
                        IN THE SUPREME COURT OF IOWA

                              No. 07 / 05-1643

                            Filed March 31, 2006

IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

THOMAS J. McCANN,

      Respondent.



      On review of the report of the Grievance Commission.


       Iowa  Supreme  Court  Grievance  Commission  recommends  a   two-year
suspension of respondent’s license to practice law in this  state.   LICENSE
SUSPENDED.

      Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.


      Roger J. Kuhle, West Des Moines, for respondent.



WIGGINS, Justice.
      The Iowa Supreme Court Attorney Disciplinary  Board  (Board)  filed  a
complaint alleging Thomas J. McCann violated  numerous  rules  of  the  Iowa
Code of Professional Responsibility for Lawyers in  handling  six  different
legal matters.  The Grievance Commission (Commission) found  the  Board  had
proved the allegations of the complaint and recommended we suspend  McCann’s
license to practice law indefinitely with no  possibility  of  reinstatement
of his license for a period of at  least  two  years.   We  agree  with  the
Commission that McCann’s conduct violated numerous rules of  the  Iowa  Code
of Professional Responsibility for Lawyers and suspend McCann’s  license  to
practice  law  in  this  state   indefinitely   with   no   possibility   of
reinstatement for two years.
      I.  Proceedings Before the Grievance Commission.
      The Board filed a complaint against McCann consisting  of  six  counts
alleging  numerous   violations   of   the   Iowa   Code   of   Professional
Responsibility for Lawyers.  McCann filed an answer  admitting  and  denying
various paragraphs of the complaint.  Prior to the hearing,  the  Board  and
McCann entered into a stipulation admitting all the factual  allegations  of
the complaint and agreeing to the admission of certain  exhibits  supporting
the  allegations.   The  stipulation  also  included   documents   detailing
McCann’s major depressive disorder and a joint recommendation that  McCann’s
conduct warranted an indefinite suspension of his license  to  practice  law
with no possible  reinstatement  for  at  least  two  years.   Finally,  the
stipulation waived a hearing on the complaint.  Based  on  the  stipulation,
the  Commission  cancelled  the  evidentiary  hearing  and  only  heard  the
arguments of the parties.
      The Commission filed a report in our court concluding  the  Board  had
proved all  the  factual  allegations  of  the  complaint  by  a  convincing
preponderance of the evidence and  McCann’s  conduct  amounted  to  multiple
violations of the Iowa Code  of  Professional  Responsibility  for  Lawyers.
The Commission recommended that we suspend McCann’s license to practice  law
indefinitely with no possibility of reinstatement for a period of  at  least
two  years.   As  conditions  of  McCann’s  reinstatement,  the   Commission
recommended McCann make restitution to all persons and  entities  that  have
lost money as a result of his actions, McCann  provide  our  court  with  an
evaluation completed by a licensed psychiatrist verifying  McCann’s  fitness
to practice law, and McCann agree to refrain from practicing law as  a  sole
practitioner for a period of at least two years after his reinstatement.
      II.  Scope of Review.
      We review the  record  made  before  the  Commission  de  novo.   Iowa
Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391,  396  (Iowa
2005).  The Board has the obligation to prove  an  ethical  violation  by  a
convincing preponderance of the evidence.  Id.   Although  we  consider  the
factual findings and discipline recommendations made by  the  Commission  in
deciding the matter, they do not bind us.  Iowa Supreme Ct.  Bd.  of  Prof’l
Ethics & Conduct v. Honken, 688 N.W.2d 812, 815 (Iowa 2004).
      III.  Factual Findings.
      Using the stipulation of the parties together with our review  of  the
record, we make the following findings of fact.
      Armstrong Matter.  McCann undertook representation of Jerry and  Karen
Armstrong in an action to enforce  grandparent  visitation  rights.   McCann
filed an intervenors’ application for rule to show  cause  and  request  for
declaratory ruling.  At the hearing on the application, the court noted  the
difficulty in proving the grandchild’s mother was in contempt and  suggested
the grandparents’ time might be better spent if they focused  on  requesting
a specific visitation schedule.  McCann did not proceed  with  the  contempt
hearing.
      McCann never filed an application  requesting  a  specific  visitation
schedule, although he did give a copy of  an  intervenors’  application  for
further order concerning visitation to the Armstrongs indicating to them  he
filed it with the court.  The Armstrongs attempted to  contact  McCann  from
November 2000 to February 2001  to  determine  the  status  of  their  case.
McCann did not respond to the Armstrongs’ inquiries.  On February 21,  2001,
the Armstrongs notified McCann that he was no  longer  their  attorney.  The
Armstrongs filed a complaint with the Board in March.  Two  days  after  the
Armstrongs filed the complaint, the Board notified McCann of the  complaint.
  McCann  then  filed  the  intervenors’  application  for   further   order
concerning visitation.
      Nelson Matter.  McCann agreed  to  represent  Jennifer  Nelson  in  an
action  for  dissolution  of  marriage.   McCann  filed   a   petition   for
dissolution of marriage stating Nelson had been a resident of Iowa  for  the
past year.  At the time McCann filed the dissolution petition, he knew  that
allegation was not true.  McCann attached  a  verification  page  signed  by
Nelson  to  the  dissolution  petition.   McCann   had   Nelson   sign   the
verification page before he drafted the  petition.   Nelson  never  reviewed
the petition before McCann filed it.
      Five months after filing the dissolution  petition,  McCann  filed  an
application for temporary custody.  The application  for  temporary  custody
also contained a signed verification page prepared and notarized by  McCann.
  Again,  Nelson  did  not  review  the  application  before   signing   the
verification page, as McCann had not prepared the application  at  the  time
McCann presented the verification page to Nelson for her signature.
      McCann never served the dissolution petition on the  respondent.   The
district court issued  an  order  stating  that  unless  McCann  served  the
opposing party with an original notice within sixty days of its  order,  the
court would dismiss the case.  McCann did not notify Nelson of  this  order.
Instead, McCann filed a request to serve the notice by  publication  stating
service had been attempted  on  the  respondent  but  his  whereabouts  were
unknown.  This statement was false because McCann never attempted  to  serve
the original notice on the respondent.  When McCann made the  representation
of service to the court, he knew it was false.
      Soloman Matter.  McCann undertook representation of Debra  Soloman  in
an  action  for  dissolution  of  marriage.   Soloman  paid  McCann  a  $750
retainer.  McCann filed a petition for dissolution but neglected  to  pursue
the dissolution matter to decree.  In July 2001, McCann  received  a  notice
pursuant to Iowa Rule of Civil Procedure 1.944 informing him that  the  case
was subject to dismissal on January 1, 2002.
      In October 2001, Soloman filed a small claims  action  against  McCann
to recover her retainer.  McCann  and  Soloman  appeared  on  the  scheduled
trial date for the small claims case in December 2001.  The court  continued
the trial of the small claims action to February 28, 2002.
      Around this time, Soloman filed a complaint against  McCann  with  the
Polk County Ethics Committee.  The ethics committee dismissed the  complaint
based on McCann’s response that he hoped to have the matter resolved by  the
end of the year, but if he did not, he would seek  a  trial  date  to  avoid
dismissal under rule 1.944.
      On January 1, 2002, the  clerk  of  court  dismissed  the  dissolution
action  under  rule  1.944.   On  January  24,  McCann  requested  that  the
dissolution matter be set for trial on February 28.  On February 28,  McCann
and Soloman appeared for the  small  claims  case.   Soloman  dismissed  the
small  claims  matter  because  McCann  indicated  he  would  complete   her
dissolution matter.  However, the dissolution  matter  did  not  proceed  to
trial on this date.
      After that date, Soloman attempted to call McCann and  was  unable  to
contact  him.   Soloman  learned  McCann  moved  from  his  office   without
informing Soloman of the move.  In December 2002, Soloman sent a  letter  to
the Polk County Court inquiring how to settle her divorce case.   The  court
informed her that the clerk dismissed her case in January  2002  and  McCann
did not reinstate it.  McCann failed to inform Soloman the  clerk  dismissed
her case in January 2002 and that he did not have it reinstated.
       Barritt-Jarosch  Matter.   In  October  2002,  McCann  undertook  the
representation of Barbara Barritt-Jarosch and Jeff Jarosch in an action  for
custody of Jarosch’s son who is also Barritt-Jarosch’s grandson.  They  paid
McCann a $2500 retainer.  Instead of depositing the  retainer  in  an  IOLTA
trust account, McCann  deposited  the  retainer  in  his  business  checking
account.  McCann used the retainer for his personal or business use.
      McCann never pursued the custody case.   In  February  2003,  Barritt-
Jarosch  notified  McCann  that  she  was  firing  him  and  requesting   an
accounting.  She also requested that he return all monies not  used  by  him
to pursue her case.  McCann did not respond  to  these  requests.   Barritt-
Jarosch also filed a complaint with the  Board.   McCann  responded  to  the
Board’s complaint.  The Board then made two requests of  McCann  asking  him
to provide a copy of any signed fee agreement or engagement  letter  and  an
itemization of his services, as well as an itemization  and  refund  of  the
unearned portion  of  the  retainer  to  Barritt-Jarosch.   McCann  did  not
respond to the Board’s requests.
      In November 2003, Barritt-Jarosch filed a small claims action  against
McCann in an attempt to  recover  her  retainer.   McCann  appeared  at  the
hearing in the case and returned the retainer in full to Barritt-Jarosch.
      Moore Matter.  McCann agreed to represent Larry  Moore  in  an  action
for dissolution of marriage.  Moore paid McCann a $750 retainer.  Moore  met
with McCann twice, but McCann never filed the dissolution action.   After  a
few  months,  Moore  requested  McCann  pursue  the  matter  or  return  his
retainer.  McCann failed to reply to Moore’s request.
      Moore filed a complaint with the Board.  The Board notified McCann  of
the complaint by restricted certified mail on two occasions and by  ordinary
mail on one occasion.  McCann never responded to the complaint.  Moore  then
hired another attorney to pursue  his  dissolution.   Moore’s  new  attorney
wrote several letters to McCann requesting McCann return  Moore’s  retainer.
McCann never replied to the new attorney’s requests.
      Purscell Matter.  In May 2003, McCann  agreed  to  represent  Benjamin
Purscell in an action for dissolution of marriage.  McCann received  a  $750
retainer from Purscell.  McCann  deposited  the  retainer  in  his  business
checking account rather than  depositing  it  in  an  IOLTA  trust  account.
McCann used the retainer for his personal or business  use.   McCann  caused
Purscell to believe that he would file the dissolution petition on  May  26,
2003, and the  matter  would  be  final  ninety  days  after  he  filed  the
petition.
      In September, Purscell contacted  McCann.   McCann  informed  Purscell
that he was still in the waiting period.  In November,  Purscell  discovered
McCann did not file the dissolution petition.  Purscell attempted  to  reach
McCann to obtain a refund but was unable to make contact with him.
      In December, McCann filed Purscell’s dissolution petition but did  not
inform Purscell he filed it.  McCann presented a  $100  check  to  the  Polk
County Clerk of Court for the filing fee.  The check  was  returned  due  to
insufficient funds and a $30 service charge was added  to  Purscell’s  court
costs.  McCann never paid the filing fee or the service charge.  McCann  did
not pursue the matter after he filed the petition.
      Purscell filed a complaint with the Board.  The Board notified  McCann
of the complaint.  McCann did not reply to the  Board.   The  Board  sent  a
second letter to McCann.  McCann replied to the Board’s  second  letter  two
months later indicating he was refunding Purscell’s retainer less  the  $100
filing fee.  McCann never refunded any money to Purscell.
      IV.  Ethical Violations.
      Professional  neglect  “ ‘involve[s]  indifference  and  a  consistent
failure to perform those  obligations  that  a  lawyer  has  assumed,  or  a
conscious disregard for the responsibilities a lawyer owes to  a  client.’ ”
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kennedy, 684 N.W.2d  256,
259-60 (Iowa 2004)  (citation  omitted).   Generally,  professional  neglect
consists of  more  than  a  single  act  or  omission  and  it  may  involve
procrastination.  Id. at 260. In every matter alleged by the  Board  in  the
complaint, McCann failed to pursue his clients’  causes  of  action.   These
failures violated DR 1-102(A)(1) (providing a lawyer  shall  not  violate  a
disciplinary rule), DR 1-102(A)(5) (providing a lawyer shall not  engage  in
conduct that is  prejudicial  to  the  administration  of  justice),  DR  1-
102(A)(6) (providing a lawyer shall not engage in  any  other  conduct  that
adversely  reflects  on  the  fitness  to  practice  law),  DR   6-101(A)(3)
(providing a lawyer shall not neglect a client’s legal matter),  and  DR  7-
101(A)(1) (providing a lawyer shall  not  intentionally  fail  to  seek  the
lawful objectives of a client).
      A lawyer violates our disciplinary  rules  when  the  lawyer  lies  to
cover up misconduct.  See Iowa Supreme Ct. Bd. of Prof’l  Ethics  &  Conduct
v. Ruth, 656  N.W.2d  93,  99  (Iowa  2002)  (finding  a  violation  of  the
disciplinary rules when a lawyer lied to the beneficiaries and the court  to
cover up the lawyer’s misconduct).  In each of the matters  alleged  by  the
Board in the complaint, McCann misrepresented to  the  clients  how  he  was
processing the cases to cover  up  his  neglect.   In  the  Soloman  matter,
McCann also misrepresented the status of the case to the Polk County  Ethics
Committee to cover up his misconduct when he stated how he would respond  to
the rule 1.944 notice.  In the Nelson matter, McCann also misrepresented  to
the court his efforts to serve the  respondent  to  cover  up  his  neglect.
These misrepresentations violated DR 1-102(A)(1) (providing a  lawyer  shall
not violate a disciplinary rule), DR 1-102(A)(4) (providing a  lawyer  shall
not  engage   in   conduct   involving   dishonesty,   fraud,   deceit,   or
misrepresentation), DR 1-102(A)(5) (providing a lawyer shall not  engage  in
conduct that is prejudicial to the administration of  justice),  and  DR  1-
102(A)(6) (providing a lawyer shall not engage in  any  other  conduct  that
adversely reflects on the fitness to practice law).
      In the Armstrong  matter,  the  clients  discharged  McCann  as  their
attorney after he appeared on their behalf.  McCann failed  to  withdraw  as
counsel.  A lawyer is required to withdraw from a client’s case after  being
discharged by the client.  Iowa Supreme Ct. Bd. of Prof’l Ethics  &  Conduct
v. Beckman, 674 N.W.2d 129, 138 (Iowa 2004).  McCann’s failure  to  withdraw
violated  DR  1-102(A)(1)  (providing  a  lawyer   shall   not   violate   a
disciplinary rule) and DR 2-110(B)(4) (providing a lawyer shall withdraw  if
the lawyer is discharged by the client).
      A lawyer is required to place a retainer in a trust  account,  account
for the funds, and properly deliver a client’s  funds  to  the  client  when
requested to do so.  Iowa Supreme Ct. Bd. of  Prof’l  Ethics  &  Conduct  v.
Frerichs, 671 N.W.2d 470, 477 (Iowa 2003).  McCann  failed  to  comply  with
these ethical  obligations  in  the  Barritt-Jarosch,  Moore,  and  Purscell
matters.  McCann’s failures violated  DR  1-102(A)(1)  (providing  a  lawyer
shall not violate a disciplinary rule), DR 9-102(B)(3) (providing  a  lawyer
shall maintain complete records of a client’s funds and  render  appropriate
accounts to the client regarding them),  and  DR  9-102(B)(4)  (providing  a
lawyer shall promptly pay or deliver funds to a client  as  requested  by  a
client).  Additionally, in the Barritt-Jarosch and Purscell matters,  McCann
violated DR 9-102(A) (providing funds of a client shall be deposited in  one
or more  identifiable  interest-bearing  trust  accounts)  and  DR  9-103(A)
(providing a lawyer shall maintain on a  current  basis  books  and  records
sufficient to demonstrate compliance with DR 9-102).
      McCann stipulated that he used the retainers  in  the  Barritt-Jarosch
and Purscell matters for his personal  or  business  use  prior  to  earning
them. A lawyer converts a client’s funds when the lawyer takes a fee  before
he earns it.  Iowa Supreme Ct. Bd. of Prof’l Ethics  &  Conduct  v.  Apland,
577 N.W.2d 50,  56  (Iowa  1998).   This  conduct  violated  DR  1-102(A)(1)
(providing a lawyer shall not violate a disciplinary rule),  DR  1-102(A)(3)
(providing a lawyer shall not engage  in  illegal  conduct  involving  moral
turpitude), DR 1-102(A)(4) (providing a lawyer shall not engage  in  conduct
involving dishonesty, fraud, deceit, or misrepresentation),  DR  1-102(A)(6)
(providing a lawyer shall not engage in any  other  conduct  that  adversely
reflects on the fitness to practice law), DR 9-102(A) (providing funds of  a
client shall be deposited  in  one  or  more  identifiable  interest-bearing
trust accounts), and DR 9-103(A) (providing a lawyer  shall  maintain  on  a
current basis books and records sufficient to  demonstrate  compliance  with
DR 9-102).
      Finally, in the Barritt-Jarosch and Moore matters,  McCann  failed  to
respond to the Board’s inquiries.   We  expect  lawyers  to  cooperate  with
disciplinary investigations conducted by the Board.  Iowa  Supreme  Ct.  Bd.
of Prof’l Ethics & Conduct v. Sullins, 556  N.W.2d  456,  457  (Iowa  1996).
McCann’s failure to respond violated  DR  1-102(A)(1)  (providing  a  lawyer
shall not violate a disciplinary rule), DR 1-102(A)(5) (providing  a  lawyer
shall not engage in conduct that is prejudicial  to  the  administration  of
justice), and DR 1-102(A)(6) (providing a lawyer shall  not  engage  in  any
other conduct that adversely reflects on the fitness to practice law).
      V.  Discipline.
      In summary, McCann’s conduct consists of multiple acts  of  neglecting
clients’ matters, misrepresenting how he was processing the matters  to  his
clients, misrepresenting a matter to the court, misrepresenting a matter  to
the Polk County Ethics Committee, failing to withdraw  from  a  matter  when
discharged, failing to deposit retainers in  a  trust  account,  failing  to
maintain proper books and records regarding  a  trust  account,  failing  to
deliver client funds when requested to do so, using funds that belong  in  a
trust account for personal or business use, and failing to  respond  to  the
Board’s inquiries.
      We have stated:

      The goal of the Code of Professional Responsibility  is  “to  maintain
      public confidence in the legal profession as  well  as  to  provide  a
      policing  mechanism  for  poor  lawyering.”   When  deciding   on   an
      appropriate sanction for an attorney’s misconduct,  we  consider  “the
      nature of the violations, protection  of  the  public,  deterrence  of
      similar misconduct by others, the lawyer’s fitness  to  practice,  and
      [the court’s] duty to uphold the integrity of the  profession  in  the
      eyes of the public.”  We  also  consider  aggravating  and  mitigating
      circumstances present in the disciplinary action.

Honken, 688 N.W.2d at 820  (alteration  in  original)  (citations  omitted).
Precedents in attorney discipline cases are of little  value,  and  we  must
impose discipline in light of the facts  and  circumstances  of  each  case.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d  373,
376 (Iowa 2002).
      A mitigating factor in McCann’s favor is  that  his  stressful  family
law practice caused him  to  suffer  from  severe  depression  and  anxiety.
Moonen, 706 N.W.2d at 401-02.  We  can  consider  McCann’s  depression  when
determining a sanction; however, a lawyer’s mental  status  is  “a  personal
problem of the lawyer that does not excuse  the  misconduct.”   Honken,  688
N.W.2d at 821-22.
      Aggravating factors in  this  record  include  multiple  incidents  of
neglect.  Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct  v.  Moorman,  683
N.W.2d 549, 553 (Iowa 2004).  McCann’s misrepresentations to the court,  his
clients, and the  Polk  County  Ethics  Committee  are  serious  violations.
Bernard, 653 N.W.2d at 376.  Additionally, McCann’s  actions  in  requesting
retainers, not pursuing the cases, and  failing  to  return  the  fees  when
clients requested that he do so caused  substantial  harm  to  his  clients.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.  Jay,  606  N.W.2d  1,  4
(Iowa 2000).
      McCann’s conversion of his clients’ funds causes us the most  concern.
 This case is not a case of mere commingling of client funds  with  business
funds.  McCann stipulated that he “converted” a total of $3250 in  retainers
from  Barritt-Jarosch  and  Purscell  for  his  personal  or  business  use.
Normally when a lawyer deliberately converts a  client’s  funds,  we  revoke
the lawyer’s license to practice  law.   Iowa  Supreme  Ct.  Bd.  of  Prof’l
Ethics & Conduct v. Williams, 675 N.W.2d 530,  533  (Iowa  2004);  Comm.  on
Prof’l Ethics & Conduct v. Ottesen, 525 N.W.2d 865,  866  (Iowa  1994).   We
have stated, however, we will impose a lesser  penalty  when  “the  attorney
had a colorable future claim to the funds.”  Iowa Supreme Ct. Bd. of  Prof’l
Ethics & Conduct  v.  Anderson,  687  N.W.2d  587,  590  (Iowa  2004).   The
stipulated facts indicate McCann had a colorable future claim to  the  funds
he converted.  Therefore, revocation of McCann’s license to practice law  is
not warranted in this case.  See Kennedy, 684 N.W.2d at 260-61  (imposing  a
two-month suspension where the conduct involved converting retainers  before
completing the work); Iowa Supreme Ct. Bd. of Prof’l  Ethics  &  Conduct  v.
Waples, 677 N.W.2d 740, 742-43 (Iowa 2004) (imposing a six-month  suspension
where the conduct involved collecting fees  without  completing  the  work);
Ruth, 656 N.W.2d  at  98-100  (imposing  a  two-year  suspension  where  the
conduct involved taking fees before earning them); Iowa Supreme Ct.  Bd.  of
Prof’l Ethics & Conduct  v.  Plumb,  589  N.W.2d  746,  747-49  (Iowa  1999)
(imposing a two-month suspension where the  conduct  involved  depositing  a
fee in the lawyer’s personal account and failing to perform the  work).   In
light of the facts and circumstances  of  this  case,  we  suspend  McCann’s
license to practice law for two years.
      VI.  Disposition.
       We  suspend  McCann’s  license  to  practice  law   in   this   state
indefinitely with no  possibility  of  reinstatement  for  two  years.   The
suspension applies to all facets of the practice of law.  See  Iowa  Ct.  R.
35.12.  Upon any application for reinstatement, McCann must  establish  that
he has not practiced law during the suspension period, he has  in  all  ways
complied with the requirements of Iowa Court Rule 35.13,  and  he  has  made
restitution to all persons and entities that have lost money as a result  of
his actions as set forth in this opinion.  McCann  must  also  provide  this
court with an evaluation by a licensed health  care  professional  verifying
his fitness to practice  law.   Before  obtaining  this  evaluation,  McCann
shall submit the names of the proposed evaluators  and  the  nature  of  the
evaluation to the Board for its prior approval.  McCann  shall  also  comply
with the notification requirements of Iowa Court Rule  35.21.   We  tax  the
costs of this action to McCann pursuant to Iowa Court Rule 35.25.
      LICENSE SUSPENDED.
