Friday, April 3, 2015
No Notice Of Theft Charges: No License Revocation
The Iowa Supreme Court rejected the license revocation recommendation of its Attorney Discipline Board and suspended an intellectual property attorney for not less than six months.
The court concluded that the attorney was not placed on proper notice of conversion charges.
The Board brought a three-count complaint against Cepican alleging various violations of the Iowa Rules of Professional Conduct involving his actions with three clients. Each count in the complaint involved a different client, and the evidence at the hearing showed Cepican caused substantial heartache and harm to each of them. In the first count, Cepican represented a client to secure a patent for an invention involving a toy. Over time, he neglected to perform certain legal services and failed to adequately communicate with the client. After the client brought a complaint against him, Cepican failed to reply to the Board on numerous occasions.
The two other counts in the complaint also involved neglect of client matters. One of the counts involved a complex scientific invention by the client. The neglect by Cepican was serious enough for the United States Patent and Trademark Office (USPTO) to issue notices of abandonment of the patent application of the client. The conduct by Cepican in this and other cases eventually led to a default judgment excluding him from practicing before the USPTO.
The notice issue
In this case, the allegations in the complaint did not provide adequate notice to Cepican that he faced a claim of misconduct in the nature of theft that would support revocation of his license. The complaint only alleged he obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned. Cepican admitted, as required by the commission’s sanction, all the allegations in the complaint, but the possibility that he faced a revocation of his license to practice law was not raised until the conclusion of the hearing. Thus, his conduct in failing to respond to the complaint cannot be deemed a waiver of his right to contest the allegations of theft. Under the circumstances, Cepican did not have a fair opportunity to know the issue of theft was in play and to produce evidence to show he had a future colorable claim to the retainer. This defense is established by evidence the attorney had a good-faith intent to perform the work even when the attorney failed to perform enough of the work to exhaust the retainer.
The attorney had indicated that he no longer desired to practice law. (Mike Frisch)