IN THE SUPREME COURT OF IOWA

No. 11–1570

Filed January 13, 2012

IOWA SUPREME COURT ATTORNEY 

DISCIPLINARY BOARD,

Complainant,

vs.

MATTHEW WARREN CUNNINGHAM,

Respondent.

On review of the report of the Grievance Commission of the 

Supreme Court of Iowa.

Grievance Commission reports respondent committed ethical 

misconduct and recommends that attorney be suspended from the 

practice of law for three years. LICENSE SUSPENDED.

Charles L. Harrington and Teresa A. Vens, Des Moines, for 

complainant.

Matthew Warren Cunningham, pro se.
2

ZAGER, Justice.

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

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

35.10(1). The Iowa Supreme Court Attorney Disciplinary Board filed a 

complaint against Matthew W. Cunningham. The complaint alleged 

misconduct arising out of Cunningham’s representation of two different 

clients involving divorce and bankruptcy matters. The Board alleged 

multiple violations related to neglect, misrepresentation, conduct 

prejudicial to the administration of justice, and failure to properly 

withdraw from representation. Cunningham failed to respond to these 

allegations and resulting proceedings in any way. The commission found 

Cunningham violated several Iowa Rules of Professional Responsibility 

and recommended we suspend his license with no possibility of 

reinstatement for three years. The commission also recommended

Cunningham be required to undergo a mental health evaluation and 

present evidence of his fitness to practice law prior to reinstatement. 

Upon our de novo review, we find Cunningham violated numerous 

provisions of the Iowa Rules of Professional Responsibility and suspend 

his license to practice law for eighteen months. We also order that prior 

to reinstatement, Cunningham must complete a mental health 

evaluation and present evidence of his fitness to practice law.

I. Background Facts and Prior Proceedings.

Cunningham was admitted to the Iowa bar in 2001. He leased 

office space in downtown Des Moines from another attorney, Pamela 

Vandel. At some point, Cunningham and Andrew Hope, another attorney 

who leased office space from Vandel, formed a partnership. In early 
3

2008, Cunningham began to have problems.1 According to Vandel’s 

testimony, Hope called her to assist him in taking over some of 

Cunningham’s cases because Cunningham had “just left” his practice, 

and “[Hope] didn’t think [Cunningham] could practice law.”

After Cunningham left, Vandel, Hope, and another attorney took 

over Cunningham’s cases, with Vandel taking over eight or nine 

bankruptcy cases and three personal injury cases. Hope met with the 

rest of Cunningham’s clients in an effort to salvage their cases. In at 

least one case, Hope filed a motion to withdraw on Cunningham’s behalf. 

Shortly before the complaints that form the basis of this action were 

brought by the Board, Cunningham received a private reprimand for 

failing to inform a client of a withdrawal from representation and failing 

to deliver the client’s file to him. In late 2008 and early 2009, 

Cunningham twice failed to respond to the Board’s notices, and his 

license was temporarily suspended by this court on January 7, 2009,

and May 14, 2009. These temporary suspensions remain in effect.

II. Standard of Review.

Attorney disciplinary proceedings are reviewed de novo. Iowa Ct. 

R. 35.10(1); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 

792 N.W.2d 674, 677 (Iowa 2010). We give the grievance commission’s 

factual findings respectful consideration, but they are not binding on us. 

Johnson, 792 N.W.2d at 677. The Board must prove misconduct by a 

convincing preponderance of the evidence. Id. This burden is more than 

the standard required in a usual civil case, but less than proof beyond a 

reasonable doubt. Id. If we find misconduct has been proven by a 

 1In their testimony before the commission, Vandel and a former client, Mary 

Walker, speculated that Cunningham’s sudden departure was due to a mental problem, 

but there is no additional evidence in the record of Cunningham’s mental state.
4

convincing preponderance of the evidence, “we may impose a lesser or 

greater sanction than the discipline recommended by the grievance 

commission.” Id. (citation and internal quotation marks omitted).

III. Findings of Fact.

The Board filed a complaint against Cunningham on June 8, 2011. 

Cunningham did not file an answer, and the Board’s motion to invoke 

Iowa Court Rule 36.7 was granted on August 9, 2011. Under that rule, 

the Board’s allegations are deemed admitted. Iowa Ct. R. 36.7; see also

Johnson, 792 N.W.2d at 677. Based on the admitted allegations, and 

upon our de novo review of the record, we find the following facts.

A. Count I: Mary K. Walker Matter. In late 2007, Mary Walker 

retained Cunningham to assist her with her divorce from her husband, 

Brett Walker. Cunningham filed Walker’s petition for dissolution of 

marriage on November 1, 2007. On November 21, Brett’s attorney, R.J. 

Hudson, II, sent interrogatories and a request for production of 

documents to Cunningham. Cunningham did not forward these 

documents to Walker. On January 2, 2008, as part of a good-faith effort

to resolve the discovery dispute, Hudson wrote a letter to Cunningham

demanding responses to the requested discovery by January 13, 2008. 

Hudson did not receive any response from Cunningham and, on 

February 4, filed a motion to compel. A hearing on the motion was 

scheduled for February 26.

On February 5, Cunningham sent Walker a letter and forwarded a 

notice of scheduling conference, along with the interrogatories and 

request for production of documents.2 Walker called Cunningham with 

questions regarding the discovery documents, and he told her to fill them 

 2The scheduling conference was also set for February 26. In the February 5 

letter, Cunningham told Walker she did not need to attend the conference.
5

out briefly and then she could come into his office later and “we would fill 

it out in detail at some point in time.” Walker also stated Cunningham 

told her “that [she] just needed to return it to him with some sort of 

answer on it.”

On February 26, the court granted Hudson’s motion to compel and 

ordered Walker to “serve all outstanding discovery by 3-11-08 or appear 

on 3-18-08 at 9:30 A.M. for imposition of sanctions.” On March 5, 

Cunningham wrote Walker, informing her of the order and the March 11 

deadline, as well as the possible imposition of sanctions. Walker briefly

hand wrote her answers to the interrogatories and provided Cunningham 

a handwritten, numbered list in response to the request for production of 

documents. The discovery documents were notarized in Cunningham’s 

office on March 7 and forwarded to Hudson on March 11. Walker never 

heard from Cunningham again.

The court held a hearing on the motion for sanctions on March 18. 

Cunningham failed to appear and did not inform Walker that she needed 

to appear. The court imposed sanctions on Walker by awarding $500 in 

attorney fees payable to her husband. Cunningham never told Walker he 

was not going to represent her at the sanctions hearing and did not tell 

her that she needed to attend the hearing. Walker did not learn that 

sanctions had been imposed until she was served by the sheriff. Walker 

did not learn of Cunningham’s intent to withdraw until May 6, when 

Andrew Hope, Cunningham’s partner, filed a motion to withdraw, stating 

Cunningham had “become incapacitated due to health reasons and [was] 

unable to proceed in this matter as counsel.” Ultimately, Walker was 

forced to sell some furniture and other personal property in order to 

retain another attorney to complete her divorce action. Walker also had 

temporary custody of her minor child, but due to the delay in her divorce 
6

proceedings, she did not receive an award of temporary child support for 

six months. She eventually received an award of temporary child 

support of $725 per month.

B. Count II: Sheila K. McDowell Matter. In 2006, Sheila 

McDowell (known then as Sheila Sammons) and her husband Bruce 

Sammons decided to file for divorce. Due to Bruce’s medical issues, the 

couple had built up a large amount of credit card debt and wanted to file 

for bankruptcy prior to getting divorced. Sheila’s divorce attorney 

referred them to Cunningham. On July 11, Cunningham sent Sheila a 

letter stating that he would begin reviewing the couple’s financial 

information to see if they would qualify for a Chapter 7 liquidation 

bankruptcy. At that time, he also suggested the couple take a credit 

counseling course that would be required before they could file 

bankruptcy. Sheila wanted to remarry after the divorce, but wanted to 

be sure that the debts from her first marriage were discharged before 

getting remarried. Sheila made this known to Cunningham. On August 

23, 2006, Sheila’s divorce attorney copied Cunningham on a letter to 

Bruce Sammons, which stated, “I will do nothing with regard to pursuing 

this [divorce] case until such time as the bankruptcy is processed. I 

understand that Matt Cunningham is representing you, and I am 

sending him a copy of this letter as well as one to Sheila.”

On September 26, Cunningham sent Sheila a fee agreement for a 

joint bankruptcy, as well as the forms the couple would be required to fill 

out before filing. Bruce and Sheila paid Cunningham $299 for the filing 

fee and a $1200 up-front fee to file a joint bankruptcy for them and 

returned the completed bankruptcy schedules to him. The couple 

qualified for a Chapter 7 liquidation bankruptcy, and over the next few 

months, Cunningham told Sheila that he had filed her petition and that 
7

a first meeting of creditors had been scheduled. Sheila scheduled time 

off work to attend the first meeting of creditors three different times, but 

each time Cunningham informed her the day before the meeting that it 

had been cancelled.

The delays in the bankruptcy proceeding also delayed Bruce and 

Sheila’s divorce. The pretrial conference for the divorce had to be 

postponed to March 19, 2007, so that the bankruptcy could be 

completed. Cunningham reviewed and approved the proposed premarital 

agreement between Sheila and her new husband.3 On April 2, 2007, 

Sheila and Bruce’s divorce was finalized. The divorce decree noted:

The Court is informed that the parties have filed a petition in 

bankruptcy with the Federal Bankruptcy Court for the 

Southern District of Iowa. No resolution of such Bankruptcy 

has occurred but such filing does materially affect the 

property division of the parties.

Sheila remarried after Cunningham again assured her that the 

bankruptcy would take care of everything and that her new husband 

would not be liable for the debts from her previous marriage.

Months later, Sheila was contacted by Pamela Vandel. Vandel had 

agreed to take over several bankruptcy cases that Cunningham 

abandoned. Prior to contacting Sheila, Vandel noticed that all the money 

in the trust accounts was gone. She assumed that because the filing fee 

was gone, the bankruptcy petition had been filed. However, Vandel and 

Hope were unable to locate a bankruptcy petition, and a search of the 

bankruptcy court’s database did not turn up any petition filed on behalf 

of Sheila or Bruce. At this point, Vandel contacted Sheila, informed her 

 3In March of 2008, Cunningham again told Sheila that he had filed the

bankruptcy petition. Sheila’s daughter was having difficulty with the Social Security 

Administration, and in order to verify that he had filed Sheila and Bruce’s bankruptcy, 

Cunningham faxed a copy of their petition to Sheila as proof that he had filed the 

bankruptcy petition.
8

that Cunningham never filed the bankruptcy petition, and agreed to take 

over her case.

Sheila, however, was now remarried and was no longer eligible to 

file a Chapter 7 liquidation bankruptcy because of her and her new 

husband’s combined income.4 Sheila was therefore forced to file a 

Chapter 13 reorganization bankruptcy. Sheila’s new husband’s income 

had to be used to determine an appropriate level of monthly repayment. 

Under Chapter 13, Sheila had to make monthly payments, which had to 

be overseen by a bankruptcy trustee. The bankruptcy process took 

several years, instead of a few months. Vandel also testified that 

because she was forced to file for a Chapter 13 bankruptcy, Sheila was 

required to assume and repay more than $4000 of debt that would have 

been discharged under the Chapter 7 bankruptcy if it had been timely 

filed. The filing fee Sheila and Bruce paid Cunningham has still not been 

returned, nor has the $1200 up-front fee.

IV. Ethical Violations.

A. The Board’s Complaint and the Findings of the Grievance 

Commission. In the complaint, the Board alleged Cunningham’s 

conduct violated rules 32:1.3 (“A lawyer shall act with reasonable 

diligence and promptness in representing a client”), 32:1.4(a)(3) (“A 

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

the matter”), 32:1.16(a)(2) (a lawyer “shall withdraw from the 

representation of a client if . . . the lawyer’s physical or mental condition 

materially impairs the lawyer’s ability to represent the client”), 32:1.16(d) 

(upon withdrawal, “a lawyer shall take steps to the extent reasonably 

practicable to protect a client’s interests”), 32:3.2 (“A lawyer shall make 

 4Vandel also testified that she completed a Chapter 7 bankruptcy for Bruce, 

who, based on his income, was still eligible for Chapter 7 bankruptcy.
9

reasonable efforts to expedite litigation consistent with the interests of 

the client”), 32:3.4(c) (“A lawyer shall not . . . knowingly disobey an 

obligation under the rules of a tribunal”), 32:8.4(c) (“It is professional 

misconduct for a lawyer to . . . engage in conduct involving dishonesty, 

fraud, deceit, or misrepresentation”), and 32:8.4(d) (“It is professional 

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

the administration of justice”). The commission found Cunningham 

violated rules 32:1.3, 32:1.4(a)(3), 32:1.16(a)(2), 32:1.16(d), 32:3.2, and 

32:3.4(c) in his representation of Walker and rules 32:1.3, 32:1.16(d), 

32:3.2, 32:8.4(c), and 32:8.4(d) in his representation of Sheila McDowell.

Even though Cunningham has not responded to these 

proceedings, we must still conduct a de novo review of the Board’s 

allegations to ensure that the Board has proven each allegation of 

misconduct by a convincing preponderance of the evidence. See Iowa 

Supreme Ct. Att’y Disciplinary Bd. v. Wagner, 768 N.W.2d 279, 281–82 

(Iowa 2009). We now address the alleged violations contained in each 

count of the complaint.

B. Count I: Ethical Violations in the Walker Matter. “Neglect 

subjecting an attorney to discipline involves 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. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 307 

(Iowa 2009) (citation and internal quotation marks omitted). “Under 

ethical rules prohibiting neglect, attorneys must advance and protect 

their clients’ interests and attend to matters entrusted to their care in a 

reasonably timely manner.” See Johnson, 792 N.W.2d at 678. For over 

two months, Cunningham failed to provide Walker with the discovery 

requests. This delay resulted in the court granting opposing counsel’s 
10

motion to compel. Though Cunningham notified Walker of the motion to 

compel and of the possibility of a motion for sanctions, he failed to take 

any steps to ensure she properly completed the discovery requests in 

order to avoid sanctions. Instead, he simply mailed her handwritten

responses to the interrogatories to opposing counsel, along with the 

handwritten list of documents Walker had prepared in response to the 

request for production of documents. Cunningham also failed to attend

a hearing on the motion for sanctions but did not tell Walker that she 

needed to attend. He also failed to inform Walker that a $500 sanction 

had been ordered. This conduct falls below the standard required by

rule 32:1.3, which demands reasonable promptness and diligence in 

representing a client.

Walker also testified that she attempted to contact Cunningham

regarding the status of her divorce but was unable to reach him. While

someone at his office told her that she would be contacted, she never 

was. Cunningham failed to keep Walker informed about the status of 

her divorce case and thereby violated rule 32:1.4(a)(3). See Earley, 774 

N.W.2d at 307. Cunningham neglected Walker’s legal matter and failed 

to advance or protect her legal interests in violation of our ethical rules.

Walker was not informed that Cunningham was withdrawing from 

her case until his law partner filed a motion to withdraw on 

Cunningham’s behalf on May 6, 2008, nearly two months after the order 

for sanctions. Upon withdrawal, Cunningham failed to take any steps to 

safeguard Walker’s interests or to return her files to her. This conduct 

clearly violates rule 32:1.16(d). See Johnson, 792 N.W.2d at 681; see 

also Earley, 774 N.W.2d at 307–08. Cunningham failed to appear at 

hearings and failed to participate in discovery in a timely manner. 

Failing to appear at hearings and participate in discovery does not 
11

constitute a reasonable effort to expedite litigation and therefore violates 

rule 32:3.2. See Johnson, 792 N.W.2d at 679–80.

Rule 32:3.4(c) prohibits an attorney from “knowingly disobey[ing] 

an obligation under the rules of a tribunal except for an open refusal 

based on an assertion that no valid obligation exists.” On February 26, 

2008, Cunningham was ordered to serve all outstanding discovery by 

March 11 or else appear at a hearing on the motion for sanctions on 

March 18. Cunningham failed to adequately respond to the discovery 

requests and failed to appear at the hearing, thereby violating an order of 

a tribunal. In order to violate rule 32:3.4(c), the attorney must have 

actual knowledge of the court order. See Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. Joy, 728 N.W.2d 806, 813 (Iowa 2007). On March 5, 

Cunningham wrote Walker a letter informing her of the need to complete 

discovery by March 11 and of the possible motion for sanctions on March 

18. Cunningham clearly had knowledge of the court’s order. Therefore, 

when he disobeyed it, he violated rule 32:3.4(c).

The alleged violation of rule 32:1.16(a)(2) poses a closer question. 

The rule requires an attorney to withdraw from representation when “the 

lawyer’s physical or mental condition materially impairs the lawyer’s 

ability to represent the client.” Iowa R. Prof’l Conduct 32:1.16(a)(2). 

There is very little case law interpreting this rule or its predecessor, DR 

2–110(B)(3). In Hoglan, we found a violation of this rule occurred when 

an attorney allowed several appeals to be dismissed for want of 

prosecution. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan, 781 

N.W.2d 279, 282, 284 (Iowa 2010). Prior to his cases being dismissed, 

Hoglan requested several extensions, citing a “serious back problem.” Id. 

at 282. We found a violation of rule 32:1.16(a)(2). Id. at 284.
12

The case at issue today is different. In finding Cunningham had 

violated rule 32:1.16(a)(2), the commission simply stated, 

Andrew Hope’s motion stated Cunningham had “become 

incapacitated due to health reasons and is unable to proceed 

in this matter as counsel” on May 6, 2008. Cunningham did 

not terminate his representation of Ms. Walker prior to the 

Motion for Sanctions in March of 2008. Ms. Walker was 

prejudiced by Cunningham’s failure to withdraw from 

representing her prior to that hearing.

A violation of rule 32:1.16(a)(2) requires more. The plain language of rule 

32:1.16(a)(2) requires an attorney to withdraw if “the lawyer’s physical or 

mental condition materially impairs the lawyer’s ability to represent the 

client.” To prove a violation of this rule, the Board would have to show 

that the attorney was suffering from a mental or physical condition and 

that the condition materially impaired the lawyer’s ability to represent 

the client. The Board has not proven by a convincing preponderance of 

the evidence that Cunningham was suffering from such a condition prior 

to the motion to withdraw.

Hope’s motion on Cunningham’s behalf is evidence that 

Cunningham was suffering from a physical or mental condition that was 

impairing his ability to represent Walker on May 6, 2008. The 

commission relied on this motion to show Cunningham violated rule 

32:1.16(a)(2) by not withdrawing as Walker’s attorney prior to the 

hearing on the motion for sanctions in March of 2008. We disagree with 

this conclusion. The motion to withdraw indicates that Cunningham’s 

ability to represent Walker was materially impaired by his mental or 

physical condition on May 6, but it does not indicate when

Cunningham’s ability to represent Walker first became materially 

impaired. While we agree that Cunningham provided inadequate 

representation to Walker in March of 2008, the statement found in the 
13

motion to withdraw is insufficient to convince us that Cunningham’s 

inadequacies at that time were due to a mental or physical impairment. 

The other evidence presented is also insufficient to lead to the conclusion 

that Cunningham was suffering from a mental condition that materially 

impaired his ability to represent clients. Vandel’s testimony does not 

include the dates when she and Hope began to deal with the problems 

created by Cunningham’s sudden departure. The private reprimand 

Cunningham received mentioned that Cunningham signed for the initial 

notice of complaint of May 10, 2008. That reprimand arose out of 

Cunningham’s failure to properly withdraw from representation of 

another client. Though the reprimand cited “health reasons” as the 

justification for Cunningham’s withdrawal in that case, there was again 

no indication as to when his health issues arose or how severe his health 

problems were. The reprimand is insufficient to show Cunningham 

represented Walker when he was suffering from a mental or physical 

condition that materially impaired his ability to represent her.

In order to find a violation of rule 32:1.16(a)(2), we must find, by a 

convincing preponderance of the evidence, that Cunningham was 

suffering from a mental or physical condition that materially impaired his 

ability to represent Walker and that he failed to withdraw at that time. 

On our de novo review, there is insufficient evidence to find a violation of 

rule 32:1.16(a)(2). Other than the motion to withdraw, the only evidence 

of Cunningham’s mental or physical condition came from Walker and 

Vandel who testified at the grievance hearing.

The testimony offered is insufficient evidence to indicate a mental 

or physical condition materially impaired Cunningham’s ability to 

represent clients prior to his withdrawal on May 6. While it is clear that 

something was impairing Cunningham’s ability to adequately represent 
14

Walker, it is not clear that the impairment was a mental or physical 

issue. The Board has not proven Cunningham violated rule 

32:1.16(a)(2). However, we find Cunningham violated rules 32:1.3,

32:1.4(a)(3), 32:1.16(d), 32:3.2 and 32:3.4(c) in his representation of 

Walker.

C. Count II: Ethical Violations in the McDowell Matter. 

Cunningham told Sheila McDowell he was going to file a bankruptcy 

petition for her and her husband and never did. This conduct does not 

meet the standard of reasonable diligence and promptness, nor is it a 

reasonable effort to expedite litigation consistent with the interests of the 

client, and therefore, it violates rules 32:1.3 and 32:3.2. Johnson, 792 

N.W.2d at 681. Cunningham stopped representing Sheila, but did not 

take any steps to safeguard her interests and never returned her filing 

fee or her up-front fee for the bankruptcy. This conduct violates rule 

32:1.16(d). Id.; see also Earley, 774 N.W.2d at 307–08.

Cunningham told Sheila and her divorce attorney that he had filed 

the bankruptcy petition. He went so far as to provide Sheila with a copy 

of the petition to prove to her that he had filed the bankruptcy. Vandel 

testified that she could not find any record of a petition being filed in the 

bankruptcy court or in Cunningham’s files. We find her testimony 

credible and conclude that Cunningham did not in fact file Sheila’s 

petition as he claimed he did. In Johnson, we found an attorney engaged 

in dishonesty, fraud, deceit or misrepresentation when “he told [the 

client] things were progressing when he had not even filed the 

bankruptcy petition.” 792 N.W.2d at 678. Cunningham’s conduct here

is misrepresentation and violates rule 32:8.4(c). Id.
15

Finally, we find Cunningham’s conduct was prejudicial to the 

administration of justice in violation of rule 32:8.4(d). In interpreting 

rule 32:8.4(d), we have stated,

[T]here is no typical form of conduct that prejudices the 

administration of justice, [but] actions that have commonly 

been held to violate this disciplinary rule have hampered the 

efficient and proper operation of the courts or of ancillary 

systems upon which the courts rely.

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

768 (Iowa 2010) (citation and internal quotation marks omitted); see also

Johnson, 792 N.W.2d at 681. Simply failing to file a bankruptcy petition 

does not, in and of itself, hamper the operation of the courts. Johnson, 

792 N.W.2d at 678. However, an attorney’s dilatory conduct violates rule 

32:8.4(d) when that conduct places additional burdens on the 

bankruptcy court and causes the trustee to expend greater amounts of 

time and energy than would otherwise have been required. Id. at 681. 

Cunningham’s failure to file Sheila and Bruce’s bankruptcy meant that,

instead of filing a single, joint Chapter 7 bankruptcy, Bruce had to go 

through a separate Chapter 7 bankruptcy, and Sheila had to go through 

a separate Chapter 13 bankruptcy. This required a longer and more 

intensive period of judicial oversight than would have been necessary if 

Cunningham had timely filed Sheila and Bruce’s petition. Moreover, 

Cunningham’s failure to initiate the bankruptcy action caused significant 

delays in the state district court. In August of 2006, Sheila’s divorce 

attorney wrote Cunningham a letter informing him that Bruce and 

Sheila’s divorce would be delayed until the bankruptcy petition was filed. 

Due to Cunningham’s dilatory conduct in connection with the filing of 

the petition, Bruce and Sheila were forced to reschedule proceedings 

connected to their divorce, which delayed their divorce for several 
16

months. Cunningham’s misrepresentation interfered with the effective 

and efficient administration of the bankruptcy court and the district 

court. This conduct hampered the efficient operation of the courts and 

the ancillary systems they rely on and therefore violated rule 32:8.4(d).

V. Sanctions.

The commission recommended that we suspend Cunningham’s 

license with no possibility of reinstatement for three years. The 

commission also recommended that Cunningham be required to have a 

mental health evaluation and present evidence of his fitness to practice 

law prior to reinstatement. There is no standard sanction for a 

particular type of misconduct. Id. Though prior cases are instructive, 

the appropriate sanction must be based on the particular circumstances 

of each individual case. Id. at 681–82. In determining the appropriate 

sanction, we consider “the nature of the violations, the need for 

deterrence, protection of the public, maintenance of the reputation of the 

Bar as a whole, and the violator’s fitness to continue to practice law.” Id.

at 682 (citation and internal quotation marks omitted).

In addition to the nature of the violations, we will also consider 

mitigating and aggravating factors. Id. Cunningham has not responded 

to these proceedings and therefore has not provided any mitigating 

factors. Aggravating factors include the existence of multiple instances 

of neglect, other companion violations, and past disciplinary problems. 

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d 263, 

270 (Iowa 2010); see also Johnson, 792 N.W.2d at 682. Failure to 

respond to and cooperate with the Board’s investigation is also an 

aggravating factor. Wagner, 768 N.W.2d at 288.

Cunningham’s violations stem from neglecting his clients, in effect

abandoning them, without warning, in the middle of their cases. Client 
17

neglect is a serious matter. See, e.g., Iowa Supreme Ct. Att’y Disciplinary 

Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006) (comparing an 

attorney who neglects his clients to “a surgeon who, without transferring 

responsibility, drops his scalpel and abandons his patient in the course 

of an operation” (citation and internal quotation marks omitted)).

The sanction for attorney misconduct involving neglect 

typically ranges from a public reprimand to a six-month 

suspension. The sanction imposed in a particular instance 

often depends upon whether there are multiple instances of 

neglect, other additional violations, or a history of past 

disciplinary problems.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 798 

(Iowa 2010) (citation omitted); see also Joy, 728 N.W.2d at 815–16

(“Where neglect is compounded by other serious offenses, however, this 

court has suspended the license of the offending attorney for substantial 

periods of time.”).

Neglect can lead to more severe sanctions when coupled with 

irregularities in handling client funds. In Johnson, for example, we 

suspended the attorney’s license for three years for 

severely neglecting four client matters, failing to respond to 

clients’ inquiries for information, presenting an ex parte 

order to a court under false pretenses, failing to account for 

and return unearned fees, and failing to respond to the 

board and commission.

792 N.W.2d at 684. While Vandel testified that all of Cunningham’s 

clients’ trust accounts were empty, the Board has not alleged any trust 

account violations, and therefore, we will not consider misappropriation 

of client funds as an aggravating factor in this case.

In Carpenter, we noted the typical range for neglect was a public

reprimand to six months’ suspension, but added, “When multiple 

instances of neglect are involved and combine with other violations or 
18

cause significant harm to the clients, we have imposed a longer period of 

suspension.” 781 N.W.2d at 270. We imposed a two-year suspension for 

“misconduct in seventeen client matters, including neglect, failure to 

communicate, and failure to safeguard his clients’ interests upon 

termination of representation, in addition to his trust account violations 

and conviction for two traffic offenses.” Id. at 271. While Cunningham 

has only been accused of misconduct in connection with two clients, as 

opposed to seventeen, his violations have resulted in significant harm. 

Cunningham’s neglect caused Walker to pay a $500 sanction, to sell her 

furniture and other personal property to hire a different attorney, and to 

miss out on nearly $5000 in temporary child support. The harm to 

Sheila is equally great. Instead of a Chapter 7 bankruptcy, she was 

forced to go through a Chapter 13 bankruptcy, which required her to 

repay more than $4000 of debt and required substantial and lengthy 

supervision by the bankruptcy court.

In addition to causing harm to his clients, Cunningham has 

combined his neglect with misrepresentations to his clients and officers 

of the court, knowing that those misrepresentations would be relied on. 

He neglected to file Sheila’s bankruptcy petition and then proceeded to 

tell her and her attorney that he had filed the petition. He also faxed a 

copy of the bankruptcy petition to Sheila’s daughter in an effort to prove 

he had filed the petition when he had not. As a result of this neglect 

coupled with misrepresentation, Sheila and her new husband were 

forced to repay nearly $4000 more in debt than they would have been 

obligated to repay if Cunningham had done what he claimed to have 

done. This neglect, combined with misrepresentation, caused great harm 

to Cunningham’s clients and favors a harsher suspension than sixmonths.
19

On the other hand, in Lickiss, we considered a three-month 

suspension appropriate for an attorney who “engaged in multiple 

instances of neglect in four probate matters such that he failed to 

properly advance his clients’ interests[,] . . . took probate fees before 

obtaining the required court orders, and failed to respond to his clients’ 

and the board’s inquiries.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. 

Lickiss, 786 N.W.2d 860, 868–69, 871 (Iowa 2010). That case presented 

mitigating factors, such as the attorney’s mental health issues. Id. at 

871. While it is possible Cunningham was suffering from mental health 

issues, he has not presented any evidence to that effect, and therefore,

we do not consider it as a mitigating factor in this case.

A two-year suspension was appropriate where the attorney’s 

“conduct consisted of 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. Honken, 688 N.W.2d 812, 820, 822 (Iowa 2004). However, in 

Joy, we imposed an eighteen-month suspension for an attorney who 

neglected four clients, failed to comply with court orders, made 

misrepresentations, failed to turn over client papers, and failed to 

cooperate with the Board’s investigation. 728 N.W.2d at 812–15. We 

cited several cases in Joy which imposed suspensions ranging from one 

to three years for similar violations. See id. at 815–16 (citing a collection 

of cases). We again imposed an eighteen-month suspension on an 

attorney who made misrepresentations to his clients and the court in an 

effort to cover his neglect, committed companion violations, and failed to 

respond to the Board’s inquires. See Fields, 790 N.W.2d at 798, 801. 

Cunningham committed similar violations. He neglected his clients, 
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failed to comply with a court order, failed to properly withdraw or turn 

over clients’ files, and made misrepresentations that compounded the 

damage caused by his neglect.

While prior discipline can be an aggravating factor, we have held 

that if “[t]he prior admonishment occurred during the timeframe and 

related to a matter we are considering in this action, [then] it does not 

require us to increase the severity of the sanction.” Iowa Supreme Ct. 

Att’y Disciplinary Bd. v. Wengert, 790 N.W.2d 94, 103 (Iowa 2010). 

Cunningham’s only prior discipline was a private admonishment that he 

received on November 24, 2008. The complaint in that case arose out of 

Cunningham’s representation of a client in an action for wrongful 

termination from employment. The admonishment noted that, 

In 2008 [Cunningham] took “a leave of absence” for health 

reasons from [his] law practice, abandoning, among other 

things, the representation of the complainant. 

[Cunningham] failed to inform [the complainant] of [his] 

leave of absence or of [his] effective withdrawal from [the 

complainant’s] case; neither did [he] promptly deliver his file 

to him.

The Board reminded Cunningham that, while health reasons were 

proper grounds for withdrawal under rule 32:1.16(a)(2), he still had 

certain responsibilities to his clients upon withdrawal from 

representation. The Board also noted in the admonishment that 

Cunningham initially failed to respond to the Board’s complaint and that 

he “narrowly avoided a suspension by sending a belated response.” 

Cunningham’s only prior discipline involved neglect of client matters and 

occurred in the same timeframe as the violations before us in this case.

Accordingly, we will not view Cunningham’s prior discipline as an 

aggravating factor.
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After reviewing the nature of all of Cunningham’s violations and of 

the aggravating circumstances, we feel an eighteen-month suspension is 

appropriate. Cunningham neglected his clients and then compounded 

the damage by making misrepresentations to them. He has failed to turn 

over their files or to assist them in any way in dealing with his sudden 

withdrawal. In addition, his neglect has increased the burden on the 

courts and the ancillary systems on which they rely, and he has not 

cooperated with the Board’s investigation. While we recognize that it is 

possible Cunningham’s violations stem from mental illness, he has not 

presented any evidence that this is a mitigating circumstance. Since our 

considerations when imposing sanctions include the protection of the 

public and the attorney’s fitness to practice law, we will also require that, 

prior to reinstatement, Cunningham provide an evaluation from a 

licensed health care professional verifying his fitness to practice law.

As a precondition for reinstatement, we can also require an 

attorney to provide proof that he has made “restitution to all persons and 

entities that have lost money as a result of his actions.” Iowa Supreme 

Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 97 (Iowa 2006). 

Such a requirement is appropriate here. Prior to reinstatement, 

Cunningham must provide proof that he has repaid the $500 in 

sanctions that Mary Walker was forced to pay as a result of 

Cunningham’s failure to comply with the court’s motion to compel. Hope 

paid the filing fee for Sheila’s Chapter 13 bankruptcy petition, and 

Vandel provided her legal services free of charge. However, due to 

Cunningham’s neglect and misrepresentation, Sheila McDowell was 

forced to go through Chapter 13 bankruptcy where the amount of 

additional debt she was required to repay totaled $4000. Therefore, prior 
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to reinstatement, Cunningham must provide proof that he has repaid 

$4000 to Sheila McDowell.

There is one other issue we wish to address. Due to his failure to 

respond to the Board’s initial complaints, Cunningham’s license was 

temporarily suspended on January 7, 2009, and again on May 14. See 

Iowa Ct. R. 34.7(3). A suspension under rule 34.7(3) serves as both a 

disciplinary measure and a means of “prompt[ing] a response to the 

board’s inquiries so the disciplinary action may proceed in a timely and 

informed fashion.” Lickiss, 786 N.W.2d at 870. Cunningham has not 

responded to these proceedings, and because of this failure, the 

temporary suspension remains in effect. See Iowa Ct. R. 34.7. As we 

have previously noted,

The coercive nature of the suspension is demonstrated by 

the fact that the length of the suspension under rule 34.7 is 

essentially up to the respondent. Once the attorney

responds to the board’s inquiries, the board is required to 

withdraw its certificate or provide an alternate basis for 

continuing the suspension, and upon the board’s withdrawal 

of the certificate, the court must immediately reinstate the 

attorney’s license to practice law.

Lickiss, 786 N.W.2d at 870 n.3 (citation and internal quotation marks

omitted). Since Cunningham did not respond to the Board’s inquires, 

the Board was not required to withdraw its certificate, and 

Cunningham’s suspension remained in effect on this basis alone.

Because the prior suspensions were for separate violations of rule 34.7, 

the period of temporary suspension cannot be considered as discipline 

for the ethical violations discussed in this opinion and therefore, cannot 

be considered as part of the eighteen-month suspension we now order. 

See id. at 870; see also Fields, 790 N.W.2d at 800. However, since this 

opinion concludes the present disciplinary action, there is no longer a 
23

need to “prompt a response to the board’s inquiries,” and the temporary 

suspensions are accordingly dismissed. Lickiss, 786 N.W.2d at 870.

VI. Disposition.

Cunningham committed numerous ethical violations involving 

neglect of client matters, misrepresentation, and conduct prejudicial to 

the administration of justice. These violations caused significant harm to 

his clients. He has not responded to the Board’s complaints. We 

therefore suspend Cunningham’s license to practice law with no 

possibility of reinstatement for eighteen months. This suspension shall 

apply to all facets of the practice of law as provided in Iowa Court Rule 

35.12(3). Prior to reinstatement, Cunningham must comply with rule 

35.13, provide an evaluation from a licensed health care professional 

verifying his fitness to practice law, and provide proof that he has made 

restitution of $500 to Mary Walker and $4000 to Sheila McDowell. The 

prior temporary suspensions for failure to respond to the Board are 

dismissed. The costs of this action are taxed to Cunningham pursuant 

to Iowa Court Rule 35.26(1), and reinstatement will not be ordered until 

all costs are paid. Iowa Ct. R. 35.26(3).

LICENSE SUSPENDED.