Iowa Supreme Court Attorney Disciplinary Board v. James A. Weaver , 812 N.W.2d 4 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 11–1626
Filed March 16, 2012
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
JAMES A. WEAVER,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
The Grievance Commission of the Supreme Court of Iowa found
respondent committed an ethical violation and recommended the
respondent be suspended from practicing law concurrent with his
disability suspension. LICENSE SUSPENDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
complainant.
James A. Weaver, Muscatine, pro se.
2
ZAGER, Justice.
The complainant, the Iowa Supreme Court Attorney Disciplinary
Board, alleges the respondent, James A. Weaver, violated Iowa Rule of
Professional Conduct 32:8.4(b). The alleged violation was based on
Weaver’s 2009 guilty pleas to charges of violating Iowa Code section
321J.2 (2009), operating while intoxicated (OWI), third offense, and
section 708.7(4), harassment in the third degree. The grievance
commission found Weaver’s conduct violated rule 32:8.4(b) and
recommended we suspend Weaver’s license to run concurrently with his
disability suspension. The commission also recommended Weaver be
required to include medical documentation of his fitness to practice law
and of his maintained sobriety prior to reinstatement. Upon our de novo
review, considering the present violation and Weaver’s overall conduct as
a judicial officer and practicing attorney, we suspend Weaver’s license to
practice law for a period of two years.
I. Factual Background.
Weaver was admitted to the Iowa bar in 1979 and served as an
associate district court judge from 1982 until 2004. In 2002, Weaver
was convicted of his first OWI. Following his 2002 conviction, this court
found Weaver violated multiple cannons of the Iowa Code of Judicial
Conduct and issued a public reprimand on December 10, 2004. Prior to
that time, however, Weaver had been arrested for a second OWI in
November 2004. Weaver retired from his judicial position on December
17, 2004, and resumed his career as a practicing attorney.
Weaver pled guilty to OWI second offense on April 18, 2005. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 76
(Iowa 2008). At sentencing, the district court rejected the State’s
sentencing recommendation. Weaver was sentenced to an indeterminate
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term in prison not to exceed two years, ordered into placement in an
alcohol treatment correctional facility, and fined $1500. Id. Weaver
appealed his sentence. Id. at 77. Weaver also accused the sentencing
judge of “not being honest about the reasons why he committed [Weaver]
to the Department of Corrections.” Id. at 78. The court of appeals
affirmed his sentence, and this court denied further review. Id.
Based upon his conviction of OWI, second offense, and his
intemperate statements about the sentencing judge, the Board filed
ethical charges against Weaver. Id. at 74. This court found Weaver
committed a number of ethical violations relating to the statements he
made about the sentencing judge. See id. at 80–91. We also specifically
found that, even though a second OWI conviction was not a felony,
Weaver’s criminal act reflected adversely on his fitness to practice law, in
violation of our ethical rules. See id. at 79–80. Accordingly, on March
28, 2008, we suspended Weaver’s license to practice law for three
months. Id. at 92. Weaver failed to notify all of his clients of the
suspension in violation of Iowa Court Rule 35.22. We therefore extended
his suspension for sixty days, with no possibility of reinstatement until
August 28, 2008. Weaver’s license was reinstated on December 3, 2008.
On March 21, 2009, Weaver was pulled over for speeding and
failing to stop at a stop sign. A subsequent breathalyzer test revealed his
blood alcohol content (BAC) was .166. Following this latest incident, we
granted an application for disability suspension on May 4. In June of
2009, Weaver pled guilty to OWI, third offense, a class D felony. On
August 6, Weaver was sentenced to five years in prison and fined $3125.
The sentencing judge reported the conviction to the Board on August 10.
On November 23, 2009, three days after being released from the
Davenport Work Release Facility (DWRF), Weaver was arrested for third-
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degree harassment and for violating his parole. These charges stemmed
from Weaver calling his estranged wife twenty-six times in a period of a
few hours. Weaver’s parole officer, Nancy Boyle, testified before the
commission. Boyle testified she received phone calls regarding the
harassment from Weaver’s wife and the Moline, Illinois Police
Department. Weaver’s wife told Boyle she believed Weaver had been
drinking. The Moline police called Boyle and informed her that as a
result of numerous phone calls to Weaver’s wife, who worked in some
capacity for the Moline school system, school officials contacted them,
and the school district had “locked down” an elementary school. 1 Based
on these phone calls, and her concern that Weaver may be drinking,
Boyle had officers from the intensive supervision unit perform a safety
check on Weaver to “find out what was going on.” After making contact
with Weaver, a breathalyzer reading showed a BAC of .265 at 10:00 a.m.
that morning. Weaver refused voluntary substance abuse treatment and
was arrested for a parole violation. Weaver pled guilty to the harassment
charge on January 21, 2010. As a result, his parole was revoked, and he
was again placed at the DWRF.
Weaver was released from the work release facility on June 9. On
June 16, seven days after his release from the work release facility, Boyle
was contacted by Weaver’s now ex-wife. Weaver had gone to her house
the previous Friday as scheduled to retrieve some personal property.
Weaver became belligerent and upset, and she noted he had been
drinking. As a result of this confrontation, she called the Scott County
1At the hearing, Weaver objected to this testimony. Weaver wanted to call the
superintendent of schools to further explore the reason the school was shut down. The
commission agreed to accept Boyle’s testimony “merely as part of her reasons for . . .
her investigation.” We will also consider the school district’s response to Weaver’s
harassment when considering what ethical violations he committed and any
appropriate sanctions.
5
Sheriff’s Department. She also advised Boyle that she had been
contacted by Weaver’s daughter. Weaver’s daughter had called because
she had been trying to reach Weaver for six days without success. She
was concerned not only for her father, who gets depressed and suicidal
when he drinks, but also for the safety of his ex-wife because he gets
very angry when he drinks. As a result of these concerns, Boyle, along
with Davenport police officers, performed a safety check on Weaver.
After some difficulty making entry into the house, they discovered
Weaver intoxicated, despondent, and making comments about suicide.
Weaver was again arrested for violation of his parole. Weaver agreed to
inpatient substance abuse treatment at that time. As a result of this
incident, however, Weaver’s parole was revoked, and he was sent to
prison. The court will set forth additional facts in this opinion when it
discusses an appropriate sanction.
The Board filed a two-count complaint on December 30, 2010, but
later withdrew Count II in an amended complaint. The amended
complaint alleged that Weaver had pled guilty to OWI, third offense, and
third-degree harassment. The amended complaint also noted that
Weaver’s parole had been revoked for consuming alcohol and that he was
sentenced to prison. The Board alleged Weaver’s conduct violated rule
32:8.4(b), which provides it is professional misconduct for a lawyer to
“commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects.” The
commission held a hearing on the matter on September 12, 2011, and
found Weaver’s conviction for OWI, third offense, was a “sua sponte
violation of [d]isciplinary [r]ule 32:8.4(b).” It recommended that we
suspend Weaver’s license concurrently with his disability suspension
6
and that we require Weaver to present medical documentation of his
sobriety and fitness to practice law prior to reinstatement.
II. Scope and Standard of Review.
Attorney disciplinary proceedings are reviewed de novo. Iowa Ct.
R. 35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784
N.W.2d 761, 764 (Iowa 2010). The Board bears the burden of proving
misconduct by a convincing preponderance of the evidence, which is a
lesser burden than proof beyond a reasonable doubt but a greater
burden than is imposed in the usual civil case. Templeton, 784 N.W.2d
at 764. If we determine the Board has met its burden and proven
misconduct, “we may impose a greater or lesser sanction than the
sanction recommended by the commission.” Id.; see also Iowa Ct. R.
35.10(1).
III. Findings of Fact.
The Board alleged that Weaver pled guilty to OWI, third offense
and harassment in the third degree and that Weaver drank alcohol in
violation of his parole. Under Iowa Court Rule 35.7(3), Weaver was
precluded from disputing that he had been convicted of the OWI charge. 2
2Regarding the OWI conviction, the Board provided notice to Weaver that it
intended to invoke issue preclusion under Iowa Court Rule 35.7(3). Issue preclusion is
therefore appropriate for the OWI charge. See Iowa Ct. R. 35.7(3) (providing for use of
issue preclusion in disciplinary case where certain requirements, including notice, are
met). However, issue preclusion is inappropriate for the other two allegations. The
Board did not give notice that it intended to invoke issue preclusion relating to the
harassment charge as is required by rule 35.7(3)(c). Regarding the parole violations,
rule 35.7(3)(b) requires “[t]he burden of proof in the prior proceeding [be] greater than a
mere preponderance of the evidence” to invoke issue preclusion. Weaver’s parole
violation revocation notes that the burden of proof in front of the administrative law
judge was only a preponderance of the evidence. Also, the Board did not give notice
that it intended to invoke issue preclusion on the issue of the parole violations. See id.
r. 35.7(3)(c). Since rule 35.7(3) does not apply to the harassment conviction or parole
revocation, we must review the factual allegations to determine whether the Board has
met its burden and proven the factual allegations contained in the complaint by a
convincing preponderance of the evidence.
7
However, the Board did not provide notice of issue preclusion regarding
the harassment conviction, and therefore, we must determine whether
the Board has met its burden and proven Weaver committed the criminal
act of harassment before we can find a violation of rule 32:8.4(b).
Weaver pled guilty to harassment in the third degree on January
21, 2010. According to the harassment complaint offered by the Board
at the hearing, Weaver called his estranged wife twenty-six times in a six-
hour period. Weaver admitted making annoying calls to his wife but
denied that he used threatening language. Under the Iowa Code, “[a]
person commits harassment when, with intent to . . . annoy . . . another
person, the person . . . [c]ommunicates with another by telephone . . .
without legitimate purpose and in a manner likely to cause the other
person annoyance or harm.” Iowa Code § 708.7(1)(a)(1). Weaver pled
guilty to harassment and admitted to the commission that he made
annoying comments to his wife. 3 We find that the Board has proven by a
convincing preponderance of the evidence that Weaver committed the
criminal act of harassment.
The Board alleged Weaver’s parole was revoked for consuming
alcohol in violation of a condition of his parole. In support of this
allegation, the Board offered the testimony of Nancy Boyle, Weaver’s
parole officer, who testified that on June 16, 2010, she received a call
from Weaver’s ex-wife, who stated that Weaver had been drinking and
had gone to her home and behaved belligerently. Boyle stated she went
to Weaver’s residence accompanied by Davenport police officers. When
Weaver did not answer the door, the police entered his residence.
According to Boyle, she saw Weaver stumble into the hallway. Weaver
3In his posthearing brief, Weaver admitted having telephone conversations with
his ex-wife “that she could have found annoying.” He again denied threatening her.
8
was brought out to the back porch, and he and Boyle talked. According
to Boyle, Weaver “reek[ed] of alcohol.” A breathalyzer test revealed
Weaver’s BAC was .11. Based on this information, Boyle sought and
received an arrest warrant. Weaver’s parole was subsequently revoked,
and he was sent to prison. Boyle’s testimony and the court documents
offered by the Board prove by a convincing preponderance of the
evidence that Weaver violated his parole.
IV. Ethical Violations.
In its amended complaint, the Board alleged Weaver’s conduct
violated rule 32:8.4(b), which states that “[i]t is professional misconduct
for a lawyer to . . . commit a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects.” However, the Board did not specify which of Weaver’s acts
allegedly violated rule 32:8.4(b). We will therefore examine each of
Weaver’s actions to determine whether they constitute a violation of rule
32:8.4(b).
Weaver has committed two criminal acts: He pled guilty to OWI,
third offense, and third-degree harassment. 4 Third-degree harassment is
a simple misdemeanor, and Weaver’s third OWI is a class D felony. See
Iowa Code §§ 321J.2(2)(c), 708.7(4). The commission found Weaver’s
felony “conviction [was] sua sponte [a] violation of [d]isciplinary [r]ule
32:8.4(b) based upon the prior decisions of the [Iowa] Supreme Court”
and cited past cases to support this proposition. See, e.g., Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Johnson, 774 N.W.2d 496, 499 (Iowa 2009)
4Weaver’s parole violations do not constitute violations of rule 32:8.4(b).
Weaver’s parole was revoked for consuming alcohol. While this was a violation of the
terms of his parole, consuming alcohol was not, in and of itself, a criminal act. Since
rule 32:8.4(b) only addresses criminal acts committed by attorneys, Weaver’s parole
violations do not fall within this rule.
9
(noting that a third OWI conviction violated DR 1–102(A)(6), the
precursor to rule 32:8.4(b)), overruled on other grounds by Templeton,
784 N.W.2d at 768–69; see also Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Marcucci, 543 N.W.2d 879, 882 (Iowa 1996).
While our past cases may have suggested a conviction of OWI,
third offense, was a per se violation of rule 32:8.4(b), we rejected this
interpretation of rule 32:8.4(b) in Templeton. 784 N.W.2d at 767. In that
case, we noted that the comment to rule 32:8.4 states, “ ‘Illegal conduct
can reflect adversely on fitness to practice law. A pattern of repeated
offenses, even ones of minor significance when considered separately,
can indicate indifference to legal obligation.’ ” Id. (quoting Iowa R. Prof’l
Conduct 32:8.4(b) cmt. 2). We then held that, in order for a criminal act
to constitute a violation of rule 32:8.4(b),
“[t]here must be some rational connection other than the
criminality of the act between the conduct and the actor’s
fitness to practice law. Pertinent considerations include the
lawyer’s mental state; the extent to which the act
demonstrates disrespect for the law or law enforcement; the
presence or absence of a victim; the extent of actual or
potential injury to a victim; and the presence or absence of a
pattern of criminal conduct.”
Id. (citation omitted). Therefore, we will avoid using a “mechanical
process” to determine “[w]hether an attorney’s criminal behavior reflects
adversely on his fitness to practice law.” Weaver, 750 N.W.2d at 79; see
also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Keele, 795 N.W.2d 507,
514–15 (Iowa 2011) (finding there was no violation of rule 32:8.4(b) when
“the board has not demonstrated how this conviction relates to Keele’s
fitness to practice law”). 5 We will use the factors enumerated in
5Even though there must a “rational connection” between the conduct and the
actor’s fitness to practice law, we still have the authority to sanction an attorney for
conduct “unrelated to [the] representation of clients or any other facet of the practice of
law.” Templeton, 784 N.W.2d at 767.
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Templeton to inform our analysis of whether an attorney’s conduct
actually reflects on his or her honesty, trustworthiness, or fitness as a
lawyer in other respects. Templeton, 784 N.W.2d at 767; see also Keele,
795 N.W.2d at 514 (noting in cases in which illegal conduct was found to
adversely reflect on a lawyer’s fitness to practice law, a “sufficient nexus”
existed between the conduct and the attorney’s ability to function as a
lawyer).
Weaver was stopped by the Iowa State Patrol for speeding and
failing to stop at a stop sign. He then failed three field sobriety tests.
According to a breathalyzer test, he had a BAC of .166, which is more
than twice the legal limit of .08. Weaver’s conduct did not create any
actual victims, but by speeding and running stop signs while intoxicated,
he created a grave risk of potential injury to anyone on the same road.
This factor, therefore, favors a finding that Weaver’s criminal act violated
rule 32:8.4(b).
Weaver’s alcoholism undoubtedly contributed to his commission of
the criminal act of OWI, third offense. However, alcoholism is not a
“legal justification, excuse, or defense” for Weaver’s actions. Cf. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 41 (Iowa
2011) (noting depression not a legal justification, excuse, or defense for
attorney’s actions). We also note Weaver’s OWI was part of a pattern of
criminal conduct. This is Weaver’s third OWI conviction. His second
conviction arose out of similar circumstances. In that case, Weaver was
stopped after a citizen called in a reckless-driving report. Weaver, 750
N.W.2d at 76. During that incident, Weaver had a BAC of .185. Id.
Weaver’s three convictions for the same offense certainly indicate a
pattern of criminal conduct and demonstrate a disregard for laws
prohibiting the operation of motor vehicles while intoxicated. Cf. Keele,
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795 N.W.2d at 514 (finding, under the circumstances, that an isolated
incident did not demonstrate a pattern of disrespect for the law).
After reviewing the factors discussed in Templeton, we conclude
there is a sufficient nexus between Weaver’s criminal act of OWI, third
offense, and his fitness to practice law. Weaver’s criminal act is part of a
pattern of criminal conduct. This repeated disregard for the law forms a
rational connection between Weaver’s criminal act and his fitness to
practice law. See Templeton, 784 N.W.2d at 767; see also Marcucci, 543
N.W.2d at 882 (noting a third OWI conviction is a felony and as such
“constitutes an extremely serious breach of the rule of society”).
Accordingly, we find Weaver has violated rule 32:8.4(b).
The commission found Weaver’s OWI conviction was a violation of
rule 32:8.4(b), but did not make any conclusions regarding Weaver’s
harassment conviction, even though the conviction was contained in the
factual allegations submitted by the Board. Weaver argued in his
posthearing brief that “the Board has failed to prove that either the
harassment charge or the parole violations reflect adversely [on his
fitness] to practice law.” To find Weaver’s criminal act of harassment
also violated rule 32:8.4(b), we must find a sufficient nexus between the
criminal act and Weaver’s fitness to practice law. Keele, 795 N.W.2d at
515. We now apply the Templeton factors to Weaver’s act of harassment.
Weaver made repeated calls to his wife. While he denied
threatening her, he admitted the calls were annoying, which as noted
above, conforms to the statutory definition of harassment. See Iowa
Code § 708.7(1)(a)(1). Weaver chose to make twenty-six annoying calls to
his wife. Whatever his mental state or problems with alcoholism may
have been, they do not excuse the harassing behavior Weaver engaged in.
See Schmidt, 796 N.W.2d at 41. Even though Weaver claims he did not
12
threaten his wife, such conduct is not necessary. See, e.g., Comm. on
Prof’l Ethics & Conduct v. Floy, 334 N.W.2d 739, 740 (Iowa 1983) (finding
that obscene phone calls constituted a violation of DR 1–102(A)(6)). The
Board has not alleged a pattern of harassment, a fact which weakens the
connection between Weaver’s actions and his fitness to practice law.
As we previously noted, not all criminal acts reflect on an
attorney’s fitness to practice law. However, we feel the type of
harassment engaged in by Weaver in this case does. Harassment is a
serious offense, and under the facts and circumstances of this case,
there is a clear connection between his actions and his fitness to practice
law. We have previously found that the criminal act of invasion of
privacy reflects adversely on an attorney’s fitness to practice law, noting
an intentional and knowing invasion of privacy “raises serious misgivings
about whether [the attorney] understands the concept of privacy and
respects the law protecting individuals’ privacy rights.” Templeton, 784
N.W.2d. at 766–68. Here, Weaver’s pattern of communication with his
wife raises similar concerns. Weaver made the conscious decision to
make numerous contacts with her. Moreover, these contacts raised
sufficient concern for the safety of school children that the Moline police
were called, and the police reported to Weaver’s parole officer that a
school was locked down as a result of Weaver’s calls. Clearly, under the
facts of this case, there were multiple victims of Weaver’s crime of
harassment. See id. at 767.
Attorneys are required to communicate with their clients, other
attorneys, judicial officers and court personnel, and law enforcement on
a regular basis. Weaver’s conduct demonstrates a clear disrespect for
the laws regarding acceptable forms of communication with others. It is
irrelevant that Weaver was not acting as an attorney when he committed
13
the acts that led to his conviction. Johnson, 774 N.W.2d at 499
(“Lawyers do not shed their professional responsibility in their personal
lives.” (citation and internal quotation marks omitted)). Weaver has
shown his inability to communicate with others within the bounds of the
law, in this case with serious consequences. We therefore conclude that
by a convincing preponderance of the evidence, this criminal act of
harassment reflects adversely on Weaver’s fitness to practice law.
Accordingly, we find Weaver’s criminal act of harassment also constitutes
a violation of rule 32:8.4(b).
V. Sanctions.
Regarding sanctions, we have stated:
There is no standard sanction for a particular type of
misconduct, and though prior cases can be instructive, we
ultimately determine an appropriate sanction based on the
particular circumstances of each case. In determining the
appropriate discipline, we consider “the nature of the alleged
violations, the need for deterrence, protection of the public,
maintenance of the reputation of the bar as a whole, and the
respondent’s fitness to continue in the practice of law,” as
well as any aggravating and mitigating circumstances. The
form and extent of the sanction “ ‘must be tailored to the
specific facts and circumstances of each individual case.’ ”
Significant distinguishing factors in the imposition of
punishment center “ ‘on the existence of multiple instances
of neglect, past disciplinary problems, and other companion
violations.’ ”
Id. at 499–500 (internal citations omitted). Depression and alcoholism
can be mitigating factors if they contributed to an attorney’s misconduct.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Beek, 757 N.W.2d
639, 644 (Iowa 2008).
Weaver has been found guilty of OWI, third offense, a class D
felony, and third-degree harassment, a simple misdemeanor. Iowa Code
§§ 321J.2(2)(c), 708.7. A felony conviction is grounds for revocation or
suspension of an attorney’s license to practice law. Id. § 602.10122(1);
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Iowa Ct. R. 35.10(2). When an attorney’s misconduct consists of an OWI,
third offense, conviction, we have imposed a six-month suspension. See
Johnson, 774 N.W.2d at 500 (imposing a six-month suspension for a
conviction of OWI, third offense); Marcucci, 543 N.W.2d at 880, 883
(same). We have also imposed a six-month suspension when the OWI,
third offense, conviction was accompanied by another conviction for a
different crime, but noted that either conviction would warrant a
suspension. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth, 636
N.W.2d 86, 87, 89 (Iowa 2001) (imposing a six-month suspension for
OWI, third offense, and domestic abuse assault causing injury).
However, when an attorney’s misconduct involves a second or third OWI
conviction with numerous companion violations, we have imposed a two-
year suspension. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Carpenter, 781 N.W.2d 263, 269, 271 (Iowa 2010) (imposing a two-year
suspension for an attorney who committed “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 of two traffic
offenses”); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713 N.W.2d
199, 206–08 (Iowa 2006) (imposing a two-year suspension for neglect of
client matters, appearing in court while intoxicated, being convicted of
OWI, third offense, and failing to respond to the Board’s inquiries),
overruled on other grounds by Templeton, 784 N.W.2d at 768–69.
This case presents numerous aggravating circumstances, most
notably Weaver’s criminal history, his history of alcohol abuse and
untreated chronic depression, as well as his long list of ethical violations.
Weaver, 750 N.W.2d at 75. Weaver was first convicted of OWI in
November of 2002. Id. As part of his sentence, he was ordered to
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complete inpatient substance abuse treatment. He remained alcohol free
until July 2003. Id. Weaver completed a second treatment program in
November of 2003 and refrained from alcohol use until August 2004. Id.
In December of 2004, we publicly reprimanded Weaver for his 2002 OWI
conviction. Id.
One month prior to the reprimand for his first OWI conviction,
Weaver was stopped for his second OWI after a citizen called police to
report a reckless driver. Id. at 76. Weaver’s BAC was .185. Id.
Following this arrest, Weaver underwent inpatient treatment for a third
time, which he completed on December 7, 2004. Id. On April 18, 2005,
Weaver pled guilty to his second OWI. Id. The district court sentenced
Weaver to an indeterminate prison term not to exceed two years and
ordered Weaver be placed at an appropriate alcohol treatment
correctional facility. Id. Weaver was to be released on parole “upon
achievement of the maximum benefits from the treatment program.” Id.
Weaver filed a motion to reconsider the sentence, “arguing that he would
not benefit from the sentence imposed, as he had already undergone the
inpatient treatment program that would be available through the
Department of Corrections.” Id. The district court denied the motion,
and the court of appeals affirmed the sentence on October 25, 2006. Id.
at 77–78.
Meanwhile, on June 1, 2005, an article was published in the
Muscatine Journal in which Weaver accused the district court judge of
bias against him. Id. at 77. We found Weaver’s second OWI conviction
and his “intemperate statements to the press” both warranted
suspension, and we suspended his license for three months. Id. at 91–
92. We extended Weaver’s suspension for an additional sixty days after
he failed to advise a client of his suspension, failed to return the client’s
16
files to her, and failed to advise her of a court proceeding. Weaver also
admitted drinking alcoholic beverages for a ten-day period two weeks
prior to the hearing.
In November of 2008, the Board wrote Weaver, requesting
information in response to a complaint that had been filed against him.
Weaver did not reply. Though the Board ultimately concluded there was
insufficient proof of misconduct, it nonetheless admonished Weaver for
failing to respond to the Board’s inquiries.
On March 21, 2009, Weaver was arrested for a third OWI, the
conviction at issue in this opinion. He pled guilty on June 3, 2009. On
July 22, 2009, prior to sentencing, Michael R. Fitzsimmons, an intensive
drug court officer with the Seventh Judicial District wrote a letter to the
district court judge stating Weaver felt drug court was not
the place for him. [Weaver] had decided he did not need to
be in the Salvation Army Treatment Program and did not
need all the restrictions that Drug Court imposes.
It would appear that Mr. Weaver is intent on doing
things his own way. The lack of following my suggestions,
and statements to the Presentence Investigator, make him
inappropriate for placement in the Scott County Drug Court.
On August 6, Weaver was sentenced to an indeterminate term of five
years in prison and placed at the DWRF in Davenport.
Weaver was paroled from the DWRF on November 20, 2009. He
subsequently committed the act of harassment, which we have
previously detailed, and was placed in the Scott County jail from
November 23 to January 28, 2010, where he completed an eight-week,
jail-based treatment program. On January 21, he pled guilty to third-
degree harassment and was sentenced to seven days in jail and given
credit for time served. On January 28, he appeared before an
17
administrative parole judge, who determined Weaver violated his parole
and sent Weaver to the DWRF again.
On June 9, Weaver was again paroled to Boyle from the DWRF.
Within one week, based upon the facts detailed earlier in this opinion,
Weaver was again arrested for parole violation. After a hearing, his
parole was again revoked on June 28, 2010, and he was sent to prison.
This long list of past disciplinary and legal problems is an
aggravating factor when considering Weaver’s sanction. See Carpenter,
781 N.W.2d at 270. Alcoholism can be a mitigating factor. See Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 154 ((Iowa)
2010) (noting, to the extent attorney acknowledged his alcoholism and
has taken steps to address the problem, the court considers these acts in
fashioning an appropriate sanction). So can depression. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa 2008).
“However, we are mindful that our primary goal is not to punish the
attorney, but ‘ “to protect the public from lawyers rendered unfit from
any cause.” ’ ” Hauser, 782 N.W.2d at 154 (citation omitted).
Weaver has repeatedly demonstrated that he is unwilling or unable
to conform his conduct to either the law or the ethical rules that govern
attorneys. He has also shown an unwillingness to comply with the terms
of his parole. The record contains numerous examples of Weaver’s
refusals to seek the help that is necessary for him to successfully cope
with his depression and alcoholism. In order to protect the public,
Weaver cannot be allowed to practice law until he has made lasting
changes and overcome his issues over the long term.
We have issued six-month suspensions for OWI, third offense,
convictions in the past. Johnson, 774 N.W.2d at 500; Marcucci, 543
N.W.2d at 880, 883. However, in this case, Weaver’s inability to conform
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his conduct to the demands of society and the rules of his profession
warrants a longer suspension. Aggravating circumstances start with the
fact that Weaver has a history of prior disciplinary actions. His
“considerable professional experience as an attorney and judge” is
another aggravating factor favoring a longer suspension. Weaver, 750
N.W.2d at 92. Additionally, while Weaver has acknowledged his chronic
substance abuse and mental health issues, Weaver has attempted in-
patient treatment on four separate occasions without success. He has
also resisted treatment with appropriate mental health providers,
deciding for himself what is appropriate. A longer sanction is also
warranted by the fact that the reputation of the bar as a whole has
suffered due to Weaver’s actions. See id. at 91–92 (noting conduct that
reduces citizens’ respect for our system of justice must be discouraged).
Our ultimate responsibility is to protect the public from unfit attorneys.
See Hauser, 782 N.W.2d at 154. A lengthy suspension is necessary to
discipline Weaver for his conduct and to protect the public. Accordingly,
we feel a two-year suspension is appropriate.
The next issue we must address is when Weaver’s suspension will
begin. Weaver’s license has been suspended pursuant to rule 35.16
since May 4, 2009. This suspension was due to Weaver’s inability to
discharge his professional responsibilities due to his depression and
alcoholism. The commission noted that Weaver’s disability suspension
“carries perhaps a heavier burden for reinstatement under [r]ule
35.16(8), then for the regular procedure on application for reinstatement
under [r]ule 35.13” and therefore recommended Weaver’s suspension for
his violations of rule 32:8.4(b) run concurrently with his disability
suspension. Weaver stated in his October 5, 2011 posthearing brief that
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he did not intend to “seek reinstatement from his disability suspension
until his symptoms have been in remission for two (2) years.”
We have stated that a disability suspension is not a sanction and
that it is necessary to discipline an attorney for his or her unethical
conduct “independent of a previous finding of [his or her] unfitness to
practice law.” Van Beek, 757 N.W.2d at 644; see also Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Maxwell, 705 N.W.2d 477, 480 (Iowa 2005)
(“Although a disability suspension shares some of the same objectives
and purposes of attorney discipline, a disability suspension is not a
sanction and does not specifically address unethical conduct and the
need to deter future conduct.”). Adopting the commission’s
recommendation would mean that Weaver would be eligible to apply for
reinstatement immediately. This result would not serve the purpose of
sanctioning Weaver for his unethical behavior. Accordingly, we suspend
Weaver’s license to practice law with no possibility of reinstatement for
two years from the date of this opinion.
The commission recommended that Weaver be required to provide
“medical documentation of his maintenance of sobriety and his fitness to
practice law.” When an attorney’s disciplinary problems arise out of
alcoholism and depression, “[w]e have a well-established history of
imposing such conditions.” Johnson, 774 N.W.2d at 501. We agree with
the commission that such conditions are appropriate in this case.
VI. Conclusion.
We suspend Weaver’s license with no possibility of reinstatement
for two years from the date of this opinion. Prior to reinstatement,
Weaver must provide medical documentation from a licensed health care
professional regarding his maintenance of sobriety and his fitness to
practice law. Pursuant to rule 35.12(3), this suspension applies to all
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facets of the practice of law. All costs are taxed to Weaver pursuant to
rule 35.26(1). Prior to reinstatement, Weaver must also show that he
has not practiced law during the period of suspension, that he has
notified his clients as required by rule 35.22, that he has paid all costs
required by rule 35.26(1), and that he meets the requirements of rule
35.13. Following this suspension, Weaver’s disability suspension will
remain in place until he has shown “by clear and convincing evidence[]
that [his] disability has been removed and [he] is fully qualified to resume
the practice of law.” Iowa Ct. R. 35.16(7).
LICENSE SUSPENDED.
All justices concur except Wiggins, J., who takes no part.