2015] THE OLD MAN AND RULE 8.4(C) 467
In February 2012, David Kelsen, a 75-year-old Iowa attorney, was in
trouble both personally and financially.1 His wife was in poor health and had
recently lost her job.2 His stepson had stolen money from him.3 He owed his
landlord over $3000.4 And after his secretary left for a new job, he was unable
to replace her due to his poor financial situation.5
At the same time, Kelsen began representing a client for a potential
wrongful-discharge claim.6 Throughout the course of his representation,
Kelsen accepted multiple retainer payments from the client, including one
balloon payment of $7500, all before filing a lawsuit on the client’s behalf.7
With each of the payments, Kelsen violated a number of the Iowa Rules of
Professional Conduct’s safekeeping and trust account rules.8 The Iowa
Supreme Court Attorney Disciplinary Board (“Board”) filed a complaint
alleging Kelsen violated the following rules: improperly routing advanced
payments from the client, failing to notify the client when he made
withdrawals, and ultimately, failing to return unearned payments after the
client terminated his representation.9
Kelsen admitted all charges in the complaint.10 Sanctions for violating
safekeeping and trust account rules vary in Iowa from public reprimand to
revocation.11 Because of this variance, Kelsen might have been aware that he
was facing revocation. However, several circumstances suggest that not only
was Kelsen unaware of the severity of the potential sanction he was facing, but
a more lenient sanction was appropriate in his situation.
First, the Board’s approach indicated that it considered the offense to be
a lesser safekeeping violation rather than misappropriation. In Iowa, while
lawyers who misappropriate almost invariably face revocation, many other
safekeeping violations typically result in lesser sanctions, such as a public
1. Iowa Supreme Court Attorney Disciplinary Bd. v. Kelsen, 855 N.W.2d 175, 177, 179
2. Id. at 179.
4. Id. at 178.
5. Id. at 179.
6. Id. at 177.
7. Id. at 177–78.
8. Id. at 178–79.
9. Id. at 179; see also IOWA CT. R. 45.2, 45.7(3)–(4); IOWA R. OF PROF’L CONDUCT r. 32:1.15,
10. Kelsen, 855 N.W.2d at 179.
11. Compare id. at 186 (revoking an attorney’s license), with Iowa Supreme Court Attorney
Disciplinary Bd. v. Piazza, 756 N.W.2d 690, 699–700 (Iowa 2008) (per curiam) (imposing a
public reprimand and noting that “[i]n the past, the sanctions for similar violations have ranged
from a public reprimand to suspension [and] revocation” (citations omitt ed)).