After The Flood

The Iowa Supreme Court imposed a sixty-day suspension of an attorney who had violated record keeping obligations.

The court rejected the contention that because she had been through two state bar audits that charges were barred.

We reject Smith’s assertion that because prior audits occurred without a disciplinary referral, her trust account practices were presumptively permissible. Lawyers always bear responsibility for knowing and following the applicable rules. “[I]gnorance of [one’s] ethical obligation is no defense.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 370 (Iowa 2005). At the commission hearing, one member of the panel asked a specific question about this principle, and Smith’s answer is revealing:

Q. As lawyers, we don’t do anything without consulting the rules. If you’re going to court, you know, the rules of court or the rules of civil procedure, or with any criminal proceeding, you had to know those rules to practice. How is it you weren’t aware of the rules regarding your records?

A. Well, I’m going to acknowledge that I’m not—I was not aware of—you know, I should have been, but was not.

There were a number of escrow account violations.

Smith did not preserve and could not produce upon request adequately detailed trust account records regarding her representation of Hopkins less than six years ago. We conclude that constitutes a violation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelissen, 871 N.W.2d 694, 699 (Iowa 2015) (concluding an attorney committed a violation “by failing to retain for six years billing and trust account records relating to [a particular] representation”). Although we have no doubt the severe 2008 flood greatly affected Smith’s practice, her representation of Hopkins did not begin until 2012. Thus, the flood could not have affected Smith’s recordkeeping regarding Hopkins.

There was also commingling

Some funds are inappropriate for deposit in a trust account, even if they are related to a lawyer’s practice. For example, Smith deposited earned fees from court-appointed work—which she had earned by the time the state paid them and which were therefore personal funds—into the trust account.

The attorney had three prior private admonitions. Pro bono work was treated as a mitigating factor. (Mike Frisch)