author: WIGGINS, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Donald F. MOONEN, Respondent.
    No. 05-1090.
    Supreme Court of Iowa.
    Dec. 2, 2005.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.
    Nathan C. Moonen, Epworth, for respondent.
   WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint alleging Donald F. Moonen violated numerous rules of the Iowa Code of Professional Responsibility in his handling of four different legal matters and for his failure to respond to the Board’s notices of complaint. The Grievance Commission (Commission) found the Board had proven many of the alleged violations and recommends we suspend Moonen’s license to practice law for sixty days. While we agree with the Commission Moonen’s conduct violated numerous rules of the Iowa Code of Professional Responsibility, we conclude the nature of his conduct calls for a longer suspension. We therefore suspend Moonen’s license to practice law in this state indefinitely with no possibility of reinstatement for eighteen months.

I. Proceedings Before the Grievance Commission.

The Board filed a complaint against Moonen with the Commission. The original complaint contained two counts alleging Moonen violated various disciplinary rules. During the pendency of the proceedings, the Board amended the complaint by adding a third count alleging further violations of the disciplinary rules.

Count I claims Moonen: (1) neglected legal matters as trustee and attorney for the Evelyn M. O’Connell trust created by his aunt, which he handled from 1998 to 2002; (2) failed to maintain complete records of the funds and property of the trust and render appropriate accounts regarding them; (3) failed to pay to the beneficiaries of the trust the assets they were entitled to receive; (4) failed to disclose to the beneficiaries and their attorney information they were entitled to receive; (5) loaned trust funds to himself and his wife without providing promissory notes or loan agreements; (6) used' delaying tactics and was uncooperative in litigation brought against him by the beneficiaries in connection with his handling of the trust; and (7) paid himself fees of $20,321.39 from the trust upon his removal as trustee without obtaining court approval or informing the successor trustee.

Count I further alleges Moonen’s conduct violated DR 1 — 102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter), DR 7-102(A)(3) (providing in the representation of a client a lawyer shall not conceal or knowingly fail to disclose that which the lawyer is required by law to reveal), DR 9-102 (providing in DR 9-102(B)(3)-(4) a lawyer shall maintain complete records of client funds, render appropriate accounts, and pay or deliver to the client such funds as the client is entitled to on the client’s request), and DR 9-103(A) (providing every lawyer in private practice shall maintain on a current basis books and records sufficient to demonstrate compliance with DR 9-102).

Count II claims Moonen did not reply to the first, second, and third notices of complaint received by Moonen that were sent by the Board in connection with his work as attorney for the estate of Evelyn Simon. Count II further alleges Moonen’s conduct violated EC 1-4 (providing the integrity of the legal profession can be maintained only if a lawyer upon request assists committees and boards having the responsibility for the disciplinary rules), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law).

Count III claims Moonen: (1) neglected legal matters as attorney for the executors of the estate of Lucille E. Kuehn; (2) neglected legal matters as attorney for the executor of the estate of Eva Mae Weigel; (3) failed to close those estates after receiving multiple delinquency notices from the clerk of court; and (4) failed to respond to the notices of complaint sent by the Board. Count III further alleges Moonen’s conduct violated EC 1-4 (providing the integrity of the legal profession can be maintained only if a lawyer upon request assists committees and boards having the responsibility for the disciplinary rules), DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), and DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter).

The Board sought discovery from Moo-nen by filing interrogatories, request for production of documents, and requests for admission. Moonen failed to respond to the Board’s discovery. The Board filed a motion to compel Moonen to respond to the Board’s interrogatories and request for production of documents. In the motion, the Board stated it had also served requests for admission on Moonen that he did not answer. The motion was unresist-ed and sustained, with the Commission deeming the matters in the requests for admission admitted by operation of law. The ruling also gave Moonen a deadline to answer the interrogatories and produce the documents requested by the Board or the Commission would impose sanctions.

Moonen did not answer the interrogatories or produce the documents in the time required under the Commission’s order. The Board moved for sanctions against Moonen for his failure to comply with the ruling on the motion to compel. The motion for sanctions was unresisted and sustained. In its order, the Commission prohibited Moonen from offering any exhibits or objecting to any of the Board’s exhibits. As an additional sanction, the Commission deemed the paragraphs denied by Moonen in counts I and II admitted. Further, the Commission deemed the allegations in count III admitted due to Moonen’s failure to file an answer to count III. See Iowa Ct. R. 36.7 (providing respondent’s failure to file an answer results in respondent admitting the allegations of the complaint). Finally, because Moonen did not answer the Board’s second requests for admission, the Commission deemed those matters admitted as well.

At the hearing, the Board asserted it was not required to set forth proof of the allegations in the complaint because of the matters deemed admitted, but it did so anyway in order to give the Commission context in evaluating Moonen’s ability to practice law and the sanctions he may deserve. The testimony presented by the Board at the hearing focused on the allegations of count I, with exhibits supplementing that testimony. The Board also presented other exhibits pertaining to the claims in counts II and III.

In regards to count I, the Commission concluded Moonen had violated DR 6-101(A)(3) by neglecting a client’s legal matter, DR 7-102(A)(3) by concealing or knowingly failing to disclose that which a lawyer is required by law to reveal in view of his non-responsiveness to discovery, DR 1-102(A)(1) by admittedly violating a disciplinary rule, DR 1-102(A)(4) by engaging in misrepresentation in regards to not being forthcoming to the court while under oath when asked about fees he took in the O’Connell trust, and DR 1-102(A)(5) by engaging in conduct prejudicial to the administration of justice by his stalling and noncompliance with court orders and discovery in the underlying matter and the disciplinary proceeding. The Commission found the Board failed to prove Moonen violated DR 9-102, DR 9-103(A), and DR 1 — 102(A)(6).

In regards to count II, the Commission concluded the Board failed to prove count II of the complaint. As for count III, the Commission concluded because Moonen had not answered that count of the complaint all matters alleged were deemed admitted. Thus, the Commission concluded Moonen had violated DR 6 — 101(A)(3), EC 1-4, DR 1-102(A)(1), DR 1-102(A)(5), and DR 1-102(A)(6).

The Commission filed a report in our court unanimously recommending Moo-nen’s license be suspended for a period not to exceed sixty days pursuant to Iowa Court Rule 35.12. The Commission also recommended Moonen be required as part of his reinstatement to attend a law office management CLE program within 180 days. Finally, the Commission recommended Moonen receive a psychiatric evaluation within the suspension time and undergo any recommended counseling and/or medication.

II. Scope of Review.

Our review of the attorney disciplinary proceeding is de novo. Iowa Ct. R. 35.10(1). In deciding the matter, the court considers the findings of fact and disciplinary recommendation of the Commission. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 815 (Iowa 2004). The Board must prove “ethical violations by a ‘convincing preponderance of the evidence.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 531 (Iowa 2004) (citation omitted).

III. Factual Findings and Ethical Violations.

The Board served Moonen with interrogatories, request for production of documents, and requests for admission. See Iowa Ct. R. 35.6 (permitting discovery in an attorney disciplinary proceeding pursuant to the Iowa Rules of Civil Procedure as provided in rules 1.501 to 1.517, 1.701, 1.702 and 1.714 to 1.717). Moonen failed to respond to these discovery requests. Moonen’s failure to respond to the requests for admission requires us to consider all the.matters stated in the requests as admitted for purposes of the disciplinary proceeding. Iowa R. Civ. P. 1.510(2).

The Commission sanctioned Moonen for failure to respond to the Board’s interrogatories and request for production of documents. One of the sanctions imposed by the Commission was that all factual allegations denied by Moonen in counts I and II of the complaint were admitted for purposes of the disciplinary proceeding. This sanction is consistent with the sanctions allowed under our rules of civil procedure. Id. R. 1.517(2)(6 )(1). For purposes of our de novo review, we deem the factual allegations contained in counts I and II of the complaint admitted.

Finally, the Commission found Moonen’s failure to file an answer to count III of the complaint served as an admission by Moo-nen of the allegations contained in that count. Our rules provide:

If the respondent fails or refuses to file [an] answer within the time specified, the allegations of the complaint shall be considered admitted and the matter shall proceed to hearing on the issue of the appropriate sanction.

Iowa Ct. R. 36.7. Consequently, we consider all matters contained in count III of the complaint admitted. Using these admissions of law and fact, together with our review of the record, we make the following findings of fact and determinations of Moonen’s ethical violations.

O’Connell Trust Matter. O’Connell, Moonen’s aunt and the settlor of the trust, died in July 1998. Moonen served his aunt’s trust as its attorney and trustee. The trust contained approximately $200,000 in gross assets to be divided among five beneficiaries, yielding around $30,000 net to each beneficiary. The trust required distribution of the assets of the trust upon O’Connell’s death. As of the time of Moonen’s removal as trustee on May 17, 2002, almost four years after the death of O’Connell, the assets of the trust were not fully distributed.

In November 2000, several of the beneficiaries hired an attorney, Gary Norby, to assist them in getting a copy of the trust instrument and other information from Moonen regarding the trust. In December 2000, after Moonen became aware of Norby’s representation, he made a partial distribution of assets by distributing $3000 to each beneficiary. This distribution did not deter the beneficiaries’ request for information. Norby continued to make repeated requests of Moonen for information about the trust. Moonen failed to respond to all of these requests.

Approximately six months after Norby’s initial request, Norby filed a petition on behalf of the beneficiaries requesting the court to order Moonen to make an accounting to the beneficiaries. Moonen failed to file a timely answer, so Norby served him with a notice of intent to take a default. The notice prompted Moonen to file an answer denying every allegation, including that he is a resident of Dubuque County, Iowa.

Norby then filed interrogatories and a request for production of documents, to which Moonen did not respond. Norby eventually filed a motion to compel discovery. The court granted Norby’s motion over Moonen’s reply and resistance attributing his delay to a water pipe break in his office. Moonen did not comply with the ruling on the motion to compel. In December 2001, Norby filed a motion for sanctions. The court ordered Moonen to answer the discovery within seven days of its order and pay the plaintiffs $300 as a sanction to compensate them for the expense of filing the motion. After the court issued the order for sanctions, Moonen made another partial payment to the beneficiaries in the sum of $8000.

In December 2001, Moonen also responded to the interrogatories and produced a copy of the trust instrument. He also produced many unorganized documents without any accounting of trust receipts and disbursements. This late production required the court to continue the trial.

In reviewing the trust documents, Nor-by realized the trust required distribution of all trust assets to the beneficiaries upon O’Connell’s death. He also waded through the documents to put together his own accounting of the trust. In doing so, Nor-by noticed the inheritance and income tax returns were delinquent, deposits were being delayed, and undocumented loans and other payments were made from the trust to Moonen and his family.

Moonen took $4000 in loans in place of fees he felt he earned until he could become organized and bill the trust what was actually owed to him. He made $3000 of these loans to his wife to avoid the appearance of self-dealing. He paid the loans back to the trust within nine months. He paid twenty-eight dollars in interest, substantially less than market interest rates. Moonen also took $12,500 in fees without accounting for his time, without receiving a waiver from the beneficiaries, and without an order of the court.

Upon completing his review of the matter, Norby filed an application on behalf of his clients to remove Moonen as trustee. The application alleged Moonen committed numerous violations of the Iowa Code and breached his fiduciary duty to the beneficiaries. Moonen resisted the removal application.

Moonen admitted his “gross neglect” in acting as trustee at the disciplinary hearing; at the removal hearing, however, Moonen attempted to justify his dilatory handling of the trust, the loans he made to himself, and the $12,500 in fees he took from the trust. At the removal hearing, Moonen also misrepresented the amount of the fees he took from the trust by knowingly failing to disclose to the court that he wrote himself a check for fees in the amount of $20,321.39 dated the day before the hearing.

The court removed Moonen as trustee. The court found and we also find Moonen: (1) failed to distribute the trust assets to the beneficiaries as required by the trust; (2) failed to timely inform the residuary beneficiaries of their interests in the trust; (3) failed to timely provide requested trust information and accounting; (4) failed to timely file income and inheritance tax returns; (5) made $4000 in loans to himself and his wife absent any notes or loan agreements; (6) paid himself $12,500 in trust assets for legal fees, which were not evidenced by a bill until the hearing where time slips were presented; and (7) failed to timely deposit trust assets and liquidate certain trust investments resulting in a loss of market value to the beneficiaries. The court further found Moonen had “been dilatory in his handling of this trust” and did not find his other work or family illness excused the delay in distributing the trust assets. The court removed Moonen as trustee and ordered him to turn over all trust assets and records to a successor trustee.

Moonen turned the trust records over to the successor trustee. The records were unorganized, and disclosed Moonen had failed to properly designate the trust property as required by Iowa Code section 633.4210(2) (2001). The successor trustee reviewed Moonen’s work and determined it had to amend the income and inheritance tax returns due to Moonen’s errors. These errors required the trust to incur additional expenses.

Seventeen days after the court removed Moonen as trustee, Moonen notified the successor trustee he had written himself a $20,321.39 check on May 15, 2002 for additional fees. Moonen failed to disclose to the court that he had taken these fees when he testified at the removal hearing on May 16. The May 15 check cleared the account on June 3 causing the account to go into overdraft status. Moonen repaid the additional, fees as requested by the successor trustee. Moonen never made any further claims for fees or presented any documentation to the probate court or the Commission showing he was entitled to these additional fees.

The trust incurred approximately $2300 in tax penalties, $8000 in Norby’s attorney fees, and $1040 in fees to the successor trustee to conclude the matter. Had Moo-nen acted diligently and competently in this matter, the trust would not have incurred these additional expenses.

Professional neglect usually involves procrastination and concerns “ ‘indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.’ ” Honken, 688 N.W.2d at 821 (citation omitted). A failure to take the necessary actions in estate matters in a timely fashion constitutes professional neglect. Id. Moo-nen’s inattention to the trust matters and his use of delay tactics against the beneficiaries in the litigation seeking an accounting violates DR 1 — 102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter), and DR 7-102(A)(3) (providing in the representation of a client a lawyer shall not conceal or knowingly fail to disclose that which the lawyer is required by law to reveal).

In addition to his inattention, it is undisputed Moonen loaned trust funds to himself without providing promissory notes or loan agreements, took fees without accounting for his time, failed to keep a complete record of the trust’s assets, failed to account to the beneficiaries, and failed to make timely distributions of funds as required by the trust. This conduct violates DR 1-102(A)(1) (providing a lawyer shall' not violate a disciplinary rule), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), DR 9-102 (providing in DR 9-102(B)(3)-(4) a lawyer shall maintain complete records of client funds, render appropriate accounts, and pay or deliver to the client such funds as the client is entitled to on the client’s request), and DR 9-103(A) (providing every lawyer in private practice shall maintain on a current basis books and records sufficient to demonstrate compliance with DR 9-102).

Moonen complicated the matter by not disclosing the final payment he took from the trust at the removal hearing. Misrepresentations made to the court are “ ‘a grave and serious breach of professional ethics.’ ” Honken, 688 N.W.2d at 820 (citation omitted). “A lawyer must fully disclose all facts tangentially relevant and material to a judge’s decision,” particularly in regards to court fees. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey, 551 N.W.2d 306, 308 (Iowa 1996). The deliberate misleading of the court or negligent failure to disclose relevant information constitutes a serious violation of disciplinary rules. Id. Moonen’s actions in this regard violate DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), and DR 7-102(A)(3) (providing in the representation of a client a lawyer shall not conceal or knowingly fail to disclose that which the lawyer is required by law to reveal).

Simon Estate Matter. The Board sent three notices of complaint regarding Moonen’s work as attorney for the Simon estate to Moonen requesting him to reply to the complaint. Moonen did not reply to any of the notices of complaint. His failure to do so violated DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice) and DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). See Comm, on Prof'l Ethics & Conduct v. Pracht, 505 N.W.2d 196, 199 (Iowa 1993) (finding the failure to respond to the committee violates DR 1-102(A)(5) and DR 1-102(A)(6)).

Kuehn and Weigel Estate Matters. Moonen opened the Kuehn estate as its attorney in April 2000. He opened the Weigel estate as its attorney in May 1999. The clerk of court sent various delinquency notices to Moonen throughout the administration of the estates. In June 2004, the clerk sent delinquency notices in each estate requiring an order closing the estates be filed within sixty days of the notices. Moonen failed to comply with either notice and the delinquencies were reported to the presiding judge and the Board. See Iowa Ct. R. 7.6 (outlining the handling of delinquent inventories and reports).

In September, November, and December, the Board sent notices of complaint to Moonen regarding these matters. Moonen failed to respond to these notices. In the meantime, the court issued orders setting hearings to show cause in each estate as to why the court should not remove the executors in each estate.

Moonen appeared at each hearing. He had not closed the Weigel estate due to lack of an income tax acquittance. The reason the state had not issued the income tax acquittance is that Moonen did not file the 2003 income tax return until September 30, 2004, almost four months after receiving the delinquency notice from the clerk. Moonen eventually received the acquittance and. the court closed the Weigel estate on October 23, 2004.

Moonen claimed the problem in closing the Kuehn estate was a certain charitable bequest and lack of an inheritance tax acquittance. The court gave Moonen until January 20, 2005 to resolve the issues and set the matter for a review hearing on that date. Moonen did not attend the review hearing or file a status report. On January 20, the court set another hearing for February 22 as to why the court should not remove the executors. On February 1, the court reset the hearing for March 4. During this time, the executors were writing letters to several district court judges complaining the estate had been open for five years and every time they made an inquiry of Moonen, he would tell them he would wrap it up, but never did so.

At the March 4 hearing, Moonen appeared and presented evidence the estate paid the court costs and he obtained the inheritance tax acquittance. However, Moonen informed the court he was still waiting for the income tax acquittance. The court continued the hearing until May 6, 2005. In June 2005, when the Commission held the disciplinary hearing, the estate was still open.

Moonen’s inattention to these probate matters and use of the clerk’s office as a tickler system violates DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter), DR 1-102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fleming, 602 N.W.2d 340, 341-42 (Iowa 1999) (finding inattention to probate deadlines violates DR 6-101(A)(3), DR 1-102(A)(1), DR 1-102(A)(5), and DR 1-102(A)(6)).

Moonen’s failure to respond to the Board’s notices of complaint violates DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice) and DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). See Pracht, 505 N.W.2d at 199 (finding the failure to respond to the committee violates DR 1-102(A)(5) and DR 1-102(A)(6)).

IY. Sanctions.

Moonen’s misconduct includes neglecting legal matters, loaning money to himself, taking fees without a proper accounting, making a misrepresentation to the court, failing to render appropriate accounts, failing to promptly distribute funds as required by the trust, failing to maintain books and records, and failing to cooperate with the disciplinary process. In determining the sanctions a lawyer must face for misconduct, we have stated:

The goal of the Code of Professional Responsibility is “to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering.” When deciding on an appropriate sanction for an attorney’s misconduct, we consider “the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and [the court’s] duty to uphold the integrity of the profession in the eyes of the public.” We also consider aggravating and mitigating circumstances present in the disciplinary action.

Honken, 688 N.W.2d at 820 (alteration in original) (citations omitted).

Precedents in attorney discipline cases involving neglect are of little value, and we must consider each case on an individual basis. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004). While neglect alone ordinarily deserves a sanction from reprimand to a six-month suspension, neglect compounded by other misconduct requires a more severe sanction. Id.; see Honken, 688 N.W.2d at 820-22 (imposing an indefinite suspension with no possibility of reinstatement for two years where the conduct involved “multiple acts of making misrepresentations to the court, disregarding court orders, neglecting client matters, misrepresenting the status of matters to his clients, and failing to respond to the Board’s inquiries”); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D’Angelo, 619 N.W.2d 333, 337-39 (Iowa 2000) (imposing an indefinite suspension with no possibility of reinstatement for three years where the conduct involved accepting fees prior to court authorization, failing to deposit client funds in a trust account, engaging in neglect and dishonesty, disregarding court orders, tending to procrastinate resulting in loss to clients of time and expense, and disregarding disciplinary rules); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Leon, 602 N.W.2d 336, 338-39 (Iowa 1999) (revoking an attorney’s license to practice law for being intentionally and repeatedly dishonest with law partners, a judge, and clients, neglecting clients’ legal matters and misrepresenting the status of their cases, repeatedly misappropriating client funds to cover up wrongdoing, and ignoring inquiries from the board); Comm, on Prof'l Ethics & Conduct v. Davidson, 398 N.W.2d 856, 858-61 (Iowa 1987) (imposing an indefinite suspension with no possibility of reinstatement for two years where the conduct involved making a misrepresentation to the court regarding a claim for compensation, misappropriating estate funds, commingling client funds, negligently handling a client’s affairs, and failing to turn over all estate property to the successor executor pursuant to court order).

There are mitigating factors present in this case. Indeed, this case is “a classic example of the special difficulties a sole practitioner faces in stressful times.” Comm, on Prof'l Ethics & Conduct v. Humphrey, 529 N.W.2d 255, 258 (Iowa 1995). Moonen experienced a broken water pipe in his office, and his wife became ill. He may also suffer from depression. Although such problems may influence the disciplinary action this court takes, these troubles are “a personal problem of the lawyer that does not excuse the misconduct.” Honken, 688 N.W.2d at 821-22; see also Comm, on Prof'l Ethics & Conduct v. Paulos, 410 N.W.2d 260, 262 (Iowa 1987) (refusing to excuse “unsatisfactory performance because of an attorney’s ill health, emotional problems, or the general stress of a busy law practice”). In addition, Moonen claims to have experienced a heavy workload during the time in question. However, such pressures do not excuse attorneys from timely completing legal matters entrusted to them because they may decline work, seek assistance, or withdraw from work. Pracht, 505 N.W.2d at 198. Moonen pursued none of these options.

Another mitigating factor is that Moo-nen has been in practice for nearly thirty years without any problems similar to those now at issue. See Comm, on Prof'l Ethics & Conduct v. Nadler, 467 N.W.2d 250, 254 (Iowa 1991) (stating “[i]n determining what discipline is appropriate, we consider prior disciplinary action taken against the lawyer”). Still, the multiple violations and the continual nature of the incidents detract from this as a mitigating factor. See Honken, 688 N.W.2d at 821 (acknowledging a disciplinary action as the first taken against an attorney but also recognizing his “conduct was not the result of an isolated incident but took place over an extended period”).

The aggravating factors we must consider include multiple incidents of neglect. Moorman, 683 N.W.2d at 553. Moonen’s various actions throughout his handling of the O’Connell trust and the Kuehn and Weigel estates demonstrate his neglect was not isolated in nature. Additionally, the “failure to respond to the proceedings and to cooperate with the Board reflects adversely on his general fitness to practice law and is an additional factor in imposing discipline.” Id. at 554. Moreover, it is significant Moonen’s actions caused harm to others, in terms of cost to the beneficiaries in the O’Connell matter and delay to the beneficiaries and executors in the O’Connell, Kuehn, and Weigel matters. Honken, 688 N.W.2d at 821. Finally, Moonen’s misrepresentation to the court as to his trustee fees is not only a breach of professional ethics in itself but also serves to exacerbate his negligence in the O’Connell matter. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rauch, 650 N.W.2d 574, 578 (Iowa 2002) (finding a lawyer’s violation of a disciplinary rule “is seriously aggravated by his misrepresentation to the court”).

In light of the multiple violations, his neglect of multiple legal matters, his self-dealing in loaning trust funds to himself and his wife, his taking of fees without accounting for his time, his misrepresentation to the court, his failure to cooperate with the Board, the harm he caused his clients, the period of time over which these violations occurred, the mitigating factors, and the aggravating factors, we conclude a suspension of eighteen months is warranted in this case.

V. Disposition.

We suspend Moonen’s license to practice law in this state indefinitely with no possibility of reinstatement for eighteen months. This suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12. Upon any application for reinstatement, Moonen must establish he has not practiced law during the suspension period and he has in all other ways complied with the requirements of Iowa Court Rules 35.13 (providing the procedure on application for reinstatement) and 35.21 (providing for notification of clients and counsel). He shall also establish that he has reimbursed the trust, or its beneficiaries, for the attorney fees paid by them to Norby, for the fees paid to the successor trustee, and for the tax penalties paid by the trust, with interest at the legal rate to the date of their payment. We tax the costs of this action to Moonen pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Nyaradzai M. KADENGE, Respondent.
    No. 05-1249.
    Supreme Court of Iowa.
    Dec. 2, 2005.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.

      Max E. Kirk of Ball, Kirk & Holm, Waterloo, for respondent.
   STREIT, Justice.

An attorney comes before us because of his neglect of his clients’ matters and his problems with alcohol. The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint against the respondent, Nyaradzai M. Kadenge, alleging he had violated several provisions of the Iowa Code of Professional Responsibility by neglecting legal matters entrusted to him, by mishandling his trust account, by making misrepresentations, by being intoxicated in court, and by failing to respond to inquiries from the Board. The Grievance Commission found the Board proved the alleged violations and recommended we suspend Kadenge’s license to practice law for six months.

We find the Board proved the ethical violations. Based on the seriousness and number of violations we believe an eighteen-month suspension is warranted.

I. Facts and Prior Proceedings

Nyaradzai M. Kadenge graduated from the University of Iowa Law School in 1993 and spent several years clerking for both the federal and state courts. He spent two years in the public defender’s office, and started practicing on his own in Waterloo in late 1997 or 1998. Within the next few years, Kadenge bought an interest in two bars. He soon began to show signs of alcohol abuse. At times he would spend long periods of time out of the office, neglecting his clients and pending cases. His alcohol problems came to the forefront on July 11, 2003 when he appeared for a sentencing matter before Associate District Court Judge Nathan Callahan in an intoxicated state. Kadenge was charged with public intoxication and pled guilty to the charge.

This matter came before the Grievance Commission upon a complaint filed by the Iowa Supreme Court Board of Professional Ethics and Conduct (“Board”) in May of 2004. The complaint alleged ethical violations in five areas: Kadenge repeatedly mishandled his trust account, neglected his responsibilities to his clients, failed to respond to the Board’s complaints, made misrepresentations, and was arrested and convicted for public intoxication when he appeared in court for a client’s sentencing hearing.

In June of 2005, the Grievance Commission held a hearing regarding Kadenge’s conduct. Kadenge testified candidly about his struggle with alcoholism and depression, but still cast blame for many of his violations on his support staff, the attorney with whom he shared an office, and his clients.

The Grievance Commission found Ka-denge had repeatedly violated the Iowa Code of Professional Responsibility for Lawyers. The Commission recommended we order Kadenge pay a former client, Ismet Sadikovic, the balance of a judgment rendered against him in the amount of $2000. It also recommended we order Kadenge refund Deborah Sallis’s retainer of $1000. See Iowa Ct. R. 35.9 (“the commission may recommend additional ... sanctions such as restitution”). Finally, it recommended we suspend his license to practice law for six months.

II. Standard of Review

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ruth, 656 N.W.2d 93, 97 (Iowa 2002); Iowa Ct. R. 35.10(1). We give respectful consideration to the Commission’s findings and recommendations, but are not bound by them. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002) (revoking license even though Commission recommended five-year suspension).

The Board must prove attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002). This burden is “less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil ease.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). “On review we may adopt, increase, or reduce the sanction recommended by the commission.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Eich, 652 N.W.2d 216, 217 (Iowa 2002).

III. Factual Findings

Based upon Kadenge’s admissions and the evidence presented to the Grievance Commission concerning the various ethical violations, we make the following factual findings:

A.The Roth Matter

Gerald Roth paid Kadenge a $500 retainer for representation in a small claims suit filed against Roth in Wisconsin. The retainer was never placed in a client trust account. Kadenge was not licensed to practice in Wisconsin, and he did not attempt to be admitted in Wisconsin pro hac vice. Kadenge assisted Roth in drafting an answer to the small claims petition, but he did not provide further assistance until the day of trial when he desperately tried to find an attorney to represent Mr. Roth in Wisconsin. Kadenge was unable to find an attorney, and a default judgment was entered against Mr. Roth in the amount of $2200. This judgment was paid by Ka-denge. Mr. Roth filed a complaint with the Board. Kadenge did not reply to the Board’s first and second notices of the complaint. He replied to the third notice, but failed to reply to further inquiries into the matter.

B. The Sadikovic Matter

Ismet Sadikovic hired Kadenge to represent him in a workers’ compensation case against his employer. The deputy industrial commissioner decided against Sadiko-vic. Although Kadenge had originally agreed to represent Sadikovic on a contingent fee basis, Sadikovic wrote Kadenge a check for $3000 to handle the appeal to the industrial commissioner. Kadenge deposited the $3000 in his general firm account but did not file the appeal. Sadikovic filed a complaint with the Black Hawk County Bar Association Ethics and Grievance Committee and brought a legal malpractice case against Kadenge. Kadenge and Mr. Sadikovic settled on the legal malpractice claim with Kadenge agreeing to pay Mr. Sadikovic $5000. At the time of the Commission’s hearing Mr. Sadikovic had still not received $2000 of the agreed settlement amount. Kadenge failed to respond to the first, second, and third notices of this complaint by the Board.

C. The Sallis Matter

Kadenge agreed to represent Deborah Sallis on a civil rights matter against multiple defendants. Kadenge filed the suit in the United States District Court for the Northern District of Iowa without being admitted to practice there. After receiving two right-to-sue letters, Kadenge became confused by the corresponding case numbers and lost the opportunity to sue one of the defendants. The entire suit was eventually dismissed after Kadenge failed to resist a motion to dismiss.

D. The Begic Matter

Mirsad Begic hired Kadenge to represent him on a workers’ compensation claim. After filing the claim and beginning discovery, Kadenge stopped returning Begic’s phone calls. Begic contacted another attorney to determine the status of his claim. This attorney discovered the claim had been dismissed due to Ka-denge’s failure to respond to discovery requests and subsequent failure to respond to a motion to dismiss. When confronted, Kadenge denied the claim had been dismissed and claimed it was still progressing as planned. Kadenge eventually admitted the claim was dismissed, and blamed the dismissal on the fact he had not been able to contact his client to complete discovery. Begic contemplated filing a claim for malpractice. Kadenge made a false representation to Begic’s new attorney claiming he had malpractice insurance, when, in fact, he knew he did not.

E. The Lenius Matter

Kadenge was hired to attempt to rectify an adverse custody ruling regarding Audrey Delagardelle, the daughter of Stephanie Lenius. The district court had recently issued an order awarding primary physical care of Audrey with her father, Blake Delagardelle. The court had also ordered Lenius to pay child support. Lenius’s original attorney filed a motion to reconsider the court’s ruling on child support. Kadenge, having only discussed the matter with Lenius’s mother, filed an additional motion on Lenius’s behalf to reconsider the custody ruling. The court issued one order overruling both motions to reconsider. Kadenge did not read the entire order and he did not realize the court had also rejected his motion to reconsider. More importantly, he did not inform Lenius of the court’s adverse decision, and she missed the deadline to file an appeal.

F. The Cox Matter

Shane Cox filed a complaint with the Board alleging Kadenge failed to render an accounting of his services and failed to refund the unearned portion of his $2500 retainer. The Commission found his representation of Mr. Cox was substantial and disagreed with Mr. Cox’s contention that Kadenge had not earned the full amount of the retainer. However, even if Kadenge earned the full amount of the retainer, he did not earn the entire $2500 at the beginning of his representation. This money should have been deposited in his client trust account until it was actually earned. In addition to this trust account violation, the Commission determined Kadenge did not render an accounting and he failed to respond to the various notices of the complaint served upon him.

G. Appearance in Court While Intoxicated

In July of 2003, Kadenge appeared before Judge Nathan Callahan for a client’s sentencing hearing. Kadenge was staggering, his voice was slurred, and his breath smelled of alcohol. Judge Callahan confronted Kadenge, but Kadenge denied he had been drinking. Judge Callahan asked him to take a preliminary breath test and Kadenge agreed. The breath test indicated an alcohol concentration in excess of .10. Kadenge was charged with, and pled guilty to, the misdemeanor offense of public intoxication.

H. Other Matters

Kadenge mishandled his trust account by bouncing checks on the account. Although the checks did not constitute large sums of money, they were illustrative of a continuous mismanagement of his trust account.

The Commission found no basis in the claim of Señad Traljesic because Mr. Tral-jesic did not testify at the hearing and the Board did not present any other evidence beyond the initial complaint. In addition, the Commission found no ethical violation in Steve Miller’s claim Kadenge had mishandled his personal injury case. Ka-denge clearly sued the wrong defendant, but there was no ethical violation beyond failing to respond to the ethical complaints served upon him.

IV. Ethical Violations

A. Client Funds

We begin by considering the ethical violations surrounding the mishandling of his trust account. We have previously held all advance fee payments other than general retainer fee payments are refundable and must be placed in a client trust account. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 54-56 (Iowa 1998). These fees may not be withdrawn until earned. Id. at 56. Kadenge presented no written agreements identifying payments from Roth, Sadiko-vic, and Cox as general retainers, and no other evidence beyond vague testimony indicating he thought Mr. Roth wanted to set up a general retainer. We find these payments were intended to be either a special retainer or a flat fee arrangement. See id. at 57 (stating the court will scrutinize such agreements with the presumption the advance fee was a special retainer). We have made abundantly clear a lawyer “misappropriates client funds in violation of DR 1-102(A)(3), (4), (5), and (6) when special retainers and flat fees paid in advance are treated as money belonging to the lawyer and not maintained in a trust account until the fee has been earned.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 475 (Iowa 2003). On multiple occasions, Ka-denge did not deposit funds from his client in his trust account. Instead, he deposited these funds directly in his general office account before they were earned. We find Kadenge mishandled his trust account in violation of DR 9-102(A)(2) (“Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited in [a trust] account .... ”), and 9-102(B)(3) (stating a lawyer shall “[mjaintain complete records of all funds ... of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them”). Specifically, he mishandled trust accounts in the Roth matter and the Cox matter when he deposited client funds in a general office account before they were actually earned. In the Sadikovic matter his activities were particularly egregious because he deposited client funds in his general firm account even though he never filed the appeal. This ethical violation exemplifies why a severe sanction is necessary in this case.

B. Neglect

We next consider the numerous allegations of neglect. We have previously defined professional neglect “to involve indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004). Kadenge neglected the Sallis matter in violation of DR 6-101(A)(3) (“A lawyer shall not ... [n]eglect a client’s legal matter.”), by failing to resist a motion to dismiss. Kadenge similarly neglected the Begic matter by failing to respond to discovery requests and a motion to dismiss. Kadenge also neglected the Lenius matter because he failed to tell his client of the court’s adverse decision and he failed to tell her she had an opportunity to file an appeal. In considering the nature of the violations in these matters, we note the dilatory handling of client matters is a disservice not only to the client, but also to the judicial system and is a violation of DR 1 — 102(A)(5) (“A lawyer shall not ... [eft-gage in conduct that is prejudicial to the administration of justice.”).

C.Failure to Cooperate with the Board

We have repeatedly emphasized how important it is for an attorney to cooperate with disciplinary authorities when a complaint has been filed against the attorney. See Comm, on Prof'l Ethics & Conduct v. Horn, 379 N.W.2d 6, 8-9 (Iowa 1985) (holding “a failure to respond to an investigation committee’s request for an answer to a complaint is deemed a separate act of misconduct subjecting the attorney to discipline”). “An attorney who ignores Board inquiries only exacerbates matters.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 260 (Iowa 2004). Kadenge was uncooperative with the Board. He ignored nearly every request to respond to pending ethical complaints. By failing to answer the Board’s complaints and by failing to fully comply with discovery requests, Kadenge wasted the Board’s valuable time and limited assets. His lack of cooperation also prejudiced the Board’s ability to gather all pertinent facts regarding the complaints. We find his actions clearly violated DR 1~102(A)(5) (“A lawyer shall not ... [e]ngage in conduct that is prejudicial to the administration of justice.”). Comm, on Prof'l Ethics & Conduct v. Bromwell, 389 N.W.2d 854, 857 (Iowa 1986) (holding failure to respond to grievance committee violates the proscription against conduct prejudicial to administration of justice).

D. Misrepresentation to Member of the Bar

Kadenge’s neglect in the Begic matter is compounded further by a misrepresentation to another member of the bar. Kadenge intentionally misled Begic’s new attorney who was investigating a potential malpractice claim against Kadenge. Kadenge deceived Begic’s new attorney when he said he had malpractice insurance and identified the' name of an insurance carrier. While this violation is not as serious as a misrepresentation made to the court, or to another attorney during a pending case, it nevertheless was a fundamental violation of our code of ethics. See DR 1-102(A)(4) (“A lawyer shall not ... [eftgage in conduct involving dishonesty, fraud, deceit or misrepresentation.”).

E. Appearing in Court While Intoxicated

Kadenge’s appearance in court in an intoxicated condition was a violation of numerous provisions 'of our ethics code: DR 1-102(A)(1) (violation of disciplinary rule), DR 1-102(A)(5) (conduct that is prejudicial to the administration of justice), and DR 1-102(A)(6) (conduct that adversely reflects on fitness to practice law). Ka-denge also made a misrepresentation to the court in violation of DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) when he told the court he had not been drinking.

Having found multiple violations of our ethics code, we now turn to the appropriate sanction.

Y. Sanctions

In reaching our decision, we recognize the appropriate sanction must be determined in light of the particular circumstances of each case. Lett, 674 N.W.2d at 144. Factors that help guide our determination include “the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole and the respondent’s fitness to continue in the practice of law.” Comm, on Prof'l Ethics & Conduct v. Blomker, 379 N.W.2d 19, 21 (Iowa 1985). There is no standard discipline for a particular type of attorney misconduct, and “[e]ach case rests on its own facts, viewed in light of the relevant governing considerations.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 376 (Iowa 2002). However, we do strive to be consistent from one case to another. See Kennedy, 684 N.W.2d at 261.

When neglect of a client’s legal matters is the principal violation, discipline generally ranges from a public reprimand to a six-month suspension. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999). We have typically imposed a period of suspension when the client’s case was prejudiced. See id. at 604; Comm, on Prof'l Ethics & Conduct v. Gill, 479 N.W.2d 303, 305 (Iowa 1991) (three-month suspension when neglect resulted in dismissal of client’s appeal); Comm, on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69-70 (Iowa 1989) (six-month suspension when client’s civil suit was dismissed); Comm, on Prof'l Ethics & Conduct v. Oleson, 422 N.W.2d 176, 177 (Iowa 1988) (six-month suspension when one client was put in a default situation in a child support action and another client’s appeal was dismissed); Comm, on Prof'l Ethics & Conduct v. Johnson, 404 N.W.2d 184, 185-86 (Iowa 1987) (six-month suspension when neglect resulted in estates’ substantial liability for tax penalties and interest). In the present case, at least three of Ka-denge’s clients were directly harmed by his neglect-Mr. Sadikovic lost his opportunity to appeal the decision of the deputy workers’ compensation commissioner, Mr. Begic’s workers’ compensation claim was dismissed, and Ms. Sallis lost her opportunity to pursue her civil rights claim. Therefore, we find a suspension is mandated solely for the client neglect.

In other jurisdictions, sanctions for attorneys appearing intoxicated in court have ranged from public reprimand to disbarment. See Danny R. Veilleux, Annotation, Misconduct Involving Intoxication as Ground for Disciplinary Action Against Attorney, 1 A.L.R.5th 874 (1992). The degree of sanction corresponds to the amount of harm to the client and the number of times similar situations had happened before. See id. Kadenge has never been brought before us for alcohol-related violations, and in this situation, his client was not adversely affected by his intoxication. However, such conduct is still a serious violation of our code of ethics. See, e.g., Bernard, 653 N.W.2d at 376 (suspending a lawyer for one year pursuant to his misdemeanor conviction for possession of methamphetamine, neglect of client matters, and his making of a false statement to the Board). It adversely impacts the fitness of a lawyer to practice law and impugns the reputation of the profession as a whole. Id.

We recognize Kadenge spent twenty-six days at a facility in Minnesota for alcohol abuse and that he has made great strides to overcome this problem, but his recent rehabilitative efforts do not eliminate the need for sanctions in this case. Emotional problems or alcohol use will not excuse negligent or neglectful conduct with respect to one’s clients. It will also not excuse trust account violations. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 134 (Iowa 1999) (attorney suspended for two months when ethical violations occurred during a period of depression and active alcoholism); Comm. on Prof'l Ethics & Conduct v. Haney, 435 N.W.2d 742, 743 (Iowa 1989) (attorney suspended for three months when dilatory conduct stemmed from his alcoholism).

VI. Conclusion

When assessing the multiple violations, the serious breaches of ethics, the harm done to his clients, his failure to cooperate with the Board in its investigation, and his conviction for being intoxicated in court, we believe the Commission’s recommendation of a six-month sentence minimizes the seriousness of what has occurred. We believe the facts of this case require a more severe sanction. We conclude the respondent’s license should be suspended for a period of not less than eighteen months. This suspension will preserve the integrity of the profession in the eyes of the public and serve to deter similar conduct. This suspension shall apply to all facets of the practice of law as provided in Iowa Court Rule 35.12(3) and requires notification of clients as outlined in Iowa Court Rule 35.21. In addition, upon any application for reinstatement, Kadenge must establish he has paid the balance of the $2000 still owed to Mr. Sadikovic for settlement of his malpractice claim and refunded the $1000 retainer to Ms. Sallis. Costs are taxed to Kadenge pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.

      . The Board did not allege violations of DR 6-101(A)(1) (a lawyer shall not ''[hjandle a legal matter which the lawyer ... should know that the lawyer is not competent to handle”), DR 6-101 (A)(2) (a lawyer shall not handle a matter without preparation adequate in the circumstances), or DR 7-106(C)(6) (a lawyer shall not engage in undignified or discourteous conduct which is degrading to a tribunal when appearing in a professional capacity before a tribunal). Therefore, we do not find such violations in this proceeding. See Comm, on Profl Ethics & Conduct v. Crary, 245 N.W.2d 298, 304 (Iowa 1976) (restricting ethical violations to those charged in the complaint).


author: TERNUS, Justice.

text:
    Russell P. BOTTOMS, Jr., Appellee, v. Jack W. STAPLETON, Individually, S & S Equipment & Supply, Ltd., Paducah Gear & Machine Co., L.C., and Jack W. Stapleton, as Officer and Majority Owner of Paducah Gear & Machine Co., L.C., Appellants. Paducah Gear & Machine Co., L.C., and Jack W. Stapleton, Individually and as Officer and Majority Owner of Paducah Gear & Machine Co., L.C., Appellants, v. Russell P. Bottoms, Jr., Appellee.
    No. 04-0132.
    Supreme Court of Iowa.
    Dec. 2, 2005.

      Mark E. Weinhardt and Margaret C. Callahan of Belin Lamson McCormick Zumbach Flynn, A Professional Corporation, Des Moines, for appellants.
    J. Campbell Helton and Jonathan Kramer of Whitfield & Eddy, P.L.C., Des Moines, for appellee.
   TERNUS, Justice.

A minority shareholder brought this action against a limited liability company and its majority shareholder seeking damages for breach of fiduciary duty and conversion, judicial dissolution of the company, an accounting, and appointment of a receiver. Upon the minority shareholder’s motion to disqualify the defendants’ counsel, the district court held that counsel could not represent the company, but could continue to represent the majority shareholder. We granted the defendants’ application for interlocutory appeal. Although the potential for a conflict of interest exists, the record does not establish there is currently a significant risk that the defense attorneys’ representation of one defendant will materially interfere with their zealous representation of the other defendant. Therefore, we reverse the district court’s order and remand this case for further proceedings.

I. Background Facts and Proceedings.

The appellant, Paducah Gear & Machine Co., L.C., is an Iowa limited liability company that provides industrial machine shop repairs and service from a facility located in Paducah, Kentucky. Paducah Gear was formed in 1998 and has two shareholders. The appellant, Jack Stapleton, owns fifty-one percent of the company, and the appel-lee, Russell Bottoms, owns the remaining forty-nine percent.

Pursuant to the parties’ agreement, Sta-pleton handled the financial, recordkeep-ing, and corporate aspects of the company from Iowa, where Stapleton lived, while Bottoms worked on site at the Paducah, Kentucky shop, supplying the machinist services and managing the machinist crew. After several years, the relationship between the co-owners began to deteriorate. In March 2002, Bottoms and Stapleton ceased doing business together. That same month Bottoms incorporated Global Gear & Machine Co. in competition with Paducah Gear.

On July 17, 2003, Bottoms filed this lawsuit against Stapleton and Paducah Gear. The plaintiff alleged “Stapleton converted certain assets of Paducah Gear to his own use, made certain distributions to himself at the expense of Plaintiff and Paducah Gear, and has refused to fulfill his contractual and fiduciary duties.” Based on this conduct, the plaintiff pursued various remedies in six counts. In Count I Bottoms sought compensatory and punitive damages due to Stapleton’s alleged breach of fiduciary duty to the plaintiff. In Count II Bottoms requested a judicial dissolution of Paducah Gear or, alternatively, an order requiring Paducah Gear to pay to Bottoms his “fair share of the assets” of the company. In Count III the plaintiff asserted Stapleton “intentionally misappropriated and took dominion and control over [the plaintiffs] ownership interests.” As in Count I, the plaintiff sought a money judgment against Staple-ton. In Count IV Bottoms demanded an accounting, and in Count V he asked for the immediate appointment of a receiver to control the assets of Paducah Gear. In Count VI Bottoms requested a temporary injunction as an alternative to the appointment of a receiver and sought an order preserving the assets of Paducah Gear.

The defendants, represented by Richard R. Chabot of Sullivan & Ward P.C., filed an answer denying the plaintiffs accusations of wrongdoing and entitlement to equitable relief. The defendants also filed counterclaims alleging Bottoms had misappropriated proprietary information and other assets of Paducah Gear and had improperly interfered with Paducah Gear’s business relationships.

Subsequently, the plaintiff filed a motion to disqualify the law firm of Sullivan & Ward, P.C. from representing both defendants. This motion precipitated the appearance of Mark Weinhardt of the law firm of Belin Lamson McCormick Zum-bach Flynn, A Professional Corporation, on behalf of the defendants and Sullivan &

Ward. Bottoms then filed a motion to disqualify the Belin law firm as well from simultaneously representing Stapleton and Paducah Gear.

The district court granted the plaintiffs motions to disqualify and held that neither Sullivan & Ward nor the Belin law firm could represent Paducah Gear. It observed, “Assuming that the allegations of wrongdoing against Stapleton can be proven, there is a significant potential for divergence of the interests of Paducah and Stapleton.” The court noted that under the Iowa Code of Professional Responsibility, which was in effect at the time, as well as under the Iowa Rules of Professional Conduct, which were then under consideration, clients were allowed to consent to conflicting multiple representation. But the court concluded such consent on behalf of an entity must come from a disinterested person, a person other than the client who would be jointly represented with the entity. Here, the only persons who could consent were Bottoms, who would not consent, and Stapleton, who would not be disinterested. The court concluded, therefore, that it was necessary for Paducah Gear to retain separate counsel. If the parties could not agree on such counsel, the court required the parties to submit the dispute to the court for resolution.

This court granted the defendants’ application for interlocutory appeal. The sole issue on appeal is whether the district court abused its discretion in ruling the potential for a conflict of interest between Paducah Gear and its majority shareholder was sufficient to preclude joint representation of the company and Staple-ton. See Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 597 (Iowa 2002) (“We review a ruling on an attorney disqualification motion for abuse of discretion.”)- A court abuses its discretion when its ruling is based on clearly untenable grounds, such as reliance upon an improper legal standard or error in the application of the law. Id. The district court’s “factual findings in disqualification cases will not be disturbed on appeal if they are supported by substantial evidence.” Killian v. Iowa Dist. Ct., 452 N.W.2d 426, 428-29 (Iowa 1990).

II. Discussion.

A. General principles regarding attorney disqualification. The right of a party to choose his or her own attorney is important, but it must be balanced against the need to maintain “the highest ethical standards” that will preserve the public’s trust in the bar and in the integrity of the court system. Id. at 430. In balancing these interests, a court must also be vigilant to thwart any misuse of a motion to disqualify for strategic reasons. See id.; accord 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering § 10.2, at 10-10 (3d ed. 2004 Supp.) (stating “policymaking with respect to conflicts of interest regulation must take account of the opportunities for manipulation and tactical infighting”) [hereinafter “The Law of Lawyering ”].

Thus, our starting point in evaluating a claim that an attorney should be disqualified from representing a party is the ethical principles outlined in the Iowa Rules of Professional Conduct. See Killian, 452 N.W.2d at 429. (We focus on the Iowa Rules of Professional Conduct, which became effective on July 1, 2005, since the future conduct of the attorneys in this litigation will be governed by these rules rather than the old Iowa Code of Professional Responsibility.) The -rule governing the conflict at issue here is rule 32:1.7, which addresses the problem of concurrent conflicts of interest:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing, (c) In no event shall a lawyer represent both parties in dissolution of marriage proceedings.

Iowa R. of Prof'l Conduct 32:1.7; see also id. r. 32:1.13(g) (stating “lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of rule 32:1.7[, but any] consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders” (emphasis added)). Bottoms does not argue that the defendants’ interests are “directly adverse,” but rather that these parties have potentially differing interests. See generally 1 The Law of Lawyering § 11.8, at 11-22 (stating rule 1.7(a)(1) “applies where directly adverse representation will take place, as when one current client is about to file suit against another current client”). Therefore, we focus our discussion on rule 32:1.7(a)(2). See Iowa R. of Profl Conduct 32:1.7 cmt. [23] (stating “simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2)”).

B. Existence of disqualifying conflict. The question to be answered under rule 32:1.7(a)(2) is whether there is “a significant risk” that counsel’s representation of one client “will be materially limited by [his or her] responsibilities to another client.” See id. r. 32:1.7(a)(2). Although related to the old “appearance of impropriety” test, the modern approach focuses on the degree of risk that a lawyer will be unable to fulfill his or her duties to both clients. See generally 1 The Law of Law-yering § 10.4, at 10-12 to 10-13 (noting the old standard was “too vague and subjective” and was dropped from the ABA Model Rules of Professional Conduct).

A comment to rule 32:1.7 sheds light on when a conflict of interest will materially limit an attorney in the performance of the attorney’s responsibilities:

[A] conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities .... The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Iowa R. of Prof'l Conduct 32:1.7 cmt. [8]; see also id. r. 32:1.7 cmt. [29] (“[Representation of multiple clients is improper when it is unlikely that impartiality can be maintained.”). The representation of code-fendants will give rise to a conflict in situations involving a “substantial discrepancy in the [represented] parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question.” Id. r. 32:1.7 cmt. [23].

Our examination of the plaintiff’s brief shows a marked absence of any specification of the precise conflict in the present case. Nonetheless, since the plaintiff asks that we affirm the district court, we will examine the district court’s ruling for an elucidation of the plaintiffs claim. As summarized by the district court, “[t]he gist of Bottoms’ argument is that Staple-ton has breached duties to the company by ‘converting or embezzling funds’ and that the interests of Stapleton and Paducah are therefore adverse to each other.” The court’s ruling was succinct:

Assuming that the allegations of wrongdoing against Stapleton can be proven, there is a significant potential for divergence of the interests of Paducah and Stapleton. A potential conflict of interest is sufficient to require that steps be taken to assure that all parties are adequately represented.

In considering this ruling, we first note that the concept of a potential conflict of interest is foreign to the new ethical rule. That is because rule 32:1.7(a)(2) states that a conflict of interest “exists if ... there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Iowa R. of Prof'l Conduct 32:1.7(a)(2) (emphasis added). In other words, if there is a significant risk that representation of one client will materially limit the representation of another client, a conflict of interest actually exists; it is not merely potential. See 1 The Law of Lawyering § 10.4, at 10-13. Thus, only an actual conflict of interest, as defined in rule 32:1.7(a), will justify disqualification.

Our review, then, will focus on the district court’s conclusion that “there is a significant potential for divergence of the interests of Paducah and Stapleton.” Translated to the terminology of rule 32:1.7, the court, in essence, found there was a significant likelihood that the defendants would have differing interests in this lawsuit. See Iowa R. of Profl Conduct 32:1.7-cmt. [8] (stating one of the critical questions under rule 32:1.7 is “the likelihood that a difference in interests will eventuate”). We must decide whether there is substantial evidence to support this finding.

As the litigation is presently postured, the interests of Stapleton and Paducah Gear are not directly adverse. Bottoms’ claims against Stapleton are brought in his individual capacity and not on behalf of the company. He seeks only amounts to which he is personally entitled as an owner of the company, including sums he claims were tortiously converted by Stapleton. Moreover, the equitable claims asserted by Bottoms against Paducah Gear are merely ancillary to his damage claims against Sta-pleton. Bottoms seeks to identify company assets and preserve them so he can receive his “fair share” of the company. Importantly, the plaintiff has not articulated why a defense of the claims against Stapleton would be inconsistent with Padu-cah Gear’s defense of the claims alleged against it.

We reject the plaintiffs contention that this case is governed by our decision in Rowen v. LeMars Mutual Insurance Co., 230 N.W.2d 905 (Iowa 1975). In Rowen, policyholders of LeMars filed a derivative action against various officers and directors of LeMars, naming LeMars as a nominal defendant. 230 N.W.2d at 907. The plaintiffs also sued Iowa Mutual Insurance Company of DeWitt (DeWitt) as well as corporate insiders of DeWitt. Id. While the case was on appeal, the plaintiffs filed a motion to disqualify counsel for some of the individual defendants from also representing the two insurance companies. Id. This motion as it pertained to LeMars was “grounded on the principle that in a derivative action the corporation, though a nominal defendant, is the real plaintiff in interest and beneficiary of any judgment recovered.” Id. at 913. Even though there was no derivative action filed for the benefit of DeWitt, the plaintiffs argued “that under the allegations of the petition DeWitt would have an action over against [the] officers and directors of De-Witt [who] participated in the wrongdoing,” and therefore, DeWitt was in a potentially antagonistic position with respect to the individual defendants. Id. Noting that even a potential conflict of interest was sufficient to warrant disqualification, this court granted the plaintiffs’ motion. Id. at 914-15.

Clearly, Paducah Gear is not in a position comparable to LeMars. LeMars, a nominal defendant, was the anticipated beneficiary of any recovery from the other defendants. Thus, the interest of LeMars was directly adverse to those of the other defendants. Here, however, Paducah Gear is a true defendant; plaintiff seeks no relief from Stapleton that will inure to Paducah Gear. We are convinced the defendants’ attorneys are not disqualified from representing both defendants simply because the plaintiff has asserted separate claims against these defendants. See Stanley v. Brassfield, Cowan & Howard, 152 Ill.App.3d 378, 105 Ill.Dec. 442, 504 N.E.2d 542, 543-44 (1987) (refusing to disqualify attorneys representing corporation and individual shareholders and directors where action sought recovery from corporation, not for corporation, distinguishing derivative suits in which disqualification would be required).

Bottoms’ argument is actually similar to that made by the plaintiffs in Rowen with respect to DeWitt, namely, that DeWitt may have a cross-claim against the individual defendants. Bottoms argued in the district court that Paducah Gear had a duty to its employees and owners to investigate the claims of personal wrongdoing made against Stapleton to determine the merits of those claims. The implication from this argument was that if there was any merit to the claims, Paducah Gear may have a cross-claim against Stapleton. The only problem with analogizing Padu-cah Gear to DeWitt is the differing standard applied in Rowen and that applicable here. In Rowen the mere potential for differing interests triggered disqualification. Under rule 32:1.7(a)(2), there must be some likelihood of differing interests. See Iowa R. of Profl Conduct 32:1.7 cmt. [8].

Bottoms, as the moving party, bore the burden of proving facts that established the necessary factual prerequisite for disqualification. See Richers v. Marsh & McLennan Group Assocs., 459 N.W.2d 478, 481 (Iowa 1990); Quality Developers, Inc. v. Thorman, 29 Kan.App.2d 702, 31 P.3d 296, 304 (2001). Our review of the record does not reveal substantial evidence that the defendants’ interests will likely become adverse, particularly given the fact that one defendant is a limited liability company and the other defendant holds the controlling interest in the company. Cf. Philips Med. Sys. Int’l B.V. v. Bruetman, 8 F.3d 600, 606 (7th Cir.1993) (refusing to disqualify counsel jointly representing individual defendant and several corporations that he controlled, noting it appeared “the corporations have no interests separate from [the individual defendant]” and “[n]o determination of an actual conflict of interest was ever made”); Field v. Freedman, 527 F.Supp. 935, 940 (D.Kan. 1981) (refusing to disqualify attorneys representing defunct corporation and majority shareholders in suit filed by minority shareholder). Counsel will not be disqualified simply because the opposing party alleges the possibility of differing interests. See Nat’l Child Care, Inc. v. Dickinson, 446 N.W.2d 810, 812 (Iowa 1989) (holding movant’s allegation of conflict was insufficient to require disqualification in absence of proof that attorney’s testimony would be adverse to client’s interests); accord Philips Med. Sys. Int’l B.V., 8 F.3d at 606 (stating “judge should have held a hearing to determine whether there were adverse interests”); Field, 527 F.Supp. at 940-41 (denying motion to disqualify defendants’ counsel because the plaintiff “made no record which would allow [a finding] that ... adverse interests are present or are likely to become present,” noting “there must be some facts in the record to enable the Court to make a finding that an ethical violation has or will occur”).

Although we hold disqualification of the defendants’ attorneys from dual representation is not mandated at this time, we make no determination that a divergence of interest may not in the future become sufficiently likely so as to warrant disqualification. Thus, the plaintiff is not precluded from reasserting its motion to disqualify if it has proof that the test set forth in rule 32:1.7(a) has been met. See generally Iowa R. of Profl Conduct 32:3.1 (stating “[a] lawyer shall not ... assert ... an issue ... unless there is a basis in law and fact for doing so that is not frivolous”). Without prejudging what lies ahead, we simply observe that the defendants’ attorneys should be mindful of their ethical obligations under rules 32:1.13 and 32:1.7 and their clients’ interest in having consistent and continuing representation in this lawsuit. See generally Iowa R. of Profl Conduct 32:1.7 cmt. [29] (stating “a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment, and recrimination” and that “[ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails”).

III. Conclusion and Disposition.

The plaintiff failed to produce evidence showing it is likely that a difference in interests will develop between the defendants. Therefore, the trial court’s finding of a significant potential for a divergence of interests is not supported by substantial evidence. Accordingly, the court’s disqualification of the defendants’ attorneys was an abuse of discretion. Although the potential for divergent interests exists, we will not deprive the defendants of their counsel of choice based solely on the plaintiffs allegations that the company may have a claim against the majority shareholder, particularly when this lawsuit is based solely on wrongdoing that has purportedly harmed the plaintiff’s ownership interests. We reverse the district court’s ruling disqualifying Sullivan & Ward and the Belin law firm from representing Pa-ducah Gear, and we remand this case for further proceedings.

REVERSED AND REMANDED.

      . Bottoms also sued S & S Equipment & Supply, Ltd., a business owned by Stapleton. Apparently at one time Stapleton held his interest in Paducah Gear through S & S. Bottoms does not dispute Stapleton's assertion that any possible involvement of S & S has no significance to the issues at hand. Therefore, we do not separately discuss S & S in our opinion.

      . Because we determine the evidence does not support a finding that there is a significant potential for divergent interests, we do not decide whether the district court properly ruled the conflict was not waivable. See Iowa R. of Prof'l Conduct 32:1.7(b) (outlining circumstances under which dual representation is permitted notwithstanding concurrent conflict of interest, including requirement of "each affected client giv[ing] informed consent, confirmed in writing”); id. r. 32:1.13(g) (stating consent to dual representation of organization and its "directors, officers, employees, members, shareholders, or other constituents” may not be given by "the individual who is to be represented”).

      . The comparable provision of the discarded Iowa Code of Professional Responsibility is DR 5-105(C). It provided that "[a] lawyer shall not continue multiple employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the representation of another client, except to the extent permitted under DR 5-105(D).” See Iowa Code of Prof'l Responsibility DR 5 — 105(C). DR 5-105(D) allowed multiple representation when "it is obvious that the lawyer can adequately represent the interest of each [client] and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer’s independent professional judgment on behalf of each.” See id. DR5-105(D).


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Jill Johnson PENNINGTON, a Minnesota Attorney, Registration No. 130321.
    No. A05-2239.
    Supreme Court of Minnesota.
    Nov. 30, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Jill Johnson Pennington has been disbarred from the practice of law in Maryland for neglect of a client matter resulting in a missed statute of limitations and attempting to cover up the neglect by using own funds to settle underlying lawsuit and representing that the settlement funds came from the defendant. The petition requests that this court impose reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). The Director and respondent have entered into a stipulation in which respondent admits that the Maryland disbarment decision conclusively establishes the misconduct and the parties jointly recommend that the appropriate reciprocal discipline is a two-year suspension rather than disbarment.

This court has independently reviewed the file and approves the jointly recommended disposition. Although this court typically imposes identical discipline in a reciprocal disciplinary proceeding, identical discipline is not required if it is “substantially different from [the] discipline warranted in Minnesota.” Rule 12(d), RLPR. This court has imposed less severe discipline in similar cases involving an attorney attempting to conceal neglect of a client matter by entering into a mock settlement using the attorney’s own funds.

See In re Iliff, 487 N.W.2d 234 (Minn.1992) (imposing 90-day suspension and two years of supervised probation); In re Freidson, 426 N.W.2d 188 (Minn.1988) (imposing public reprimand and two years of supervised probation). We conclude that disbarment is substantially different from the discipline warranted in Minnesota and agree with the Director and respondent that a 24-month suspension is appropriate.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Jill Johnson Pennington is suspended from the practice of law for 24 months under Rule 15, RLPR. Reinstatement is conditioned upon: (1) payment of costs in the amount of $900 under Rule 24(d), RLPR; (2) compliance with Rule 26, RLPR, (3) successful completion of the professional responsibility examination under Rule 18(e), and (4) satisfaction of the continuing legal education requirements under Rule 18(e), RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST William Albert PLUMMER, a Minnesota Attorney, Registration No. 201375.
    No. A05-1026.
    Supreme Court of Minnesota.
    Nov. 30, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent William Albert Plummer has committed professional misconduct warranting public discipline, namely, that respondent unintentionally temporarily misapplied and failed to safeguard funds that came into his possession as a representative payee for a minor Social Security beneficiary, commingled personal and client funds in his trust account, failed to maintain proper trust account books and records, deposited an advance fee payment into his business account. instead of his trust account, disbursed client funds from the trust account by way of cash held back from a deposit rather than by a check, and failed to fully cooperate in the disciplinary investigation, in violation of Minn. R. Prof. Conduct (MRPC) 1.15(a), (b), (c), and (h), 8.1(a)(3), 8.4(c) and (d) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 60-day suspension followed by two years of probation subject to the following conditions:

(i)Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(ii) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(iii) Respondent shall maintain law office and trust account books and records in compliance with Rule 1.15, MRPC, and LPRB Opinion No. 9. These books and records include the following: client subsidiary ledgers, checkbook register, monthly trial balances, monthly trust account reconciliations, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director within 30 days of the approval of this stipulation and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent William Albert Plummer is suspended from the practice of law for 60 days, effective 14 days from the filing of this order. Upon reinstatement, respondent shall be placed on probation for two years from the date of the reinstatement order subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice