               IN THE SUPREME COURT OF IOWA
                             No. 11–1986

                         Filed March 23, 2012


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

JAMES A. SCHALL,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      In an attorney disciplinary proceeding, the Grievance Commission

recommends a public reprimand. LICENSE SUSPENDED.



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

complainant.


      Mark McCormick of Belin McCormick, P.C., Des Moines, for

respondent.
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HECHT, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against the respondent, James A. Schall, alleging violations of

several ethical rules as a consequence of his failure to file state income

tax returns and his mishandling of a client’s criminal case. A division of

this court’s grievance commission held a hearing, found Schall violated

several rules, and recommended the court impose a public reprimand.1

Upon our de novo review, we find Schall’s conduct violated ethical rules.

We suspend his license to practice law indefinitely with no possibility of

reinstatement for a period of six months.

      I. Scope of Review.

      Our review of this matter is de novo.          Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 527 (Iowa 2011).           It is the

Board’s burden to prove ethical violations by a convincing preponderance

of the evidence. Id. at 528. We may impose a greater or lesser sanction

than the one recommended by the commission. Id.

      II. Findings of Fact.

      A. Failure to Pay State Income Taxes. Schall graduated from

law school in 1967. After working as a trust officer for six months, he

associated in private practice with another attorney in Storm Lake. In

the mid-1970s, Schall established his own law firm in that community.

In addition to his private practice of law, Schall served as a part-time

judicial magistrate for sixteen years in Buena Vista County. Thereafter,

approximately seventy-five percent of Schall’s practice consisted of

criminal law cases.



      1Four   panel members voted to recommend a public reprimand and one member
favored a “short suspension” of Schall’s license to practice law.
                                            3

       Schall’s wife suffered from multiple sclerosis, and for the five years

preceding her death in 2003, Schall was her primary caregiver. During a

significant part of this period, she was bedridden or in a wheelchair.

After surgery to control MS-related muscle spasms, Mrs. Schall was

transferred to a nursing home at Newell. During the remainder of her

life, Schall spent his noon hours, evenings, and weekends at the nursing

home. His law practice was disrupted, requiring continuances of legal

matters and resulting in many interruptions during work days to manage

Mrs. Schall’s all-consuming health problems.                    Schall himself was

diagnosed with prostate cancer in 2004 and was treated for this illness

as he continued to deal with his wife’s death. Schall was unable to afford

health insurance coverage and became uninsured.

       Schall failed to file state income tax returns for 1999, 2000, 2001,

2002, 2004, and 2005.2             After his failure to file the returns was

discovered, Schall substantially underreported his income for 2002,

2004, and 2005. He eventually pled guilty on April 20, 2010, to three

aggravated misdemeanor counts of fraudulent practice in the third

degree for failing to timely file the tax returns for 2002, 2004, and 2005.

The other counts of the criminal information filed against him were
dismissed consistent with a plea agreement.                   The sentencing court

deferred judgment, placed Schall on probation for two years, imposed a

civil penalty of $6250, and ordered him to pay the costs of the action and

perform one hundred hours of pro bono legal work as community service.

Schall paid the fine and costs and completed the community service prior

to the hearing before the commission in this case.


       2The    Board’s complaint alleged ethical violations, however, only for Schall’s
failure to file returns in 2002, 2004, and 2005. Accordingly, we find violations and
impose discipline only for ethical misconduct for failing to file returns for those years.
                                           4

         B. The Tesene Matter. Schall was appointed to represent Justin

Tesene in a felony theft case filed on March 15, 2010. Schall learned of

his appointment when he picked up Tesene’s financial affidavit in the

office of the clerk of district court. Although Tesene, who was at that

time in prison serving a five-year sentence for another felony crime, had

indicated in a letter to the clerk of court filed April 12, 2010, that he

wished a speedy trial, Schall did not receive a copy of the letter when he

picked up the client’s financial affidavit at the clerk’s office. Phone calls

from Tesene’s parents informed Schall that Tesene wished a quick

resolution of the pending matter by a plea to a misdemeanor.

         Schall believed he might be able to negotiate a plea agreement

calling for Tesene’s guilty plea to a misdemeanor and a sentence

concurrent to the one Tesene was then serving.                 Schall prepared and

mailed a written arraignment and plea of not guilty form to Tesene at his

prison address.       Schall had filled in certain information on the form

indicating Tesene wished to waive his right to a speedy trial.                 Schall’s

cover letter instructed Tesene to review the form, sign it before a notary

public, and return it to Schall’s office.

         Tesene altered the written arraignment and plea of not guilty form

by crossing out the provision purporting to waive his right to a speedy

trial.    He signed the document—but not before a notary public—and

returned it to Schall with a handwritten cover letter.               The cover letter

made reference to the fact that Tesene had changed the speedy trial

portion of the document to delete the waiver provision.3                         Schall


         3Schall’s
                 answer to the Board’s disciplinary complaint denied receiving this cover
letter from Tesene, but Schall subsequently admitted its receipt during testimony before
the commission. Schall testified he simply “missed” Tesene’s expression of the desire
for a speedy trial in the cover letter and continued to assume Tesene wished a prompt
resolution of the matter through a negotiated plea bargain.
                                     5

subsequently revised the document in his own handwriting without

Tesene’s permission by adding back language waiving the right to a

speedy trial. Before filing the document with the court, Schall notarized

Tesene’s signature without having witnessed the signing and signed the

form attesting he had discussed the substance of the form with Tesene

who “fully understood its contents.”     After Tesene sent Schall another

handwritten letter dated June 14, 2010, demanding a speedy trial, Schall

prepared a demand for a speedy trial and filed it a week later.

      Tesene filed a pro se motion on July 22, 2010, requesting

dismissal of the case on the ground his right to a speedy trial had been

violated. At the hearing on Tesene’s pro se motion, Schall informed the

court that he had not received Tesene’s handwritten request for a speedy

trial sent to the clerk of court in April and further represented to the

court that he first learned of his client’s desire shortly before filing the

speedy trial demand on June 21. After Tesene’s pro se motion to dismiss

on speedy trial grounds was denied on the ground Tesene had filed a

valid written waiver of his right to a speedy trial, Schall filed a motion to

reconsider asserting the court had mistakenly found the handwritten

waiver was on the form when Tesene signed it. This caused the county

attorney to file another resistance, and the court entered yet another

ruling on the matter confirming its earlier ruling denying the motion to

dismiss.

      Schall’s mishandling of the criminal matter resulted in Tesene’s

request for new counsel. New counsel was appointed for Tesene, and a

second motion to dismiss on speedy trial grounds was filed—this one

based on Schall’s June 21 demand for speedy trial. This second motion

was granted.
                                     6

        III. Analysis.

        Schall admitted in his answer to the Board’s complaint that he

failed to file his state income tax returns for the years 2002, 2004, and

2005.    Under the disciplinary rules in force at the time the 2002 and

2004 returns were due, Schall’s failure to file the returns constituted

violations of DR 1–102(A)(3) (illegal conduct involving moral turpitude),

DR   1–102(A)(4)    (conduct   involving   dishonesty,    fraud,   deceit,   or

misrepresentation), and DR 1–102(A)(6) (conduct adversely reflecting on

fitness to practice law). Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct

v. Runge, 588 N.W.2d 116, 118 (Iowa 1999).               “The Iowa Rules of

Professional Conduct became effective July 1, 2005, replacing the Iowa

Code of Professional Responsibility for Lawyers.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Casey, 761 N.W.2d 53, 55 n.1 (Iowa 2009). Schall’s

failure to timely file his 2005 return violated rule 32:8.4(b) (criminal act

reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness)

and rule 32:8.4(c) (conduct involving dishonesty, fraud, deceit, or

misrepresentation).

        Schall’s answer to the Board’s complaint admitted alteration of the

written arraignment and plea of not guilty form intending to effect an

unauthorized waiver of Tesene’s right to a speedy trial.           Schall also

admitted in his answer to the Board’s complaint that he signed the form

as an attorney falsely representing he had discussed the speedy trial

matter with his client and as a notary falsely representing Tesene had

signed the document in Schall’s presence.           These acts of Schall

constitute violations of Iowa Rules of Professional Conduct 32:1.2(a)

(failing to abide by a client’s decisions concerning the objectives of

representation and taking action on behalf of the client that was not

authorized) and 32:8.4(c) (conduct involving dishonesty, fraud, deceit, or
                                              7

misrepresentation).        We have repeatedly held that an attorney’s

notarization     of    signatures        of       absent    persons   is    “manifestly

unprofessional.”       Comm. on Prof’l Ethics & Conduct v. Bauerle, 460

N.W.2d 452, 454 (Iowa 1990). An attorney who, in preparing documents

for clients, makes false statements of fact as Schall did in the Tesene

case, commits sanctionable misconduct.                     Comm. on Prof’l Ethics &

Conduct v O’Donohoe, 426 N.W.2d 166, 169 (Iowa 1988).                          Schall’s

conduct caused unnecessary motions, court hearings, and rulings in

Tesene’s criminal case and constituted a violation of rule 32:8.4(d)

(conduct prejudicial to the administration of justice).

      IV. Sanction.

      In determining the appropriate sanction for violation of ethical

rules, we consider a plethora of factors, including the nature of the

violations, the goal of protecting the public from unethical conduct by

attorneys,     the    deterrence    of    similar     misconduct      by   others,   the

respondent’s fitness to practice law, the court’s duty to uphold the

integrity of the profession in the eyes of the public, and the sanctions

imposed for similar conduct in prior cases.                  Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 812 (Iowa 2006).                        Our

determination of the sanction is also affected by aggravating and

mitigating circumstances. Id. at 810.

      In Knopf, we surveyed the range of discipline imposed by this court

in other cases against attorneys who failed to file tax returns.                     793

N.W.2d at 531. We noted that we have “imposed a sanction of license

suspension from sixty days to three years” for such misconduct. Id. The

failure to file tax returns for an extended period has been deemed an

aggravating factor. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields,

790 N.W.2d 791, 799 (Iowa 2010).
                                           8

       In Knopf, the parties stipulated that the respondent failed to file

returns for two years.4       793 N.W.2d at 529.           We suspended Knopf’s

license indefinitely with no possibility of reinstatement for three months.

Id. at 532. We find Schall’s conduct in failing to file tax returns is similar

to that of the respondent in Knopf. Schall failed to timely file returns for

six years, but the Board’s complaint alleged, and therefore we have

found, violations for only three years. Similarly, in Iowa Supreme Court

Board of Professional Ethics & Conduct v. Neuwoehner, we suspended the

respondent’s license indefinitely with no possibility of reinstatement for

three months for failing to file state income tax returns for three

consecutive years. 595 N.W.2d 797, 798 (Iowa 1999).

       We conclude a suspension of more than three months is required

in this case, however, because of Schall’s ethical violations in his

representation of Tesene. In Bauerle, an attorney with no history of prior

misconduct made false statements in documents prepared for his client

and notarized a signature he had not witnessed. 460 N.W.2d at 453. We

suspended      Bauerle’s    license   to       practice   with   no   possibility   of

reinstatement for six months. Id. at 454. In determining the appropriate

sanction, we consider as an aggravating circumstance the respondent’s

history of prior misconduct and professional discipline. Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 563

(Iowa 2004). The record reveals Schall was publicly reprimanded in 2001

for failing to deposit a fee in a trust account and was privately

admonished on two other occasions.




       4Although the parties stipulated that Knopf failed to file tax returns for two
years, the Board’s complaint alleged he had failed to file returns for eleven years.
Knopf, 793 N.W.2d at 529.
                                      9

      Mitigating circumstances, while not excusing the disciplinary

violations, may be considered in determining the severity of the

appropriate sanction. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Hohenadel, 634 N.W.2d 652, 656–57 (Iowa 2001) (alcoholism); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288,

294–96 (Iowa 2002) (major depression).          We consider as mitigating

factors in this case that during the years when Schall failed to pay state

taxes he was coping with his own serious health problems and acting as

primary caretaker for his wife during her lengthy terminal illness. Other

mitigating   factors   include   Schall’s   cooperation   with   the   Board’s

investigation, his eight years of service as a school board member, and

his participation in many other significant local and state civic activities.

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431,

442 (Iowa 2012).

      Having considered all of the factors mentioned above, we conclude

Schall’s conduct warrants an indefinite suspension of his license without

possibility of reinstatement for six months.

      V. Conclusion.

      We suspend Schall’s license to practice law in Iowa indefinitely

with no possibility of reinstatement for six months.        This suspension

applies to all facets of the practice of law. See Iowa Court Rule 35.12(3).

Prior to reinstatement, Schall shall establish that he has not practiced

law during the period of suspension and that he has complied with all of

the requirements of rule 35.13 and the notification provisions of rule

35.22. The costs of this action are taxed to Schall under rule 35.26.

      LICENSE SUSPENDED.

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