               IN THE SUPREME COURT OF IOWA
                             No. 11–1868

                         Filed June 15, 2012


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

JAMES WILLIAM McCARTHY,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends a two-year suspension of

respondent’s license to practice law. LICENSE SUSPENDED.



      Charles L. Harrington and Wendell J. Harms, Des Moines, for

complainant.


      Dan T. McGrevey, Fort Dodge, for respondent.
                                        2

WIGGINS, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board alleged the

respondent, James W. McCarthy, violated the Iowa Rules of Professional

Conduct in nine separate legal matters.           A division of the Grievance

Commission of the Supreme Court of Iowa filed a report finding

McCarthy     violated   numerous       rules   and    recommended       that    we

indefinitely suspend the respondent’s license to practice law in Iowa with

no possibility of reinstatement for at least two years. Pursuant to our

court rules, we are required to review the commission’s report. See Iowa

Ct. R. 35.10(1). 1 Upon our review, we agree the respondent violated our

ethical rules and suspend his license to practice law indefinitely for at

least two years.

      I. Prior Discipline.

      McCarthy is no stranger to the disciplinary process.              In 1991,

McCarthy was admonished because he failed to advise his client of the

filing of a motion for sanctions, the hearing thereon, and the order

imposing sanctions. In 1992, McCarthy received a public reprimand for

failing to make timely filings in a probate matter and for failing to

cooperate with the subsequent disciplinary investigation.               In 1993,
McCarthy received another admonishment after he represented a client

in a proceeding substantially related and adverse to the interests of a

former client without the informed consent of both parties.             In 1996,

McCarthy received a second public reprimand for again representing a

client in a proceeding substantially related and adverse to the interests of

a former client. In 2000, the Board admonished McCarthy after he failed

      1In  February 2012, we renumbered rules 35.9 through 35.27 because of the
adoption of new Iowa Court Rule 35.9. However, we must refer to these rules in this
case as previously numbered because McCarthy’s hearing before the grievance
commission commenced prior to the renumbering. See Iowa Supreme Ct. Disciplinary
Bd. v. Marks, 814 N.W.2d 532, 542 n.1 (Iowa 2012).
                                     3

to appear for a trial and a hearing. The Board admonished McCarthy in

2001 for the fourth time after he neglected a client’s matter by failing to

tell his client that he would not pursue the client’s claim. Next, in 2003,

we publicly reprimanded McCarthy for failing to cooperate with a Board

investigation.

      In 2006, we suspended McCarthy’s license for six months for his

conduct in multiple matters. Iowa Supreme Ct. Att’y Disciplinary Bd. v.

McCarthy, 722 N.W.2d 199, 200 (Iowa 2006). In one matter, McCarthy

represented a husband and wife in a bankruptcy proceeding. Id. at 202.

He also represented the husband in a separate dissolution of marriage

proceeding. Id. Six months after the bankruptcy discharge, McCarthy

used knowledge he acquired during his representation of both parties to

amend the bankruptcy petition to the detriment of the wife. Id. at 202–

03. He also neglected client matters, which resulted in two dismissed

appeals. Id. at 203. Further, he failed to answer the Board’s complaint

in four matters. Id. at 205.

      Since that time, we have temporarily suspended McCarthy’s

license on four occasions for failing to respond to notices from the Board.

Finally, in 2009, we publicly reprimanded McCarthy for the fourth time

after he represented both parties in a dissolution of marriage proceeding

and neglected that representation.

      II. Grievance Commission Proceedings in the Current Matter.

      The Board’s original complaint contained seven counts alleging

McCarthy violated numerous disciplinary rules.          The Board later

amended the complaint by adding two more counts alleging further

violations.   The Board and McCarthy entered into a joint stipulation

admitting all of the factual allegations of the complaint and agreeing to

the admission of exhibits supporting the allegations. The stipulation also
                                      4

admitted rule violations in each count, listed McCarthy’s extensive

history of prior discipline as an aggravating factor, and noted his heart

disease and open-heart surgery in April 2008 were mitigating factors.

Finally, the stipulation waived a hearing on the complaint and requested

that the commission recommend a sixty-day suspension of McCarthy’s

license.

      The commission filed a report adopting the stipulation of facts.

The report set out more than fifty violations of the Iowa Rules of

Professional Conduct and seven violations of our court rules, all of which

were admitted in the joint stipulation. The commission recommended we

suspend McCarthy’s license to practice law indefinitely with no

possibility of reinstatement for at least two years.

      III. Scope of Review.

      We review lawyer disciplinary proceedings de novo. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Adams, 809 N.W.2d 543, 545 (Iowa 2012).

The   Board   must    prove   disciplinary   violations   by   a   convincing

preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Templeton, 784 N.W.2d 761, 763 (Iowa 2010).                 A convincing

preponderance of the evidence is more than a preponderance of the

evidence, but less than proof beyond a reasonable doubt. Id. Although

we give the commission’s recommendations respectful consideration, we

are not bound by them.        Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Earley, 774 N.W.2d 301, 304 (Iowa 2009). Upon proof of misconduct, we

may impose a greater or lesser sanction than that recommended by the

commission. Id.

      When the parties enter into a stipulation of facts, it is binding on

them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801,

803 (Iowa 2010). In our attempt “to give effect to the parties’ intentions”
                                       5

we interpret a factual stipulation “ ‘with reference to its subject matter

and in light of the surrounding circumstances and the whole record,

including the state of the pleadings and issues involved.’ ” Id. at 803–04

(quoting Graen’s Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295,

300 (Iowa 1983)). However, a stipulation is not binding as to a violation

or a sanction.   Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793

N.W.2d 525, 528 (Iowa 2011); Gailey, 790 N.W.2d at 804.            We will

determine whether a violation occurred and the appropriate sanction

based upon the facts we find from the stipulation and our review of the

record.

      IV. Findings of Fact.

      Based on the parties’ stipulation and our review of the record, we

make the following findings of fact.

      A. Meiners Matter.        In March 2008, Gary Meiners hired

McCarthy to bring a contempt action against his ex-wife and modify a

dissolution decree.   Meiners paid McCarthy a $1500 retainer.          The

stipulation does not indicate whether McCarthy deposited the retainer

into a client trust account.    Meiners also signed a verification on a

petition to modify a dissolution decree. McCarthy did not file the petition

at this time.

      On April 10, McCarthy suffered a heart attack.        He underwent

open-heart surgery ten days later. In June, McCarthy informed Meiners

he was ready and able to proceed with his case. However, McCarthy did

not take any action on Meiners’ case until September 30, when he filed

an application for a rule to show cause alleging Meiners’ ex-wife failed to

pay uncovered medical expenses for their children. That day, the district

court filed a rule to show cause and set a hearing for October 20. The

order required Meiners’ ex-wife to be personally served with a copy of the
                                      6

order no less than ten days prior to the hearing date. On the day of the

hearing, McCarthy filed a motion to continue the hearing because

Meiners’ ex-wife was not timely served and because McCarthy had a

scheduling conflict involving a hearing in another county.              McCarthy,

Meiners, and Meiners’ ex-wife did not appear for the hearing, and the

district court dismissed the application without prejudice.

      On     October   31,   McCarthy     filed   Meiners’   petition    and   an

amendment to that petition.         McCarthy also filed Meiners’ second

application for a rule to show cause. The district court later combined

the two actions and set a date for trial.

      Twice during McCarthy’s representation of Meiners, McCarthy

failed to attend appointments with Meiners that McCarthy had

scheduled.    McCarthy also failed to keep Meiners informed as to the

status of his case. Meiners terminated the representation in November.

In December, Meiners requested a final billing statement and a refund of

the remainder of the retainer.     McCarthy prepared a billing statement

amounting to all but $33.48 of Meiners’ retainer.            He refunded the

remainder to Meiners.        At no time prior to this point did McCarthy

provide Meiners with any documentation relating to fees or expenses.

Further, McCarthy did not withdraw his appearance until April 15, 2009.

      After Meiners filed a complaint with the Board, McCarthy failed to

respond to multiple notices from the Board regarding the matter.               On

May 14, we suspended his license temporarily for failing to respond to

the Board’s notice. McCarthy responded the next day, and we reinstated

his license on May 18.

      B.     Ricklefs Matter.     In January 2008, McCarthy agreed to

represent Roberta Ricklefs in an action for dissolution of marriage.

Ricklefs paid McCarthy a $1500 retainer, but the stipulation does not
                                     7

indicate whether McCarthy deposited the funds into a client trust

account. McCarthy informed Ricklefs he would ask the district court to

award her temporary alimony. Ricklefs attempted to contact McCarthy

on multiple occasions in February, but was unable to reach him.

Ricklefs signed the petition for dissolution of marriage on March 15. At

that time, McCarthy told Ricklefs he would also seek an order demanding

her husband pay roughly $600 of her medical expenses.

      On April 3, McCarthy told Ricklefs he had not taken any action on

the dissolution of her marriage, temporary alimony, or medical bill.

Following his open-heart surgery, McCarthy told Ricklefs he would be

back at work by the middle of May.

      On May 21, Ricklefs was served with her husband’s petition for

dissolution of marriage.   Ricklefs was surprised because she thought

McCarthy had already filed her dissolution petition when, in fact, he had

not. On May 28, Ricklefs terminated McCarthy’s representation, asked

him to return her retainer, and asked him to send her file to her new

attorney. The next day, McCarthy filed an answer on Ricklefs’ behalf.

      During the course of the representation, Ricklefs sent several

letters to McCarthy by certified mail. Because McCarthy never claimed

them, the post office returned them to Ricklefs. McCarthy never filed a

motion to withdraw and, as of March 14, 2009, had not sent Ricklefs a

bill or returned any of her retainer. He also never provided Ricklefs with

any documentation relating to fees or expenses.

      On July 17, the Board asked McCarthy to provide copies of his

client trust account documents relating to Ricklefs’ advance fee.

McCarthy did not reply to the Board’s request.

      C. Omvig Matter. In July 2008, McCarthy agreed to represent

Michael Omvig in a criminal case and dissolution of marriage.           On
                                    8

July 11, Omvig paid McCarthy a $2200 retainer. The stipulation does

not indicate whether McCarthy deposited the funds into a client trust

account. Omvig died the next day.

      Omvig’s mother then asked McCarthy to contact the county

attorney’s office and obtain as much information as he could about her

son’s death, including coroner and police reports. McCarthy spoke with

the county attorney about obtaining these documents, but the county

attorney never produced them.

      On October 12, Omvig’s mother asked McCarthy to refund the

retainer. McCarthy agreed that he should return the unused portion of

the retainer, but was uncertain as to how to return it due to Omvig’s

death. Believing he should return the fee to Omvig’s estate, he asked

Omvig’s mother whether an estate would be opened.        Omvig’s mother

said she would look into this.

      In mid-2009, Omvig’s mother filed a complaint against McCarthy

with the Board. After multiple notices from the Board and a notice of

possible temporary suspension, McCarthy finally responded.       He also

prepared a billing statement for $975 in services provided to Omvig,

which included fees relating to his conversations with Omvig’s mother

and the county attorney after Omvig’s death. McCarthy wrote a check on

his personal bank account to Omvig’s mother for the unused portion of

the retainer.   At no time prior to the billing statement did McCarthy

provide any documentation to Omvig or his mother about fees or

expenses.

      D.    L.G. Matter.   McCarthy represented L.G., a minor, in early

2009. On February 19, McCarthy filed a notice of appeal on behalf of

L.G. with the Iowa Supreme Court.       McCarthy did not file a notice of

appeal in the district court as required by our rules. In an order, we
                                     9

directed L.G. to file a statement within fourteen days as to whether we

had jurisdiction over the appeal. McCarthy did not file such a statement

on his client’s behalf. On April 23, we granted L.G. a delayed appeal and

ordered him to file his combined certificate within seven days.        On

May 27, the deputy clerk of the supreme court issued McCarthy a notice

of default and assessment of penalty because he had failed to timely

serve and file a combined certificate. After McCarthy failed to comply, we

dismissed L.G.’s case pursuant to our court rules and forwarded the

dismissal order to the Board. In January and February 2010, McCarthy

received repeated notices from the Board and a notice of possible

temporary suspension for failure to respond to the Board.        McCarthy

responded in early March.

      E. Fawcett Matter. On January 7, 2009, McCarthy filed a notice

of appeal with the district court on behalf of Ryan Fawcett in a civil

proceeding. On April 14, the deputy clerk of the supreme court issued a

notice of default and assessment of penalty to McCarthy because he

failed to timely file his proof brief and pay the filing fee. When McCarthy

failed to remedy these deficiencies, we dismissed the appeal pursuant to

our court rules.     In January and February 2010, McCarthy received

repeated notices from the Board and a notice of possible temporary

suspension for failure to respond to the Board. He responded in March.

      F.   Sandahl Matter.       Amanda Sandahl retained McCarthy in

December 2009 to represent her in two criminal cases. McCarthy filed

Sandahl’s written arraignment and plea of not guilty in one case on

December 14.       The district court scheduled a pretrial conference for

January 27, 2010. Although McCarthy had notice of this conference, he

and Sandahl failed to appear, resulting in the issuance of a bench
                                     10

warrant for Sandahl’s arrest. McCarthy filed Sandahl’s guilty plea in the

second case on February 19.

      On April 14, police arrested Sandahl.      The district court set a

hearing for April 29. Again, McCarthy knew about the hearing, but failed

to appear. The court relieved McCarthy from further representation of

Sandahl, appointed her new counsel, and forwarded a copy of the court

files and hearing transcript to the Board.        Between May 11 and

September 24, McCarthy received multiple notices from the Board

regarding his representation of Sandahl and a notice of possible

suspension   for   failure    to   respond.    McCarthy    responded   on

September 27.

      G. Mackerman Matter. Candas Mackerman hired McCarthy on

August 18, 2009, to represent her in establishing a guardianship for her

son. She paid McCarthy a $750 retainer, but the stipulation does not

indicate where McCarthy deposited these funds.            Mackerman had

difficulty getting in contact with McCarthy.   When she finally reached

him, McCarthy informed her that he had to publish notice in the

newspaper to inform her son’s father of the action. McCarthy also said

he would send her the guardianship papers. McCarthy failed to publish

the notice and send Mackerman the guardianship papers.

      Although McCarthy never filed the guardianship petition, he told

Mackerman to meet him at the courthouse for a guardianship hearing on

four separate occasions.      Mackerman and her son appeared at the

courthouse all four times, but McCarthy was never present. Each time,

the court informed Mackerman and her son that no such guardianship

action was on its schedule.
                                   11

      Mackerman filed a complaint with the Board.         McCarthy was

served with a notice from the Board on November 29, 2010, but never

responded.

      H. Ainsworth Matter. In early March 2011, McCarthy agreed to

send a demand letter on behalf of Leslie Ainsworth to a buyer regarding a

breach of sales contract. Ainsworth asked McCarthy to send a draft of

the letter for Ainsworth’s review and approval.       Shortly thereafter,

Ainsworth left numerous telephone and e-mail messages with McCarthy,

but McCarthy did not respond. On March 25, Ainsworth received a copy

of McCarthy’s letter and a proposed supplementary sales agreement.

However, McCarthy never informed Ainsworth whether he sent the letter

or proposed agreement to the buyer. Ainsworth hired a different attorney

to pursue the matter. Ainsworth paid McCarthy approximately $95 for

the preparation of the letter, but the stipulation does not indicate when

Ainsworth paid McCarthy the funds.

      I. Lee Matter. In January 2011, Melissa Lee hired McCarthy to

represent her in a custody modification action involving her two children.

Lee paid McCarthy a $1300 retainer.       McCarthy prepared a petition,

which Lee signed on January 11. Later that day, Lee called McCarthy

and informed him that the petition contained two errors. McCarthy told

Lee not to return to the office, that he would make the corrections, and

that he would send the revised petition to her.      The revised petition

contains a signature somewhat similar to Lee’s on the original version,

but McCarthy admitted in the stipulation that Lee never received or

signed the revised petition. Nonetheless, McCarthy notarized the revised

petition.

      On January 20, McCarthy filed Lee’s petition.       The next day,

McCarthy told Lee he would let her know when the sheriff served her ex-
                                            12

husband. McCarthy also told Lee the court would hold a hearing before

school started for the 2011–2012 school year.

        After Lee unsuccessfully attempted to contact McCarthy, she

learned from the sheriff’s office on February 4 that the sheriff had served

her ex-husband on January 25. On February 9, Lee’s ex-husband filed

an answer, counterclaim, and contempt application.              He later served

McCarthy with interrogatories. On March 11, McCarthy filed a reply to

Lee’s counterclaim.        Lee and McCarthy met on March 21 to complete

Lee’s answers to the interrogatories. That day, he told Lee the court had

not set a hearing date yet. McCarthy did not serve Lee’s answers to the

interrogatories.

        On March 29, Lee called McCarthy and asked him whether his

license to practice law was under review. McCarthy told her he could not

speak with her at that time and would return her call. During the next

three days, Lee left McCarthy telephone messages asking McCarthy to

call her. On April 2, McCarthy told Lee that he had been too busy to

return her calls, that he would have a disciplinary hearing in May, and

that she needed to find another attorney because of his disciplinary

investigation. He also falsely told Lee the court scheduled her hearing for

July 28.

        On April 7, Lee’s ex-husband filed a motion to compel Lee to file

answers to the interrogatories. On April 8, Lee met with a new attorney,

who agreed to take her case. Lee’s new attorney informed Lee about the

motion to compel and that the court scheduled a hearing in November.

Later that day, Lee asked McCarthy for her file, about her interrogatory

answers, and for the remainder of her retainer. McCarthy told Lee he

would      deliver   her    file,   which    contained   her   answers   to   the

interrogatories, to her new attorney. He also told Lee he would prepare
                                     13

and send her an itemized billing statement and deliver the remainder of

the retainer to the new attorney.          McCarthy withdrew from the

representation.

      McCarthy did not deliver Lee’s file to the new attorney until

April 28. He also delivered a billing statement and a $214.30 refund. On

July 21, McCarthy prepared a revised billing statement that indicated he

erroneously refunded part of Lee’s retainer and that she owed him

$676.50.

      V. Ethical violations.

      A. Neglect. The Board alleges McCarthy violated four of our rules

pertaining to neglect.    Neglect involves “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. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (citation and

internal quotation marks omitted).

      1.   Diligence.     Rule 32:1.3 states, “A lawyer shall act with

reasonable diligence and promptness in representing a client.” Iowa R.

Prof’l Conduct 32:1.3.     Under this rule and its predecessor, a lawyer

commits an ethical violation when he repeatedly fails to meet deadlines

and perform the functions required of him as an attorney.         See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102

(Iowa 2012); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Grotewold, 642 N.W.2d 288, 293 (Iowa 2002).

      In the Meiners matter, McCarthy waited six months to take any

action on his client’s behalf and seven months to file the petition his

client had signed.      McCarthy did not file his clients’ petitions in the

Ricklefs and Mackerman matters even though he indicated he would do

so shortly or had already done so.        Similarly, he failed to file Lee’s
                                     14

interrogatory answers. In the L.G. and Fawcett matters, McCarthy failed

to comply with an order and notices directing him to cure deficient

filings. Finally, during his representation of Sandahl, McCarthy failed to

appear at a pretrial conference and a hearing.         Therefore, we find

McCarthy violated rule 32:1.3.

      2.   Communication with clients.      The next two implicated rules

relate to McCarthy’s duty to communicate with his clients.             Rule

32:1.4(a)(3) requires a lawyer to keep his or her “client reasonably

informed about the status of the matter.”         Iowa R. Prof’l Conduct

32:1.4(a)(3).   Further, rule 32:1.4(a)(4) requires a lawyer to “promptly

comply with reasonable requests for information.”       Id. r. 32:1.4(a)(4).

Nearly all of McCarthy’s clients reported hardship in contacting

McCarthy due to McCarthy’s failure to answer his telephone and respond

to telephone and e-mail messages.          This conduct might have been

enough on its own to find an ethical violation.     See Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 680 (Iowa 2010)

(finding a lawyer failed to keep his client reasonably informed when he

failed to return his client’s telephone calls).     Additionally, however,

McCarthy failed to attend appointments he had scheduled with Meiners.

McCarthy also falsely told Mackerman the court had scheduled a hearing

on four different days, which caused Mackerman to appear at the

courthouse only to discover that McCarthy was not present and no

hearing was scheduled. Finally, it seems McCarthy disappeared entirely

during his representation of Ainsworth after sending a draft of the

proposed supplemental sales agreement.           Consequently, McCarthy

violated rules 32:1.4(a)(3) and 32:1.4(a)(4).

      3.   Duty to expedite litigation.   Rule 32:3.2 imposes a duty on a

lawyer to “make reasonable efforts to expedite litigation consistent with
                                        15

the interests of the client.” Iowa R. Prof’l Conduct 32:3.2. During his

representations of Meiners, L.G., and Fawcett, McCarthy failed to appear

in court or failed to timely remedy a deficient filing, which led to the

dismissal of the three of the actions he was pursuing on behalf of his

clients.   McCarthy also failed to appear with his client at a pretrial

conference in the Sandahl matter, which lead to the issuance of a bench

warrant for the arrest of his client. Finally, during his representation of

Lee, McCarthy failed to timely serve his client’s interrogatory answers.

Therefore, we find McCarthy violated rule 32:3.2.

      B. Failure to Communicate Fees. The Board alleged McCarthy

violated rule 32:1.5(b), which governs fee agreements. The rule requires

a lawyer to communicate to the client, preferably in writing, “the basis or

rate of the fee and expenses for which the client will be responsible . . .

before or within a reasonable time after commencing the representation.”

Iowa R. Prof’l Conduct 32:1.5(b).            A billing statement following the

rendering of the lawyer’s services is not sufficient by itself to comply with

the rule, even if it sets out the lawyer’s hourly rate and time spent

working on a client’s matter. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Hearity, 812 N.W.2d 614, 619 (Iowa 2012). McCarthy merely prepared

final billing statements in the Meiners, Ricklefs, Omvig, and Lee matters.

Therefore, we find McCarthy violated rule 32:1.5(b) because he failed to

communicate the fee and expense rate for which his clients were

responsible within a reasonable time of commencing the representation.

      C.    Trust Account Violations.            The Board alleged McCarthy

violated   multiple   provisions   of   rule    32:1.15,   which   governs   the

safeguarding of a client’s property. This includes retainer fees. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Plumb, 766 N.W.2d 626, 631–32

(Iowa 2009). The rule provides, in relevant part:
                                   16
            (a) A lawyer shall hold property of clients or third
      persons that is in a lawyer’s possession in connection with a
      representation separate from the lawyer’s own property.
      Funds shall be kept in a separate account. Other property
      shall be identified as such and appropriately safeguarded.
      Complete records of such account funds and other property
      shall be kept by the lawyer and shall be preserved for a
      period of six years after termination of the representation.

            ....

             (c) A lawyer shall deposit into a client trust account
      legal fees and expenses that have been paid in advance, to
      be withdrawn by the lawyer only as fees are earned or
      expenses incurred.

             (d) Upon receiving funds or other property in which a
      client or third person has an interest, a lawyer shall
      promptly notify the client or third person. Except as stated
      in this rule or otherwise permitted by law or by agreement
      with the client, a lawyer shall promptly deliver to the client
      or third person any funds or other property that the client or
      third person is entitled to receive and, upon request by the
      client or third person, shall promptly render a full
      accounting regarding such property.

            ....

           (f) All client trust accounts shall be governed by
      chapter 45 of the Iowa Court Rules.

Id. r. 32:1.15. Rule 32:1.15 incorporates Iowa Court Rule 45.7, which

directs a lawyer as to how to handle a retainer.     The rule requires a

lawyer to deposit a retainer into a trust account and withdraw payments

as the lawyer earns the fee or incurs the expense. Iowa Ct. R. 45.7(3).

The rule also requires a lawyer, at the time of a withdrawal of a fee or

expense, to notify his client in writing of the time, amount, and purpose

of the withdrawal and provide a complete accounting. Id. r. 45.7(4).

      In the Meiners, Ricklefs, and Mackerman matters, McCarthy

received retainer fees from his clients, but the stipulation is unclear

whether he deposited the funds into a client trust account. Therefore,

the Board has failed to prove by clear and convincing evidence that
                                     17

McCarthy failed to deposit these funds into a client trust account.

However, in the Omvig matter, McCarthy refunded the unearned portion

of the retainer via a check written on his personal account. The fact that

McCarthy placed unearned fees into his personal account confirms he

commingled unearned client funds with his own property in violation of

rules 32:1.15(a) and (c).

      Moreover, a lawyer violates the provision requiring the lawyer to

promptly return unearned fees if the lawyer takes “several months” to

return the unearned fees.      Plumb, 766 N.W.2d at 632; see also Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 439 (Iowa

2012) (holding a four-month delay violated rule 32:1.15(d)). Additionally,

when a representation ends, a lawyer must “take steps to the extent

reasonably practicable to protect a client’s interests.”     Iowa R. Prof’l

Conduct 32:1.16(d).         This may include “surrendering papers and

property to which the client is entitled, and refunding any advance

payment of fee or expense that has not been earned or incurred.” Id.

Ricklefs discharged McCarthy on May 28, 2008.              She also asked

McCarthy to refund her $1500 retainer. As of April 14, 2009, McCarthy

had not sent Ricklefs a bill or returned any of her retainer. Therefore, we

find McCarthy violated rules 32:1.15(d) and 32:1.16(d).

      Finally, McCarthy admitted he did not provide a contemporaneous

written notice to his client of the time, amount, and purpose of his fee

and expense withdrawals from his client trust account in the Meiners,

Ricklefs, and Omvig matters.       Consequently, McCarthy violated Iowa

Court Rule 45.7(4) and Iowa Rule of Professional Conduct 32:1.15(f).

      D.   Improper Withdrawal from Representation.             The Board

alleged McCarthy violated rule 32:1.16, which governs a lawyer’s

withdrawal from a representation. The Board alleges McCarthy should
                                     18

have withdrawn from his representation of Ricklefs and Meiners after he

suffered a heart attack. It also alleges McCarthy should have withdrawn

from the Meiners action after Meiners discharged him.            Finally, the

Board alleges Meiners did not take steps to protect his clients’ interests

following his withdrawal in the Ricklefs and Meiners actions.

      1.    Mandatory withdrawal because of physical condition.          Rule

32:1.16(a)(2) provides that a lawyer must withdraw from a representation

where “the lawyer’s physical or mental condition materially impairs the

lawyer’s ability to represent the client.”    Id. r. 32:1.16(a)(2).   As we

recently noted in Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cunningham,

812 N.W.2d 541, 548 (Iowa 2012), there is very little case law

interpreting this rule or its predecessor. To prove McCarthy violated the

rule in the Meiners or Ricklefs matters, the Board would have to

demonstrate that McCarthy’s heart attack and subsequent open-heart

surgery materially impaired his representation of Meiners or Ricklefs.

We have found a lawyer’s physical condition materially impaired the

representation of a client where the lawyer allowed three appeals to be

dismissed for want of prosecution while the lawyer underwent three

surgeries to correct a chronic back ailment. See Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Hoglan, 781 N.W.2d 279, 283–84 (Iowa 2010).

      McCarthy suffered his heart attack on April 10, 2008, and

underwent open-heart surgery on April 20.           On April 25, McCarthy

communicated with Ricklefs via telephone, and McCarthy told her he

would be back to work by the middle of May.           On May 21, Ricklefs

received her husband’s petition for dissolution of marriage, which

surprised her because she had signed her own petition on March 15. We

cannot     find   that   McCarthy   should   have    withdrawn    from    his

representation of Ricklefs for two reasons.     First, the Board has not
                                     19

established by a convincing preponderance of the evidence that

McCarthy’s failure to file Ricklefs’ divorce petition prior to the time her

husband filed his petition put Ricklefs at any kind of a disadvantage, let

alone a material disadvantage, in her case.        Second, given McCarthy’s

habitual neglect of client matters, the Board has failed to establish that

McCarthy’s heart attack and subsequent surgery, and not his dilatory

nature, caused him not to file Ricklefs’ petition prior to the time her

husband filed his petition. It is possible McCarthy would have failed to

file Ricklefs’ petition prior to May 21 even if he did not have a heart

attack.

      Similarly, McCarthy met with Meiners in June, at which point

McCarthy informed Meiners he was ready and able to proceed with his

case. Although McCarthy did not take any action on Meiners’ case until

September 30, there is no indication that the delay negatively affected

Meiners’ case.

      Therefore, the Board has failed to prove by a convincing

preponderance of the evidence that McCarthy’s heart attack and

subsequent surgery materially impaired his representation of Ricklefs or

Meiners. Thus, McCarthy did not violate rule 32:1.16(a)(2).

      2.     Mandatory withdrawal because of discharge by client.       Rule

32:1.16(a)(3) requires a lawyer to withdraw if discharged by his or her

client.    Iowa R. Prof’l Conduct 32:1.16(a)(3).   In interpreting the rule’s

predecessor, DR 2–110(B)(4), we held a lawyer must withdraw from the

case when discharged by the client. Iowa Supreme Ct. Bd. of Prof’l Ethics

& Conduct v. Freeman, 603 N.W.2d 600, 602 (Iowa 1999).               Meiners

discharged McCarthy in November, but McCarthy failed to withdraw his

appearance until April 15, 2009. Therefore, we find McCarthy violated

rule 32:1.16(a)(3).
                                    20

      E.   Dishonest Conduct.      Rule 32:8.4(c) prohibits a lawyer from

engaging   “in   conduct    involving    dishonesty,   fraud,   deceit,   or

misrepresentation.” Iowa R. Prof’l Conduct 32:8.4(c). The Board alleged

McCarthy violated this rule during his representations of Mackerman

and Lee.

      We will not find a lawyer’s actions violated rule 32:8.4(c) absent

some level of scienter. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti,

797 N.W.2d 591, 605 (Iowa 2011). A lawyer’s negligence is not enough

by itself to establish a violation. Id. However, we will find a violation of

this rule where a lawyer forges a client’s signature on court documents.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Liles, 808 N.W.2d 203, 206

(Iowa 2012); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Rylaarsdam, 636 N.W.2d 90, 92–93 (Iowa 2001).

      In the Mackerman matter, McCarthy told his client he could not

establish a guardianship for her son without first publishing notice to

the son’s father. McCarthy never published such notice. We are unable

to determine from the record presented whether McCarthy made a

knowing misrepresentation of a material fact to Mackerman when he told

her he would establish a guardianship or publish notice. Nonetheless,

we may infer McCarthy’s knowledge from the circumstances surrounding

the misrepresentation. See Iowa R. Prof’l Conduct 32:1.0(f). McCarthy

represented on numerous occasions that he filed the guardianship

papers because he told Mackerman the court had scheduled a

guardianship     hearing   on    those   occasions.       These    multiple

misrepresentations lead us to find that McCarthy knowingly made these

representations and that they were not a product of his neglect.

      In the Lee matter, McCarthy stipulated his client never received or

signed the petition he notarized and filed. Although the stipulation does
                                    21

not indicate who forged Lee’s signature on the petition, it does indicate

McCarthy knew he filed a court document containing a forged signature.

Therefore, we find McCarthy violated rule 32:8.4(c) in both matters.

      F.    Failure to Cooperate with Board.           The Board alleges

McCarthy failed to cooperate with the Board in multiple counts.        Rule

32:8.1(b) provides that “a lawyer in connection with . . . a disciplinary

matter, shall not . . . knowingly fail to respond to a lawful demand for

information from [a] . . . disciplinary authority.” Iowa R. Prof’l Conduct

32:8.1(b). It is well established that a respondent’s failure to respond to

a notice of complaint from the Board is a violation of our rules. Johnson,

792 N.W.2d at 680; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 759

N.W.2d 328, 331 (Iowa 2009); Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Honken, 688 N.W.2d 812, 821 (Iowa 2004); see also Iowa Ct.

R. 34.6(4). When a respondent fails to respond, we may infer from the

circumstances that the respondent knowingly failed to respond. Iowa R.

Prof’l Conduct 32:1.0(f).

      McCarthy has repeatedly demonstrated his unwillingness to

cooperate with the Board’s investigations. He failed to respond to notices

from the Board in the Meiners, Ricklefs, Omvig, L.G., Fawcett, Sandahl,

and Mackerman matters. Further, we suspended his license temporarily

as the result of his failure to comply with the Board in one matter.

Therefore, we find McCarthy violated rule 32:8.1(b).

      G. Conduct Prejudicial to the Administration of Justice. Rule

32:8.4(d) prohibits a lawyer from engaging “in conduct that is prejudicial

to the administration of justice.” Id. r. 32:8.4(d). A lawyer violates this

rule when the lawyer fails to respond to inquiries from the Board. Plumb,

766 N.W.2d at 631–32; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland,

748 N.W.2d 498, 502 (Iowa 2008); McCarthy, 722 N.W.2d at 205; Comm.
                                     22

on Prof’l Ethics & Conduct v. Bromwell, 389 N.W.2d 854, 857 (Iowa 1986).

Because we have found McCarthy failed to cooperate with the Board, we

also find he engaged in conduct prejudicial to the administration of

justice in multiple matters.

      VI. Sanction.

      To determine the appropriate sanction, we consider the nature of

the violations, the attorney’s fitness to continue to practice law, the need

to protect the public from those unfit to practice law, the need to uphold

public confidence in our judicial system, deterrence, maintenance of the

reputation of the bar as a whole, aggravating circumstances, and

mitigating circumstances.      Ireland, 748 N.W.2d at 502.    Moreover, we

tailor the sanction to the facts and circumstances of each case. Comm.

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

      In summary, McCarthy neglected the matters of multiple clients,

made misrepresentations to his clients about the status of their cases to

cover up his neglect, filed a court document containing a forged

signature, failed to appear at court proceedings, and failed to comply

with orders directing him to cure deficiencies.         He also failed to

communicate the fee or expense rate for which his clients were

responsible in multiple matters, failed to provide notices to his clients

about fee and expense withdrawals, commingled client funds with his

own property, failed to promptly return unearned fees, failed to withdraw

after a client discharged him, and failed to respond to the Board’s

inquiries.

      Neglect alone usually results in a sanction ranging from a public

reprimand to a six-month suspension.            Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 401 (Iowa 2005). However,

when a lawyer’s other misconduct compounds neglect, we may impose a
                                      23

more severe sanction. Id. We have suspended a lawyer’s license for up

to three years for conduct similar to McCarthy’s. See, e.g., Johnson, 792

N.W.2d at 682–83 (imposing a three-year suspension where the lawyer’s

misconduct included neglect, failure to communicate with clients, failure

to return unearned fees, and failure to respond to the Board’s inquiries);

Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96–

98 (Iowa 2006) (suspending a lawyer’s license for two years for neglect,

conversion of client funds, misrepresentations to cover up neglect, failure

to withdraw when discharged, failure to deliver client funds when

requested, failure to respond to the Board, and other violations); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Maxwell, 705 N.W.2d 477, 479–81

(Iowa 2005) (imposing a one-year suspension for neglect and failure to

notify a client of a hearing where the lawyer also had a record of

disciplinary actions involving neglect); Honken, 688 N.W.2d at 820, 822

(suspending a lawyer’s license for two years for “multiple acts of making

misrepresentations to the court, disregarding court orders, neglecting

client matters, misrepresenting the status of matters to . . . clients, and

failing to respond to the Board’s inquiries”); Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553–54 (Iowa 2004)

(imposing a two-year suspension where neglect included failure to timely

file a petition, failure to comply with rules of appellate procedure, and

failure to comply with notices of deficient filings).

      A personal health issue can mitigate the sanction we impose on a

lawyer for ethical violations, but they do not excuse misconduct. Knopf,

793 N.W.2d at 531; see also Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Curtis, 749 N.W.2d 694, 703 (Iowa 2008) (finding depression to be a

mitigating factor in a discipline action resulting in a one-year suspension

for neglect, client trust account violations, and dishonesty to client);
                                      24

McCann, 712 N.W.2d at 96 (finding severe depression and anxiety

constituted mitigating factors in a disciplinary action resulting in a two-

year suspension for neglect, misrepresentation, and client trust account

violations).    We find McCarthy’s heart disease and subsequent open-

heart surgery a mitigating factor.

         On the other hand, McCarthy’s detailed history of prior disciplinary

violations is an aggravating factor.       Since 1991, McCarthy has been

admonished four times and publicly reprimanded four times. Further,

we have temporarily suspended his license on four occasions for failure

to respond to the Board’s inquiries and suspended his license for six

months on another occasion. Much of McCarthy’s prior discipline stems

from his neglect of client matters, which is misconduct he also engaged

in here.

         McCarthy has established a troubling pattern of neglect, a blatant

disregard for his clients, and a lack of respect for the disciplinary

process.     In light of his numerous violations of our rules, his health

problems, and his disciplinary history, we suspend McCarthy’s license to

practice law indefinitely with no possibility of reinstatement for two

years.

         VII. Disposition.

         We suspend McCarthy’s license to practice law in this state

indefinitely with no possibility of reinstatement for two years.        This

suspension applies to all facets of the practice of law as provided in rule

35.12(3) and requires notification of clients as outlined in rule 35.22(1).

McCarthy must also refund all unearned fees advanced to him by clients

and pay all penalties assessed for failure to comply with appellate rules.

Upon application for reinstatement, McCarthy must demonstrate that he

has not practiced law during the period of his suspension and that he
                                  25

has complied with the requirements of rule 35.13. We tax the costs of

this proceeding to McCarthy pursuant to rule 35.26(1).

      LICENSE SUSPENDED.
