Friday, November 9, 2018

How To Avoid Probate Problems

The Iowa Supreme Court suspended an attorney for his premature taking of probate fees

This attorney disciplinary proceeding requires us to address the recurring problem of attorneys who take premature probate fees. Before work was completed on an estate—in fact, over a year before the final report was filed and the court costs were paid—an attorney billed and collected the second half of his probate fee. Notably, the attorney had been publicly reprimanded for the same type of misconduct just a year and a half earlier.

The Iowa Supreme Court Attorney Disciplinary Board (Board) charged the attorney with violating several rules, including Iowa Rules of Professional Conduct 32:1.5(a) and 32:1.15(c). The parties stipulated to facts and rule violations and jointly recommended a thirty-day suspension in light of the attorney’s recent, prior reprimand for the identical misbehavior. The Iowa Supreme Court Grievance Commission agreed with that recommendation and passed it along to us. We, too, find violations of rules 32:1.5(a) and 32:1.15(c) and agree with the recommended sanction. Accordingly, we impose a thirty-day suspension on the attorney’s license to practice law in Iowa.

The attorney was admitted in 1986 and practiced in Spirit Lake

This case centers on Saunders’ actions at the end of 2015. Saunders knew that the Steven Wallace estate was not yet closed, work  remained to be done, the final report had not been filed, and the costs had not been paid. Nevertheless, he demanded early payment of his remaining fee. After getting some pushback from the client, Saunders offered a slight discount for this not-yet-due payment. When he received the $7500.00 he had unjustifiably demanded, Saunders deposited it into his business account, not his trust account.

He stipulated to the misconduct, which violated governing probate rules.

Suspension because

This case presents an important aggravating factor. On June 30, 2014, just a year-and-a-half before the misconduct at issue in this case, Saunders had received a public reprimand for essentially the same misconduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelissen, 871 N.W.2d 694, 701 (Iowa 2015) (finding a recent public reprimand for similar misconduct to be “a significant aggravating factor”). According to the Board’s letter of reprimand, Saunders took the second half of an ordinary probate fee at least three years before costs were paid and the final report was filed. The Board concluded that Saunders’ conduct violated rule 32:1.5(a) and publicly reprimanded him.

His substantial experience was also an aggravating factor. (Mike Frisch)

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