Opinion
No. 94-1599.
January 18, 1995.
Douglas F. Staskal of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling Levis, P.C., and Charles L. Harrington and Norman G. Bastemeyer, Des Moines, for complainant.
Karl J. Horn, Charles City, pro se.
Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and ANDREASEN, JJ.
Karl J. Horn, respondent in this disciplinary proceeding, is an attorney residing in Charles City, Iowa. A June 29, 1994 complaint filed by the Committee on Professional Ethics and Conduct of the Iowa State Bar Association (committee) asserts that Horn unnecessarily opened an estate for a client's deceased husband and failed to cooperate with the committee in its investigation of this matter. Our grievance commission recommended suspension of Horn's license for a minimum of twelve months, and we concur.
Testimony at the commission hearing and request for admissions established these undisputed facts. In August 1991, Horn advised Marguerite Patterson that it was necessary to open a probate estate for her deceased husband. In fact, because of the nature of the decedent's property, it was not necessary to open an estate. Horn concedes that. In August 1992, Patterson filed a complaint against Horn.
The committee informed Horn of the complaint and requested that he respond. He did not answer the complaint, respond to a request for admissions, or appear at the grievance commission's hearing on this matter, even though he received proper notice. In fact, at no time did Horn communicate with the committee other than to inform it via telephone that he would not attend the hearing.
The standard of proof in a disciplinary proceeding is a convincing preponderance of the evidence, a greater quantum of evidence than a preponderance, but less than that required to sustain a criminal conviction. Committee on Professional Ethics Conduct v. Matias, 521 N.W.2d 704, 706 (Iowa 1994); Committee on Professional Ethics Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985). Horn did not respond to the committee's requests for admissions; therefore, the commission admitted the allegations as established and proven facts. Iowa R. Civ. P. 127 (admitting and establishing as fact requests for admissions upon a failure to respond within thirty days).
The commission found that Horn, by refusing to respond to the committee's inquiries, had violated DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), and DR 1-102(A)(6) (engaging in conduct adversely reflecting on fitness to practice law). Further, the commission found that Horn's work on the Patterson estate violated DR 6-101(A)(1) (handling a legal matter in which the lawyer is not competent).
We agree that the committee established these violations by a convincing preponderance of the evidence. Under Court Rule 118.10, we determine the appropriate discipline. We consider prior disciplinary action taken against Horn in determining the appropriate sanction warranted by Horn's violations. See Committee on Professional Ethics Conduct v. Zimmerman, 465 N.W.2d 288, 293 (Iowa 1991) ("We have repeatedly held that prior disciplinary action bears on the decision in a subsequent case against the same lawyer.").
We first suspended Horn's license with no possibility of reinstatement for three months for neglect of an estate proceeding, misrepresentations made to a client, and failure to reply to the committee's inquiries and discovery requests. Committee on Professional Ethics Conduct v. Horn, 379 N.W.2d 6, 10 (Iowa 1985). We suspended Horn's license a second time with no possibility of reinstatement for six months for misrepresenting the status of a legal matter to a client and for failing to cooperate with the committee in its investigation. Committee on Professional Ethics Conduct v. Horn, 480 N.W.2d 861, 863. (Iowa 1992). In fact, Horn remains under suspension because he has not filed for reinstatement.
In view of Horn's violations of the Iowa Code of Professional Responsibility, his repeated failure to respond to the committee's inquiries, and his previous disciplinary record, we order that his license be suspended indefinitely with no possibility of reinstatement for twelve months from the date of the filing of this opinion. This suspension shall apply to all facets of the practice of law. Ct.R. 118.12. Upon application for reinstatement, Horn shall have the burden of proving that he has not practiced law during the suspension and that he meets the requirements of Court Rule 118.13.
Costs are assessed to Horn pursuant to Court Rule 118.22.
LICENSE SUSPENDED.