IN THE SUPREME COURT OF IOWA
No. 31 / 03-1935
Filed April 7, 2004
IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT,
Complainant,
vs.
GENE A. WICKEY,
Respondent.
On review of the report of the Grievance Commission.
Grievance Commission report in disciplinary proceeding recommended
suspending respondent's license to practice law. LICENSE SUSPENDED.
Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
Gene A. Wickey, Sioux City, pro se.
LAVORATO, Chief Justice.
This disciplinary proceeding arises out of Gene A. Wickey's handling
of one criminal and two civil matters. The Iowa Supreme Court Board of
Professional Ethics and Conduct alleged Wickey committed numerous ethical
violations in those matters. The Grievance Commission recommended that we
suspend Wickey's license to practice law with no possibility of
reinstatement for three months. Upon our consideration of the matter, we
find that Wickey violated a number of our disciplinary rules, warranting a
suspension with no possibility of reinstatement for a period of six months
from the filing of this opinion.
Wickey has not appealed under Iowa Court Rule 35.11 from the
Commission's recommendation. Nevertheless, we review the record de novo.
Iowa Ct. R. 35.10(1). "We give respectful consideration to the
Commission's recommendations, but we ultimately decide what discipline is
appropriate under the unique facts of each case." Iowa Supreme Ct. Bd. of
Prof'l Ethics & Conduct v. Reese, 657 N.W.2d 457, 461 (Iowa 2003). "The
Board must prove its allegations of lawyer misconduct by a convincing
preponderance of the evidence." Id.
In our de novo review, we may impose a lesser or greater sanction than
the discipline the Commission recommended. Iowa Ct. R. 35.10(2).
I. Background Facts.
Wickey was admitted to practice law in Iowa in January 1978. Criminal
law represents the largest part of his practice. As mentioned, these
proceedings arose out of the handling of three matters.
A. Hernandez criminal case. Wickey represented Dionicio Hernandez,
who had been charged with homicide by motor vehicle, a class B felony. In
a trial information filed January 4, 1999, the State alleged that Hernandez
caused the death of another person by operating a motor vehicle while under
the influence of alcohol and/or while having a blood alcohol concentration
of .10 or more.
Wickey requested a retainer of $10,000. Although Wickey testified at
the disciplinary hearing that he did not receive a retainer, letters from
Wickey to Hernandez, dated January 26, 1999 and February 8, 1999, requested
payment of the rest or balance of the retainer fee as soon as possible.
Wickey further testified that he received his first retainer payment
in the amount of $6,500 on or about February 9, 1999 and believed he
deposited the money in his trust account. Wickey's supplemental answers to
interrogatories state he has "no recollection as to what deposit was made"
and he did not recall the date of the deposit. However, Wickey's trust
account records for January and February 1999 show no deposit in the amount
of $6,500.
Wickey also testified that his standard office practice is to maintain
a trust account ledger card on every client; however, he was unable to find
one for Hernandez. Wickey claimed that in any event he had already earned
the $6,500 fee when he finally received that amount from Hernandez.
While the criminal proceedings were pending, Wickey moved for a
reduction of bail. On April 26, 1999, the district court reduced the bail
by $5,000. In its order reducing the bail, the court made it clear that
the $5,000 was "to be used solely for depositions and experts." Wickey
agreed and said he understood that he would have to wait for payment of his
fees.
The same day as the court's order, Wickey wrote Hernandez stating that
"it is my understanding that the Court will release the sum of $5,000 to be
used for discovery expenses . . . ." On April 28, 1999, two days after the
court's order, Wickey wrote Hernandez another letter and stated that he was
"giving some consideration to possibly trying to locate an expert who can
testify as to medical procedures, the drawing of blood . . . ."
Before the Board filed this complaint, Wickey advised the Board that
the $5,000 was applied to Hernandez's legal account with Hernandez's
approval and consent. In his supplemental answers to interrogatories,
Wickey stated:
The Respondent recalls that by the time those funds [the $5,000]
were received, additional fees were owed to the Respondent by the
client and that a joint decision was made not to retain any experts.
The Respondent does not recall whether or not the check was put into
his trust account; however, it was the Respondent's policy to deposit
all unearned fees into the trust account.
At the disciplinary hearing, Wickey testified that he received a
$5,000 check from the clerk of court and that he believed he deposited it
into his trust account.
Ray Cota, a former police officer and court interpreter, testified on
Wickey's behalf at the disciplinary hearing. Wickey had retained Cota as
an investigator for the Hernandez case, and Cota was involved in the early
stages of the investigation. Cota was present during meetings with
Hernandez and visited the accident scene to determine the cause of the
accident. Although Cota did not consider himself an expert on accident
reconstruction, he concluded the accident was Hernandez's fault. Cota did
not testify at Hernandez's trial.
Wickey hired no experts and took no depositions.
Following his conviction, Hernandez appealed, claiming among other
things, that he received ineffective assistance of counsel when Wickey did
not hire or use an expert. We transferred the case to the court of
appeals, which preserved the issue for postconviction relief proceedings.
State v. Hernandez, No. 99-1338 (Iowa Ct. App. Sept. 27, 2000).
In his postconviction relief action, Hernandez sought relief based on
Wickey's failure to use the $5,000 bail reduction money toward its ordered
purposes of retaining an expert or conducting depositions. The district
court sustained the State's motion for summary judgment. The court
concluded Hernandez was not prejudiced because a defense expert would not
have changed the outcome of the trial.
At two different times-on November 17, 1999 and January 3, 2000-
Hernandez sent Wickey written requests for detailed billing statements.
Both letters included the following subject-line: "Repeated inquiry for an
itemized bill." On January 20, 2000, Wickey responded that he was in the
process of putting together such a statement. However, Wickey never sent
the statement.
B. Johnson bankruptcy. Wickey received a $500 retainer from Mr. and
Mrs. Larry Johnson to represent them in a bankruptcy case. On November 16,
2000, we suspended Wickey's license to practice law for his failure to pay
his Iowa income tax and file in a timely manner Iowa income tax returns for
four years. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wickey, 619
N.W.2d 319, 320-21 (Iowa 2000). Wickey had not filed the Johnsons'
bankruptcy by the time of his suspension. Wickey testified that he
prepared the bankruptcy schedules and Mr. Johnson picked up the schedules
to get his wife's signature but never returned them. Wickey further
testified he did not file the bankruptcy because the Johnsons did not pay
the bankruptcy filing fee and did not return the schedules.
Wickey also testified that he maintained a trust account ledger for
the Johnsons but could not find it. Wickey had no records or deposit slip
showing that the $500 retainer was deposited in the trust account.
Moreover, Wickey had neither a client file for the Johnsons nor time
records for work he allegedly performed for them. He testified that he
never provided the Johnsons with an accounting.
The Board introduced copies of notifications that Wickey sent clients
about his suspension in 2000. There was no notice addressed to the
Johnsons. Although Wickey submitted a notice-to-client form that he claims
he sent to the Johnsons, the notice does not have a client name, whereas
the other notices did.
C. Madison property claims. In March 1999 Jolene Madison sought
Wickey's assistance concerning her claims against the City of Sioux City
and a jeweler in Nebraska.
Wickey wrote preliminary letters to the city and the jeweler on behalf
of Madison. In the letter to the Nebraska jeweler, Wickey stated he would
prepare and file a lawsuit if the problem was not resolved. Wickey has
never been licensed to practice in Nebraska.
Wickey sent copies of the two letters to Madison with a letter
outlining his proposed representation of her. Wickey stated he was not
interested in a contingency fee arrangement, quoted his rate as $125 per
hour, and requested an advance of $625 ($500 as retainer and $125 for
filing and process fees). Madison retained Wickey and paid him the
requested $625.
In response to the Board's request for documents, Wickey stated he did
not have a trust account ledger for Madison. Notwithstanding this
response, Wickey testified at the disciplinary hearing that he had prepared
a trust account ledger for Madison but was unable to locate it.
Madison testified she never received from Wickey an accounting, a
bill, or a refund of any part of the advance she paid him. Wickey admitted
he never sent Madison a bill although he prepared a billing statement in
response to the Board's request for information prior to filing its formal
complaint.
Madison also testified that Wickey never informed her of his
suspension. Wickey claims he sent Madison a notice but produced no notice
that included Madison's name.
Wickey had resolved neither of Madison's claims before his suspension
in November 2000. On August 29, 2001, Madison wrote Wickey inquiring about
the status of her cases. By this time, Madison had consulted another
attorney who wanted a copy of the file. Wickey did not respond to the
request in writing but believed he spoke with Madison by phone.
II. Proceedings.
On June 30, 2003, the Board filed a complaint against Wickey, which
was later amended. The amended complaint alleged that Wickey committed
various ethical violations in connection with the matters previously
mentioned concerning Hernandez, the Johnsons, and Madison.
As to Hernandez, the Board alleged that Wickey violated DR 1-102(A)(1)
(lawyer shall not violate a disciplinary rule), (4) (lawyer shall not
engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation), (5) (lawyer shall not engage in conduct that is
prejudicial to the administration of justice), and (6) (lawyer shall not
engage in any other conduct that adversely reflects on the fitness to
practice law); DR 2-106(A) (lawyer shall not enter into an agreement for,
charge, or collect an illegal or clearly excessive fee); DR 7-106(A)
(lawyer shall not disregard ruling of a tribunal made in the course of a
proceeding); DR 9-102(A) (lawyer shall deposit advances in trust account),
(B)(3) (lawyer shall maintain complete records of all funds of client
coming into possession of lawyer and shall render appropriate accounts to
the client regarding them); DR 9-103(A) (lawyer shall maintain on a current
basis books and records sufficient to demonstrate compliance with DR 9-
102).
As to the Johnsons, the Board alleged that Wickey violated DR 1-
102(A)(1), (5), and (6); DR 9-103(A); and Iowa Court Rule 35.21
(notification of clients of suspension).
As to Madison, the Board alleged that Wickey violated DR 1-102(A)(1),
(5), and (6); DR 6-101(A)(3) (lawyer shall not neglect a client's legal
matter); DR 9-102(A), (B)(3); DR 9-103(A); and Iowa Court Rule 35.21.
III. Ethical Violations.
Following the disciplinary hearing, the Commission found that Wickey
had not deposited the $6,500 he received from Hernandez in his trust
account, but by the time Wickey received the retainer, he had earned the
full amount. We agree and adopt the finding that Wickey did not deposit
the $6,500 in his trust account. However, we disagree with the
Commission's finding that Wickey had earned the fee by the time he received
the $6,500. Wickey's own letters to the client in which he requested the
rest or balance of the retainer fee convince us that he indeed had received
a retainer that he had not earned and which he therefore should have
deposited in his trust account.
We also agree with and adopt the Commission's finding that Wickey did
not deposit the $5,000 bail reduction money in his trust account and that,
contrary to the court's order, used the money to pay his fees rather than
hire experts and take depositions as the order required.
Although the Commission made no finding regarding the allegation that
Wickey failed to maintain records sufficient to show that he deposited the
$6,500 and the $5,000 in his trust account, we find the Board established
that violation by a convincing preponderance of the evidence.
Finally, we adopt the Commission's finding that Wickey failed to
render Hernandez an accounting.
We therefore are convinced the Board established all of its
allegations of unethical conduct, save one, against Wickey concerning
Hernandez. The one exception is the allegation that Wickey charged an
excessive fee. The Board produced no evidence to establish that
allegation.
As to the Johnsons, we agree with and adopt the Commission's findings
that Wickey failed to send them notice of his suspension. We also find
Wickey failed to maintain books and records sufficient to demonstrate
compliance with DR 9-102; consequently he violated DR 9-103(A). He also
violated DR 1-102(A), (1), (5), and (6). Although the Commission concluded
Wickey violated DR 9-102(A) (lawyer shall deposit advances in trust
account) and (B)(3) (lawyer shall maintain complete records of all funds of
client coming into possession of lawyer and shall render appropriate
accounts to the client regarding them) with respect to the Johnsons, the
Board's complaint did not allege Wickey violated those provisions in his
representation of the Johnsons. Accordingly, Wickey cannot be found to
have violated them in this instance.
As to Madison, we agree with and adopt the Commission's findings that
Wickey never sent Madison a notice of his suspension, never deposited the
$625 advance in his trust account, and never maintained records sufficient
to show that he deposited the retainer in his trust account. The
Commission made no finding regarding the Board's allegation that Wickey
failed to render Madison an accounting. We find the Board established that
violation as well. The Commission made a finding that Wickey did not
neglect Madison's claims, a finding with which we disagree. Contrary to
the Commission's finding, we think the Board established the neglect
allegation. For these reasons, we conclude the Board established all of its
allegations of unethical conduct against Wickey concerning Madison.
IV. Discipline.
What discipline is appropriate in an attorney disciplinary proceeding
depends on the particular facts and circumstances of each case. Iowa
Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 637 N.W.2d 183, 187
(Iowa 2001). What we have here is a smorgasbord of ethical violations-
violation of a court order, failures to maintain adequate trust account
records as well as failures to deposit retainers in a trust account,
failures to account to clients, failures to give clients notice of
suspension, and neglect of a client matter. Wickey has demonstrated a
cavalier attitude toward our ethical rules, especially those concerning
trust accounts. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v.
Gilliam, 560 N.W.2d 1, 4 (Iowa 1997) (expressing our concern about trust
account violations). We are also convinced Wickey was less than truthful
with the Commission.
A review of our previous cases involving similar violations
demonstrates that the three-month suspension the Commission recommended is
not sufficient to deter Wickey from future violations. See Sherman, 637
N.W.2d at 187 (holding that deterrence is one of the purposes of attorney
disciplinary proceedings). For example, we extended a suspension by three
months where the sole violation was failure to notify clients of a
suspension. See Comm. on Prof'l Ethics & Conduct v. Rauch, 508 N.W.2d 628,
628-29 (Iowa 1993). We ordered a six-month suspension for an attorney who
did not properly deposit client funds in a trust account, did not maintain
complete records of client funds and render proper accountings, did not
keep records to show compliance with the trust account rules, and engaged
in conduct involving dishonesty, fraud, deceit, or misrepresentation. Iowa
Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mattson, 558 N.W.2d 193, 194-
95 (Iowa 1997).
Once more, this is not Wickey's first brush with the disciplinary
process. See Iowa Supreme Bd. of Prof'l Ethics & Conduct v. Pracht, 627
N.W.2d 567, 573 (Iowa 2001) (holding that prior discipline is an
aggravating factor). In 1997 Wickey was publicly reprimanded for failing
to provide a client with an appropriate accounting-similar to one of the
violations in this case. In addition, in 2000, we suspended Wickey's
license to practice law for six months for failing to pay Iowa income tax
and file Iowa income taxes in a timely manner for four years. Wickey, 619
N.W.2d at 320-21.
Given the number and nature of the present violations as well as
Wickey's prior discipline, we think Wickey's conduct here warrants a
suspension for a minimum period of six months. We therefore suspend
Wickey's license to practice law with no possibility of reinstatement for a
period of six months from the filing of this opinion. The suspension
applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). Upon
application for reinstatement, Wickey shall have the burden to prove that
he has not practiced law during the period of his suspension and that he
meets the requirements of Iowa Court Rule 35.13. In addition, as a
condition of reinstatement, Wickey must show that he has obtained the
assistance of a bookkeeper or accountant to maintain complete and accurate
records for his client trust account. See Mattson, 558 N.W.2d at 195.
Costs are taxed to Wickey pursuant to Iowa Court Rule 35.25, and
payment of such costs shall also be a condition of reinstatement.
LICENSE SUSPENDED.
