               IN THE SUPREME COURT OF IOWA
                             No. 18–1830

                       Filed January 25, 2019


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Appellee,

vs.

BRYAN JOHN HUMPHREY,

      Appellant.


      On review of the report of the Iowa Supreme Court Grievance

Commission.



      Grievance commission recommends suspension of an attorney’s

license for violations of ethical rules. LICENSE SUSPENDED.



      Tara van Brederode and Andrew J. Boettger, Des Moines, for

complainant.


      Bryan John Humphrey, Fort Madison, pro se.
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MANSFIELD, Justice.

      An attorney failed to prosecute an appeal for one client, never

communicated with a second client in a criminal matter, and failed to

address his loss of a third client’s abstract of title.   The attorney also

dragged his feet in responding to the Iowa Supreme Court Attorney

Disciplinary Board (the Board) and, in one instance, misrepresented to the

Board what he had done. In addition, the attorney has a significant history

of discipline for similar misconduct.       See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Humphrey, 812 N.W.2d 659 (Iowa 2012); Iowa Supreme

Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey, 551 N.W.2d 306 (Iowa

1996); Comm. on Prof'l Ethics & Conduct v. Humphrey, 529 N.W.2d 255

(Iowa 1995).

      The attorney and the Board reached a stipulation as to facts and

ethical rule violations, which included a recommended sixty-day

suspension of the attorney’s license. The Iowa Supreme Court Grievance

Commission found this sanction to be too lenient and recommended an

indefinite suspension of at least eighteen months. We likewise find the

stipulated sanction to be too lenient. We impose an indefinite suspension

with no possibility of reinstatement for one year.

      I. Facts and Procedural History.

      Bryan Humphrey is a solo practitioner in Fort Madison who was

admitted to the Iowa bar in 1981. This disciplinary proceeding relates to

Humphrey’s representation of three different clients.

      A. The A.M. Matter. In 2015 and 2016, Humphrey represented

A.M., the mother, in a private termination of parental rights proceeding.

After filing a notice of appeal on A.M.’s behalf, Humphrey did nothing to

advance the appeal.     Humphrey later explained that his client had

indicated she no longer wished to pursue the appeal.           However, as
                                     3

Humphrey put it, “I did not make a responsive filing with the Court to

dismiss the appeal, but rather allowed the dismissal to occur by order of

the Court; obviously not a prudent decision on my part.”

      Thus, Humphrey ignored a notice of default from the clerk of the

appellate courts, failed to pay an assessed penalty of $150, and simply

allowed the appeal to be dismissed pursuant to Iowa Rule of Appellate

Procedure 6.1202.

      B. The Gerety Matter.        In 2017, Daniel Francis Gerety was

charged with operating while intoxicated, first offense, in violation of Iowa

Code section 321J.2. He retained Humphrey to represent him and paid

him an $800 retainer.     Humphrey entered an appearance on Gerety’s

behalf on March 22, 2017.

      When Gerety did not appear for his pretrial conference on July 11,

the district court rescheduled the pretrial conference for August 22 and

the trial for September 13. On August 22, Humphrey informed the court

that Gerety wanted to submit a written guilty plea. On September 11,

Humphrey moved to continue the trial on the ground that Gerety lived in

California and needed more time to file the written guilty plea. The court

granted a continuance, and Gerety ultimately signed the written guilty plea

on September 19, which Humphrey filed on September 25.

      Meanwhile, Gerety had mailed a complaint to the Board with a

September 11 postmark, complaining that he had “never heard from”

Humphrey after hiring him and paying an $800 retainer. As Gerety stated,

“I would call & or text . . . at least 50 times over the next 5 mos. For an

update or progress report & wouldn’t hear anything from him. . . . I don’t

know what is going on.”

      C. The Bergund Matter. Also in 2017, Paul Bergund tried without

success to get Humphrey to deliver an abstract of title, which Humphrey
                                       4

had been holding since 1989 and had apparently lost or misplaced. When

Bergund decided to file a complaint with the Board, Humphrey initially did

not respond, but later told the Board he had “taken steps to remedy the

problem by extending [an] offer to cover the cost of preparing a

replacement abstract.” This claim was not accurate; Humphrey had not

communicated with Bergund. Two months later, after Bergund followed

up with the Board, Humphrey finally did contact Bergund, telling him to

check with the abstract company and find out what the cost of a

replacement abstract would be.

      D. Failures to Respond to the Board.             Humphrey repeatedly

ignored Board inquiries about the A.M., Gerety, and Bergund matters. In

the A.M. matter, Humphrey left the Board’s original certified letter

unclaimed. He then failed to respond to a Board letter personally delivered

to him by the Lee County Sheriff’s Office. He also disregarded the Board’s

notice of complaint, finally responding only when this court issued a notice

of possible temporary suspension of his law license.

      In the Gerety matter, Humphrey ignored the Board’s requests for

copies of his correspondence with Gerety, an itemization of his time spent

on the Gerety matter, and his trust accounting for Gerety’s advance fees.

In the Bergund matter, as in A.M., Humphrey did not respond to the

Board’s notice of complaint until he received a follow-up notice threatening

a temporary suspension of his license.

      E. This Proceeding. On June 7, 2018, the Board filed a complaint

against Humphrey. Humphrey answered on July 16, admitting the factual

allegations of the complaint but not the alleged ethical violations.       On

August 9, the parties entered into and submitted a stipulation as to facts,

exhibits,   disciplinary   rule   violations,   mitigating   and   aggravating

circumstances, and recommended sanction. See Iowa Ct. R. 36.16. The
                                     5

parties’ stipulation also waived formal hearing before the commission. See

id.   The parties jointly recommended a sixty-day suspension of

Humphrey’s law license.

      On October 19, the commission accepted the parties’ factual

stipulation, agreed with most of the stipulated rule violations, but

recommended a much longer suspension involving no possibility of

reinstatement for eighteen months.

      II. Standard of Review.

      “When the parties enter into a stipulation, . . . they are bound by the

stipulated facts, which we interpret with reference to their subject matter

and in light of the surrounding circumstances and the whole record.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 777 (Iowa

2016). However, “[w]e are not bound by stipulations as to ethical violations

or the appropriate sanction.” Id.

      III. Rule Violations.

      We do not believe a detailed discussion of Humphrey’s rule

violations is needed. The parties stipulated, the commission concluded,

and we agree that Humphrey violated Iowa Rule of Professional Conduct

32:1.3 (diligence) in all three matters, rule 32:1.4 (communication) in the

Gerety and Bergund matters, and rule 32:3.2 (expediting litigation) in the

A.M. and Gerety matters.        Humphrey also violated rule 32:3.4(c)

(disobeying an obligation under the rules of a tribunal) in the A.M. matter

and rule 32:8.4(d) (engaging in conduct prejudicial to the administration

of justice) in the Gerety matter. Furthermore, Humphrey violated rule

32:8.1(b) by failing to respond to lawful demands from the Board.

      Additionally, the Board charged Humphrey with engaging in

conduct prejudicial to the administration of justice, contrary to rule

32:8.4(d), in the Bergund matter. Bergund was not a litigated proceeding;
                                      6

typically, violations of rule 32:8.4(d) arise in litigation.   See, e.g., Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo, 799 N.W.2d 524, 534 (Iowa

2011) (“Conduct is prejudicial to the administration of justice only when it

impedes ‘the efficient and proper operation of the courts or of ancillary

systems upon which the courts rely.’ ” (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768 (Iowa 2010))).

Nevertheless, our precedent does indicate that Humphrey engaged in

conduct prejudicial to the administration of justice when he failed to

respond to the Board’s inquiry in Bergund and later gave inaccurate

information that further delayed a resolution of the matter. See, e.g., Iowa

Supreme Ct. Att’y Disciplinary Bd. v. West, 901 N.W.2d 519, 525 (Iowa

2017). Lastly, we agree that Humphrey intentionally misrepresented to

the Board what he had done to address the lost abstract of title in the

Bergund matter, thereby violating rules 32:8.1(a) and 32:8.4(c).

      However, the Board did overcharge this case to some extent. For

guidance in future cases, we will discuss that overcharging briefly.

      First, the Board alleged that Humphrey violated rule 32:8.4(a) in all

three matters. Rule 32:8.4(a) provides, “It is professional misconduct for

a lawyer to . . . violate . . . the Iowa Rules of Professional Conduct . . . .”

We have repeatedly held that this rule “does not create a separate ethical

infraction.” Dunahoo, 799 N.W.2d at 534; see also Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Netti, 797 N.W.2d 591, 598 n.1 (Iowa 2011); Templeton,

784 N.W.2d at 769. We reiterate that reminder today. Rule 32:8.4(a) does

not need to be automatically tacked onto every count of an attorney

disciplinary complaint.

      Second, the Board alleged that Humphrey violated rule 32:3.4(c) in

the Gerety and Bergund matters.         We do not agree.       Unlike in A.M.,

Humphrey disobeyed no court order in those two matters.              See Iowa
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Supreme Ct. Att’y Disciplinary Bd. v. Hedgecoth, 862 N.W.2d 354, 362

(Iowa 2015) (“Knowing disobedience occurs when noncompliance occurs

notwithstanding the attorney’s actual knowledge of the court order.”). In

Gerety, Humphrey put off court deadlines by seeking and obtaining

unjustified extensions.    That was improper, but it didn’t violate rule

32:3.4(c). Bergund was not even a litigated proceeding.

      Third, we are not convinced that Humphrey violated rule 32:1.15

(safekeeping client property) simply because he could not locate an

abstract of title twenty-eight years after it had been entrusted to him. If

that were true, any loss of client property would be transformed into an

ethical violation. Rule 32:1.15 is not a strict liability provision; rather, it

sets out a standard of care, that “[a] lawyer should hold property of others

with the care required of a professional fiduciary.”        See id. cmt. [1].

Humphrey may have failed to adhere to that standard of care, but the

record does not so establish by the required convincing preponderance of

the evidence.

      IV. Discipline.

      We now consider the appropriate sanction. The parties have jointly

recommended      a   sixty-day   suspension,    whereas     the   commission

recommends an eighteen-month suspension. We are not bound by the

parties’ stipulation or the recommendation of the commission, although

we give the commission’s recommendation respectful consideration. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 144 (Iowa

2018).

      In determining the sanction, “we take guidance from prior cases.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Saunders, 919 N.W.2d 760, 764

(Iowa 2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Smith, 904

N.W.2d 154, 159 (Iowa 2017)). An appropriate sanction should consider
                                      8
      the nature of the violations, the attorney’s fitness to continue
      in the practice of law, the protection of society from those unfit
      to practice law, the need to uphold public confidence in the
      justice system, deterrence, maintenance of the reputation of
      the bar as a whole, and any aggravating or mitigating
      circumstances.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty, 891 N.W.2d 455, 466

(Iowa 2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey,

761 N.W.2d 53, 61 (Iowa 2009)).

      Seven years ago, in 2012, although “[t]he core violation committed

by Humphrey was the neglect of a single client matter,” we suspended

Humphrey’s law license indefinitely with no possibility of reinstatement for

three months. Humphrey, 812 N.W.2d at 666, 669. We acknowledged

that “[t]aken on their own, Humphrey’s current violations might merit no

more than a reprimand.” Id. at 669. Yet we emphasized that Humphrey’s

prior ethical transgressions from the 1990s “must be considered relevant

aggravating factors.” Id.

      In 1994, Humphrey had received a public reprimand for failing to

respond to inquiries from the Committee on Professional Ethics and

Conduct. Id. In 1995, we had suspended Humphrey’s license for sixty

days after he neglected three probate matters and a postconviction-relief

matter, and “stonewalled two judges, as well as the [Committee on

Professional Ethics and Conduct].” Humphrey, 529 N.W.2d at 256–59. A

year later, in 1996, we had suspended Humphrey’s license indefinitely
with no possibility of reinstatement for three years after he had neglected

several matters, had been nonresponsive to courts, clients, and the Board,

and had engaged in deceptive conduct with the court. Humphrey, 551

N.W.2d at 307–09.

      We therefore reached the following conclusion in 2012:

            Although some time has lapsed from these violations, it
      is disheartening that Humphrey has resumed some of the
                                      9
       habits that led to his difficulties and our imposition of severe
       sanctions in the 1990s. While the current violations do not
       involve fraud or dishonesty, and are limited to a single client
       matter, the earlier pattern of neglect and nonresponsiveness
       has reemerged. Therefore, despite the passage of time, and
       the somewhat narrower scope of the present violations as
       compared to those we addressed in 1995 and 1996, a
       substantial suspension is appropriate to protect the public
       and uphold the integrity of the profession.

Humphrey, 812 N.W.2d at 669.

       Today is the fourth time we must consider suspending Humphrey’s

license. Once again, the violations amount to “neglect plus.” Humphrey

let three client matters slide, failed to communicate with two of those

clients, acted deceptively with respect to one of those clients, and generally

treated Board inquiries as a nuisance rather than items deserving a

prompt and accurate response. The starting point for all three violations,

though, was neglect.      As the commission put it, “Humphrey has been

sanctioned in the past multiple times for [exactly the] same behavior he

now is in trouble for.”

       In light of Humphrey’s prior disciplinary record, his current

violations involving three separate clients, and our imposition of a three-

month suspension in 2012 for related but less serious misconduct, we

cannot approve the parties’ proposed sixty-day suspension.          It is not

stringent enough.

       The commission has recommended an indefinite suspension of at
least eighteen months.      An eighteen-month suspension primarily for

neglect is not without precedent.         In Iowa Supreme Court Attorney

Disciplinary Board v. Cunningham, we imposed an eighteen-month

suspension. 812 N.W.2d 541, 553, 554 (Iowa 2012). There, the attorney

did not ensure his client properly completed discovery requests. Id. at

547.   This ultimately led to the client being sanctioned without her

knowledge. Id. The same attorney also failed to file a client’s bankruptcy
                                      10

petition. Id. at 549. He then misrepresented to the client and her divorce

attorney that he had filed the petition.         Id.   He even sent a copy of a

purported petition to his client to cover up the neglect. Id. In levying an

eighteen-month suspension, we noted, “When multiple instances of

neglect are involved and combine with other violations or cause significant

harm to the clients, we have imposed a longer period of suspension.” Id.

at 551 (quoting Iowa Supreme Court Att’y Disciplinary Bd. v. Carpenter,

781 N.W.2d 263, 270 (Iowa 2010)).

      Likewise, in Iowa Supreme Court Attorney Disciplinary Board v. Joy,

we imposed an eighteen-month suspension on an attorney who had

neglected   several   client   matters,    had    “engaged    in   a   pattern   of

misrepresentations designed to conceal his neglect,” and had failed to

cooperate and respond on time to the Board. 728 N.W.2d 806, 809–13,

814, 816 (Iowa 2007).          There, we cited multiple cases imposing

suspensions ranging from one to three years, stating, “Where neglect is

compounded by other serious offenses . . . this court has suspended the

license of the offending attorney for substantial periods of time.” Id. at

815–16; Carpenter, 812 N.W.2d at 553.

      Yet Cunningham and Joy involved misconduct more egregious than

the misconduct here. In Cunningham, the attorney appeared to leave his

practice suddenly, thus requiring other attorneys to take over and attempt

to salvage his cases. Cunningham, 812 N.W.2d at 543–44. Cunningham’s

conduct caused significant harm to his clients, and he was completely

nonresponsive to the Board, even during the temporary suspension that

issued because of his nonresponsiveness. Id. at 554.

      In Joy, the “persistent pattern of delinquencies, missed deadlines,

and evasive and misleading statements” pertained to several estates, and

in some cases, led to years of unnecessary delay. Joy, 728 N.W.2d at 812.
                                    11

One estate was open for over five-and-a-half-years during which time

seven delinquency notices were issued. Id. at 810. Another estate was

open for over four years prior to closure, during which time two

delinquency notices were issued and eventually another attorney was

hired to complete the work. Id. at 809.

      Humphrey’s misconduct in the present case may not have been as

serious as the misconduct in Cunningham or Joy, but his three prior

suspensions for neglect stand out.        In Iowa Supreme Court Attorney

Disciplinary Board v. Hearity, another case involving neglect, we imposed

a one-year suspension. 812 N.W.2d 616, 622–23 (Iowa 2012). Hearity

neglected two cases in violation of rule 32:1.3.     Id. at 618–19     They

included one estate that was needlessly left open for three and one-half

years and one appeal Hearity failed to prosecute. Id. As to the appeal,

Hearity’s conduct was similar to Humphrey’s here. When a criminal client

filed a pro se appeal following trial, Hearity was notified that he was

presumed counsel of record on the appeal, and he was instructed to

promptly prosecute the appeal or file a motion to withdraw. Id. at 617.

Hearity took no action on the appeal, and the appeal was dismissed after

he failed to respond to a notice of default. Id. at 617–18. For these and

some other violations we imposed a one year suspension and required

Hearity to successfully complete the Multistate Professional Responsibility

Examination (MPRE) prior to reinstatement. Id. at 623.

      Hearity also involved additional, significant misconduct. Overall,

his ethical violations spanned five client matters and included neglect,

unreasonable fees, failure to communicate about fees, failure to properly

terminate representation, failure to respond to the Board, unauthorized

practice of law, and making a false statement to the court. Id. at 616, 618–

21. Hearity had also been suspended on two prior occasions, once for
                                     12

failure to comply with an obligation owed to the Iowa Department of

Revenue and once on a temporary basis for not responding to board

inquiries. Id. at 617.

      We find Hearity a relevant precedent here.        After considering

Humphrey’s violations, his fitness to continue practicing law, the

protection of society, the need to uphold public confidence in the justice

system and in the bar, and especially Humphrey’s prior disciplinary

record, we suspend Humphrey’s license indefinitely with no possibility of

reinstatement for one year. As in Hearity, we also direct that Humphrey

take and pass the MPRE before any reinstatement. See id. at 623.

      We note Humphrey “continues to fail to honor the ethical boundaries

of the profession.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 901

N.W.2d 513, 517 (Iowa 2017). As we stated in Powell, “At some point,

public protection and the reputation of the profession justify the

revocation of a license to practice law.” Id.

      V. Disposition.

      Humphrey’s license to practice law in the State of Iowa is suspended

with no possibility of reinstatement for one year from the filing of this

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

Iowa Ct. R. 34.23(3).      Humphrey must comply with all notification

requirements of Iowa Court Rule 34.24. Humphrey must file a written

application for reinstatement of his license. See id. r. 34.23(1). Humphrey

must comply with all applicable requirements of Iowa Court Rule 34.25 for

reinstatement and establish he has not practiced law during the

suspension    period.    Before   reinstatement,   Humphrey    must   also

successfully complete the MPRE. The costs of the proceeding are taxed to

Humphrey pursuant to Iowa Court Rule 36.24(1).

      LICENSE SUSPENDED.
