IN THE SUPREME COURT OF IOWA

No. 14–0507

Filed September 5, 2014

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

DAVID S. KELSEN,

Respondent.

On review of the report of the Grievance Commission of the 

Supreme Court of Iowa.

Grievance commission recommends a public reprimand. LICENSE 

REVOKED.

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

complainant.

David S. Kelsen, Waterloo, pro se.
2

MANSFIELD, Justice.

This matter comes before us on report of a division of the 

Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 

35.10. The Iowa Supreme Court Attorney Disciplinary Board (Board) 

charged David S. Kelsen with trust account violations in representing a 

client. The grievance commission found that Kelsen had violated all 

rules as alleged by the Board and recommended that Kelsen receive a 

public reprimand.

On our review, we find that all of the violations took place. We also 

find that, among those violations, Kelsen converted $7500 of client funds 

to personal use without a colorable future claim to the funds. 

Accordingly, we revoke Kelsen’s license to practice law in this state.

I. Factual Background and Prior Proceedings.

David Kelsen is a seventy-five-year-old attorney. He has been 

practicing law in Iowa since 1962. He currently works as a sole 

practitioner in Waterloo.

This case involves Kelsen’s alleged mishandling of client funds in 

the course of his representation of Matthew Cox. Cox came to Kelsen in 

February 2012 for legal assistance. Cox anticipated losing his job and 

believed he might have a legal claim against his employer.

On February 13, Kelsen and Cox signed an engagement letter for 

legal representation at an hourly rate. The agreement required a retainer 

of $1000 and specified that fees were “normally based on an hourly rate 

of $150.00 per hour for routine matters, and on an hourly rate of $250 

for court presence and preparation.”

Cox gave Kelsen a check for $1000, which Kelsen deposited in his 

client trust account. Kelsen, according to his own testimony, “got to 

work immediately.” As Kelsen put it, “The emails started to go; I’m 
3

getting telephone calls [from Cox] all day long.” Kelsen also provided 

legal advice to Cox’s personal consulting company.

In early March, Kelsen withdrew the entire $1000 from the client 

trust account in two separate transactions. Kelsen claimed that at the 

time he withdrew the funds, he had earned them. Kelsen acknowledged, 

however, that he did not keep any records of the time he was devoting to 

the Cox matter.

On March 9, Cox brought Kelsen another check, this one for 

$2000. Cox wrote “attorney retainer” on the check. Kelsen did not 

deposit that check in his trust account but, instead, on March 12 ran it

through another account. Kelsen, however, did take $900 in cash from 

the $2000 and put it in his trust account. Kelsen kept the remaining 

$1100 which he claimed he had earned as of March 12.

The next day, March 13, Kelsen withdrew $150 in cash from his 

client trust account. On March 16, Kelsen withdrew an additional $500.

On April 18, Cox gave Kelsen another $2000 check. According to 

the handwritten byline on the check, this was for “legal representation.” 

Kelsen cashed the check at Cox’s bank and again deposited only a part of 

the proceeds—this time $1000—into his trust account. As before, Kelsen 

maintained that he had kept what he had earned and deposited into the 

trust account the remainder that he had not yet earned.

On April 24, Kelsen withdrew another $500 of the Cox funds from 

the trust account. This left a Cox-related balance of $750 in Kelsen’s 

client trust account.

While Kelsen was making these various withdrawals from his client 

trust account, he never notified Cox he was doing so or provided Cox 

with a contemporaneous accounting.
4

By late June, Cox had permanently lost his job and was apparently 

ready to file suit against his former employer if necessary. Kelsen 

himself was in difficult financial circumstances. He owed his landlord 

$3300 and had some other office expenses that needed to be paid.

Cox gave Kelsen a check for $7500. He had written out the check 

on June 28; it is not clear whether he gave it to Kelsen that day or on the 

29th. The memo line of the check as completed by Cox said, “Advance 

payment for deposition, discovery, etc.”

Kelsen also sent a contingent-fee agreement to Cox, signed by 

Kelsen and hand-dated by him June 29. The agreement recited that Cox 

was retaining Kelsen to file suit against Cox’s employer. Under 

“expenses,” the agreement said Cox would be responsible for all expenses 

incurred and that “Client shall advance the sum of $7500 to Attorney on 

June 29, 2012.”

Kelsen did not deposit Cox’s $7500 check in his trust account. 

Instead, on June 29, Kelsen put it in his business account and 

immediately used $3300 to pay his landlord that day. The balance of the 

$7500 was used by Kelsen to cover other expenses unrelated to Cox’s 

potential lawsuit.1

On or about July 7, after having consulted with another attorney, 

Cox decided to terminate Kelsen’s services. He asked Kelsen to return 

the $7500. Kelsen reached an agreement to repay Cox at the rate of 

$1000 per month beginning September 1. Kelsen made the September 

and October payments as agreed but failed to make the November and 

1Kelsen testified he used the remaining $4200 to pay office telephone bills and 

“other things that [he] had incurred as office expense.” However, the bank statements 

admitted into evidence end on June 30, so we do not have documentation as to how the 

remaining $4200 was spent. Kelsen does not claim any of the $7500 was used to pay 

legal expenses related to the Cox matter.

 
5

December payments. This resulted in the filing of a disciplinary 

complaint against Kelsen. Kelsen eventually repaid the full $7500 by 

May 2013.

The Board filed its complaint against Kelsen on September 9, 

2013. The complaint described Kelsen’s handling of the different Cox 

transfers of money and alleged that Kelsen had failed to notify Cox of the 

time, amount, and purpose of withdrawals from the client trust account; 

failed to provide accountings; failed to deposit advance payments into the 

trust account; and failed to promptly return funds to Cox after Cox

terminated Kelsen’s representation. The complaint concluded with 

allegations that Kelsen had violated Iowa Rules of Professional Conduct 

32:1.15 (safekeeping of property) and 32:1.16(d) (terminating 

representation) and Iowa Court Rules 45.1 (client trust account), 45.2 

(action required upon receiving funds, accounting, and records) and 45.7 

(advance fee and expense payments). Kelsen filed his answer on October 

3, admitting all allegations of the complaint.

Kelsen was served with interrogatories, requests for admissions, 

and requests for production of documents on September 13. He did not 

respond to these items, and on November 25, the Board filed a motion to 

compel. Kelsen did not resist the motion to compel, and on December 

12, the commission ordered Kelsen to respond to the interrogatories and 

the production requests by December 27 or face sanctions. Because 

Kelsen had not responded to the Board’s requests for admissions, the 

matters were deemed admitted. See Iowa Rs. Civ. P. 1.510(2), 1.511; 

Iowa Ct. R. 35.6. Kelsen subsequently answered the interrogatories and 

responded to the requests for production.
6

A hearing took place before the grievance commission on January 

29, 2014. The Board did not call any witnesses. Kelsen testified on his 

own behalf.

Kelsen emphasized a number of family difficulties he was facing in 

2012. His wife had lost her job and was dealing with serious health 

problems. Kelsen’s secretary had left, and Kelsen did not replace her 

because of his financial constraints. A stepson had used forged checks 

to take funds from Kelsen’s law firm.

Kelsen testified that Cox understood the $7500 would be used not 

only for case-related expenses, but also for expenses related to the 

operation of Kelsen’s office. As he put it,

I owed [my landlord] $3,300, plus I had some other office 

expenses that needed to be paid, just your routine office 

expenses. And so Mr. Cox agreed to make the $7,500 

payment; this was not solely to be used for the discovery and 

other expenses in conducting the case itself, but . . . it was 

his intention that I use those funds to make these payments. 

He knew that up front. The reason he knew it is because I 

had attempted to get a loan from the bank, but because of 

the problem I had with the banks because of the [stepson’s] 

forgery things and having to change banks, I was not able to 

get a loan. And so Mr. Cox agreed to—from the time that he 

paid me the $7,500 to allow me to use funds directly for the 

payment of those expenses that I had incurred, much of 

which had incurred during the time when I was actively 

representing him starting in February. So he was very aware 

of it, and consented to it. In fact, on the day he actually 

made the payment, he left my office in the morning, he went 

back to his house and visited with his wife about it because 

he wanted her to understand what he was doing and why. 

He was doing it, I think, not only because of the needs for 

the representation matter, but he was doing it because he 

felt it was something that he could do for me personally. 

And he’s a Christian person, and he was acting in a way that 

he thought would be helpful, but it was also a contractual 

matter in that what the intention was here is that I would 

actually repay him for any of the expense that was made 

from that $7,500 payment that he made from the proceeds, 

from the recovery from the suit. It was our anticipation that 

settlement would take place fairly quickly, and that we might 

not even have to file the petition because we were going to 
7

start negotiations with [the employer] and their counsel 

immediately upon the termination situation.

When asked by a commission member why the proposed contract 

he sent to Cox did not mention preexisting office expenses, Kelsen said 

this was because he used a “bar form for an attorney fee contract that 

was available.” He explained, “I was working on my computer at home 

trying to do this about 11:00 at night in order to get something in place 

on that that would basically confirm what we had agreed to.”

Kelsen testified that he would generally provide an accounting to 

his clients with his monthly billing. He was familiar with the rules on 

client trust accounts, and as a longtime practitioner, had met with 

representatives from the client security commission several times.

Kelsen characterized his failure to deposit all funds into the client 

trust account as a “clerical matter” and explained that the funds were 

not routed through the trust account for reasons of “convenience”—he 

needed to cash the checks in order to make past-due payments. Kelsen 

testified that he never intended to take money from a client and use it for 

personal expenses without the client’s knowledge.

The commission issued its findings of fact, conclusions of law, and 

recommended sanction on March 27, 2014. The commission concluded 

that Kelsen had committed all ethical violations alleged by the Board. 

The commission expressed skepticism about Kelsen’s claim that the 

$7500 was intended to be a loan for Kelsen’s office expenses, stating,

The panel cannot know for certain whether or not that is 

true, because Mr. Cox did not testify before the panel, but 

the panel does harbor grave doubts about the veracity of 

that testimony. First, the “memo” line on Mr. Cox’s check 

reads, “Advance payment for Deposition, Discovery, etc.,”

and no loan is referenced. Second, a written loan agreement 

does not seem to exist, and one would expect such an 

agreement to be in writing. Third, as will be seen, within 

just a few days of June 29, 2012, Mr. Cox actually asked for 
8

that money back, which is not consistent with the amount 

being a personal loan from Mr. Cox to Mr. Kelsen.

While stating that it understood Mr. Kelsen’s personal situation, 

the commission noted that personal difficulties do not excuse trust 

account violations. Still, as a mitigating factor, the commission took into 

account Kelsen’s lack of prior ethical violations. It also presumed that 

Kelsen had been through several successful trust account audits in the 

past. The commission ultimately recommended a public reprimand as a 

sanction.

II. Standard of Review.

We review attorney disciplinary proceedings de novo. Iowa Ct. R. 

35.11(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conroy, 845 N.W.2d 

59, 63 (Iowa 2014). The Board has the burden to prove attorney 

misconduct by a convincing preponderance of the evidence, a burden 

greater than a preponderance of the evidence but less than proof beyond 

a reasonable doubt. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Thomas, 

844 N.W.2d 111, 113 (Iowa 2014).

We give the commission’s findings and sanction recommendations 

respectful consideration but are not bound by them. Iowa Supreme Ct. 

Att’y Disciplinary Bd. v. Ricklefs, 844 N.W.2d 689, 696 (Iowa 2014). We 

give deference to the commission’s credibility determinations because the 

commission has the opportunity to observe the demeanor of the 

witnesses. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ouderkirk, 845 

N.W.2d 31, 33 (Iowa 2014).

If we conclude there has been a rule violation, “our determination 

of the appropriate sanction is guided by 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 attorney’s] fitness to 
9

continue in the practice of law.” Iowa Supreme Ct. Att’y Disciplinary Bd. 

v. Laing, 832 N.W.2d 366, 367–68 (Iowa 2013) (internal quotation marks 

omitted).

III. Review of Alleged Ethical Violations.

Kelsen stipulated that he had violated Iowa Rules of Professional 

Conduct 32:1.15 and 32:1.16(d) and Iowa Court Rules 45.1, 45.2, and 

45.7. An attorney’s stipulation as to a violation is not binding on us. 

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 N.W.2d 

596, 601 (Iowa 2012). However, upon our own review, we conclude that 

Kelsen violated all of the foregoing rules.

Rule 32:1.15(a) requires a lawyer to “hold property of clients . . . 

that is in a lawyer’s possession in connection with a representation 

separate from the lawyer’s own property.” Iowa R. Prof’l Conduct 

32:1.15(a). Rule 32:1.15(c) requires a lawyer to “deposit into a client 

trust account legal fees and expenses that have been paid in advance, to 

be withdrawn by the lawyer only as fees are earned or expenses 

incurred.” Id. r. 32:1.15(c). Kelsen did not deposit several of Cox’s 

advance payments, including the $7500 check, into his trust account. 

Nor did he keep those payments separate. Hence, he violated both 

rules.2

Rule 32:1.16(d) obligates an attorney to return any unearned 

advance payment of fee or expense upon termination of representation. 

Id. r. 32:1.16(d). Kelsen did not return the unearned $7500 when he was 

discharged by Cox. Because Kelsen had spent the money, he had to 

2Rule 32:1.15(f) also incorporates chapter 45 which, as we discuss herein,

Kelsen independently violated. See Iowa R. of Prof’l Conduct 32:1.15(f) (“All client trust 

accounts shall be governed by chapter 45 of the Iowa Court Rules.”).

 
10

enter into a payment plan with Cox. Thus, Kelsen violated rule

32:1.16(d).

Chapter 45 contains various trust account requirements. Rule 

45.1 requires attorneys to deposit funds received from clients in trust 

accounts and allows them to withdraw amounts that belong to them only 

when due. See Iowa Ct. R. 45.1(2). Rule 45.2 imposes recordkeeping 

duties, directing attorneys to maintain receipt and disbursement 

journals and ledger records for client trust accounts. See id. r. 

45.2(3)(a)(1), (2). Additionally, rule 45.7 requires attorneys to provide 

written notification to the client “of the time, amount, and purpose of any 

withdrawal” from a client trust account, together with a written 

accounting. See id. r. 45.7(4). It is undisputed that Kelsen violated all 

these rules. He failed to deposit some of the funds received from Cox in 

his client trust account, failed to keep journals and ledgers showing 

deposits and withdrawals to and from the trust account, and did not 

provide contemporaneous accountings to Cox as he withdrew funds.

IV. Consideration of Appropriate Sanction.

We now need to determine the appropriate sanction. There are 

different gradations of trust account violations. As we have recently 

emphasized, an attorney crosses an important line when he or she 

misappropriates or converts client funds without a “colorable future 

claim” to those funds. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. 

Carter, 847 N.W.2d 228, 232 (Iowa 2014); Thomas, 844 N.W.2d at 117. If 

an attorney takes that step, it is tantamount to stealing from the client, 

and we revoke the attorney’s license. See Carter, 847 N.W.2d at 233–34; 

Thomas, 844 N.W.2d at 117–18. Later restitution of client funds does 

not preclude us from revoking the attorney’s license. Thomas, 844 

N.W.2d at 118.
11

In Carter, we revoked the license of an attorney who converted 

estate assets from his office trust account when we concluded that he 

had no colorable future claim to the funds. 847 N.W.2d at 234. Though 

Carter claimed he had earned the money, there was seemingly no 

relationship between the amount he withdrew and the amount he could 

actually earn for his work, and the timing of the withdrawals was 

inconsistent with a bona fide intent to take the funds as payment for 

legal services. Id. Further, Carter had not received court approval for 

the withdrawals, as required in probate. Id. We noted that “a bare claim 

that some of the funds would have been earned” without more is not 

sufficient to constitute a colorable-future-claim defense. Id. Due to 

Carter’s failure to come forward with credible evidence supporting his 

claim that he had a right to the client money he withdrew, we concluded

he had no colorable future claim to the funds. Id.

In Thomas, we revoked the license of an attorney who withdrew 

more than his share of a contingent-case settlement from the trust 

account. 844 N.W.2d at 117–18. After the case had settled, Thomas 

took $6100 more than his agreed-upon fee and did not disburse any of 

the settlement funds to the client for another nine months. Id. at 114–

15. Similar to the present case, Thomas admitted and the evidence 

demonstrated that he had used the client funds for his own personal use 

including payments for Dish Network at his office and on his home 

mortgage. Id. at 115, 117.

There is no question that Kelsen violated trust account rules by 

failing to deposit the $7500 check in his client trust account and instead 

utilizing the money to pay general office expenses. We need to consider 

whether Kelsen misappropriated or converted those funds without a 

colorable future claim. At this stage we do not need to examine Kelsen’s 
12

handling of Cox’s earlier payments, because if Kelsen took Cox’s $7500 

for his own use and benefit without a colorable future claim to it, 

revocation follows as a sanction.

Regarding the $7500, the Board took the position at the hearing 

that it involved “conversion” and “misappropriation” and “should be 

treated quite seriously,” although the Board did not ask for revocation of 

Kelsen’s license. Kelsen responded that his client

knew in advance what we were going to do; it was part of the 

reason he paid it [the $7500], and the very purpose for which 

he paid it is how the money was spent. That’s a stretch to 

call that a conversion.

The commission “harbor[ed] grave doubts about the veracity of [Kelsen’s] 

testimony” concerning the $7500, but nonetheless recommended only a 

public reprimand.

In its statement regarding sanction to this court, the Board asserts 

that Kelsen had “no authority to use the [$7500] for any purpose other 

than litigation expenses.” It adds, “In view of the foregoing, the sanction 

recommended by the Commission [i.e., reprimand] may be on the light 

side, since the actions of Respondent are considered misappropriation 

and conversion under the decisions of this Court.”3

3As noted above, the Board’s complaint alleges violations of various trust 

account rules, including rule 32:1.15. Complaints filed with the grievance commission 

are required to be “sufficiently clear and specific in their charges to reasonably inform 

the attorney against whom the complaint is made of the misconduct alleged to have 

been committed.” Iowa Ct. R. 35.5. Because attorney disciplinary actions are “quasicriminal” in nature, “the charge[s] must be known before the proceedings commence.” 

In re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d 117, 122 (1968); 

see Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 536 n.2 (Iowa 

2013) (citing Ruffalo and noting that “the board must disclose the charges against an 

attorney before the proceedings commence”).

While the Board’s complaint did not expressly allege that Kelsen had 

misappropriated client funds, it did clearly cover Kelsen’s handling and misuse of Cox’s 

$7500. The complaint alleged that Kelsen failed to deposit Cox’s $7500 check in his 

trust account, that Kelsen had already spent the money when Cox asked for it back one

 
13

“[A]n attorney in a disciplinary proceeding bears the burden of 

coming forward with evidence of a colorable future claim, but the burden 

to prove conversion remains with the Board.” Carter, 847 N.W.2d at 

232–33. Kelsen met the burden of coming forward by providing evidence, 

namely, his own testimony. We thus need to determine, on our de novo 

review, whether the Board proved by a convincing preponderance of the 

evidence that Kelsen had no colorable future claim to use the $7500 to 

pay his office rent and other office-related costs.

On our review, we find a convincing preponderance of the evidence 

disproves Kelsen’s contention that he had an oral arrangement 

permitting him to use the $7500 cost retainer to pay office bills. The 

commission made three observations; we agree with all of them. First, 

the document drafted by Kelsen and furnished to Cox stated the $7500 

week later, and that Kelsen had violated rule 32:1.15. These allegations were sufficient 

to put Kelsen on notice that the Board believed Kelsen had not safeguarded his client’s 

$7500 as required by rule 32:1.15. See Comm. on Prof’l Ethics & Conduct v. Hurd, 325 

N.W.2d 386, 389 (Iowa 1982) (holding that a complaint put an attorney on notice of 

charges of deceit when the complaint alleged that the attorney altered a copy of a venue 

motion and filed it with the court and that the alteration was made without consent or 

knowledge of the county attorney or magistrate). In short, the issue here is one of the 

appropriate sanction for an alleged ethical violation as to which the respondent was 

clearly on notice, both as to the factual circumstances and as to the relevant rule 

allegedly violated. Furthermore, Kelsen understood the centrality of the colorable claim 

question. Much of his testimony, discussed above, was devoted to trying to establish a 

colorable claim defense. The Board disputed that testimony.

While we believe it would be better practice for the Board to specifically allege in its 

complaint that a respondent misappropriated or converted client funds for personal use

if its investigation supports such an allegation, we do not believe the absence of a 

specific reference to misappropriation in the complaint is critical here. Again, the 

Board’s complaint included both the relevant facts and the relevant legal rule regarding 

the mishandling of the $7500, and the question of misappropriation of those funds was 

certainly a focal point of the hearing. This strikes us as analogous to Committee on 

Professional Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 847 (Iowa 1990) (finding no 

due process violation where “Wunschel was well aware of the incident leading to this 

prosecution”), rather than Iowa Supreme Court Attorney Disciplinary Board v. 

Rickabaugh, 728 N.W.2d 375, 380 n.3 (Iowa 2007) (declining to consider 

misrepresentations that were revealed in the record but not charged in the complaint).

 
14

was to be used as a cost retainer and did not mention any other purpose. 

Second, Cox’s notation on the check said it was for costs of the litigation, 

not office overhead. Third, Cox’s prompt demand for return of the entire 

$7500 was inconsistent with Kelsen’s claim that Cox had agreed to lend 

him the money.

To this list we add a fourth item noted by the Board. The Board 

alleged in its complaint that the $7500 check was “intended to be an 

advance for expenses.” Kelsen admitted this allegation.

Additionally, Kelsen’s hearing testimony had a few twists and 

turns, which led the commission and lead us to question Kelsen’s 

credibility. In the hearing, Kelsen equivocated as follows:

Q. So you and he both knew that $7,500 was an 

advance on expenses; right? A. Partially.

Q. Well, as far as he was concerned, it’s an advance 

on expenses? A. Right.

Q. But you’re claiming that both you and he knew 

that you were going to use some of this money for back rent, 

for instance? A. Right.

Q. But he’s not—As far as his rights are, this is an 

advance on expenses? A. Part of the problem here is that I 

was trying to use a form in which we were simply trying to 

put information into categories that were on the form.

Kelsen later claimed that “a part of the funds” were to be used for case 

expenses and that the contingent-fee contract simply failed to reflect that 

part were going to be used to cover office expenses. Kelsen also asserted

that he had taken “a bar form contract form and tried to revise it on the 

spot on a Sunday night to get something in place” to “basically confirm 

what [he and Cox] had agreed to.”

We note some problems with this version of events. For one thing, 

if part of the funds were to be used for case expenses, this raises a 
15

question why Kelsen was unable to return any of those funds when Cox 

asked for his money back. Kelsen claimed at the hearing that when Cox 

discharged him and asked for the $7500 back, Cox also agreed Kelsen 

could wait until September to start repaying him and thus “could use the 

balance of the funds that hadn’t been expended to cover other expense 

because [Cox] knew [Kelsen] needed that.” But without documentary 

support, this story comes across as implausible.

Furthermore, June 29—the date when Kelsen put the $7500 in his 

bank account and used $3300 to pay his landlord—was a Friday. Thus, 

it is unclear why Kelsen would have been working hurriedly late on a 

Sunday night “to get something in place.” Additionally, the document he 

created bears his handwritten date of June 29, which again was a 

Friday.

To bolster his claim of an informal lending arrangement, Kelsen 

asked the commission to consider that $7500 is a large amount for a 

cost retainer in a wrongful-termination case. That may be true, but it is 

not apparent from the record why Cox would know that. Of course, it 

would have been helpful if Cox had testified at the hearing. But in this 

context, it is fair to ask why Kelsen did not call Cox as a witness, since 

Kelsen knew the document trail did not support Kelsen’s version of 

events.

Even if we discount Kelsen’s claim that he had specific oral 

permission to tap into Cox’s $7500 for office expenses, we need to 

consider another possible theory that could give him a colorable future 

claim. Kelsen asserted at the hearing that he and Cox anticipated a 

quick monetary settlement of the wrongful-discharge claim, which would 

have netted Kelsen a contingent fee sufficient to cover anything he 

borrowed from the $7500. Thus, the argument would run that Kelsen 
16

had at least a “colorable future claim” to the $7500, because he expected 

a settlement from which his fee would be at least $7500.

This argument needs to be unpacked with some care. On the one 

hand, we should be wary of discriminating against contingent-fee 

attorneys. We generally do not revoke the licenses of hourly rate 

attorneys who take client funds for personal use before they have done 

the work but in anticipation of doing so. See Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. Boles, 808 N.W.2d 431, 441–43 (Iowa 2012) 

(suspending the license of a criminal defense attorney for thirty days who 

among other things “withdrew unearned fees”); Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 586–87, 590 (Iowa 2011)

(suspending a criminal defense attorney’s license for sixty days for 

several instances of failing to timely refund unearned fees to a client and 

withdrawing fees from a trust account before they were earned); Iowa 

Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 97 (Iowa

2006) (imposing a suspension on a family law practitioner while finding 

revocation “not warranted” when “[t]he stipulated facts indicate McCann 

had a colorable future claim to the funds he converted”).

Unlike an hourly rate attorney, a contingent-fee attorney earns his 

or her fee by settling or winning the case rather than by putting in time. 

If we are going to credit the hourly rate attorney’s claim that she was 

going to earn future fees by putting in time (at least to the extent that we 

will not revoke her law license), why not credit the contingent-fee 

attorney’s claim that she was going to earn future fees by settling or 

winning the case?

Today, we decide only the case before us. We do not foreclose the 

possibility that a colorable-future-claim defense could be asserted by a 

contingent-fee attorney in other contexts. However, we find that Kelsen 
17

did not have a colorable future claim to the $7500 cost retainer here for 

several reasons. First, his testimony that he expected a prompt 

settlement of Cox’s wrongful-discharge claim was vague and lacked 

corroborating detail. One might ask: If Kelsen expected a rapid 

settlement, why would he need a $7500 retainer? Second, the retainer in 

question was for costs only, not fees. Thus, it differs from the fee and 

cost retainers that were the subject of the Boles, Parrish, and McCann

proceedings. While future fee withdrawals from those retainers were 

contemplated, future fee withdrawals from this retainer were not. 

Otherwise stated, the attorneys in those three cases could argue that 

they merely made premature withdrawals, whereas Kelsen had at most 

an argument that he expected to generate an offset in the future. Third, 

Kelsen did not have a signed contingent-fee contract with his client at 

the time he converted the $7500. See Iowa Ct. R. 32:1.5(c) (providing 

that a contingent-fee agreement “shall be in a writing signed by the 

client”). This further erodes any colorable-future-claim argument based 

on the possibility of a future contingent fee.

For the foregoing reasons, we find by a convincing preponderance 

of evidence that Kelsen’s trust account violations included the conversion 

of $7500 worth of client funds without a colorable future claim to those 

funds. Kelsen’s claim of an oral loan agreement is not credible, and we 

also reject his contention that, even without a loan agreement, he would 

have a colorable future claim to the funds based on an expected 

contingent case settlement. “This conduct alone is enough to support 

revocation, and it is unnecessary for us to further consider the impact of 

his other unethical conduct.” Carter, 847 N.W.2d at 234.
18

V. Disposition.

We order the license of David S. Kelsen to practice law in this state 

to be revoked effective with the filing of this opinion. Kelsen shall provide 

all of the notifications required by Iowa Court Rule 35.23. The costs of 

this proceeding are assessed against Kelsen as provided in Iowa Court 

Rule 35.27(1). See Carter, 847 N.W.2d at 234; Thomas, 844 N.W.2d at 

118.

LICENSE REVOKED.