                     IN THE SUPREME COURT OF IOWA

                              No. 15–0156

                            Filed May 1, 2015


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

KENNETH J. WEILAND, JR.,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      The grievance commission reports an attorney committed ethical

misconduct     and    recommends   a   public   reprimand.   ATTORNEY

REPRIMANDED.



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

complainant.



      Kenneth J. Weiland, Jr., Des Moines, pro se.
                                      2

ZAGER, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board (Board)

charged attorney Kenneth J. Weiland Jr. with violations of several of our

ethical rules based on his actions in an appeal filed with this court. After

a hearing, a division of the Grievance Commission of the Supreme Court

of Iowa found Weiland’s conduct was prejudicial to the administration of

justice in violation of Iowa Rule of Professional Conduct 32:8.4(d), and

recommended we impose a public reprimand. Upon our de novo review,

we concur in the commission’s finding that Weiland’s conduct was

prejudicial to the administration of justice in violation of rule 32:8.4(d).

Additionally, we conclude Weiland failed to make reasonable efforts to

expedite litigation consistent with the interests of his client in violation of

Iowa Rule of Professional Conduct 32:3.2. Ultimately, we agree with the

commission that a public reprimand is appropriate.

      I. Factual Background and Proceedings.

      Weiland was admitted to practice law in Iowa in 1994.                 He

currently works in Des Moines, as a solo practitioner.           His practice

includes representing clients in a variety of matters, including family law.

The Board’s complaint in this case stems from Weiland’s representation

of Ryan Pierce in an appeal from a domestic relations case.

      Weiland’s representation of Pierce began in 2012 when Weiland

agreed to represent Pierce in a domestic relations case.            The case

proceeded to trial on December 17, 2012. The district court entered a

decree in the matter on January 2, 2013.         After reviewing the decree,

Weiland concluded the district court failed to address an issue he

believed it was required to address.        Accordingly, Weiland informed

Pierce that there were sufficient grounds to appeal the case. Based on
                                     3

Weiland’s advice, Pierce elected to appeal the case. Weiland filed a notice

of appeal on January 31.

       After filing the notice of appeal, Weiland failed to file and serve a

combined certificate or pay the filing fee as required by our rules of

appellate procedure.    See Iowa R. App. P. 6.702(1)(a) (establishing the

filing fee for appeals and requiring the appellant to “pay the fee . . .

within seven days after filing the notice of appeal”); id. r. 6.804(1)

(requiring the appellant to complete and file a combined certificate

“within seven days after filing the notice of appeal,” and further requiring

the appellant to “serve the combined certificate on all parties to the

appeal and on each court reporter from whom a transcript was ordered”).

On March 8, the clerk of the Iowa Supreme Court sent Weiland a notice

of default informing him of the deficiency and assessing a $150 penalty

against him.     The notice further informed Weiland that if he failed to

remedy the default within fifteen days, the clerk would dismiss the

appeal for want of prosecution. See id. r. 6.1202(1)(a) (“If the appellant

fails to cure the default, the clerk shall enter an order dismissing the

appeal.”).

       On the morning of March 25, Weiland called the court reporter
that had reported the trial, Lisa McCarville, and requested a transcript of

the Pierce trial. Later that morning, McCarville sent Weiland a follow-up

email in which she stated that after their phone conversation, she

reviewed her records and determined the transcript would cost $220.50.

The email further stated that she would need a copy of the combined

certificate.   Additionally, the email stated, “I will get to work on the

transcript as soon as I receive your deposit.” That same day, Weiland

filed a combined certificate with the clerk in which he certified that “the
                                      4

Transcript ha[d] been ordered.”     He did not serve McCarville with the

combined certificate.

      On June 4, the clerk sent both Weiland and McCarville a notice of

failure to timely file transcript notifying them that McCarville had not

filed the transcript by the deadline. See id. r. 6.803(3)(c) (establishing the

deadline for filing transcript as forty days after service of the combined

certificate). On June 5, McCarville filed a reporter’s application for an

extension of time to file a transcript. In the application, she certified that

she “ha[d] not received an order for transcript from . . . Weiland” because

he had not served her with a copy of the combined certificate. See id. r.

6.803(1) (requiring the “appellant [to] use the combined certificate to

order in writing from the court reporter a transcript”). The application

also noted that she had not received a deposit for the transcript.

      On June 17, this court filed an order requiring Weiland to “serve

court reporter McCarville with the combined certificate and pay her

required deposit” by June 27. The order further stated, “[F]ailure to pay

[for] the transcript should be reported by the court reporter to this court,

and will result in [the] appeal being dismissed for appellant’s failure to

comply with the appellate rules.”         On July 8, eleven days after the

deadline, McCarville filed a reporter’s report of nonpayment in which she

certified that as of July 3, Weiland had not sent her a combined

certificate or paid the deposit. Accordingly, on July 18, this court filed

an order dismissing the appeal for failure to comply with our appellate

rules and instructing the clerk to forward a copy of the order to the

Board for further action. See id. r. 6.1202(3) (“Following the dismissal of

an appeal for failure to comply with an appellate deadline where the

appellant was represented by an attorney, the clerk . . . shall forward
                                           5

certified copies of the docket, the notice of default which resulted in

dismissal, and the order of dismissal to the . . . Board.”).

       Based on these facts, the Board filed a complaint on August 11,

2014. In its complaint, the Board alleged Weiland violated Iowa Rules of

Professional Conduct 32:1.3 (requiring diligence), 32:3.2 (requiring

reasonable efforts to expedite litigation), 32:3.3(a)(1) (prohibiting false

statements to a tribunal), 32:3.4(c) (requiring compliance with the rules

of a tribunal), 1 and 32:8.4(d) (prohibiting conduct prejudicial to the

administration of justice). Weiland filed his answer on September 10. In

his answer, he admitted all the factual allegations in the Board’s

complaint.      However, he denied that his conduct violated any ethical

rules. Additionally, Wieland asserted that he communicated to Pierce the

need for Pierce to provide him with funds for the transcript on multiple

occasions, but that Pierce had failed to do so. He also asserted that the

reason he failed to dismiss the appeal was that he wanted to give Pierce

“every opportunity to appeal his case.”

       The commission conducted an evidentiary hearing in November.

At the hearing, the following witnesses testified: Christine Mayberry,

deputy clerk for the Iowa appellate courts; McCarville; and Weiland.

Mayberry testified that between 1998 and 2014 Weiland has received

forty notices of default for failing to comply with deadlines in various

appeals. She testified that based on her fifteen years of experience as

deputy clerk, this is an excessive number of notices of default.                    She




       1Priorto the hearing before the commission, the Board abandoned its claim that
Weiland’s conduct violated rule 32:3.4(c). Accordingly, we do not consider whether
Weiland’s conduct violated rule 32:3.4(c). See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Keele, 795 N.W.2d 507, 511 (Iowa 2011) (declining to address rule violations abandoned
by the Board on appeal).
                                           6

further testified that when the clerk’s office is required to send default

notices, it causes “a significant drain on [the office’s] workload.” 2

       McCarville testified that when a party files an appeal, the court

reporter in the underlying matter typically receives a copy of the

combined certificate. This combined certificate notifies the court reporter

that a party has filed an appeal for which a transcript is needed and

provides the court reporter with details as to the dates of future

deadlines.     She testified that in Pierce’s case she did not receive a

combined certificate. Instead, Weiland called her to request a transcript.

She testified that after receiving the call from Weiland, she found the

appeal online and discovered that Weiland had recently filed the

combined certificate. She then emailed Weiland and requested that he

send her a copy of the combined certificate and informed him of the cost

of the transcript.

       McCarville gave conflicting testimony as to whether she considered

the transcript ordered after speaking with Weiland on the phone on

March 25. Initially, she testified that she requires the deposit to be paid

prior to considering the transcript ordered.               She testified that she

typically requires a deposit in advance because doing so ensures that she

receives payment for her services. However, she then testified that after

her conversation with Weiland, she “considered [Weiland to have] ordered

the transcript verbally.”       She further testified that although she was

waiting for both the combined certificate and her deposit, she probably



       2Weiland   objected to the admission of this testimony and to related documentary
evidence. He argued the commission could not use this evidence to find he committed
an ethical violation. However, he acknowledged the commission could use this evidence
“in regards to any disposition if there is a finding [he] acted in an unethical manner.”
Thus, as did the commission, we consider this evidence only as it relates to our
consideration of the appropriate sanction.
                                    7

began doing some preliminary work on the transcript to ensure she did

not miss any deadlines.

      Weiland admitted that he failed to serve McCarville with the

combined certificate. However, he maintained that he did not know our

appellate rules required him to do so.     Additionally, he testified that

when he spoke with McCarville on the phone on March 25, he believed

he had ordered the transcript. He testified that when he certified in the

combined certificate that he had ordered the transcript, he knew he had

not paid McCarville. However, he believed that ordering the transcript

and paying for the transcript were distinct concepts.     Accordingly, in

certifying on the combined certificate that he had ordered the transcript,

he “didn’t believe [he] was lying to the Court . . . or misrepresenting

anything.”

      Weiland did not dispute receiving the various notices of default in

Pierce’s appeal.   However, he testified that Pierce had been unable to

supply him with the necessary funds for either the filing fee or the

transcript.   He further testified that he advanced Pierce $150 for the

filing fee and that Pierce eventually reimbursed him $100 of that

amount. However, Pierce never provided him funds for the transcript,

despite Weiland’s repeated requests that he do so. Weiland testified that

he did not dismiss the appeal after the June 27 deadline because he

believed Pierce still wanted to pursue it, and he hoped Pierce would

“come up with [the] money.”      Accordingly, Weiland “wasn’t trying to

cause the Court problems.”    Instead, he was trying to protect Pierce’s

appeal rights by “gett[ing] as much time for him to [obtain the funds as

possible].”

      Weiland expressed remorse for failing to dismiss Pierce’s appeal

once he realized Pierce would not be able to obtain funds for the
                                    8

transcript. He testified that when a client is unable to obtain funds for

an appeal in the future, he will withdraw as counsel instead of repeatedly

missing deadlines. He further noted that although he has a history of

failing to meet appellate deadlines, he has recently improved his

compliance with appellate deadlines.    Specifically, he highlighted that

many of the notices of default he has received in the past occurred

“closer to the early 2000s.” However, he admitted he received notices of

default in two other appeals in 2014 for failing to file the required

combined certificates.   Finally, Weiland acknowledged that the Board

privately admonished him in 2003 for failing to dismiss an appeal after

the client decided not to pursue it.     However, he distinguished the

instant case from this prior misconduct, noting that in this case his

client wanted to pursue the appeal, but was unable to obtain the

necessary funds to do so.

      The commission issued its written findings of fact, conclusions of

law, and recommended sanction on January 27, 2015. It concluded the

Board failed to present sufficient evidence to demonstrate Weiland’s

conduct violated rules 32:1.3 (requiring diligence), 32:3.2 (requiring

reasonable efforts to expedite litigation), and 32:3.3(a)(1) (prohibiting

false statements to a tribunal).    Specifically, it concluded Weiland’s

failure to dismiss the appeal was an attempt to protect the interests of

his client.   Additionally, it credited Weiland’s testimony that he had

verbally ordered the transcript on March 25.            Accordingly, the

commission concluded that Weiland had not neglected Pierce’s case or

knowingly made a false statement in the combined certificate. However,

the commission concluded Weiland’s conduct violated rule 32:8.4(d)

(prohibiting conduct prejudicial to the administration of justice).

Specifically, it reasoned that Weiland had a duty to dismiss the appeal by
                                    9

the July 27 deadline once he realized Pierce would not be able to obtain

funds for the transcript, instead of relying on the clerk to dismiss the

appeal. The commission credited Weiland for taking responsibility for his

actions. It also credited Weiland for his commitment to require clients to

pay him filing and transcript fees in advance to avoid similar problems in

the future. Finally, the commission credited Weiland for maintaining a

law practice that allows persons of modest means to obtain access to the

courts at a modest rate.    The commission recommended we publicly

reprimand Weiland.

      II. Standard of Review.

      Our review of attorney disciplinary proceedings is de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 63 (Iowa

2014).   The Board must prove attorney misconduct by a convincing

preponderance of the evidence, a burden greater than a preponderance of

the evidence but less than proof beyond a reasonable doubt.          Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Thomas, 844 N.W.2d 111, 113 (Iowa

2014).   We give the commission’s findings and recommendations

respectful consideration, but we are not bound by them. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Ricklefs, 844 N.W.2d 689, 696 (Iowa 2014).

“Upon proof of misconduct, we may impose a greater or lesser sanction

than the sanction recommended by the commission.” Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 764 (Iowa 2010).

      III. Review of Alleged Ethical Violations.

      The Board alleged numerous violations of the Iowa Rules of

Professional Conduct based on Weiland’s conduct in the Pierce appeal.

Weiland admitted each of the factual allegations in the Board’s

complaint. “Factual matters admitted by an attorney in an answer are

deemed established, regardless of the evidence in the record.”       Iowa
                                           10

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

2013). We turn now to address the individual rule violations alleged by

the Board.

       A. Rule 32:1.3: Reasonable Diligence and Promptness. This

rule requires a lawyer to “act with reasonable diligence and promptness

in representing a client.”         Iowa R. Prof’l Conduct 32:1.3.             We have

recognized that an attorney violates rule 32:1.3 when he or she neglects

a client matter. 3 See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal,

796 N.W.2d 910, 915 (Iowa 2011).                  Generally, 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) (quoting Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004)).

“[O]rdinary negligence does not constitute neglect.”               Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Taylor, 814 N.W.2d 259, 265 (Iowa 2012). Thus,

“[a] violation of this rule arises not from inadvertent acts or omissions or

from missing a single deadline, but from consistently failing to perform

functions required of an attorney or from repeatedly missing deadlines.”

Conroy, 845 N.W.2d at 64.

       We have previously held that “even if a client no longer wants a

matter to be pursued, it is neglect for the attorney to allow the matter to

languish, without terminating it.” Dolezal, 796 N.W.2d at 915. We have

explained:

       3“The   Iowa Rules of Professional Conduct no longer expressly refer to neglect.
Nevertheless, we have continued to identify and sanction attorney neglect.” Conroy,
845 N.W.2d at 63 (citation omitted). We do so under rule 32:1.3. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012). Thus, neglect
cases under a prior version of our ethical rules provide “precedent for the interpretation
and application of rule 32:1.3.” Id.
                                       11
       Regardless of the client’s interest in the case, the onus is on
       the attorney to comply with the deadlines provided in the
       appellate rules. Unless the court relieves an attorney of his
       or her responsibility to the client on appeal, as an officer of
       the court, the attorney is required to file the appropriate
       documents and briefs. Anything less may be considered
       neglect. . . . [S]imply because a client does not want to
       pursue the case does not relieve the attorney from taking
       steps necessary to end the matter.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101,

105 (Iowa 2006) (citations omitted).

       However, when an attorney fails to comply with appellate deadlines

or dismiss an appeal to protect a client’s interests, we will not find such

conduct amounts to neglect. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Wright, 758 N.W.2d 227, 230 (Iowa 2008).        For example, in Wright,

after an attorney filed a notice of appeal, he contacted the court reporter

in the underlying matter to order the transcript. Id. at 228. The court

reporter informed the attorney that she would not prepare the transcript

until she received payment. Id. The attorney contacted his client who

reported that she did not have funds for the transcript, but that she

would attempt to borrow them. Id. at 228–29. The attorney then filed a

combined certificate in which he certified that he would pay for the

transcript in accordance with our appellate rules. Id. at 229. However,

he failed to serve the combined certificate on the court reporter. Id. As a

result, the court reporter did not prepare the transcript by the deadline.
Id.   The attorney then also failed to file the required proof brief and

designation of the contents of the appendix by the deadline.             Id.

Accordingly, the clerk sent the attorney a notice of default informing him

that if he did not cure the various deficiencies within fifteen days, the

appeal would be dismissed. Id. The attorney again contacted his client,

who was still unable to obtain funds for the transcript. Id. The attorney
                                       12

did not cure the default by the deadline, and the clerk dismissed the

appeal. Id.

      We concluded the attorney’s conduct did not amount to neglect.

Id. at 230. We explained:

      [I]t was [the client’s] failure to pay for the transcript, not [the
      attorney]’s actions, that prevented [the client] from
      proceeding with the appeal. Under the facts presented here,
      we find the Board failed to prove [the attorney] neglected [the
      client]’s interests. [This attorney] in fact protected [his
      client]’s interest by commencing and maintaining the appeal
      notwithstanding her failure to pay his fee as she had agreed,
      and by allowing her time . . . to raise the funds to pay for the
      transcript.

Id.

      In this case, as in Wright, we do not find Weiland’s conduct

amounted to neglect in violation of rule 32:1.3. The commission credited

Weiland’s testimony that his failure to comply with various appellate

deadlines and timely dismiss the appeal was the result of his attempt to

protect his client’s interests.     Specifically, the commission found that

Pierce wanted to pursue the appeal through June and that Weiland

wanted to afford Pierce every opportunity to obtain funds for the

transcript.    We       give   deference    to   the   commission’s   credibility

determination because the commission heard Weiland’s live testimony

and observed his demeanor. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Clarity, 838 N.W.2d 648, 659 (Iowa 2013).                 Thus, the record

established that Weiland attempted to protect the interests of his client

by commencing and maintaining the appeal, advancing Pierce funds for

the filing fee, and allowing Pierce time to raise funds for the transcript.

Under the facts presented here, we find the Board failed to prove Weiland

violated rule 32:1.3.
                                     13

      B. Rule 32:3.2: Expedite Litigation. This rule provides, “A

lawyer shall make reasonable efforts to expedite litigation consistent with

the interests of the client.” Iowa R. Prof’l Conduct 32:3.2. We require

lawyers to make reasonable efforts to expedite litigation because

“[d]ilatory practices bring the administration of justice into disrepute.”

Id. cmt. [1].   In failure-to-expedite cases, “[t]he question is whether a

competent lawyer acting in good faith would regard the course of action

as having some substantial purpose other than delay.” Id. An attorney

violates this rule when he or she fails to “file documents, pursue appeals,

and meet deadlines.”     Conroy, 845 N.W.2d at 65.      “The Board is only

required to prove the attorney’s intent if the sole allegation is an attorney

engaged in particular conduct for the purpose of frustrating the judicial

process.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barnhill, 847 N.W.2d

466, 484 (Iowa 2014).

      The commission concluded that Weiland did not violate rule

32:3.2. We disagree. The record showed Weiland failed to timely file the

combined certificate as required by our appellate rules, failed to serve the

combined certificate on the court reporter as required by our appellate

rules and as ordered by this court, and ultimately allowed the appeal to

languish and be administratively dismissed. We have found violations of

this rule in similar situations.      See, e.g., Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Kieffer-Garrison, 847 N.W.2d 489, 493 (Iowa 2014)

(finding the attorney’s “serial failures to comply with the requirements of

this court’s procedural rules governing the timely presentation and

progression of appeals constituted a violation of her obligation to

demonstrate reasonable efforts to expedite numerous appeals consistent

with her clients’ interests”); Conroy, 845 N.W.2d at 65 (collecting cases

and finding a rule 32:3.2 violation when the attorney failed to cure
                                          14

defaults in six appeals); Dolezal, 796 N.W.2d at 914 (finding a rule 32:3.2

violation when the attorney failed to follow through with or dismiss

appeals and disregarded default notices).             Although Weiland failed to

comply with our appellate procedures in an effort to protect Pierce’s

interests, the comments to the rule disclaim such motivation as a

legitimate interest of a client. See Iowa R. Prof’l Conduct 32:3.2 cmt. [1]

(“Realizing financial or other benefit from otherwise improper delay in

litigation is not a legitimate interest of the client.”); accord 2 Geoffrey C.

Hazard, Jr. et al., The Law of Lawyering § 31.03, at 31-4 to -5 (4th ed.

2015) (recognizing that a client’s interest in delay itself is not “entitled to

weight in assessing the propriety of a lawyer’s tactics on behalf of the

client”). Expediting an appeal by meeting deadlines, even when the client

would benefit from delay, is consistent with the legitimate interest of the

client and is therefore required by the rule. Here, Weiland elevated the

client’s interests over his obligations to the court. Weiland violated rule

32:3.2. 4

       C. Rule 32:8.4(d): Conduct Prejudicial to the Administration

of Justice. This rule prohibits an attorney from engaging in “conduct

that is prejudicial to the administration of justice.”                Iowa R. Prof’l
Conduct 32:8.4(d). “There is no typical form of conduct that prejudices

the administration of justice.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Parrish, 801 N.W.2d 580, 587 (Iowa 2011).                 Acts we have generally

considered prejudicial to the administration of justice have “hampered

the efficient and proper operation of the courts or of ancillary systems

upon which the courts rely.”            Wright, 758 N.W.2d at 230 (internal


       4As  the Board did not contend Weiland engaged in conduct for the purpose of
frustrating the judicial process, we need not address whether he acted with such intent.
See Kieffer-Garrison, 847 N.W.2d at 493 n.2.
                                    15

quotation marks omitted).     “Examples of conduct prejudicial to the

administration of justice include paying an adverse expert witness for

information regarding an opponent’s case preparation, demanding a

release in a civil action as a condition of dismissing criminal charges,

and knowingly making false or reckless charges against a judicial

officer.” Templeton, 784 N.W.2d at 768. Most relevant here, “When an

attorney’s failure to comply with appellate deadlines results in an

administrative dismissal, his actions are prejudicial to the administration

of justice.” Dolezal, 796 N.W.2d at 914; accord Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 668 (Iowa 2007) (finding

an attorney acted in a manner prejudicial to the administration of justice

when he failed to prosecute or move to dismiss an appeal he believed to

be without merit); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Daggett, 653 N.W.2d 377, 380 (Iowa 2002) (finding an attorney acted in a

manner prejudicial to the administration of justice when he failed to

comply with appellate deadlines).    This is so even when such conduct

does not amount to neglect.      See Taylor, 814 N.W.2d at 267 (“[A]n

attorney can be in violation of rule 32:8.4(d) when an appeal is

administratively dismissed even though the attorney did not commit

neglect in the handling of the appeal.”); Wright, 758 N.W.2d at 230–31

(finding an attorney’s reliance on the clerk to dismiss an appeal when the

client could not raise funds for the transcript was prejudicial to the

administration of justice, despite the fact such conduct did not amount

to neglect).

      The commission concluded Weiland’s failure to dismiss the appeal

by the June 27 deadline established by this court’s June 17 order

violated rule 32:8.4(d). We agree. Although Weiland’s conduct did not

amount to neglect, Weiland was not relieved “ ‘from taking steps to end
                                    16

the matter.’ ” Wright, 758 N.W.2d at 231 (quoting Lesyshen, 712 N.W.2d

at 105). On June 17, this court ordered Weiland to “serve court reporter

McCarville with the combined certificate and pay her required deposit” by

June 27. The June 17 order further notified Weiland that “failure to pay

[for] the transcript . . . [would] result in [the] appeal being dismissed.”

Weiland knew by the June 27 deadline that Pierce would be unable to

pay for the transcript, yet he took no action to dismiss the appeal. His

inaction caused the clerk to prepare and file an order three weeks later

accomplishing the dismissal.    “ ‘Our case law makes it clear that an

attorney cannot use a default notice to dismiss an appeal in lieu of the

attorney’s obligation to comply with our appellate rules.’ ”    Id. at 231

(quoting Tompkins, 733 N.W.2d at 669). Weiland violated rule 32:8.4(d).

      D. Rule 32:3.3(a)(1): Candor Toward the Tribunal.          This rule

prohibits a lawyer from “knowingly . . . mak[ing] a false statement of fact

or law to a tribunal.” Iowa R. Prof’l Conduct 32:3.3(a)(1). Because the

lawyer must knowingly make the false statement, the lawyer must have

“actual knowledge of the fact in question.”       Iowa R. Prof’l Conduct

32:1.0(f) (defining the term “knowingly”).   A lawyer can make a false

statement to the court either orally or in writing. See Iowa Supreme Ct.

Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456, 462 (Iowa 2014).

We found a violation of this rule when a lawyer falsely certified to the

clerk of this court that she had filed an application for further review.

Kieffer-Garrison, 847 N.W.2d at 494. We have also found violations

      when a lawyer filed falsely notarized documents with the
      court, when a lawyer forged a guilty plea for a defendant he
      was representing, and when a lawyer filed a document with
      the court misrepresenting the marital status of a decedent.

McGinness, 844 N.W.2d at 462.
                                     17

      The Board alleges Weiland violated this rule by falsely certifying in

the combined certificate he filed with the clerk that “the Transcript ha[d]

been ordered.” In fact, he had not served McCarville with the combined

certificate or made the necessary deposit at the time he filed the

combined certificate.      The commission concluded the Board failed to

show that Weiland possessed the requisite knowledge to have violated

this rule.   Specifically, the commission credited the testimony of both

Weiland and McCarville, each of whom testified that when Weiland

contacted McCarville by phone on the morning of March 25, Weiland

verbally ordered the transcript. Thus, the commission concluded that at

the time Weiland certified in the combined certificate that he had ordered

the transcript, he believed that he had done so.

      We agree with the commission that the Board failed to present

sufficient evidence to establish a violation of this rule. Here again, with

respect to the testimony of both Weiland and McCarville, we defer to the

commission’s credibility determinations because it heard their live

testimony and observed their demeanor. See Clarity, 838 N.W.2d at 659.

At the hearing before the commission, McCarville gave conflicting

testimony as to whether Weiland ordered the transcript during their

phone conversation. However, she ultimately conceded she “considered

[Weiland to have] ordered the transcript verbally.” Weiland testified he

believed he had ordered the transcript at that time as well. Nothing in

the email McCarville sent to Weiland is inconsistent with Weiland having

placed a verbal order. Thus, the record showed that at the time Weiland

certified in the combined certificate that he had ordered the transcript,

he reasonably believed he had done so.       We find the Board failed to

establish that Weiland possessed the requisite knowledge to have

violated rule 32:8.4(d).
                                       18

         IV. Consideration of Appropriate Sanction.

         Having found the foregoing rule violations, we now consider the

appropriate sanction. The commission found only a single violation of

our rules and recommended we publicly reprimand Weiland.              We give

respectful consideration to the commission’s recommendation. Ricklefs,

844 N.W.2d at 699.         However, the issue of appropriate sanction is

exclusively within this court’s authority. Id.

         “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. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d

301, 308 (Iowa 2009). As we have previously stated,

         In considering an appropriate sanction, this court considers
         all the facts and circumstances, including the nature of the
         violations, the attorney’s fitness to practice law, deterrence,
         the protection of society, the need to uphold public
         confidence in the justice system, and the need to maintain
         the reputation of the bar.

McGinness, 844 N.W.2d at 463. “Where there are multiple violations of

our disciplinary rules, enhanced sanctions may be imposed.”                Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Alexander, 574 N.W.2d 322,

327 (Iowa 1998).        Further, we “consider mitigating and aggravating

circumstances, including companion violations, repeated neglect, and

the attorney’s disciplinary history.” Conroy, 845 N.W.2d at 66.

         In this case, Weiland failed to comply with appellate deadlines in a

single matter and failed to dismiss his client’s appeal. Instead, Wieland

allowed the appeal to be administratively dismissed.           Sanctions for

conduct of this nature range from a public reprimand when the

attorney’s misconduct is relatively isolated, to suspensions of several

months when the conduct is egregious or accompanied by related
                                         19

misrepresentations,       additional     violations,     or    other   aggravating

circumstances. See, e.g., Kieffer-Garrison, 847 N.W.2d at 492, 494, 496

(finding an attorney’s failure to comply with appellate deadlines in nine

criminal cases resulting in receipt of twenty default notices warranted a

six-month     suspension       when      the      attorney     also    persistently

misrepresented that she had filed an application for further review to her

client and this court); Dolezal, 796 N.W.2d at 914, 920, 922–23 (finding

an attorney’s failure to cure default notices in two appeals resulting in

administrative dismissals warranted a thirty-day suspension when the

attorney neglected two additional matters, committed trust-account

violations,   and   had    a   history   of    failing   to   comply   with   court

requirements); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793

N.W.2d 525, 531–32 (Iowa 2011) (finding an attorney’s failure to cure a

default notice in an appeal warranted a three-month suspension when

the attorney also failed to file state income tax returns for two years in

violation of ethical rules); Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Hoglan, 781 N.W.2d 279, 282–83, 286–87 (Iowa 2010) (finding an

attorney’s failure to prosecute four appeals resulting in their dismissal

warranted a thirty-day suspension when each dismissal harmed the

client and the attorney had previously been publicly reprimanded for

similar misconduct); Wright, 758 N.W.2d at 231 (finding an attorney’s

failure to dismiss an appeal after the client was unable to raise funds for

a transcript warranted a public reprimand); Tompkins, 733 N.W.2d at

669–70 (finding an attorney’s failure to dismiss an appeal warranted a

public reprimand). Further, when such deficiencies result in harm to

clients, increased sanctions are warranted.              See, e.g., Dolezal, 796

N.W.2d at 922 (considering harm to clients in crafting appropriate
                                     20

sanction); Hoglan, 781 N.W.2d at 286 (same); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 704 (Iowa 2008) (same).

      We draw guidance from the following attorney discipline cases

involving similar misconduct.    In Dolezal, we suspended an attorney’s

license for thirty days. 796 N.W.2d at 923. There, the attorney failed to

cure default notices in two appeals leading to their dismissal. Id. at 914.

We concluded this conduct violated rules 32:1.3, 32:3.2, and 32:8.4(d).

Id. at 914–15.   In addition to rule violations related to the attorney’s

failure to cure the default notices, we found the attorney neglected two

other client matters, in one instance harming the client, and violated

several of our rules governing an attorney’s management of the trust

account. Id. at 920. In crafting the appropriate sanction, we emphasized

that while the attorney’s behavior “inconvenienced the court system, in

two out of three instances it [did] not harm[] his clients.” Id. at 922. We

considered as aggravating factors that the Board had recently privately

admonished the attorney for failing to respond to delinquency notices in

another matter and that he had failed to comply with continuing legal

education requirements in the past. Id. at 920.

      In Hoglan, we suspended an attorney’s license for thirty days when

he failed to prosecute four appeals resulting in their dismissal.        781

N.W.2d at 282–83, 287.        We concluded this conduct violated rules

32:1.3, 32:1.16(a)(2) (requiring withdrawal from representation if a

physical or mental condition materially impairs a lawyer’s ability to

represent the client), 32:3.2, 32:8.4(a) (finding it misconduct to violate an

ethical rule), and 32:8.4(d). Id. at 284. In crafting the proper sanction,

we emphasized that the attorney neglected multiple client matters, each

dismissal harmed the client, and the attorney had recently been publicly

reprimanded for the dismissal of two other appeals due to neglect. Id. at
                                    21

286–87.    We considered the attorney’s severe back problems as a

mitigating factor. Id. at 287.

       In Wright, we publicly reprimanded an attorney who failed to

comply with appellate deadlines in a single client matter and failed to

dismiss his client’s appeal, instead allowing it to be administratively

dismissed. 758 N.W.2d at 230–31. We found the attorney’s reliance on a

default notice to dismiss the appeal after his client could not raise funds

for the transcript was prejudicial to the administration of justice. Id. at

231.   However, we concluded this same conduct did not amount to

neglect because the attorney was attempting to protect his client’s

interests by allowing her time to obtain funds for the transcript. Id. at

230.   In crafting the proper sanction, we considered as aggravating

factors that the lawyer had over twenty-five years of experience in the

field, had been publicly reprimanded on one prior occasion, and that he

had been privately admonished on two prior occasions. Id. at 231.

       Finally, in Tompkins, we publicly reprimanded an attorney who

neglected two client matters. 733 N.W.2d at 669–70. In the first matter,

the attorney neglected the client “by failing to communicate with [him]

and respond to his inquiries.”    Id. at 669.   In the second matter, the

attorney allowed the client’s “appeal to be administratively dismissed,

neglecting his client, and wasting judicial resources.” Id. In crafting the

proper sanction, we emphasized that little harm ultimately befell either

client because they were unlikely to succeed on their claims.      Id.   We

considered as an aggravating factor that the attorney had been publicly

reprimanded on two prior occasions. Id. at 670.

       We believe this case is distinguishable from Dolezal and Hoglan. In

those cases there were multiple instances of neglect, additional rule

violations, and clients suffered harm. See Dolezal, 796 N.W.2d at 920
                                    22

(finding multiple instances of neglect, trust account violations, and harm

to a client); Hoglan, 781 N.W.2d at 286 (finding multiple instances of

neglect and harm to clients).    Here, Weiland’s misconduct stems from

one instance in which he failed to meet appellate deadlines resulting in

the administrative dismissal of an appeal. While we did find this conduct

violated two of our rules of professional conduct, the Board has not

alleged, and we have not concluded, that Weiland’s conduct resulted in

any harm to the client. Thus, Wright and Tompkins are closer parallels.

See Wright, 758 N.W.2d at 230 (involving a single client matter and

finding no harm to the client); Tompkins, 733 N.W.2d at 669 (finding no

harm to clients).   Further, as in Wright, Weiland’s conduct did not

amount to neglect. See Wright, 758 N.W.2d at 230 (finding a failure to

dismiss an appeal did not amount to neglect). Accordingly, we find these

cases most instructive in crafting the proper sanction.

      Finally, in crafting the proper punishment we consider aggravating

and mitigating factors.    Conroy, 845 N.W.2d at 66.        Here, several

aggravating and mitigating factors warrant our consideration. We begin

by addressing the aggravating factors. “[T]he prior disciplinary history of

an attorney is [one] factor we must consider . . . .” Parrish, 801 N.W.2d

at 589.   “In so doing, we consider both prior admonitions and prior

public discipline.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Baldwin,

857 N.W.2d 195, 214 (Iowa 2014). “Prior misconduct is more suggestive

of increased sanctions when it involves the same type of conduct as the

conduct currently subject to discipline.” Id.

      Weiland has been subject to discipline on four prior occasions.

First, in 2003, the Board privately admonished Weiland for failing to

respond to default notices in an appeal, ultimately resulting in its

dismissal. This prior misconduct is an aggravating factor because it is
                                         23

similar to the misconduct in this case. See id. Also in 2003, we publicly

reprimanded Weiland for failing to provide competent representation to a

client in a probate matter. We do not consider this as an aggravating

factor because of the age of this prior discipline and because it is

dissimilar to the misconduct in this case. See Dolezal, 796 N.W.2d at

920 (declining to consider prior discipline as aggravating factor when

prior violations “occurred many years ago” and were not “similar to [the

attorney]’s    more   recent   ethical   lapses”).    In   2008,   we   publicly

reprimanded Weiland for violating several of our ethical rules when he

overstated mileage expenses for reimbursements from the State Public

Defender for his representation of indigent defendants in court appointed

matters.      This prior misconduct is an aggravating factor because it

occurred more recently.         See id.       Finally, in January 2014, we

temporarily suspended Weiland’s license to practice law when he failed to

respond to a Board inquiry in this matter.           We reinstated his license

several days later, after he responded to the inquiry. We do not consider

this most recent temporary suspension as an aggravating factor because

we believe the temporary suspension we imposed was sufficient

discipline for failing to respond to the inquiry. See id. at 921 (concluding

“temporary suspension was adequate discipline for failing to respond to

the [B]oard’s inquiry”).

      At the hearing, Wieland conceded that his notice-of-default track

record could be considered as part of our determination of an

appropriate sanction. We consider his track record to be an aggravating

factor. We have previously recognized that using the clerk’s office as a

private tickler system is unacceptable behavior for an attorney.            See

Curtis, 749 N.W.2d at 699 (characterizing an attorney’s use of the clerk’s

office as a private tickler system as “deplorable”); Iowa Supreme Ct. Att’y
                                    24

Disciplinary Bd. v. Moonen,       706    N.W.2d   391,   400   (Iowa    2005)

(disapproving an attorney’s use of the clerk’s office as a private tickler

system).   Here, the record established that between 1998 and 2014,

Weiland received forty notices of default for failing to meet various

deadlines in eighteen appeals. As confirmed by the deputy clerk, this is

an excessive number of default notices.           However, we lessen our

consideration of this as an aggravating factor to an extent because the

record also established that Weiland received a large majority of these

notices of default much earlier in his career. In fact, Weiland received

thirty-three of the forty notices of default between 1998 and 2007, and

from 2008 to 2010 Weiland received no notices of default.         However,

since 2011 Weiland’s use of the clerk’s office as a private tickler system

seems to have reemerged, as evidenced by his receipt of seven notices of

default in five separate matters between 2011 and 2014.                We are

troubled by this recent trend.      Consequently, we consider it as an

aggravating factor.

      We turn now to the mitigating factors. First, the record does not

suggest that any clients suffered harm in this case. We consider this a

mitigating factor. See Ricklefs, 844 N.W.2d at 700 (considering lack of

harm to clients a mitigating factor).    Second, Weiland ultimately took

responsibility for his actions before the commission, admitted that he

should have dismissed the appeal once he realized Pierce would be

unable able to obtain funds for the transcript, and expressed remorse for

his failure to do so.   This is also a mitigating factor.   Id. (considering

attorney’s taking responsibility for his actions as a mitigating factor).

Third, Weiland testified that in the future he will require clients to

advance the necessary costs for an appeal prior to proceeding. Further,

he testified that if a client is unable to advance these costs after appeal,
                                   25

he will withdraw as counsel and dismiss the appeal rather than miss

deadlines and allow the appeal to be administratively dismissed. This is

another mitigating factor. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Thomas, 794 N.W.2d 290, 295 (Iowa 2011) (considering an attorney’s

implementation of new office procedures to ensure compliance with

deadlines as a mitigating factor).      Finally, we note that Weiland

maintains a law practice that allows persons of modest means to obtain

access to our court system at a modest rate.             “Providing legal

representation to an underserved part of the community is a significant

mitigating factor.” Taylor, 814 N.W.2d at 268.

      The commission recommended we publicly reprimand Weiland for

his misconduct. Having considered the particular circumstances in this

case, and after our de novo review of the record, we agree with the

commission that a public reprimand is appropriate.

      V. Conclusion.

      We publicly reprimand Weiland.        Costs are taxed to Weiland

pursuant to Iowa Court Rule 35.27.

      ATTORNEY REPRIMANDED.

      All justices concur except Wiggins, J., who dissents.
                                   26

            #15–0156, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland

WIGGINS, Justice (dissenting).

      Kenneth Weiland’s prior disciplinary record and his forty prior

delinquency notices from the clerk of the supreme court require a thirty-

day suspension.
