               IN THE SUPREME COURT OF IOWA
                              No. 09–0701

                         Filed October 16, 2009


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

BRIAN L. EARLEY,

      Respondent.



      On review of the report of the grievance commission.



      Grievance commission reports respondent has committed ethical

infractions and recommends revocation of respondent’s license to

practice law. LICENSED REVOKED.



      Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for

complainant.



      Brian L. Earley, Malcolm, pro se.
                                              2

TERNUS, Chief Justice.

       The complainant, Iowa Supreme Court Attorney Disciplinary

Board, filed charges against the respondent, Brian L. Earley, alleging

numerous violations of the Iowa Code of Professional Responsibility for

Lawyers and the Iowa Rules of Professional Conduct. 1                 The complaint

was based on Earley’s representation of four separate clients.                   While

most of the misconduct centered on Earley’s neglect of his clients’ legal

matters, the most egregious of the alleged violations involved his

misappropriation of client funds.          Earley did not file an answer to the

complaint, and the allegations of the board were, therefore, deemed

admitted.     See Iowa Ct. R. 36.7.        A panel of the Iowa Supreme Court

Grievance Commission, after hearing, concluded that Earley engaged in

the charged misconduct and recommended that we revoke his license to

practice law. We agree with the commission and revoke Earley's license

to practice law.

       I. Standard of Review.

       Our review of attorney disciplinary proceedings is de novo. Iowa

Ct. R. 35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729

N.W.2d 812, 815 (Iowa 2007).                  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. Isaacson, 750

N.W.2d 104, 106 (Iowa 2008).            The board has the burden of proving

attorney misconduct by a convincing preponderance of the evidence.




       1The   Iowa Rules of Professional Conduct became effective on July 1, 2005,
replacing the Iowa Code of Professional Responsibility for Lawyers. The Iowa Rules of
Professional Conduct are sometimes referred to in this opinion as “rule” or “rules.” The
provisions of the Iowa Code of Professional Conduct for Lawyers are sometimes referred
to in this opinion as “Code” or “DR –    .”
                                        3

Iowa Supreme Ct. Att'y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792

(Iowa 2006).

      “This burden is less than proof beyond a reasonable doubt,
      but more than the preponderance standard required in the
      usual civil case. Once misconduct is proven, we ‘may impose
      a lesser or greater sanction than the discipline recommended
      by the grievance commission.’ ”

Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674

N.W.2d 139, 142 (Iowa 2004)).

      II. Factual Background and Prior Proceedings.

      A. Prior Disciplinary Proceedings.       Earley has been practicing

law in Iowa since 1993.      Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Earley, 729 N.W.2d 437, 440 (Iowa 2007).        On March 30, 2007, this

court disciplined Earley by suspending his license for a period of not less

than four months. Id. at 439. The violations that led to his suspension

included neglecting cases, failing to deposit retainer fees to his trust

account, failing to account for retainer fees paid to him by his clients,

failing to return a file to a client, failing to cooperate with the board’s

inquiries, engaging in conduct reflecting poorly on his fitness to practice

law, and engaging in misconduct that is prejudicial to the administration

of justice. Id. at 442–43 (finding Earley violated DR 1–102(A)(1), (5), (6);

DR 2–110(A)(2); DR 6–101(A)(3); DR 7–101(A)(1); and DR 9–102(A), (B)(3)).

Although we concluded Earley’s mishandling of retainers paid by clients

“stemm[ed] from poor office organization and management,” as opposed

to deliberate misconduct and dishonesty, we determined his ethical

infractions were serious enough to warrant a four-month suspension. Id.

at 443.

      B. Current Disciplinary Proceedings. On October 28, 2008, the

board initiated this action by filing its complaint. In the complaint, the
                                          4

board alleged Earley had violated his ethical duties in his representation

of four clients, Hal Runner, Nicole Cleary, Michelle Fuller, and Mollie

Marti. The claimed violations largely mirrored the charges in the earlier

disciplinary action.

      On     February   5,   2009,   Earley   participated   in   a   telephone

conference during which he stated that he would send an answer to the

complaint on that day and would admit to all allegations in the

complaint.    The parties also agreed at that time they would submit a

joint recommendation as to the appropriate sanction.          Earley did not

send an answer, and a joint recommendation was never submitted to the

commission.     Subsequently, the board filed a motion to amend the

complaint to include allegations regarding Earley’s misappropriation of

settlement money owed to his client, Mollie Marti.            Earley did not

respond to the motion, which was eventually granted by the commission.

      At the hearing before the commission, evidence in support of the

board’s charges was admitted. Earley did not appear at the hearing, and

therefore, the board’s evidence was uncontested.         In its findings and

conclusions, the commission properly held that, under Iowa Court Rule

36.7, Earley’s failure to file an answer resulted in his admission of the

allegations in the amended complaint.

      In its report to this court, the commission found the board had

proven its charges and recommended revocation of Earley’s license to

practice law due to his misappropriation of client funds. Upon our de

novo review of the record, we agree with the findings, conclusions, and

recommended sanction of the commission, as detailed below.

      III. Factual Findings.

      A. Hal Runner Matter.          In March or April 2006, Earley began

representing Hal Runner in a suit against Tamara Kriegel, who allegedly
                                       5

had stolen money from Runner. On May 2, 2006, Earley sent a letter to

Runner stating Earley expected to receive a portion of the stolen money,

$3808.51, from Kriegel’s attorney.     This payment was subsequently

made, and Earley retained $2500 for a retainer and paid the balance,

$1308.51, to Runner. On August 3, 2006, Earley filed a petition for the

remaining money against Kriegel on Runner’s behalf. After August 2006,

Runner tried to contact Earley between forty and fifty times, but Earley

did not respond. On December 13, 2006, an order setting a trial date of

July 11, 2007, was issued.    Earley did not inform Runner of the trial

date. Earley also failed to inform Runner that this court suspended his

license to practice law in March 2007. Eventually, Runner heard of the

suspension “through the grapevine” and hired another attorney to handle

the matter.   Earley never provided Runner with an accounting of his

retainer fee nor did he turn over the case file as Runner requested.

      B. Nicole   Cleary   Matter.     In spring    2006,   Earley began

representation of Nicole Cleary in two matters.        The first involved

establishing child custody and obtaining child support.       The second

involved terminating the parental rights of her son’s father. Cleary paid

Earley retainer fees totaling $750. Despite Cleary’s numerous attempts

to contact Earley about the status of the first case, he did not respond.

Cleary found out the status of her case by contacting opposing counsel.

The case was eventually resolved in Cleary’s favor, but Earley’s failure to

respond to her inquiries caused her stress and anxiety about whether

she would retain custody of her child. With regard to the second case,

Earley was to locate the father, as his whereabouts were not known.

Earley failed to respond to his client’s requests for information, and the

second case remains unresolved. Earley did not provide Cleary with an

accounting of the retainer fee, did not provide Cleary with her case file
                                       6

despite her requests for the file, and did not inform Cleary of his license

suspension.

      C. Michelle    Lee   Fuller   Matter.     In   2002   Earley   began

representation of Michelle Lee Fuller in a dissolution-of-marriage and

child-custody matter. Fuller paid a retainer fee of $1500. At a trial of

the case on September 12, 2002, the parties reached a stipulation on all

issues and read the settlement into the record. The trial judge ordered

Earley to prepare the final decree, but he failed to do so. On numerous

occasions, Fuller attempted to contact Earley, but he did not respond.

Without the final decree, Fuller’s case remained unresolved.           On

August 13, 2007, another attorney presented the final decree to the trial

judge, thereby resolving the matter. Earley ignored Fuller’s requests for

her case file, did not provide her with an accounting of the retainer fee,

and did not inform her of his license suspension.

      D. Mollie W. Marti Matter. In 2004 Earley began representing

Mollie W. Marti in a personal injury action. Marti was a law school friend

of Earley. They did not have a formal retainer contract, but agreed that

Earley would charge Marti on an hourly basis.          Earley obtained a

settlement of Marti’s claim in the sum of $65,000, and on September 16,

2004, he paid $32,500 to Marti.      Earley retained the balance of the

settlement proceeds, advising Marti that he would use the money to pay

insurance subrogation claims, costs and fees, and then remit the

remainder to her. Marti expected to receive about $15,000 to $20,000

from the second half of the settlement. Despite Marti’s multiple requests

for information over the subsequent three years, Earley never responded,

and Marti received no additional monies. Marti eventually contacted a

subrogated liability insurer and discovered it had not been paid its

subrogation claim.   Marti did not determine whether the claim of her
                                            7

health insurer was also unpaid.           Nonetheless, since Earley did not

respond to the complaint, the allegation that he did not pay the health

insurer’s subrogation claim was deemed admitted.

      Marti finally reached Earley, who initially claimed he had paid the

subrogation claims. When Marti informed him of her contact with the

liability insurer, Earley admitted he had not paid the claims and the

money was “gone,” as he had used it for personal reasons. He promised

to pay it back. In addition to misappropriating the $32,500, Earley failed

to inform Marti that his license had been suspended.

      IV. Ethical Violations. 2

      A. Neglect.       Our rules regarding neglect and an attorney’s

obligation to advance and protect his clients’ interests require “ ‘an

attorney to attend to matters entrusted to his care and to do so in a

reasonably timely manner.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Ramey, 746 N.W.2d 50, 54 (Iowa 2008) (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Dunahoo, 730 N.W.2d 202, 205 (Iowa 2007));

Gottschalk, 729 N.W.2d at 817–18.          Neglect subjecting an attorney to

discipline “involves ‘indifference and a consistent failure to perform those

obligations that a lawyer has assumed, or a conscious disregard for the
responsibilities a lawyer owes to a client.’ ”         Iowa Supreme Ct. Att'y

Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 817 (Iowa 2007) (quoting Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549,

551 (Iowa 2004)). Earley neglected his clients’ legal matters and failed to

advance and protect his clients’ interests in his representation of the four


      2Earley’s  misconduct in the Runner and Cleary matters began in 2006, and
therefore, the Rules apply in these cases. Earley’s misconduct in the Fuller matter
spans from 2002 to 2007, and therefore, both the Rules and the Code apply in that
matter. Earley’s misconduct in the Marti matter spans from 2004 to 2007, and
therefore, the Rules and the Code apply in that matter.
                                              8

individuals that are the subject of the board’s complaint. In doing so, he

violated rule 32:1.3 (failing to act with reasonable diligence and

promptness in representing a client), rule 32:1.16(d) (failing to take steps

to protect a client’s interests upon termination of a matter), DR 6–

101(A)(3) (neglecting a client’s matter), and DR 7–101(A)(1) (intentionally

failing to seek the lawful objectives of a client). Ramey, 746 N.W.2d at

54; Earley, 729 N.W.2d at 442.

       B. Failure to Return Files. Earley engaged in misconduct when

he refused to return client files upon request in the Runner, Cleary, and

Fuller matters. This conduct violated rule 32:1.15(d) (failing to promptly

deliver to the client any property that the client is entitled to receive),

DR 1–102(A)(5)      (engaging     in   conduct     that    is   prejudicial    to   the

administration of justice), DR 1–102(A)(6) (engaging in conduct that

adversely reflects on the fitness to practice law), and DR 7–101(A)(1). 3

Ramey, 746 N.W.2d at 55–56; Earley, 729 N.W.2d at 442.

       C. Failure to Inform, Communicate, Account, and Return

Property. In all four matters, Earley engaged in misconduct when he

failed to keep his clients informed about the status of their cases in

violation of rule 32:1.3, rule 32:1.4(a)(3) (failing to keep the client
informed about the status of a matter), DR 6–101(A)(3), and DR 7–

101(A)(1). Ramey, 746 N.W.2d at 54–56; Earley, 729 N.W.2d at 442–43.

He also engaged in misconduct when he failed to communicate with his

clients after their repeated requests for information.                 This conduct

violated rule 32:1.3, rule 32:1.4(a)(3), DR 6–101(A)(3), and DR 7–


       3DR   9–102(B)(4) (a lawyer shall promptly deliver to the client property that a
client is entitled to receive) also applies. Gottschalk, 729 N.W.2d at 820. Because
Earley was not charged with violating this rule, we do not find that he violated it. The
other ethical infractions we have found here are, nonetheless, sufficient for the
discipline imposed.
                                         9

101(A)(1). Ramey, 746 N.W.2d at 54–56; Earley, 729 N.W.2d at 442–43.

In addition, Earley committed ethical infractions in all four matters when

he failed to keep his clients informed with regard to money entrusted to

him and to account for or return client money from retainer fees or

settlement proceeds.        These actions violated rule 32:1.4(a)(3), rule

32:1.4(a)(4) (failing to comply with reasonable requests for information),

rule 32:1.15(d), rule 32:1.16(d), DR 1–102(A)(5), DR 1–102(A)(6), DR 6–

101(A)(3), and DR 7–101(A)(1). Ramey, 746 N.W.2d at 55; Earley, 729

N.W.2d at 443. Finally, Earley engaged in misconduct when he failed to

inform his clients of his suspension. This failure resulted in violations of

rule 32:1.4(a)(3), rule 32:1.16(d), rule 32:8.4(d) (engaging in conduct that

is prejudicial to the administration of justice), DR 1–102(A)(5), DR 1–

102(A)(6), DR 6–101(A)(3), and DR 7–101(A)(1).      Ramey, 746 N.W.2d at

54–55.

      D. Misappropriation and Dishonesty.             The most egregious

misconduct committed by Earley concerns his handling of the settlement

funds he held on behalf of his client, Marti.       In response to Marti’s

inquiries, Earley falsely informed Marti that the subrogation claims had

been paid.    He then admitted that the claims had not been paid and

stated the money was “gone,” he had used it for personal reasons, and he

would pay it back.

      We     agree   with   the   commission’s   assessment   that   Earley’s

misrepresentations and misappropriation of client funds constituted

dishonesty and theft in violation of rule 32:1.15(d); rule 32:1.16(d); rule

32:8.4(d); and DR 1–102(A)(4), (5), (6).          Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Carroll, 721 N.W.2d 788, 791–92 (Iowa 2006); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648, 651–
                                       10

52 (Iowa 2002); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Carr,

588 N.W.2d 127, 129 (Iowa 1999).

      V. Sanction.

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

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

appropriate sanction based on the particular circumstances of each case.

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d

746, 748–49 (Iowa 1999). “In determining an appropriate sanction, we

consider ‘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,’ as well as any

aggravating and mitigating circumstances.” Earley, 729 N.W.2d at 443

(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639

N.W.2d 243, 245 (Iowa 2002)); accord Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009). The form and extent of

the sanction “ ‘must be tailored to the specific facts and circumstances of

each individual case.’ ” Marks, 759 N.W.2d at 332 (quoting Comm. on

Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981)).

Significant distinguishing factors in the imposition of punishment center

on “ ‘the existence of multiple instances of neglect, past disciplinary

problems, and other companion violations.’ ” Id. (quoting Iowa Supreme

Ct. Att'y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)).

      Because we conclude Earley’s misappropriation of client funds

warrants revocation of his license, we focus our discussion on the

appropriate sanction for that violation.      We have held on several

occasions that an attorney’s misappropriation of client funds is

sufficiently egregious to warrant permanent license revocation. See, e.g.,

Carroll, 721 N.W.2d at 792; Bell, 650 N.W.2d at 655; Carr, 588 N.W.2d at
                                         11

129–30. Unless the attorney “ ‘had a colorable future claim to the funds

or did not take the funds for [the lawyer's] own use,’ ” revocation will be

ordered. Carroll, 721 N.W.2d at 792 (quoting Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Anderson, 687 N.W.2d 587, 590 (Iowa 2004)).

As we explained in Carr,

      we have previously indicated conversion of client funds by
      lawyers will not be tolerated. We have also emphasized our
      obligation to protect the public from theft and deceit. The
      public, as well as the bar, needs to know disbarment will
      nearly always follow such wrongdoing.

588 N.W.2d at 129 (citations omitted).

      In the instant action, Earley failed to appear at the hearing and

only belatedly filed a statement in this court, asking that his license not

be revoked.   Although he now claims he did not misappropriate his

client’s funds, but merely failed to properly manage his law office, he has

already forgone his opportunity to offer evidence contesting the board’s

charges.   With respect to sanctions, Earley makes no assertion in his

statement that he had a colorable claim to the $32,500 that disappeared

from his trust account. Consequently, we are faced with a situation in

which the aggravating nature of Earley’s misconduct is extensive and the

misappropriation of client monies intolerable.

      We are aware that Earley’s misappropriation of client funds in this

case occurred in the same time frame as some of the misconduct for

which he was previously disciplined.      See Earley, 729 N.W.2d at 442.

This court has held that when an attorney already under a disciplinary

sanction is found to have committed additional violations during the

same time as the sanctioned misconduct, we may choose not to impose

additional discipline if we conclude that a more severe sanction would

not have been imposed had the additional misconduct been known when
                                       12

the initial discipline was ordered.    Ramey, 746 N.W.2d at 56; Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 805–06

(Iowa 2007). This option is not appropriate in the present case due to

the seriousness of Earley’s misappropriation.     Had we known of this

misconduct during Earley’s prior disciplinary action, we would certainly

have imposed a more severe sanction than the four-month suspension

previously ordered. Consequently, we conclude the appropriate sanction

for Earley’s egregious misconduct is license revocation.

      VI. Disposition.

      Earley's license to practice law is revoked. Iowa Ct. R. 35.10(2).

Earley shall provide all of the notifications required by Iowa Court Rule

35.22. Costs are taxed to Earley pursuant to Iowa Court Rule 35.26(1).

      LICENSE REVOKED.
