IN THE SUPREME COURT OF IOWA

No. 18–0906

Filed September 14, 2018

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

TODD W. KOWALKE,

Respondent.

On review from the Iowa Supreme Court Grievance Commission.

Grievance commission recommends the revocation of an attorney’s 

license to practice law for violations of ethical rules. LICENSE 

REVOKED. 

Tara van Brederode, for complainant.

Todd W. Kowalke, Cresco, pro se.
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CADY, Chief Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged 

attorney Todd Kowalke with violating the rules of professional conduct 

during his representation of the executors of an estate. The Iowa 

Supreme Court Grievance Commission found Kowalke violated several 

rules of professional conduct and recommended revocation of his license 

to practice law. Upon our de novo review, we find Kowalke converted 

client funds for his personal use, and we revoke his license to practice 

law in the State of Iowa. 

I. Background Facts and Proceedings. 

Todd Kowalke practices law in Cresco, Iowa. He was admitted to 

the Iowa bar in 1994. He is also a certified public accountant. 

In 2009, Kowalke agreed to serve as the attorney for the 

coexecutors of the estate of Violet B. Brokken. The parties entered into a 

fee agreement, which provided that Kowalke would accept a fee “equal to 

the amount set forth in Iowa Code section 633.197.”1 He prepared and 

filed a petition for probate of her last will and testament. He obtained an 

order from the district court that appointed the coexecutors and

admitted the will to probate. 

Almost from the beginning, Kowalke neglected essential duties and 

responsibilities as the attorney for the executors. He failed to respond to 

an email from a great-nephew of the decedent and was late in filing the 

probate inventory and the initial interlocutory report. In 2011, the 

interlocutory report indicated the fiduciary income tax returns and the 

final report had not been completed. The 2012 interlocutory report 

 1Section 633.197 provides, in relevant part, “Personal representatives shall be 

allowed such reasonable fees as may be determined by the court for services rendered

. . . .” Iowa Code § 633.197 (2009). 
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indicated the remaining work on the estate included filing the income tax 

returns, locating several great-nephews and nieces, and completing the 

final report. Kowalke reported the same remaining work in the 

interlocutory reports filed in 2013, 2014, and 2015. Beginning in 2013, 

the district court responded to the reports by ordering Kowalke to 

complete the tasks necessary to close the estate. Although Kowalke 

represented to the court in each report that the estate was near 

completion, he failed to meet his projected deadline each time.

During the pendency of the estate, the coexecutors deposited 

estate funds into Kowalke’s law firm trust account. In 2011, they 

deposited $132,707.89 into the account. In 2015, the coexecutors 

deposited $38,809.06 into the account. 

Kowalke withdrew estate funds from the trust account on several 

occasions. In 2011, he withdrew $3692.18. The client ledger for the 

trust account reflected this sum represented attorney fees for his 

services, but the district court had not authorized the fees before 

Kowalke withdrew them from the trust account. In 2015, he withdrew 

$2500 from the trust account and deposited the funds into his firm 

business account. The memo line on the trust account check designated 

the funds as “Brokken Estate Fees,” but the transaction again occurred 

without court authorization. After making some distributions to heirs,

Kowalke’s client ledger reflected a balance of $35,470.06 held in trust for 

the estate. 

In January 2016, Kowalke withdrew $10,000 of estate funds from 

the trust account for his personal use. He also withdrew approximately 

$23,000 of estate funds to cover expenses relating to other client 

matters. 
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In May 2016, Kowalke filed an application with the district court

for fiduciary and attorney fees in the estate. He computed the attorney 

fees to be $3692.18, the same amount he withdrew as fees in January 

2011. The court did not grant his request for attorney fees. 

In March 2017, Kowalke filed another interlocutory report. The 

report indicated additional work needed to be performed before the estate 

could be closed. Frustrated, the district court threatened to remove 

Kowalke as the representative for the coexecutors. It also ordered 

Kowalke to close the estate by July 31, 2017. Kowalke failed to comply 

with this order. 

In August 2017, the Iowa Supreme Court Attorney Disciplinary 

Board filed a complaint against Kowalke stemming from his handling of 

the estate. A few weeks later, the district court removed Kowalke as the 

attorney for the coexecutors and replaced him with attorney Robert 

Story. 

In October 2017, attorney Story filed an application with the 

district court for Kowalke to deliver the $35,407.06 in estate funds that 

should have been in the trust account. The district court ordered 

Kowalke to produce an accounting and restore the funds. Kowalke failed 

to comply with this order. 

At a subsequent show cause hearing, Kowalke testified he had 

provided attorney Story with “the transaction ledger for the Violet 

Brokken Estate showing that there should be $35,407.06 in my trust 

account for their benefit less fees and advances that I have taken.” He 

continued, 

I don’t have the money. I’m sorry. I mean, that’s the bottom 

line. I have been working with the Grievance Commission. I 

have been tapping every resource I can. And as soon as I 
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can, I will restore that money. But at this point I do not 

have the money to restore is the bottom line on this thing. 

The court inquired about the absence of a court order granting his 

May 2016 application for $3692.18 in attorney fees. Kowalke testified 

that he believed “there was an order but maybe, you know—I guess I did 

not research that to see.” The court additionally inquired about the 

$2500 he withdrew in December 2015. Kowalke testified, “No, that was 

not authorized. I did not recall the original fees being taken. That was 

my error.” In February 2018, the court issued a written order finding 

Kowalke in contempt of court. 

The Board subsequently amended its complaint, and the matter

proceeded to a hearing on a joint stipulation. The commission concluded

Kowalke violated the Iowa Rules of Professional Conduct, including rule

32:1.3 (failing to act with “reasonable diligence and promptness in 

representing a client”), rule 32:1.5(a) (collecting a fee in violation of the 

law), rule 32:1.15(a) (failing to hold client “property . . . in . . . lawyer’s 

possession in connection with a representation separate from lawyer’s 

own property”), rule 32:1.15(c) (withdrawing unearned fees from client 

trust account), rule 32:1.15(d) (failing to promptly deliver and provide a 

full accounting of client funds), rule 32:1.15(f) (failing to abide by Iowa 

Court Rules governing client trust accounts), rule 32:3.3(a)(1) (knowingly 

“mak[ing] a false statement of fact . . . to a tribunal”), rule 32:8.4(b) 

(“commit[ting] a criminal act that reflects adversely on the lawyer’s 

honesty, trustworthiness, or fitness as a lawyer in other respects” by 

violating Iowa Code section 602.10119, section 714.1(2), and section

714.2(1)), rule 32:8.4(c) (“engag[ing] in conduct involving dishonesty, 

fraud, deceit, or misrepresentation), and rule 32:8.4(d) (“engag[ing] in 

conduct prejudicial to the administration of justice”). 
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The commission observed Kowalke did not submit any mitigating 

circumstances. Further, the commission noted several aggravating 

circumstances were present, including Kowalke’s experience; prior 

disciplinary record; a pattern of misconduct; and harm to his clients, the 

public, and the legal system. The commission recommended we revoke 

Kowalke’s license. 

II. Standard of Review.

We review attorney disciplinary cases de novo. Iowa Supreme Ct. 

Att’y Disciplinary Bd. v. Cross, 861 N.W.2d 211, 217 (Iowa 2015). The 

Board has the burden of proving a violation of an ethical rule “by a 

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

Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 102 (Iowa 2012). “A 

convincing preponderance of the evidence is more 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) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 814 

N.W.2d 596, 601 (Iowa 2012)). 

Finally, “[a] stipulation of facts by the parties is binding on the 

parties.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 

801, 803 (Iowa 2010). However, we are not “bound by a stipulation of a 

violation or of a sanction.” Id. at 804. Upon our de novo review of the 

record, we “determine whether an attorney’s conduct violates our ethical 

rules, and if it does, we must determine the proper sanction for the 

violation.” Id. We are free to “impose a lesser or greater sanction than 

recommended by the commission.” Van Ginkel, 809 N.W.2d at 102. 

III. Violations. 

On our review of the record, we agree that Kowalke violated the 

rules of professional conduct identified by the commission. He neglected 
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essential responsibilities, withdrew attorney fees without court 

authorization, deposited funds into his firm business account rather 

than trust account, failed to deliver client funds when ordered by the 

court, and knowingly made false statements to the court in a report. 

Most significantly, however, Kowalke converted client funds for his own 

use. Because this finding is dispositive of the outcome of this 

proceeding, it is unnecessary to discuss the other violations in detail. 

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carter, 847 N.W.2d 228, 

231–32 (Iowa 2014). 

Kowalke converted or misappropriated client funds in several ways 

and on multiple occasions. First, Kowalke withdrew advance attorney 

fees for which he had no colorable future claim. In January 2011, he 

withdrew $3692.18 from the trust account in payment for his legal 

services. In December 2015, however, he again withdrew $2500 from the 

account as attorney fees. When he finally sought court approval for the 

attorney fee payment of $3692.18 in May 2016, he asserted the fee 

represented the total work performed for the estate. He never filed a

claim for additional attorney fees. Moreover, when faced with the Board’s

claim of conversion of the $2500, he asserted no defense of a colorable 

future claim to the funds. See Iowa Ct. R. 36.8(1)–(2). 

An attorney commits theft when he or she “[m]isappropriates 

property which the person has in trust . . . by using or disposing of it in 

a manner which is inconsistent with or a denial of the trust or of the 

owner’s rights in such property.” Iowa Code § 714.1(2) (2015). Kowalke 

withdrew $2500 in advance attorney fees without any colorable future 

claim in violation of Iowa Code section 714.1(2). 

Additionally, between January 2016 and December 31, 2017, 

Kowalke converted in excess of $10,000 in estate funds for his own 
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personal use. He then converted additional funds to pay other clients. 

Kowalke provided no additional explanation or context for the 

conversion, and conceded he had no colorable future claim to the funds. 

Kowalke therefore converted client funds in violation of Iowa Code 

sections 714.1(2) and 714.2(1). See Iowa Code § 714.2(1) (“The theft of 

property exceeding ten thousand dollars in value . . . is theft in the first 

degree. Theft in the first degree is a class “C” felony.”). 

Finally, after the district court replaced Kowalke as attorney for the 

coexecutors, it ordered him to return the $35,470.06 in estate funds 

shown in his client ledger. During the show cause hearing, he stated he 

did not have the money and could not restore the balance to the trust 

account. Indeed, at the time of the hearing, Kowalke’s trust account 

showed a balance of $3867.77. Thus, Kowalke misappropriated estate 

funds in violation of Iowa Code sections 714.1(2) and 714.2(1). 

Although the record does not reveal if Kowalke has been charged 

with a crime, “a criminal conviction is not a prerequisite to finding a 

violation under our rules.” Thomas, 844 N.W.2d at 116. Professional 

misconduct occurs when an attorney commits “a criminal act that 

reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as 

a lawyer in other respects.” Iowa R. Prof’l Conduct 32:8.4(b). Similarly,

professional misconduct includes “conduct involving dishonesty, fraud, 

deceit, or misrepresentation.” Id. r. 32:8.4(c). Because we find Kowalke 

converted client funds held in trust for his own personal use, we find 

Kowalke violated rules 32:8.4(b) and (c). 

IV. Sanctions.

As we have repeatedly affirmed, “[t]here is no place in our 

profession for attorneys who convert funds entrusted to them. It is 

almost axiomatic that we revoke licenses of lawyers who do so.” Thomas, 
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844 N.W.2d at 117 (alteration in original) (quoting Comm. on Prof’l Ethics 

& Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994)). In fact, we 

have found revocation appropriate “in nearly every case where an 

attorney converts client funds without a colorable claim.” Iowa Supreme 

Ct. Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500 (Iowa 2017). 

Kowalke withdrew over $10,000 of client funds for his own personal use, 

and ultimately misappropriated over $31,000 of client funds. His

behavior is antithetical to the standards of ethics and professionalism we 

demand from Iowa attorneys, and we agree revocation is the appropriate 

sanction. 

V. Conclusion. 

Attorney Todd Kowalke’s license to practice law in the State of Iowa 

is revoked. All costs in relation to this proceeding are assessed against 

him. Iowa Ct. R. 36.24(1). 

LICENSE REVOKED. 

All justices concur except Wiggins, Hecht, and Christensen, JJ., 

who take no part.