Iowa Supreme Court Attorney Disciplinary Board Vs. Martha Johnson ( 2007 )


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  •               IN THE SUPREME COURT OF IOWA
    No. 129 / 06-1062
    Filed February 16, 2007
    IOWA SUPREME COURT ATTORNEY
    DISCIPLINARY BOARD,
    Appellee,
    vs.
    MARTHA JOHNSON,
    Appellant.
    On review of the report of the Grievance Commission.
    The Iowa Supreme Court Grievance Commission recommends a
    suspension of Johnson’s license for a period of six months.   A public
    reprimand is imposed. RESPONDENT REPRIMANDED.
    Robert C. Oberbillig, Des Moines, for appellant.
    Charles L. Harrington and Wendell J. Harms, Des Moines, for
    appellee.
    2
    Hecht, Justice.
    The Grievance Commission has recommended attorney Martha
    Johnson’s license to practice law in Iowa be suspended for six months for
    violations of DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule),
    DR 9-101(B) (a lawyer shall not accept private employment in a matter in
    which she had “substantial responsibility” while serving as a public
    employee), and DR 1-102(A)(5) (a lawyer shall not engage in conduct that is
    prejudicial to the administration of justice). Although we agree with the
    Commission’s finding that Johnson violated these provisions of the Iowa
    Code of Professional Responsibility for Lawyers, we conclude the
    appropriate sanction in this case is a public reprimand.
    I. Factual and Procedural Background.
    Johnson was first licensed to practice law in 1994. She engaged in
    private practice in Des Moines until January of 1999, when she was hired
    as an assistant county attorney in the juvenile division of the Polk County
    Attorney’s office. In August of 2001, she was assigned to work as the
    attorney in the intake unit within that office. In that capacity, she reviewed
    and signed petitions in emergency removal and child-in-need-of-assistance
    cases, appeared as counsel for the State in contested removal hearings, and
    advised the Department of Human Services in such cases. In the summer
    of 2002, she applied and was interviewed for the position of executive
    director of the Youth Law Center (YLC), a non-profit organization that
    employs attorneys who are available for appointment as guardians ad litem
    in Polk County juvenile cases.
    Before offering the job to Johnson, the YLC’s board of directors,
    including three seasoned attorneys, assessed the potential for a conflict of
    interest arising from the interface between Johnson’s past work as an
    3
    assistant county attorney and the duties of the YLC’s executive director.
    The directors contemplated, but did not make, a request of the Iowa State
    Bar Association’s Committee on Professional Ethics and Standards for an
    ethics opinion on the question of whether Johnson’s past employment
    would disqualify her from representing the YLC’s clients.                      The board
    concluded Johnson would be able to avoid conflicts of interest for herself
    and the YLC if she and other YLC lawyers prospectively avoided involvement
    in cases in which she had been substantially involved previously as an
    assistant county attorney and offered the position to her. 1
    Johnson made inquiries in an effort to determine whether acceptance
    of employment with the YLC would create substantial conflict of interest
    problems. She first consulted Ray Blase, her supervisor in the juvenile
    division of the county attorney’s office. Blase suggested Johnson should
    request a waiver of any conflicts of interest from the Department of Human
    Services, the agency Johnson frequently advised during her service as
    assistant county attorney. Johnson also requested a meeting with the four
    judges who presided in Polk County juvenile court cases to discuss how
    potential conflicts of interest might be dealt with if she should be hired as
    the YLC’s director. 2 Although such a joint meeting with judges was never
    held, Johnson did discuss with at least two other juvenile court judges her
    1We   have approved the deployment of so-called “Chinese Walls” as a means of
    overcoming imputed disqualification of associates of attorneys affected by a conflict of
    interest in certain circumstances. See Doe v. Perry Cmty. Sch. Dist., 
    650 N.W.2d 594
    , 601
    (Iowa 2002).
    2In a conversation with a district associate judge, Johnson requested a meeting with
    juvenile court judges to discuss how potential conflicts of interest might be managed if she
    were to accept employment with the Center. The judge declined to participate in such a
    meeting on the ground that the court might be required to rule on conflict of interest issues
    that could arise if Johnson accepted employment with the Center. The judge also
    recommended that Johnson seek an opinion from the Bar Association’s Committee on
    Professional Ethics and Standards.
    4
    intention to apply for the position. Those judges were very supportive of the
    idea and encouraged Johnson to pursue it. Johnson also spoke to an
    attorney employed by the Board of Professional Ethics and Conduct, who
    noted conflict of interest issues are evaluated on a case-by-case basis and
    observed generally that a conflict of interest could arise if Johnson were to
    perform legal services as an employee of the YLC in cases in which she had
    substantial responsibility as an assistant county attorney.
    Johnson accepted the YLC’s offer of employment. Before she began
    work for the YLC in January of 2003, Johnson reviewed certain ethics
    opinions issued by the Bar Association’s Committee on Professional Ethics
    and Standards and read opinions of this court addressing conflicts of
    interest. She also took other measures intended to shield her from cases
    that might present a conflict of interest. Johnson prepared and delivered to
    the YLC a list of cases in which she believed she had assumed substantial
    responsibility as an assistant county attorney. She also prepared a form for
    use by other YLC attorneys to prompt their vigilance for and identification of
    any cases handled by Johnson in her former employment. Consistent with
    Mr. Blase’s suggestion, Johnson requested and received a letter in which
    DHS purportedly waived any conflict of interest arising as a consequence of
    her former employment and her new position with the YLC. 3
    Johnson quickly immersed herself in the management of the YLC and
    its substantial caseload. Unfortunately, her pre-employment attentiveness
    to the potential for conflicts of interest waned. Johnson and the YLC failed
    3We  subsequently decided that a conflict of interest of the type alleged against
    Johnson in this case “may not be waived.” See Sorci v. Iowa Dist. Ct., 
    671 N.W.2d 482
    , 494
    (Iowa 2003). We nonetheless make reference to the letter because it provides background
    information evidencing Johnson’s pre-employment concerns about potential conflicts of
    interest and her intention to address them before they arose. We acknowledge that under
    the Iowa Rules of Professional Conduct, which became effective July 1, 2005, consent to a
    conflict may be obtained.
    5
    to implement an effective Chinese Wall to shield her from juvenile cases
    with which she had been substantially involved as an assistant county
    attorney. She appeared at hearings in March and May of 2003 as guardian
    ad litem in two separate juvenile cases in which she previously had
    substantial involvement as an assistant county attorney. 4
    Although the State did not object to Johnson’s involvement as
    guardian ad litem in those two cases, counsel for parents eventually did
    claim Johnson and her lawyer-colleagues at the YLC should be disqualified
    from involvement in cases in which Johnson had been substantially
    involved as an assistant county attorney. After hearings on the issue were
    held in Polk County District Court, Johnson and the YLC’s other lawyers
    were disqualified in numerous cases. 5                   The district court found
    disqualification was required in those cases because case-by-case litigation
    of the conflict of interest issue would “threaten[] the timely disposition and
    finality of hundreds of [juvenile] cases in Polk County.”                       Johnson
    subsequently resigned her employment with the YLC.
    The district court reported Johnson’s disqualification based on
    conflict of interest to the Board of Professional Ethics and Conduct. An
    investigation was undertaken, and the Board notified Johnson on
    March 18, 2004 that she would be
    publicly reprimanded for undertaking employment with the
    Youth Law Center, a private non-profit organization
    representing juveniles in Child in Need of Assistance matters,
    notwithstanding [her] “substantial responsibility” for such
    matters on behalf of the State while a member of the [Polk]
    4In each case, Johnson had signed a petition as an assistant county attorney
    alleging one or more children were in need of assistance.
    5An   account of the history of the controversy and litigation surrounding Johnson’s
    conflict of interest and the several orders disqualifying Johnson and the YLC’s other
    employee-lawyers in certain juvenile cases may be found in our decision in 
    Sorci, 671 N.W.2d at 485-88
    , and will not be repeated here.
    6
    County Attorney’s Office, contrary to DR 9-101(B) of the Iowa
    Code of Professional Responsibility for Lawyers.
    On April 15, 2004, Johnson took written exception to the public reprimand
    and asserted she had accepted the position with the YLC in good faith after
    undertaking the measures recounted above. After reviewing Johnson’s
    exception to the public reprimand, the Board notified her by letter dated
    June 10, 2004 of its intent to file a complaint with the Grievance
    Commission. The Commission held a hearing and found Johnson violated
    DR 9-101(B) (accepting private employment in a matter in which she had
    substantial responsibility as an attorney for a governmental entity), DR 1-
    102(A)(5) (engaging in conduct prejudicial to the administration of justice),
    and DR 1-102(A)(1) (violating a disciplinary rule), and recommended
    suspension of Johnson’s license to practice law for a period of six months.
    II. Scope and Standards of Review.
    Our review of attorney disciplinary proceedings is de novo. Iowa
    Supreme Ct. Att’y Disciplinary Bd. v. Walker, 
    712 N.W.2d 683
    , 684 (Iowa
    2006) (citation omitted).     We give respectful consideration to the
    Commission’s factual findings and discipline recommendations, but we are
    not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v.
    Winkel, 
    599 N.W.2d 456
    , 460 (Iowa 1999) (citation omitted). The Board
    must prove attorney misconduct by a convincing preponderance of the
    evidence. 
    Walker, 712 N.W.2d at 684
    (citation omitted). This burden is less
    than proof beyond a reasonable doubt, but more than the preponderance
    standard generally applied in civil cases. Iowa Supreme Ct. Bd. of Prof'l
    Ethics & Conduct v. Lett, 
    674 N.W.2d 139
    , 142 (Iowa 2004) (citation
    omitted). If misconduct is proved, we “may impose a lesser or greater
    sanction than the discipline recommended by the grievance commission.”
    
    Id. (citations omitted).
                                               7
    III. Discussion.
    The professional conduct at issue in this case occurred in 2003. We
    must therefore determine whether Johnson violated provisions of the Iowa
    Code of Professional Responsibility for Lawyers which were then extant. 6
    In Sorci, we concluded a lawyer assumes substantial responsibility as
    an attorney when in the course of representing a client, she gives legal
    advice, signs a pleading, or appears at a hearing. Sorci v. Iowa Dist. Ct., 
    671 N.W.2d 482
    , 486 (Iowa 2003). We find, by a convincing preponderance of
    the evidence, that Johnson signed CINA petitions as an assistant county
    attorney in two juvenile cases, and she later appeared as guardian ad litem
    for the children whose interests were at stake in those cases. We conclude
    Johnson’s conduct did violate DR 9-101(B) and DR 1-102(A)(1). Because
    her conduct provoked significant disruption of the administration of
    numerous juvenile cases in Polk County, see 
    Sorci, 671 N.W.2d at 487-89
    ,
    we also find Johnson engaged in conduct prejudicial to the administration
    of justice in violation of DR 1-102(A)(5).
    Johnson does not seriously take issue with the proposition that she
    had substantial responsibility as an assistant county attorney in CINA
    cases in which she signed pleadings. She urges us to conclude nonetheless
    that she did not violate DR 9-101(B) because (1) her acceptance of
    employment with the YLC was not unethical; (2) as an assistant county
    attorney and as a guardian ad litem, her consistent objective was to
    promote the best interests of the children who were the subjects of juvenile
    cases, (3) consistent with court rules and customary practice, all
    information gained in juvenile cases as an attorney for the State was
    routinely shared with all parties and therefore not confidential, (4) DHS
    6The   Iowa Rules of Professional Conduct became effective July 1, 2005.
    8
    waived in writing any conflict of interest, and (5) she acted in good faith by
    exploring the potential for conflicts of interest before accepting employment
    with the Center and by taking reasonable measures during that
    employment to avoid conflicts of interest. We conclude, however, that these
    facts do not preclude our determination that a violation of our ethical rules
    occurred.
    1. Accepting employment with YLC.          We agree with Johnson’s
    assertion that her acceptance of her employment with YLC did not
    constitute a violation of our Rules of Professional Responsibility. But her
    employment as the executive director of the YLC is not the ground of the
    alleged ethical violation in this case.      It is Johnson’s failure to avoid
    involvement as a guardian ad litem in cases in which she had substantial
    responsibility as an assistant county attorney which forms the basis for the
    sanction urged by the Board and recommended by the Commission in this
    case.
    2. Best interests of clients. It is undisputed that the best interests of
    children must be a primary concern to both attorneys representing the
    State and those who serve as guardians ad litem. In this broad sense, the
    objectives of counsel for the State and guardians ad litem are consistent in
    juvenile court proceedings. But we are not persuaded that the apparent
    consistency of the parties’ objectives precludes a sanction for violation of
    DR 9-101(B) and DR 1-102(A)(1) here, for in a narrower sense the State’s
    conception of a child’s best interests may diverge from that of the child who
    may reasonably urge his guardian ad litem to advance an outcome not
    preferred by the State. The potential for divergent understandings of the
    best interests of the parties in juvenile cases persuades us to reject
    Johnson’s contention that, as a matter of law, the commonality of the
    9
    former and latter clients’ interests precludes the finding of an ethical
    violation under the circumstances of this case.      Indeed, DR 9-101(B)
    categorically prohibits the acceptance of private employment in matters in
    which Johnson previously had substantial responsibility as an attorney for
    a governmental entity. The rule makes no exceptions for juvenile cases or
    other proceedings in which a lawyer’s former and current clients may have
    some broadly stated common objectives or interests. We are not inclined to
    dilute the important purposes of the categorical prohibition by recognizing
    the “clients’ best interests exception” advanced by Johnson.
    3. Confidences of clients. Johnson urges us to conclude she did not
    violate ethical rules in this case because any information to which she
    became privy as an assistant county attorney in juvenile cases was
    routinely shared with other attorneys and their clients. She notes that the
    new Iowa Rules of Professional Conduct restrict a lawyer who has
    information that she knows is “confidential government information about a
    person” from representing “a private client whose interests are adverse to
    that person in a matter in which the information could be used to the
    material disadvantage of that person.” Iowa R. of Prof’l Conduct 32:1.11(c)
    (2005). Although we have no occasion in this case to interpret or apply this
    new rule, which was adopted after Johnson provided legal services as a
    guardian ad litem in the two juvenile cases referred to above, we note that
    the rule’s plain language does not confine the prohibition against
    representation to matters in which a former government lawyer gained
    confidential information about a person. See Iowa R. of Prof’l Conduct
    32:1.11(a)(2). Similarly, the plain language of DR 9-101(B) that we apply in
    this case makes no exception allowing a former public employee-lawyer to
    accept private employment in a case in which she had substantial
    10
    responsibility as a government lawyer so long as she gained no confidential
    information in the former representation.
    4. Consent of the former client. Johnson contends we should find no
    violation of DR 9-101(B) and DR 1-102(A)(1) because she obtained DHS’s
    consent in writing to her representation of juveniles in the cases that form
    the basis for the ethical complaint against her. She urges us to consider
    that new rule 32:1.11 expressly authorizes a lawyer who was formerly
    employed by the government to represent a client in a matter
    notwithstanding the lawyer’s prior substantial participation on behalf of the
    government in connection with the same matter if the appropriate
    government agency gives its informed written consent to the representation.
    See Iowa R. of Prof’l Conduct 32:1.11(a)(2). As we have already noted, the
    new rule is not controlling in this case. Furthermore, we have previously
    decided consistent with a formal opinion of the Iowa Supreme Court Board
    of Professional Ethics and Conduct that under the rules prevailing at the
    time of Johnson’s conduct, the conflict of interest was not subject to waiver.
    
    Sorci, 671 N.W.2d at 494
    (citing Iowa Supreme Ct. Bd. of Prof’l Ethics &
    Conduct, Formal Op. 98-09 (1998)).
    5. Johnson’s good faith.    Johnson posits that we should find no
    ethical infraction in this case because she believed in good faith that her
    conduct did not violate the rules in question. To her credit, she considered
    the potential conflicts of interest that could arise if she accepted
    employment with the YLC. However, Johnson cites no authority for the
    proposition that a violation of DR 9-101(B) and DR 1-102(A)(1) cannot be
    found in the absence of a lawyer-actor’s bad faith, and we find no merit in
    it. We do, however, consider Johnson’s good faith as a circumstance in our
    determination of the appropriate sanction in this case.
    11
    IV. Sanction Imposed.
    Having found that Johnson’s conduct violated certain ethical rules,
    we next consider the appropriate sanction. “Any violation of the Code of
    Professional Responsibility necessarily reflects adversely on the fitness of an
    attorney to practice law.” Comm. on Prof‘l Ethics & Conduct v. Durham, 
    279 N.W.2d 280
    , 285 (Iowa 1979). In determining the sanction, “we consider
    the respondent’s fitness to continue in the practice of law, deterrence of
    others from similar conduct, and the assurance to the public that the
    courts will maintain the ethics of the profession.” Iowa Supreme Ct. Att’y
    Disciplinary Bd. v. Zenor, 
    707 N.W.2d 176
    , 185 (Iowa 2005) (citation omitted)
    (internal quotation marks omitted). We also consider any aggravating and
    mitigating circumstances. 
    Id. We find
    that Johnson is fit to continue in the practice of law. The
    record discloses that she is well-regarded by judicial officers and fellow
    members of the bar as a competent lawyer who was willing and able to
    competently undertake difficult juvenile cases. We do not believe under the
    circumstances of this case that a license suspension is necessary to deter
    similar future conduct. Indeed, we conclude a public reprimand will amply
    assure the public that the courts will maintain the ethical standard for
    lawyers who leave government service and undertake private representation
    of parties in matters for which the lawyers had substantial responsibility in
    their former government service.        Our decision to impose a public
    reprimand rather than the suspension recommended by the Commission is
    also strongly influenced by the fact that Johnson has no prior disciplinary
    record, and by the fact that she considered and took some steps to avoid
    12
    potential conflicts before she began her employment with the YLC. Costs
    shall be taxed to Johnson.
    RESPONDENT REPRIMANDED.
    All justices concur except Appel, J., who takes no part.