed to comprehend the

full extent of his wrongdoing where he intended to deceive by requesting

excessive and unreasonable attorney fees for a plagiarized brief).

      In his March 24 letter to Langholz, Mathahs stated, “I acknowledge

that erroneous claims were filed by my law office. I further acknowledge

that I signed the claims and that I am responsible for any wrong

information contained in the claims.”         Specifically, with regard to the

erroneous dates of service and times, Mathahs stated, “[I]t has always

been my responsibility to ensure the accuracy, prior to the submission of

all fee claims.”     With regard to the erroneous recording of mileage
                                    20

expenses, Mathahs stated, “The problem with the mileage was also my

mistake.” Mathahs’s April 26 letter self-reporting his misconduct to the

Board repeats the aforementioned statements.

      In his personal statement attached to the stipulation, Mathahs

stated, “I acknowledge that I made errors in inadequately supervising my

secretary and signing inaccurate claims.” He expressed sincere remorse,

stating, “I am deeply sorry for failing to adhere to my ethical obligations,

and I have learned profound life lessons as a result.”

      Additionally, the parties stipulated that the allegations in the

complaint do not accurately reflect the high quality of legal services

Mathahs provided to his indigent clients.     See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Box, 715 N.W.2d 758, 766 (Iowa 2006) (stating the

attorney had a reputation as a competent attorney).          Moreover, the

allegations are inconsistent with Mathahs’s normal pattern of care and

concern for the legal profession.   See id. (stating the attorney’s ethical

misconduct was an isolated incident).

      In addition, Mathahs has engaged in community service and pro

bono work for Iowa Legal Aid and the Meskwaki Tribal Court. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Hamer, 915 N.W.2d 302, 326 (Iowa

2018) (considering the attorney’s record of community service as a

mitigating factor); Barnhill, 847 N.W.2d at 486 (same).           After the

termination of his contract with the SPD, Mathahs continued to

represent some of his clients on a pro bono basis.

      Lastly, Mathahs took corrective action to address the billing

irregularities by making voluntary restitution for excessive hours and

mileage expenses and offering to reimburse additional funds to the SPD.

See Barnhill, 847 N.W.2d at 486 (stating “corrective measures to address

previous misconduct are a mitigating factor” and finding the attorney’s
                                    21

institution of practices to help manage her trust account was a

mitigating factor). The record shows that on March 15, 2013, Mathahs

reimbursed the SPD $8664.60 for excessive mileage expenses.            The

record further shows that on May 29, Mathahs reimbursed the SPD

$210.56 for excessive hours.         The record also shows that on

September 15, 2014, Mathahs made an additional payment of $3299.10

to the Iowa Department of Revenue to reimburse the SPD for duplicate

hours and mileage expenses. Based on the record before us, Mathahs

repaid the SPD a total of $12,174.26 for excessive hours and mileage

expenses.

      B. Aggravating Factors. We now turn to the aggravating factors.

In September 2005, Mathahs received a public reprimand for possessing

a small amount of marijuana.        Prior disciplinary action affects the

sanction we ought to impose in a subsequent case involving the same

lawyer. See Hoffman, 572 N.W.2d at 909. We give little weight, however,

to Mathahs’s prior disciplinary action because it is unrelated to the

current misconduct and some time has passed since its imposition. See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 221

(Iowa 2016).

      We also consider the nature and extent of the amount of funds

that Mathahs improperly collected from the SPD. See Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa

2003) (stating the nature and extent of the ethical infractions is a factor

in imposing a suitable sanction).        The amount of overcompensation

Mathahs received from the SPD is not a small amount.

      Additionally, Mathahs’s pattern of misconduct occurred from 2009

to 2011.       See Hamer, 915 N.W.2d at 326 (finding the attorney’s

numerous violations over a period of years reflected a pattern of
                                           22

misconduct); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Gallner,

621 N.W.2d 183, 187 (Iowa 2001) (“Normally, a pattern of misconduct

gives rise to enhanced sanctions.”).              Notably, during this period of

submitting erroneous claims, Mathahs knew of his secretary’s method of

creating the billings, yet he failed to take reasonable remedial action

other than simply instruct her to follow his dictations sequentially and

nothing more.

       Lastly, the SPD and the Board spent numerous hours attempting

to analyze and account for the discrepancies in Mathahs’s GAX forms.

See Barry, 908 N.W.2d at 234 (stating the attorney’s actions caused the

client and the staff of the clerk’s office to expend time and resources to

investigate    the    attorney’s    misconduct       and    considering      this   an

aggravating factor in imposing an appropriate sanction). Even after such

expenditure of time by the SPD and the Board, the commission was

unable to determine from the evidence presented whether Mathahs had

repaid the SPD in full or even overpaid. The commission found fault with

both Mathahs and the SPD for the lack of supporting information and

the lack of adequate tracking of hours and mileage expenses. In his July

24, 2013 letter to the state auditor, Mathahs stated he missed the same

information the SPD missed for the very reason that neither he nor the

SPD had a claims review software. 1                The SPD’s limited accounting

system, however, does not excuse Mathahs from his ethical duties.

       C. Appropriate Sanction.                 After reviewing the record and

considering     the   mitigating     and    aggravating     factors    affecting    our


       1Our    review of the July 24, 2013 letter shows that Mathahs pointed out the
SPD’s limited accounting system to show that his failure to detect the errors on his GAX
forms did not mean he intended to defraud the SPD of its funds. Mathahs was not
trying to shift the blame to the SPD, and we decline to interpret the contents of his
letter as a situation of the pot calling the kettle black in order to shift blame.
                                    23

determination of the appropriate sanction, we suspend Mathahs’s license

for sixty days.

        VI. Disposition.

        We suspend Mathahs’s license to practice law in Iowa for sixty

days from the date of filing this opinion.   Reinstatement of Mathahs’s

license to practice law is automatic on the day after the sixty-day

suspension period expires, unless the Board objects to his automatic

reinstatement. Iowa Ct. R. 34.23(2). The suspension applies to all facets

of the practice of law. Id. r. 34.23(3). Mathahs shall comply with the

notification requirements of Iowa Court Rule 34.24. We tax the costs of

this action to Mathahs in accordance with Iowa Court Rule 36.24(1).

        LICENSE SUSPENDED.

        All justices concur except Hecht and Christensen, JJ., who take no

part.
