Rule 36.8 - Notices by complainant and respondent(1)Allegation of misappropriation or conversion. If the complainant intends to assert that a respondent misappropriated or converted client or third-party funds in violation of rule 32:1.15 or chapter 45 of the Iowa Court Rules, the complainant must specifically allege in the complaint the respondent's misappropriation or conversion for personal use without a colorable future claim to the funds. The division president may for good cause shown allow amendment of the complaint to specifically allege misappropriation or conversion, provided the respondent is given notice of the amendment and an adequate opportunity to respond before the hearing commences. In granting leave to amend, the division president may impose terms and conditions, including a delay or continuance of the hearing.(2)Colorable future claim. A respondent who intends to rely on the defense of a colorable future claim to funds taken from a trust account to avoid a finding of misappropriation must, within the time set for the making of pretrial motions or at such later time as the division president directs, file written notice of such intention. The division president may for good cause shown allow late filing of the notice. The respondent bears the burden of coming forward with evidence in support of a colorable future claim, but the burden to prove conversion remains with the complainant.(3)Failure to comply. If a respondent fails to abide by the time period described in rule 36.8(2), the respondent may not offer evidence on the issue of colorable future claim without leave of the division president for good cause shown. In granting leave, the division president may impose terms and conditions including a delay or continuance of hearing. Court Order January 26, 2016, effective 4/1/2016; 12/13/2017, effective 1/1/2018.COMMENT: Rule 36.8 is a new rule, intended to require notice of an allegation of misappropriation and use of the colorable future claim defense in trust account conversion cases. In 2014, the supreme court discussed the advisability of specifically alleging misappropriation or conversion for personal use in the complaint so that the respondent has adequate notice. Iowa Sup. Ct. Att'y Disciplinary Bd. v. Kelsen, 855 N.W.2d 175 (Iowa 2014). The supreme court subsequently stated that a complaint alleging theft or misappropriation must "specifically allege misappropriation or conversion of a client retainer for personal use without a colorable future claim." Iowa Sup. Ct. Att'y Disciplinary Bd. v. Cepican, 861 N.W.2d841 (Iowa 2015). In another 2014 attorney discipline case, the supreme court addressed allocation of the burden of proof with respect to the so-called colorable future claim defense to conversion of client funds held in trust. The court decided to allocate the burden of coming forward with evidence of a colorable future claim to the respondent attorney, but left the burden of proving conversion with the attorney disciplinary board. Iowa Sup. Ct. Att'y Disciplinary Bd v. Carter, 847 N.W.2d 228 (Iowa 2014). Rule 36.8 requires that the complainant specifically include in its com plaint any allegation of misappropriation or conversion, and the rule incorporates a notice requirement for a respondent intending to assert the colorable future claim defense, similar to the notice requirements for alibi, insanity, diminished capacity, and other defenses described in Iowa Rule of Criminal Procedure 2.11(11).