IN THE SUPREME COURT OF IOWA

No. 19–0249

Filed May 3, 2019

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

DONALD H. CAPOTOSTO,

Respondent.

On review of the report of the Iowa Supreme Court Grievance 

Commission. 

In this attorney disciplinary action, the grievance commission 

recommends a sixty-day suspension. LICENSE SUSPENDED. 

Tara van Brederode and Amanda K. Robinson, Des Moines, for

complainant.

John D. Brown, Emmetsburg, and Donald H. Capotosto, 

West Bend, pro se, for respondent.
2

CADY, Chief Justice.

This case is before us on review from a report and recommendation 

of a division of the Iowa Supreme Court Grievance Commission 

concerning attorney Donald Capotosto. The report found Capotosto 

committed ethical violations and recommended he be suspended from 

the practice of law for sixty days. We find Capotosto violated the Iowa 

Rules of Professional Conduct by neglecting several probate cases. We 

suspend his license to practice law in Iowa for sixty days. 

I. Background Facts and Proceedings. 

Donald Capotosto is an Iowa attorney admitted to practice law in 

1973. He resides and maintains a private practice in West Bend, Iowa. 

In addition to his private practice, he regularly accepts court-appointed 

criminal and juvenile cases. This disciplinary proceeding involves 

Capotosto’s conduct in handling several probate cases and his failure to 

cure numerous delinquencies. 

On December 21, 2018, Capotosto and the Iowa Supreme Court 

Attorney Disciplinary Board jointly filed a stipulation of facts and rule 

violations. Capotosto stipulated that he allowed six probate estates to 

become delinquent and violated Iowa Rules of Professional Conduct 

32:1.3; 32:1.4(a)(3), (4); and 32:8.4(d). The parties also stipulated that 

Capotosto entered into a deferral agreement (the Agreement) on March 

14, 2018. 

Pursuant to the Agreement, Capotosto was required to remedy all 

delinquencies by June 1, 2018, or, alternatively, withdraw from the 

cases. The terms of the Agreement also required Capotosto to complete 

six hours of continuing legal education in the area of probate law and 

submit quarterly reports to the Board documenting his compliance with 

the conditions. The Agreement prohibited Capotosto from commencing 
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probate work on estates for which he was not already the attorney of 

record. Capotosto acknowledged that failure to meet the conditions of 

the Agreement would result in disciplinary actions against him. 

Capotosto failed to comply with the requirements of the Agreement. 

He did not cure or withdraw from the already delinquent probate estates. 

Moreover, Capotosto opened additional probate estates, causing the 

number of delinquent cases to increase from five to twelve by the time of 

the grievance commission hearing. He also failed to file quarterly reports 

as required under the Agreement. 

Capotosto has been previously subjected to disciplinary action. In 

January 2015, he was publically reprimanded for allowing several 

probate estates to become delinquent. In January 2016, he was 

temporarily suspended for failing to respond to a complaint from the 

Board. 

II. Board Complaint and Commission Grievance Report.

Following Capotosto’s failure to comply with the Agreement’s 

terms, the Board recommended a minimum sanction of a six-month 

license suspension. It further recommended that Capotosto be barred 

from handling probate cases in the future. 

The commission found Capotosto violated the rules set forth in the 

stipulation. It also identified numerous aggravating factors, including

failing to cure delinquencies, failing to withdraw from the cases, opening 

of new estates, and receiving new notices of delinquency; a public 

reprimand in 2015; a temporary suspension in 2016; and the absence of 

a succession plan. It also recognized several mitigating circumstances,

including letters of support and his willingness to accept court-appointed 

cases. It also observed that he completed substantial work on all of the 
4

cases. Ultimately, the commission concluded Capotosto should receive a 

sixty-day suspension. 

III. Standard of Review. 

We review attorney disciplinary proceedings de novo. Iowa 

Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910, 913 (Iowa 

2011). While we are not bound by the commission’s findings and 

recommendations, we do give them respectful consideration. Id. The 

Board must prove the misconduct by a convincing preponderance of the 

evidence. Id. 

IV. Violation. 

A. Rule 32:1.3. Rule 32:1.3 states, “A lawyer shall act with 

reasonable diligence and promptness in representing a client.” Iowa R. 

Prof’l Conduct 32:1.3. Typically, an attorney does not violate the rule by 

missing one deadline. Iowa Supreme Ct. Att’y Disciplinary Bd. v. 

Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012). Instead, an ethical 

violation “arises when a lawyer ‘repeatedly fail[s] to perform required

functions as attorney for the executor, repeatedly fail[s] to meet 

deadlines, and fail[s] to close the estate within a reasonable period of 

time.’ ” Id. (alterations in original) (quoting Iowa Supreme Ct. Bd. of Prof’l 

Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002)). We 

have previously found that attorneys violate this rule when they fail to 

close a probate estate and receiving multiple delinquencies. See 

Van Ginkel, 809 N.W.2d at 102 (finding an “obvious” violation based on 

attorney’s “consistent failure” to perform duties resulting in multiple 

delinquencies in one estate case); see also Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (holding the 

attorney’s failure to cure multiple delinquencies in multiple cases 

resulted in a rule 32:1.3 violation). 
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In this case, the Board found Capotosto was negligent, and his 

conduct resulted in multiple delinquencies across multiple estate cases. 

Throughout this action, the number of delinquent cases rose from five to 

nine and finally to twelve by the time of the commission’s hearing. At 

least one estate from the reprimand in 2015 remains open and 

delinquent. Clearly, Capotosto’s actions demonstrate a consistent and 

continuous pattern of neglect. Even though many of the estates were 

close to completion, Capotosto still failed to act with reasonable diligence 

and promptness by not completing his tasks. For these reasons, we find 

Capotosto violated rule 32:1.3. 

B. Rule 32:1.4. Rule 32:1.4 sets forth the expectations of lawyers

in their communications with clients. Subsection (a)(3) provides that “[a] 

lawyer shall . . . keep the client reasonably informed about the status of 

the matter.” Iowa R. Prof’l Conduct 32:1.4(a)(3). Further, subsection 

(a)(4) states that “[a] lawyer shall . . . promptly comply with reasonable 

requests for information.” Id. r. 32:1.4(a)(4). 

We have concluded attorneys violate both subsections (a)(3) and 

(a)(4) by failing to keep their clients informed about the status of their 

case and neglecting to respond to client inquiries. Iowa Supreme Ct. 

Att’y Disciplinary Bd. v. Ryan, 863 N.W.2d 20, 26 (Iowa 2015); see also

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 537–

38 (Iowa 2013) (concluding attorney violated rule 32:1.4(a) because he 

did not properly notify clients of court dates and was inaccessible and 

unresponsive to inquiring clients). Thus, an attorney’s failure to 

communicate may violate both his duty to provide clients with 

information and his duty to respond promptly to a request. 

Capotosto admitted that in some instances he did not adequately 

communicate with clients about the status of their case and failed to 
6

respond to their requests for information. Accordingly, we find 

respondent violated rules 32:1.4(a)(3) and 32:1.4(a)(4). 

C. Rule 32:8.4(d). Rule 32:8.4 provides that “[i]t is professional 

misconduct for a lawyer to . . . engage in conduct that is prejudicial to 

the administration of justice.” Iowa R. Prof’l Conduct 32:8.4(d). Acts are 

considered prejudicial when they violate “the well-understood norms and 

conventions of the practice of law,” Iowa Supreme Ct. Att’y Disciplinary 

Bd. v. Stansberry, 922 N.W.2d 591, 597 (Iowa 2019) (quoting Iowa 

Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768 

(Iowa 2010)), hindering the efficiency and operation of our court system. 

We have consistently held an attorney’s misconduct causing 

prolonged or additional court proceedings violates this rule. See, e.g., 

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 

180 (Iowa 2013). For example, in Van Ginkel, we noted the attorney’s 

multiyear procrastination resulted in “issuing orders, extending 

deadlines, and cleaning up the probate proceedings.” 809 N.W.2d at 

103. This unnecessary expenditure of “valuable judicial and staff 

resources” violated rule 32:8.4(d). Id. 

Similarly, Capotosto’s continued negligence needlessly expended 

judicial resources. The Board’s brief on the issue of sanctions cited 

thirty-eight delinquencies between six probate estates. The issuance of 

delinquency notices, particularly at this volume, is an unnecessary 

expenditure of valuable judicial time. 

In an attempt to encourage Capotosto to rectify the delinquencies, 

the parties entered into the Agreement. He did not comply with any of its 

terms. The formation of the Agreement, as well as the Board and 

commission’s intervention, also constitute the use of judicial resources.

Accordingly, we find Capotosto’s sustained negligence in his numerous 
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probate cases hindered the efficiency of our judicial system in violation of 

rule 32:8.4(d). 

V. Sanctions. 

“There is no standard sanction for particular types of misconduct.” 

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 660 

(Iowa 2013). While prior cases are instructive, “we ultimately determine 

an appropriate sanction based on the particular circumstances of each 

case.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d 

437, 443 (Iowa 2007). The commission recommended a sixty-day 

suspension for Capotosto’s transgression, a lesser sanction than the 

Board’s six-month recommendation. We must now decide the 

appropriate course of disciplinary action. 

A. Neglect. “Prolonged inattention to probate matters 

undermines the public’s confidence in the legal profession and is 

contrary to the foregoing canons of professional responsibility.” Comm. 

on Prof’l Ethics & Conduct v. Haney, 435 N.W.2d 742, 743 (Iowa 1989). 

Generally, sanctions for attorney misconduct involving neglect have 

ranged from a public reprimand to a six-month license suspension. 

Lickiss, 786 N.W.2d at 868. Normally, probate neglect cases that 

warrant “sanctions on the high end of the spectrum are accompanied by 

various aggravating factors.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. 

Ochs, 804 N.W.2d 720, 722 (Iowa 2011). These aggravating factors may 

include “multiple instances of neglect, other past disciplinary action, and 

companion violations such as dishonesty to clients and the court, failure 

to cooperate with the Board’s investigation, and mishandling client 

funds.” Id.

In Ochs, a disciplinary case involving an attorney’s neglect, we 

imposed a thirty-day suspension. Id. at 723. Our analysis centered 
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almost entirely on the prolonged failure by the attorney to rectify ten

delinquent cases. Id. at 722. We noted the case did “not involve 

aggravating circumstances such as misrepresentation or violations of 

court orders found in many neglect cases in which we have imposed 

lengthy suspensions.” Id.

Capotosto suggests that the sanction in this case should be similar

to Ochs, considering the sheer number of estates involved in the matter. 

He compares his twelve delinquent estate cases to the ten cases in

Ochs.1 Based on the number of neglect cases, it may appear that 

Capotosto should receive a similar sanction to that handed down to 

Ochs. However, this case is different from Ochs, in which our primary 

consideration was the mere neglect of multiple cases. Although

Capotosto’s case does not involve serious aggravating factors, such as 

misrepresentation or premature fee collections, there are other factors 

that warrant a lengthier sanction. 

B. Prior Reprimand. “Prior discipline is another aggravating 

factor we consider in determining the appropriate sanction.” Iowa 

Supreme Ct. Att’y Disciplinary Bd. v. McCuskey, 814 N.W.2d 250, 258 

(Iowa 2012); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 

841 N.W.2d 114, 127 (Iowa 2013). Prior misconduct is particularly 

relevant when an attorney commits conduct in a client matter after 

already being disciplined in that matter. See Dolezal, 841 N.W.2d at 128. 

That is, “one would expect that the initial discipline . . . would have 

prompted the respondent to attend to his clients’ legal matters.” Lickiss, 

786 N.W.2d at 869–70. 

 1Capotosto originally argued he should receive a similar sanction to Ochs 

because he only had six neglected probate cases, compared to Ochs’s mishandling of 

seven estates, two guardianships, and one conservatorship. While the number of 

Capotosto’s neglected cases was once less than Ochs’s, it now exceeds it. 
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Prior to this action, Capotosto was subject to reprimand on two 

occasions. He was publicly reprimanded in 2015 for his neglect of 

probate cases. In 2016, he was temporarily suspended for failing to 

respond to a Board complaint. One of the cases included in the 2015 

reprimand is at issue in the present case. We consider these prior 

reprimands and regard the further neglect of an earlier case as an

aggravating circumstance in this case. 

C. Other Aggravating Factors. The commission identified

Capotosto’s failure to comply with the Agreement’s terms as an 

aggravating circumstance. In Committee on Professional Ethics & 

Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981) (en banc), we 

examined an attorney’s failure to fulfill his promise to timely complete 

probate matters. “[W]hile we do not imply such representations were 

deceitful, we deem the breach of them to be significant.” Id. 

Similarly, Capotosto’s stipulation to the Agreement was a promise 

to perform tasks mandated by the Board. The Agreement required him 

to cure all delinquent cases, withdraw from the cases if he did not cure 

them, refrain from opening new cases, provide quarterly reports, and 

attend and complete six hours of CLE in the area of probate. Capotosto 

did not comply with any of these terms. This inaction, at the very least, 

demonstrates a disregard for the Board’s authority. It further 

disadvantages the clients and beneficiaries who fell victim to Capotosto’s 

neglect. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 723 

N.W.2d 439, 442 (Iowa 2006) (stating harm to a client may also be 

considered an aggravating factor). Accordingly, we find Capotosto’s 

failure to comply with the terms of the Agreement an aggravating factor.

D. Mitigating Factors. Our determination of the appropriate 

disciplinary action also includes consideration of mitigating factors. 
10

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 831 N.W.2d 194, 201 

(Iowa 2013). The commission listed the following as mitigating factors:

letters written on Capotosto’s behalf, his willingness to accept courtappointed cases, and the fact that he completed substantial work on 

most of the cases. 

A judge and a county attorney submitted compelling letters on 

Capotosto’s behalf. While neither were able to comment on his probate 

work, they held his professional abilities and his utility to the community 

in high regard. Significantly, the letters explained Capotosto’s

importance as one of few attorneys willing to accept court-appointed 

assignments in a five-county area. 

I would be hamstrung and hobbled in delivering justice and 

resolving my cases if Mr. Capotosto were prevented from 

serving as opposing counsel in Palo Alto County non-probate 

cases . . . . If he were prevented from acting as counsel in 

those counties (other than in probate matters) the judicial 

operations in these counties would be severely and adversely 

disturbed. 

We find these declarations of Capotosto’s value to the legal 

communities he serves to be significant. While Capotosto has violated 

multiple rules of professional conduct, he has also upheld our aim to 

“devote professional time and resources and use civic influence to ensure 

equal access to our system of justice for all those who because of 

economic or social barriers cannot afford or secure adequate legal 

counsel.” Iowa R. of Prof’l Conduct ch. 32 pmbl. [6]. This commitment is 

vital to our legal community and is worthy of our consideration. 

Finally, the commission noted Capotosto has completed 

substantial work in all of the delinquent cases, needing only to send 

notices and obtain final orders. The commission characterized 
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Capotosto’s failure to complete these final tasks as a “mental block.” We 

agree. 

The letters submitted on Capotosto’s behalf and his willingness to 

accept court appointments demonstrate his competency, collegiality, and 

commitment to Iowa’s legal community. Yet, he has been incapable of 

completing his clients’ probate matters, despite entering into the 

Agreement and threats of reprimand. His neglect of the probate cases is 

not indicative of his general ability to perform as a zealous advocate in 

other matters, but it remains a potential impediment to his ability to 

practice law successfully in the future. 

Upon consideration of the commission’s findings and facts of this 

case, we conclude a sixty-day suspension of respondent’s license to 

practice law is the appropriate sanction. This sanction conforms to the 

recommendation of the commission and is consistent with our prior 

cases. 

VI. Disposition.

We suspend the license of Donald H. Capotosto to practice law in 

this state for sixty days from the filing of this opinion. This suspension 

shall apply to all facets of the practice of law. See Iowa Ct. R. 34.23(3). 

Capotosto shall comply with all requirements of the court rules 

associated with his suspension. See id. rs. 34.23(2)–(4), .24(1)–(2). The 

costs of this proceeding are assessed against Capotosto. Id. r. 36.24(1). 

LICENSE SUSPENDED.