IN THE SUPREME COURT OF IOWA

No. 08–1413

Filed June 5, 2009

IOWA SUPREME COURT ATTORNEY

DISCIPLINARY BOARD,

Complainant,

vs.

VAN PLUMB,

Respondent.

On review of the report of the Grievance Commission.

Respondent appeals from a report of the Iowa Supreme Court 

Grievance Commission recommending respondent’s license to practice 

law be suspended. LICENSE SUSPENDED.

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

complainant.

Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Parrish 

Gentry & Fisher, L.L.P., Des Moines, for respondent.
2

HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board alleged the 

respondent, Van Plumb, violated several ethical rules by divulging a 

client’s secrets or confidences, neglecting clients’ cases, attempting to 

persuade a client to withdraw an ethical complaint, failing to respond to 

a complaint filed by the board, failing to provide responses to the board’s 

discovery requests, failing to provide clients with an accounting for 

unearned retainers, failing to deposit unearned fees in a trust account,

engaging in dishonesty or misrepresentation in attempting to cover up 

his failure to file a civil action within the statute of limitations, and 

misappropriation of funds from a trust account. A division of the 

Grievance Commission of the Supreme Court of Iowa found Plumb 

violated numerous ethical rules and recommended we suspend his 

license to practice law for a period of twelve months. Plumb filed a notice 

of appeal from the commission’s report. See Iowa Ct. R. 35.11(1). 

Having given respectful consideration to the commission’s findings of 

fact, conclusions of law, and recommendation, we find the respondent 

violated numerous ethical rules. We therefore suspend his license to 

practice law indefinitely with no possibility of reinstatement for eighteen 

months.

I. Scope and Standards of Review. 

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

35.10(1). The board has the burden to prove disciplinary violations by a 

convincing preponderance of the evidence. Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226, 230 (Iowa 2006). “This 

burden is ‘less than proof beyond a reasonable doubt, but more than the 

preponderance standard required in the usual civil case.’ ” Id. (quoting 

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674 N.W.2d 139, 
3

142 (Iowa 2004)). We give weight to the commission’s findings, especially 

when considering the credibility of witnesses, but we are not bound by 

those findings. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713 

N.W.2d 682, 695 (Iowa 2006). “Once misconduct is proven, we ‘may 

impose a lesser or greater sanction than the discipline recommended by 

the grievance commission.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. 

Conrad, 723 N.W.2d 791, 792 (Iowa 2006) (quoting Lett, 674 N.W.2d at

142).

II. Factual Findings.

The board’s complaint alleged Plumb committed ethical violations 

in the representation of four separate clients. We will address them 

seriatim in the same order they were addressed in the commission’s 

findings, conclusions of law, and recommendation.

A. McRae Matter. Plumb represented McRae on a domestic 

abuse charge which was concluded with the entry of a deferred 

judgment. While subsequently representing a different party in 

contentious commercial litigation, Plumb deposed McRae who was listed 

as a witness by a party-opponent. Plumb posed questions during an

August 14, 2002 deposition requesting McRae to disclose the nature of 

the criminal charge and the substance of certain statements made by 

McRae to Plumb in the course of their attorney-client relationship. 

Although McRae asserted the attorney-client privilege, Plumb persisted 

in the line of questioning. The board asserted Plumb’s conduct during 

the deposition violated DR 4–101(B) (revealing confidences or secrets of 

client), DR 7–102(A)(1) (taking action on behalf of a client when it is 

obvious such action would serve merely to harass or maliciously injure 
4

another), and DR 1–102(A)(1), (5), and (6) (violating a disciplinary rule).1

A client’s “secrets” includes information gained by an attorney in 

an attorney-client relationship that “would be embarrassing” or that 

would “be likely to be detrimental to the client.” DR 4–101(A). Even if it 

was not already apparent to Plumb that McRae considered his domestic 

abuse history as a distinct embarrassment, this became clear to him 

when McRae declined to answer because he believed the questions 

inquired about a matter protected by the attorney-client privilege. 

Notwithstanding McRae’s initial refusal on the ground of privilege to 

answer the question posed, Plumb persisted and expressly inquired as to 

the substance of a conversation he claimed to have had with McRae 

about the consequences of any plea bargain in the criminal case. We 

find Plumb’s conduct during the deposition crossed the line of 

appropriate zealous representation in the commercial litigation, and 

constituted a revelation of a former client’s secret in violation of DR 4–

101(B)(1). We also find Plumb’s conduct during the deposition 

constituted a violation of DR 1–102(A)(1) (violation of a disciplinary rule), 

DR 1–102(A)(5) (conduct prejudicial to the administration of justice), and 

DR 1–102(A)(6) (conduct adversely reflecting on fitness to practice law).

 

The commission found Plumb’s conduct during the deposition was 

properly characterized as overzealous, but not so egregious as to require 

a sanction. Plumb contends his questions did not reveal any secret or 

confidence imparted to him by McRae, and claims the questions posed 

during the deposition inquired only as to matters that were already of 

public record in McRae’s criminal case. 

 1Most of the conduct at issue in this case occurred prior to July 1, 2005. As to 

such conduct, the board charged Plumb with violation of rules then extant in the Iowa 

Code of Professional Responsibility for Lawyers. Where Plumb’s conduct after July 1, 

2005 forms the basis of claimed ethical violations, the board has alleged breach of rules 

stated in the Iowa Rules of Professional Conduct. 
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B. Babcock Matter. Plumb agreed to represent Babcock, who 

was incarcerated at the correctional facility in Newton, in a civil action 

for the sum of $3000. Plumb received the advance fee payment from 

Babcock, but did not deposit it in a trust account. Babcock later filed a 

complaint with the board after Plumb failed to respond to several written 

inquiries between March and October of 2004. Plumb notified Babcock 

of his intention to withdraw as counsel. Plumb and Babcock thereafter

discussed the matter by telephone and reconciled their differences.

Plumb drafted a letter for Babcock’s signature withdrawing the 

complaint. The reconciliation was short-lived, however, for soon 

thereafter Babcock refiled the ethics complaint against Plumb, and 

requested an accounting and a refund of the unearned attorney fee. 

Plumb ignored for several months the request for an accounting. When 

the board requested information from Plumb about the complaint, he did 

not respond. 

The board charged Plumb with neglecting Babcock’s case in 

violation of DR 6–101(A)(3), improperly attempting to influence Babcock 

to withdraw the ethical complaint in violation of DR 1–102(A), failing to 

respond to the board’s inquiry in violation of DR 1–102(A)(5), (6), failing 

to deposit unearned fees in a trust account in violation of DR 9–102(B), 

and failing to refund unearned fees in violation of DR 2–110(A)(3) and 

DR 9–102(B)(4). 

We find the communication problems between Plumb and Babcock

were attributable, at least in significant part, to the circumstances of

Babcock’s incarceration. Plumb communicated with Babcock for a time 

through a person holding Babcock’s power of attorney. When the 

relationship between Babcock and the person holding that power broke 

down, Plumb began communicating with Babcock’s mother. We find the 
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board failed to prove by a convincing preponderance of the evidence that 

Plumb breached ethical rules in failing to communicate with Babcock. 

Babcock asserted, and the board claimed, that Plumb’s neglect of 

Babcock’s case led to the repossession of Babcock’s vehicle and tardiness 

in providing responses to discovery requests propounded to Babcock. 

Although Plumb did fail to prevent the repossession of Babcock’s vehicle, 

we find this was a consequence of Babcock’s failure to make his monthly 

loan payments, and not the result of neglect on the part of Plumb. The 

delay of Babcock’s responses to discovery was, in significant part, 

attributable to the uncertainties resulting from the filing of the ethical 

complaint and Plumb’s motion to withdraw as Babcock’s counsel. We 

find the board failed to prove Plumb’s conduct in these particulars 

constituted neglect of Babcock’s defense. 

Although Plumb’s drafting of Babcock’s letter to the board 

requesting dismissal of the ethics complaint is a circumstance that 

provokes suspicion, we find persuasive Plumb’s explanation that the 

letter to the board was drafted at Babcock’s request after the telephonic 

reconciliation had occurred. Babcock conceded in his testimony that he 

did not feel pressured by Plumb to withdraw the complaint. Upon our de 

novo review, we find the board failed to prove Plumb’s conduct 

constituted an improper attempt to dissuade Babcock from maintaining 

the ethics complaint or an effort to persuade Babcock from cooperating 

in the board’s investigation of the matter. 

Plumb concedes he failed to respond to the board’s inquiry in this 

matter. We therefore find he violated DR 1–102(A)(5) (conduct prejudicial 

to the administration of justice) and DR 1–102(A)(6) (conduct adversely 

reflecting on fitness to practice law). See Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. Marks, 759 N.W.2d 328, 331 (Iowa 2009). 
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We have characterized advance fee payments as “special retainers.” 

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Piazza, 756 N.W.2d 690, 697 

(Iowa 2008); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 

577 N.W.2d 50, 55–57 (Iowa 1998). “ ‘[F]ee advances are not earned 

when paid, and therefore must be deposited into the trust account.’ ” 

Apland, 577 N.W.2d at 55 (citation omitted) (emphasis added). Such 

“[f]unds remain the property of the client until the attorney earns them.” 

Id.; accord Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kadenge, 706 

N.W.2d 403, 408 (Iowa 2005) (“all advance fee payments other than 

general retainer fee payments are refundable and must be placed in a 

client trust account”).2

C. Nelson Matter. Nelson was a party to a dissolution of 

marriage proceeding in Dickinson County. After becoming dissatisfied 

with his counsel, Nelson discharged him and requested other attorneys 

to undertake the representation. Two other attorneys declined Nelson’s 

entreaties before Plumb agreed to handle the matter for a fee of $7500.

Nelson paid that amount in two installments, but Plumb did not deposit

either payment in a trust account. Soon after the professional 

We find Plumb violated DR 9–102(A) when he 

failed to deposit Babcock’s $3000 advance fee payment in a trust 

account. When Babcock requested a refund of the unearned portion of 

the fee, Plumb failed for several months to do so. This failure to 

promptly refund the unearned portion of the advance fee constituted a 

violation of several rules including DR 9–102(B)(4) (lawyer’s duty to 

promptly pay or deliver client’s funds to client as requested). 

 2These requirements are incorporated in the new Iowa Rules of Professional 

Conduct and the client trust account rules. See Iowa R. Prof'l Conduct 32:1.15(c) (“A 

lawyer shall deposit in 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.”); Iowa Ct. R. 45.7(1), (3) (defining advance fees and requiring deposit of 

advance fee into the client trust account).
8

relationship commenced, Nelson requested Plumb to also represent him 

in a real estate dispute. Plumb agreed to handle this matter as well, and 

received from Nelson an advance fee payment of $750.

The attorney-client relationship between Plumb and Nelson soon 

soured. It was characterized by profound mutual dissatisfaction which 

ultimately led to its termination. Nelson claims he requested a refund of 

the unearned fees, but Plumb denies such a request was received. 

Following an investigation of Nelson’s complaint, the board charged 

Plumb with violation of DR 9–102(B)(4) (failure to promptly refund the 

unearned portion of the fee when requested), DR 2–110(A)(3) (same), and 

DR 9–102 (failure to deposit unearned fees in a trust account). Plumb 

contended his failure to deposit Nelson’s initial payment in a trust 

account was justified because he had already earned this sum, when it 

was paid, and claimed that he did account for the fees when the 

attorney-client relationship ended. Finding Nelson’s testimony 

incredible, the commission resolved the factual disputes in Plumb’s favor 

finding no ethical violations of counsel’s duty to deposit unearned fees in 

a trust account, and no ethical violation of counsel’s duty to account for 

unearned fees when requested to do so. Granting appropriate deference 

to the commission’s credibility findings, we adopt the commission’s 

findings as our own. 

Like the commission, we find Plumb violated DR 1–102(A)(5) and 

(6) when he failed to respond to the board’s requests for information 

pertaining to Nelson’s complaint. Such conduct is prejudicial to the 

administration of justice, and it adversely reflects on Nelson’s fitness to 

practice law. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rauch, 746 

N.W.2d 262, 265–66 (Iowa 2008).
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D. Mambu Matter. Mambu was injured on March 7, 2002 in a 

motor vehicle crash. She communicated with the adjuster for the other 

driver’s insurer on several occasions before she hired Plumb to represent 

her. After the applicable statute of limitations had expired, Plumb 

drafted and back-dated in Mambu’s presence a letter to the insurer 

ostensibly proposing to extend the limitations period by six months. 

Plumb subsequently filed suit on the claim, but the case was dismissed 

as untimely. Mambu retained new counsel, filed a professional 

negligence action against Plumb, and filed an ethics complaint with the 

board. 

Following negotiations with Mambu’s new counsel, Plumb agreed 

to settle the malpractice claim for the sum of $7000. On August 22, 

2005, Plumb drew a check on his trust account in that amount and 

forwarded it to Mambu’s counsel in furtherance of the settlement.3

 3Plumb testified he drew the check on his trust account because he believed he 

was counsel for himself, and that use of the trust account for this purpose was required 

by the rule, and appropriate for preservation of a record of the settlement transaction. 

He did not explain why he thought a record of the transaction could not have been 

properly made using his business account.

 

Sensing an appearance of impropriety upon receipt of the check drawn 

on Plumb’s trust account, Mambu’s counsel returned it to Plumb. 

Plumb responded to the return of the settlement check with a strange 

series of bank transactions. He drew a new settlement check on his 

business account and delivered it to Mambu’s counsel on September 2, 

2005. To cover that check drawn on the business account, Plumb drew 

a check in the amount of $8500 payable to himself on the trust account 

and deposited it in the business account on that same day. At or about 

the same time, Plumb claims to have planned to cover the check drawn 

on the trust account by depositing a check in the same amount allegedly 
10

drawn on his wife’s account on September 1, 2005 and payable to 

Plumb. When the board’s auditor subsequently appeared to examine 

Plumb’s trust account, it was disclosed that the check drawn on Plumb’s 

wife’s account was not deposited in the trust account until sixty days 

after Plumb withdrew a corresponding amount from the trust account 

and deposited it in his business account. No client suffered a financial 

loss as a consequence of this series of trust account transactions.

The board charged Plumb with violations of DR 6–101(A)(3) (lawyer 

shall not neglect a client’s legal matter), DR 1–102(A)(4) (conduct 

involving dishonesty or misrepresentation in attempting to conceal his 

negligence by back-dating a letter proposing an extension of the statute 

of limitations), DR 1–102(A)(1), (5), and (6) (violation of disciplinary rule; 

conduct prejudicial to the administration of justice; conduct adversely 

reflecting on fitness to practice), and rule 32:1.15 (duty to keep client’s 

property separate). The commission found Plumb violated each of these 

rules. Upon our de novo review of the record, we agree. The evidence 

clearly establishes and we therefore find that Plumb neglected Mambu’s 

legal matter and attempted through deceit and misrepresentation to 

conceal his negligence. We find the board also clearly proved Plumb’s 

mishandling of his trust account in connection with the Mambu 

settlement transactions in violation of rule 32:1.15.

III. Sanction. 

The commission recommended Plumb’s license to practice law be 

suspended with no possibility of reinstatement for a period of one year. 

As we have noted, however, we may impose a lesser or greater sanction 

than the discipline recommended by the grievance commission. Conrad, 

723 N.W.2d at 792. In determining the appropriate sanction for attorney 

misconduct:
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we consider the nature and extent of the respondent’s ethical 

infractions, his fitness to continue practicing law, our 

obligation to protect the public from further harm by the 

respondent, the need to deter other attorneys from engaging 

in similar misconduct, our desire to maintain the reputation 

of the bar as a whole, and any aggravating or mitigating 

circumstances.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kallsen, 670 N.W.2d 

161, 164 (Iowa 2003). 

Misappropriation of a client’s funds by an attorney has, almost 

universally, resulted in license revocation. Iowa Supreme Ct. Bd. of Prof’l 

Ethics & Conduct v. Anderson, 687 N.W.2d 587, 590 (Iowa 2004); Iowa 

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648, 655

(Iowa 2002); Comm. on Prof’l Ethics & Conduct v. Ottesen, 525 N.W.2d 

865, 866 (Iowa 1994); Comm. on Prof’l Ethics & Conduct v. Shepherd, 431 

N.W.2d 342, 344 (Iowa 1988). Exceptions to this longstanding rule have 

been noted in instances when the attorney had a colorable future claim 

to the funds or did not take the funds for his own use. See, e.g., Iowa 

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Allen, 586 N.W.2d 383, 391 

(Iowa 1998); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hansel, 

558 N.W.2d 186, 192 (Iowa 1997). Restitution or restoration of client 

funds prior to the discovery of their misappropriation does not preclude 

the imposition of revocation as a sanction. Anderson, 687 N.W.2d at 

590. The sanction of revocation of the offending attorney’s license has 

been imposed when the misappropriation was substantially smaller than 

$8500. See Comm. on Prof’l Ethics & Conduct v. Rowe, 225 N.W.2d 103, 

104 (Iowa 1975) (license revoked for depositing $1500 of client’s funds in 

attorney’s personal checking account).

This case presents a very close question as to whether Plumb’s 

license should be revoked for misappropriation of funds from a trust 
12

account. He drew a check on the trust account and attempted to use it 

to pay the settlement of Mambu’s tort claim. When this failed because 

Mambu’s counsel objected, Plumb sought to avoid the appearance of 

impropriety by forwarding to counsel a new check drawn on his business 

account and “covering” it with a corresponding withdrawal from the trust 

account and deposit to the business account. When this apparent

irregularity was to be discovered by the board’s auditor, Plumb sought to 

cover his tracks by claiming the withdrawal of $8500 from the trust 

account would have been “covered”—but for his oversight—by a deposit 

to the trust account of a check in the same amount drawn on his wife’s 

account.4

When combined with incidents of misrepresentation, neglect of a 

client’s legal matters will give rise to a lengthy suspension from the 

practice of law. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth, 

656 N.W.2d 93, 100 (Iowa 2002). The multiple violations proved by the 

board in this case are aggravated by Plumb’s substantial history of prior

discipline. He has been publicly reprimanded on four previous 

 We find this series of transactions and Plumb’s explanation of 

them implausible at best. Nonetheless, we conclude the severe sanction 

of revocation should not be imposed in this case because Plumb had a 

colorable future claim to funds in the trust account in excess of $8500,

the amount withdrawn in furtherance of the Mambu settlement. Plumb’s 

uncontroverted testimony establishes he had earned, but had not yet

withdrawn from the trust account on September 2, 2005, attorney fees in 

excess of $10,000. Accordingly, we now consider what sanction less 

than revocation should be imposed under the circumstances of this case.

 4The board presented credible evidence tending to establish there were 

insufficient funds in Plumb’s wife’s account on the day the check was allegedly drawn 

to cover the check which Plumb claims he intended, but neglected, to deposit in his 

trust account.
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occasions, and his license was suspended in 1999 for sixty days for 

neglect of multiple client matters, failure to deposit an advance fee in a 

trust account, and failure to respond to the board’s complaint. Plumb’s 

conduct in the several matters that are the subject of this case leads us 

to conclude the sanctions imposed for his past ethical lapses have been 

inadequate to induce conformity with our ethics rules, and a significant 

period of suspension is required in this case.

IV. Conclusion. 

Plumb’s license to practice law in Iowa is suspended with no 

possibility of reinstatement for eighteen months. The suspension 

imposed applies to all facets of the practice of law as provided by Iowa 

Court Rule 35.12(3) and requires notification of clients as provided in 

Iowa Court Rule 35.21. Given the broad range of his ethical violations 

and his history of recidivism, Plumb shall take and pass the Multistate 

Professional Responsibility Examination prior to making an application 

for reinstatement of his license. Iowa Ct. R. 35.12(1). The costs of this 

proceeding are taxed against Plumb pursuant to Iowa Court Rule 

35.25(1). 

LICENSE SUSPENDED.

All justices concur except Appel, J., who takes no part.