No Suspension

The Iowa Supreme Court rejected a proposed 30-day suspension of the Attorney Disciplinary Board and imposed a public reprimand of an attorney for misconduct in representation of a client in a “heated” divorce

The parties were unable to reach a settlement after two mediation attempts. The district court held a two-day trial in August 2021 and issued its decree for dissolution of marriage on August 19. Pankonen was unhappy about its terms, particularly that his ex-wife was to receive a portion of his 401(k) and Roth IRA investments. From that point forward, tension grew between Eichmann and Pankonen. Pankonen did not want to provide Eichmann with the documents needed to carry out the terms of the decree, resulting in his ex-wife filing a motion to compel.

By 2022, the tension between Eichmann and Pankonen intensified, with billing and accounting matters now at issue. 

Sanction

As noted, the nature of Eichmann’s misconduct centers on trust account recordkeeping and notice violations. Specifically, Eichmann’s violations relate to failure to communicate with Pankonen about billings and accountings, failure to maintain required documentation of billings and accountings, failure to withdraw from representation after termination and appearance by Pankonen’s successor counsel, and unilaterally withdrawing disputed funds from her client trust account to pay herself. Yet, the Board does not dispute that Eichmann’s billings—which are not challenged as excessive—exceeded the balance remaining in the trust account, such that had she properly addressed the dispute, she would have been entitled to the funds.

Starting with mitigating factors, Eichmann’s professional commitment and public service are mitigating factors. Following a clerkship with the Second Judicial District, Eichmann worked at Iowa Legal Aid for seven years before transitioning into private practice. She fought for and received a federal grant under the Violence Against Women Act to handle emergency cases of domestic violence for restraining orders and contempt actions. Since transitioning into private practice, she has accepted many cases through the Polk County Bar Association Volunteer Lawyers Project as well as court appointments by district court judges. Eichmann also admitted as exhibits during the hearing letters from five local judges, each expressing their opinion of her as professional and well prepared.

That said, we disagree with the commission that Eichmann has fully recognized her wrongdoing and accepted responsibility. Much of Eichmann’s briefing and testimony at the evidentiary hearing focused on shifting blame to her client and to the Office of Professional Regulation. A difficult client does not excuse an attorney from complying with our rules of professional conduct. We therefore view Eichmann’s responses throughout this disciplinary matter as more of an aggravating factor.

Eichmann’s substantial experience in the practice of law and pattern of attorney misconduct are aggravating factors. See Morse, 887 N.W.2d at 144. We reiterate that although prior private admonishments are not considered discipline, they are considered an aggravating factor. See id. (collecting cases and explaining that private admonitions “provide notice of deficiencies in regards to particular ethical requirements by attorneys” (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Said, 869 N.W.2d 185, 194 (Iowa 2015))). This is especially true where, as here, an attorney has been admonished for behavior similar to later charges of misconduct.

Eichmann was privately admonished in 2008 for failure to comply with Iowa Rule of Professional Conduct 32:1.15(f) and Iowa Court Rule 45.7(4) based on inadequate accountings provided to a client. In 2011 and again in 2018, Eichmann was privately admonished for failure to comply with Iowa Rule of Professional Conduct 32:1.3 based on her failure to act with reasonable diligence. And most recently, in 2020, Eichmann was privately admonished for failure to comply with Iowa Rules of Professional Conduct 32:1.4(a) and 32:1.15(d) and Iowa Court Rule 45.7(4). Eichmann’s 2008 and 2020 private admonishments describe strikingly similar client experiences and attorney misconduct to that at issue in this matter. We find particularly troublesome that the 2020 private admonishment provided Eichmann with a stern warning:

[T]he Board is concerned by your evasive and inconsistent responses in its investigation of this matter. . . .

Had you been more responsive and forthcoming, this matter could have been resolved much sooner and [the client] would have received the items to which she was entitled in a timely manner. The Board cautions you to review your obligations under Iowa R. [of] Prof’l Conduct 32:8.1(b) (Disciplinary Matters). See also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Goedken, 939 N.W.2d 97, 110 (Iowa 2020) (finding attorney’s “flippant attitude toward the Board and the commission” to be an aggravating factor). Be advised that the Board expects your full cooperation in any future matters.

(Footnote omitted.) Despite that stern warning in 2020, Eichmann committed similar rule violations throughout her representation of Pankonen—which was contemporaneous with this admonition. And when the Board served discovery requests on Eichmann for this disciplinary action, Eichmann did not timely respond, requiring the Board to file a motion to compel—actions that parallel her responses that led to the 2020 private admonition.

Yet, we agree with Eichmann that the client harm in this matter, i.e., Pankonen not being apprised of his bill for legal fees and expenses due to Eichmann’s failure to provide written notice to him, is not the type of client harm that supports suspending an attorney’s license absent other violations. For example, in Iowa Supreme Court Attorney Disciplinary Board v. Morse, an attorney used funds intended to pay for an appeal transcript to cover his pastdue fees, resulting in dismissal of the client’s appeal for failure to prosecute. 887 N.W.2d at 135–38. Here, while Pankonen was clearly frustrated by Eichmann’s failures to communicate with him about her billing, that frustration does not warrant suspending Eichmann’s license under the circumstances of this case.

(Mike Frisch)