In the Matter of Honorable Mary E. Howes, District Court Judge of the Seventh Judicial District. on Application of the Iowa , 880 N.W.2d 184 ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 16–0005
Filed May 20, 2016
IN THE MATTER OF HONORABLE MARY E. HOWES,
District Court Judge of the Seventh Judicial District.
On application of the Iowa Commission on Judicial Qualifications.
The Iowa Commission on Judicial Qualifications filed an
application for judicial discipline recommending this court discipline a
district court judge for various violations of the Iowa Code of Judicial
Conduct. APPLICATION GRANTED AND JUDGE PUBLICLY
ADMONISHED.
Thomas J. Miller, Attorney General, Kevin Cmelik and Grant K.
Dugdale, Assistant Attorneys General, for complainant.
Gregory M. Lederer of Lederer Weston Craig PLC, Cedar Rapids, for
respondent.
2
WIGGINS, Justice.
The Iowa Commission on Judicial Qualifications filed an
application for discipline of a judicial officer recommending this court
publicly reprimand a district court judge. See Iowa Code § 602.2106
(2015). Because we conclude the judge violated the Iowa Code of
Judicial Conduct, we grant the application for judicial discipline. Rather
than publicly reprimand the judge, however, we publicly admonish the
judge.
I. Scope of Review.
When the Iowa Commission on Judicial Qualifications files an
application with our court to discipline a judicial officer, we conduct an
equitable proceeding to review the application. See In re Inquiry
Concerning Stigler, 607 N.W.2d 699, 701 (Iowa 2000); see also Iowa Code
§ 602.2106(1). We review findings and recommendations by the
Commission concerning the discipline of a judicial officer de novo. In re
Krull, 860 N.W.2d 38, 43 (Iowa 2015); see Iowa R. App. P. 6.907.
Accordingly, we give respectful consideration to but are not bound by its
recommendations and findings. Krull, 860 N.W.2d at 43. An ethical
violation must be established by a convincing preponderance of the
evidence. In re Block, 816 N.W.2d 362, 364 (Iowa 2012); Stigler, 607
N.W.2d at 705 (Iowa 2000).
II. Factual Findings.
On our de novo review, we find the facts as follows. The Honorable
Mary E. Howes is a district court judge in the Seventh Judicial District of
Iowa. Judge Howes has not been disciplined in the past and has
dedicated most of her professional career to public service. Prior to
1993, she served for seven years as an assistant county attorney in Scott
County. From 1993 to 2000, she served as a magistrate in Scott County.
3
From 2000 to 2006, she served as a district associate judge in the
seventh judicial district. She has served as a district court judge in the
seventh judicial district since September 2006.
Judge Howes petitioned for dissolution of her marriage to her
husband, Jack Henderkott, in June 2011. Maria Pauly represented
Judge Howes in the dissolution action, and Chad Kepros of Bray &
Klockau, P.L.C. represented Mr. Henderkott. The district court approved
the parties’ settlement agreement and entered a dissolution decree
incorporating that agreement in May 2012.
On April 16, 2013, Mr. Henderkott sent Judge Howes an email
indicating the Internal Revenue Service had deducted $3192 from his
2012 income tax return because she did not claim income she received
from liquidating an individual retirement account on the couple’s 2010
joint income tax return. Mr. Henderkott claimed he was entitled to
reimbursement in the full amount of the deduction per the terms of the
settlement agreement.
On May 2, Judge Howes responded by letter to Mr. Henderkott and
offered to reimburse half the amount deducted from his 2012 tax return
because she and Mr. Henderkott had filed a joint income tax return in
2010. Judge Howes’s letter stated she had discussed the issue with her
attorney, whom she identified as Ms. Pauly. It also indicated she was
mailing a copy of the letter to “Attorney Maria Pauly.” Judge Howes
enclosed two postdated checks for $798 each along with the letter.
On May 17, Mr. Kepros sent a letter regarding the tax issue to
Ms. Pauly. The letter advised Ms. Pauly that the settlement agreement
incorporated into the dissolution decree obligated Judge Howes to
reimburse the entire deduction. It also acknowledged the letter Judge
Howes had sent to Mr. Henderkott.
4
Ms. Pauly delivered a copy of the letter she received from
Mr. Kepros to Judge Howes, and the two spoke in person about it at the
courthouse. Judge Howes advised Ms. Pauly she believed her payment
of half the amount deducted from Mr. Henderkott’s tax return satisfied
her obligations under the dissolution decree.
Ms. Pauly responded to the letter from Mr. Kepros on behalf of
Judge Howes on May 22. In the letter, Ms. Pauly indicated she had
spoken to Judge Howes, whom she referred to as her client. She also
reiterated Judge Howes’s position that her payment of half the amount
deducted from Mr. Henderkott’s 2012 tax return satisfied her obligations
under the decree because she and Mr. Henderkott had filed a joint
income tax return in 2010. In closing, the letter stated, “If you need
anything further, please contact me.”
Mr. Henderkott eventually cashed the two checks Judge Howes
had enclosed along with her response to his letter. After Ms. Pauly sent
the May 22 letter, Judge Howes never attempted to contact
Mr. Henderkott to confirm the tax dispute had been resolved. Rather,
during the two months that followed, neither Judge Howes nor Ms. Pauly
heard from either Mr. Henderkott or Mr. Kepros. On July 31, however,
Mr. Kepros sent another letter to Ms. Pauly indicating Mr. Henderkott
was prepared to file a contempt action if Judge Howes did not reimburse
the remaining amount deducted from his 2012 tax return.
On September 26, Daniel Bray, another attorney at Bray &
Klockau, sent Ms. Pauly a letter informing her that he had taken over
representation of Mr. Henderkott. Thereafter, Ms. Pauly began
corresponding with Mr. Bray about the tax dispute. However, Ms. Pauly
did not immediately inform Judge Howes she had received the letter from
Mr. Bray.
5
On October 15, Mr. Henderkott filed an application for a finding of
contempt alleging Judge Howes’s failure to reimburse the full amount
deducted from his 2012 tax return constituted a willful violation of the
dissolution decree incorporating the settlement agreement. On
October 22, before the hearing to show cause had been set on the
application, Ms. Pauly sent Mr. Bray a letter stating Judge Howes would
reimburse Mr. Henderkott the remaining amount withheld from his 2012
tax return. Consequently, Mr. Henderkott dismissed the contempt
action. Ms. Pauly provided her legal services to Judge Howes free of
charge.
During the lull in correspondence concerning the postdissolution
tax dispute with her ex-husband, Judge Howes was involved in another
dissolution dispute in her official capacity as a judge. In that case,
Ms. Pauly represented petitioner Farrakh Khawaja in seeking dissolution
of his marriage to his wife, Shafaq Jadoon. The petition for dissolution of
marriage Ms. Pauly filed on behalf of Mr. Khawaja indicated the couple
had one child and requested the district court to grant joint legal custody
to both parties and primary physical care to Ms. Jadoon with liberal
visitation for Mr. Khawaja. With the consent of Mr. Khawaja, Ms. Jadoon
resided in Pakistan, though the petition inaccurately stated that she
resided in Oak Brook, Illinois.
The child, who had been residing in Pakistan with Ms. Jadoon,
stayed in the Quad Cities with Mr. Khawaja during the summer of 2013.
During the visit, Mr. Khawaja came to believe that Ms. Jadoon was
abusing the child and confronted her with his concerns. Eventually,
Mr. Khawaja asked Ms. Pauly to file an amended petition requesting the
district court to award him primary physical care of the child, which she
did on July 24.
6
On the same day Ms. Pauly filed the amended petition, Ms. Jadoon
informed Mr. Khawaja that she was in the area and intended to retrieve
the child and return to Pakistan. Mr. Khawaja learned from the
employees at the summer program the child was attending that they
were obligated to release the child to Ms. Jadoon if she arrived there to
pick him up. Consequently, Ms. Pauly prepared an application for a
temporary injunction and a supporting affidavit on behalf of Mr. Khawaja
seeking to restrain Ms. Jadoon from removing the child to Pakistan. The
application alleged Ms. Jadoon had assaulted the child and threatened to
remove the child to Pakistan without Mr. Khawaja’s consent.
The following morning, the Honorable Mark Cleve, another district
court judge in the seventh judicial district, was the designated
assignment judge. As the designated assignment judge, Judge Cleve was
scheduled to hear unscheduled matters during two “order hours” from
8:30 a.m. to 9:00 a.m. and 1:30 p.m. to 2:00 p.m. Between the order
hours, Judge Cleve was scheduled to hear motions from 10:00 a.m. to
noon in fifteen-minute intervals.
By the time Ms. Pauly arrived at the courthouse on July 25 to
present the application for a temporary injunction to a judge, the
morning order hour was over and Judge Cleve was busy hearing
scheduled motions. Because the judges at the Scott County Courthouse
adhere to an open-door policy, Ms. Pauly proceeded to look for a different
judge to grant the temporary injunction. She soon discovered that every
judge in the courthouse that day had a full schedule, except for Judge
Howes, who had unexpectedly become available when the case she was
to hear that day had fallen off her schedule.
Ms. Pauly told Judge Howes her client had an emergency and
asked if she would be willing to consider the application for a temporary
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injunction. Judge Howes then reviewed the application and signed an
order temporarily enjoining both Ms. Jadoon and Mr. Khawaja from
removing their child from the area for thirty days and temporarily
enjoining Ms. Jadoon from removing the child from Mr. Khawaja.
After Judge Howes granted the temporary injunction, Ms. Jadoon
retained Lori Klockau and Daniel Bray of Bray & Klockau to represent
her. Shortly after Ms. Klockau learned that Judge Howes had signed the
order granting the temporary injunction against Ms. Jadoon, she learned
from her secretary that another attorney at Bray & Klockau had recently
written a letter to Ms. Pauly regarding the tax dispute between Judge
Howes and Mr. Henderkott. Because Ms. Klockau knew the tax dispute
was ongoing, she became concerned and shared her concerns with
Ms. Jadoon, who became distraught upon hearing that the same lawyer
who was representing her husband was representing the very judge who
had signed the order granting the temporary injunction.
On October 7, Ms. Klockau and Mr. Bray filed a complaint
regarding Judge Howes with the Iowa Commission on Judicial
Qualifications. On December 13, the Commission sent Judge Howes a
letter notifying her it had received the complaint and asking her to
provide it with a written explanation of her conduct and the
circumstances that led her to sign the order granting the temporary
injunction on July 25. The letter noted the Commission was especially
interested to learn whether Ms. Pauly was in fact representing Judge
Howes in her postdissolution tax dispute on the date Judge Howes
signed the order.
On January 6, 2014, Judge Howes responded by letter to the
Commission. In the letter, Judge Howes acknowledged Ms. Pauly had
represented her in her dissolution action and noted she had advised
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court administrative staff that Ms. Pauly could not appear before her
while her dissolution was ongoing. She also informed the Commission
she had not decided any matter in which Ms. Pauly represented a party
for approximately one year following entry of the dissolution decree.
With respect to the question of whether Ms. Pauly represented her
on July 25, Judge Howes advised the Commission she had not contacted
or hired Ms. Pauly upon being asked to reimburse the funds withheld
from Mr. Henderkott’s tax return in April 2013. Rather, she indicated
Ms. Pauly had called her in May 2013 upon receiving the letter from
Mr. Kepros and she had informed Ms. Pauly the matter was resolved
because she had already reimbursed half the withheld funds. Judge
Howes asserted that after Ms. Pauly had informed Mr. Kepros to this
effect, both she and Ms. Pauly had considered the matter to be resolved,
as neither heard anything more about it.
Judge Howes asserted she had reasonably believed Ms. Pauly was
not representing her in any dispute when she signed the order granting
the temporary injunction on July 25, as she had not believed she had an
unresolved dispute with Mr. Henderkott on that date. Moreover, Judge
Howes assured the Commission she would not have signed the order if
she had believed Ms. Pauly represented her at that time. Though she
forthrightly acknowledged another attorney, Dennis Jasper, had
appeared before her in the past despite having previously represented
her in another matter, she indicated she now realized that out of an
abundance of caution, Ms. Pauly should not appear before her in the
future. In closing, Judge Howes acknowledged the importance of
impartiality and stated she would never intentionally violate any ethical
rule or create an appearance of impropriety.
9
On January 15, Judge Howes sent a second letter to the
Commission to correct a typographical error appearing in her January 6
letter. 1 In that letter, Judge Howes did not address the substance of the
complaint against her or the circumstances that led her to sign the order
granting the temporary injunction.
On September 25, the Commission issued a notice informing
Judge Howes it had charged her with violating rules 51:1.2 and
51:2.11(A) of the Iowa Code of Judicial Conduct because she failed to
disqualify herself from a judicial proceeding involving Ms. Pauly.
On March 30, 2015, the Commission issued a second notice
informing Judge Howes it had charged her with additional violations of
the Iowa Code of Judicial Conduct. The notice stated the Commission
had charged Judge Howes with violations of rules 51:1.1, 51:1.2, and
51:2.16(A) because statements in her letter to the Commission
contradicted statements in her correspondence with Mr. Henderkott.
The notice further stated the Commission had charged Judge Howes with
violations of rules 51:1.1, 51:1.2, and 51:3.13(A) because she accepted
free legal services from Ms. Pauly and Mr. Jasper.
During a hearing before the Commission, Judge Howes and
Ms. Pauly acknowledged they had an attorney–client relationship when
Ms. Pauly sent the May 22 letter. But Judge Howes and Ms. Pauly
testified they had not believed the tax dispute was ongoing on July 25
when Judge Howes signed the order granting the temporary injunction.
In addition, Judge Howes testified that both Ms. Pauly and Mr. Jasper
refused her offers for payment for their legal services, but she
1Judge Howes’s first letter to the Commission mistakenly indicated she had
served as an associate district judge from 1994 to 2000. She actually served as an
associate district judge from 1993 to 2000.
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acknowledged she accepted their services without entering into fee
agreements in advance. Ms. Pauly confirmed she refused to accept
payment for her services from Judge Howes, but she noted that Judge
Howes paid the filing fee associated with filing her dissolution petition.
Following the hearing, the Commission filed an application for
discipline of Judge Howes with this court. See Iowa Code § 602.2106. In
the application, the Commission concluded Judge Howes violated rules
51:1.1, 51:1.2, and 51:2.11(A) as well as canons 1 and 2 of the Iowa
Code of Judicial Conduct when she failed to disqualify herself from
deciding whether to grant the temporary injunction. The Commission
also concluded Judge Howes violated rules 51:1.1, 51:1.2, and 51:3.13(A)
as well as canons 1 and 3 of the Iowa Code of Judicial Conduct when she
accepted gifts of free legal services from Ms. Pauly and Mr. Jasper.
However, the Commission concluded Judge Howes did not violate rules
51:1.1, 51:1.2, or 51:2.16(A) by failing to be candid and honest in her
letter of explanation regarding the circumstances that led her to sign the
order granting the temporary injunction. The Commission recommended
this court publicly reprimand Judge Howes for her conduct.
III. Discussion and Analysis.
The Iowa Code of Judicial Conduct contains four canons, each of
which states “overarching principles of judicial ethics that all judges
must observe.” Iowa Code of Judicial Conduct, Scope [2]. Following
each canon is a series of rules that more specifically defines the conduct
the canon prohibits. Block, 816 N.W.2d at 364. Comments
accompanying those rules serve two important purposes. Iowa Code of
Judicial Conduct, Scope [3]. “First, they provide guidance regarding the
purpose, meaning, and proper application of the rules,” including
explanatory examples of permitted and prohibited conduct. Id. Second,
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they “identify aspirational goals for judges.” Id. at [4]. “Comments
neither add to nor subtract from the binding obligations set forth in the
rules.” Id. at [3].
The Commission charged Judge Howes with violating rules
contained in canons 1, 2, and 3 of the Iowa Code of Judicial Conduct,
including rules 51:1.1, 51:1.2, 51:2.11(A), 51:2.16(A), and 51:3.13(A).
We will consider each charged violation separately.
A. Rule 51:2.11(A) and Canon 2. We first consider whether
Judge Howes violated rule 51:2.11(A) and canon 2 of the Iowa Code of
Judicial Conduct by failing to disqualify herself from deciding a matter in
which Ms. Pauly represented a party.
1. Governing legal principles. Canon 2 of the Iowa Code of Judicial
Conduct provides that “a judge shall perform the duties of judicial office
impartially, competently, and diligently.” Id., Canon 2. Rule 51:2.11
governs circumstances under which canon 2 requires a judge to recuse
himself or herself from a judicial proceeding. In relevant part, it
provides,
(A) A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably
be questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice
concerning a party or a party’s lawyer . . . .
....
(C) A judge subject to disqualification under this rule,
other than for bias or prejudice under paragraph (A)(1), may
disclose on the record the basis of the judge’s
disqualification and may ask the parties and their lawyers to
consider, outside the presence of the judge and court
personnel, whether to waive disqualification. If, following the
disclosure, the parties and lawyers agree, without
participation by the judge or court personnel, that the judge
12
should not be disqualified, the judge may participate in the
proceeding . . . .
Id. r. 51:2.11 (emphasis added). The Iowa Code of Judicial Conduct
defines “impartiality” as the “absence of bias or prejudice in favor of, or
against, particular parties . . . as well as maintenance of an open mind in
considering issues.” Id., Terminology.
Under rule 51:2.11(A), judicial disqualification is ordinarily
mandatory, rather than discretionary, when the impartiality of a judge
might reasonably be questioned if he or she were to decide a particular
matter. The rule’s mandatory nature is clear from its language, which
provides a judge “shall disqualify himself or herself” from deciding a
matter whenever his or her impartiality might reasonably be questioned.
Id. r. 51:2.11(A); see, e.g., State v. Luckett, 387 N.W.2d 298, 301 (Iowa
1986). The mandatory nature of the rule is also evident from its
structure, as the rule includes an expressly nonexclusive list of
circumstances in which a judge’s impartiality might reasonably be
questioned. See Iowa Code of Judicial Conduct R. 51:2.11(A). A
comment clarifies that the “obligation not to hear or decide matters in
which disqualification is required applies regardless of whether a motion
to disqualify is filed.” Id. r. 51:2.11 cmt. 2.
However, a comment to rule 51:2.11 encourages a judge
contemplating whether the rule mandates recusal because his or her
impartiality might reasonably be questioned to “disclose on the record
information that the judge believes the parties or their lawyers might
reasonably consider relevant to a possible motion for disqualification,
even if the judge believes there is no basis for disqualification.” Id. r.
51:2.11 cmt. 5. When a judge makes such disclosures and the parties
waive disqualification, the judge may proceed to hear the matter
13
regardless of whether a basis for disqualification actually existed, unless
the basis for disqualification was “personal bias or prejudice concerning
a party or a party’s lawyer, or personal knowledge of facts that are in
dispute in the proceeding.” Id. r. 51:2.11(A)(1), (C). Accordingly, in
practice rule 51:2.11 does not require a judge to determine whether
disqualification is actually required because his or her impartiality might
reasonably be questioned so long as the judge discloses any possible
basis for disqualification to the parties before hearing a matter and
obtains their consent to proceed. 2
Another comment to rule 51:2.11 provides that necessity may
override the disqualification requirement under limited circumstances.
Id. r. 51:2.11 cmt. 3. More specifically, it provides,
The rule of necessity may override the rule of
disqualification. For example, a judge might be required to
participate in judicial review of a judicial salary statute, or
might be the only judge available in a matter requiring
immediate judicial action, such as a hearing on probable
cause or a temporary restraining order. In matters that
require immediate action, the judge must disclose on the
record the basis for possible disqualification and make
reasonable efforts to transfer the matter to another judge as
soon as practicable.
Id. As contemplated in this comment, the “rule of necessity” eliminates
the disqualification requirement if no judge lacking the same basis for
disqualification exists or if a matter requires immediate action and no
judge lacking some basis for disqualification is available.
Although disqualification is generally mandatory under rule
51:2.11(A)(1) when a judge has a personal bias or prejudice in favor of, or
against, a party or a party’s lawyer, rule 51:2.11 does not presume actual
2When a party does not agree to waive disqualification and moves for
disqualification, however, the judge must decide whether disqualification is required.
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personal bias or prejudice on the part of a judge merely because a party’s
lawyer currently represents or previously represented the judge in an
unrelated matter. Rather, disqualification is required based on an
existing or former attorney–client relationship between the judge and a
party’s lawyer only when “the judge’s impartiality might reasonably be
questioned” due to that relationship. See id. r. 51:2.11(A).
The standard for determining whether judicial recusal is required
under rule 51:2.11(A) because “the judge’s impartiality might reasonably
be questioned” is objective, not subjective. State v. Mann, 512 N.W.2d
528, 532 (Iowa 1994) (addressing nearly identical language in the prior
version of rule 51:2.11). In other words, the test is not whether the judge
actually questions his or her own impartiality, “but whether a reasonable
person would question it.” Krull, 860 N.W.2d at 44 (quoting Mann, 512
N.W.2d at 532). Proving scienter is not necessary to establish a violation
of the rule. Mann, 512 N.W.2d at 532. Rather, the appropriate inquiry is
whether a reasonable person with knowledge of all the facts might have a
reasonable basis for questioning the judge’s impartiality such that the
judge deciding a matter would create an appearance of impropriety. See
id.
In considering whether a judge has violated rule 51:2.11(A),
“drawing all inferences favorable to the honesty and care of the judge
whose conduct has been questioned could collapse the appearance of
impropriety standard . . . into a demand for proof of actual impropriety.”
Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 669
(Conn. 2009) (quoting United States v. Jordan, 49 F.3d 152, 157 (5th Cir.
1995)) (describing the appropriate standard under a nearly identical
rule). Recusal is required under rule 51:2.11(A) when a reasonable
person might reasonably doubt the judge’s impartiality because the rule
15
anticipates “that people who have not served on the bench are often all
too willing to indulge suspicions and doubts concerning the integrity of
judges.” Mann, 512 N.W.2d at 532 (quoting Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 864–65, 108 S. Ct. 2194, 2205, 100
L. Ed. 2d 855, 875 (1988)). Thus, rule 51:2.11(A) operates “to promote
public confidence in the integrity of the judicial process.” Id. at 533.
There can be no serious doubt a reasonable person who knows an
attorney appearing before a judge currently represents the judge in a
personal matter would have a reasonable basis for questioning the
judge’s impartiality. 3 See, e.g., Berry v. Berry, 765 So. 2d 855, 858 (Fla.
Dist. Ct. App. 2000). “If the attorney in this instance represents the
judge in a pending action, the other party may question the judge’s
impartiality, even if the resolution of the case appears fair to the public
in general.” Charles Gardener Geyh, et al., Judicial Conduct and Ethics
§ 4.14[3], at 4-60 (5th ed. 2013).
Nonetheless, “if an attorney appearing before the judge represented
the judge only in the past, the concerns about partiality are not so
acute.” Id. at 4-61. Thus, the question of whether a reasonable person
might perceive a reasonable basis for questioning a judge’s impartiality
becomes a closer one when an attorney appearing before the judge
represented the judge only in the past.
Like the Model Code of Judicial Conduct, the Iowa Code of Judicial
Conduct prescribes no specific time period during which a judge must
disqualify himself or herself from deciding a matter based solely on his or
3In this case, Judge Howes decided a matter in which a party was represented
by an attorney who currently or previously represented her in a personal matter. We
need not decide whether or under what circumstances disqualification is required
under rule 51:2.11(A) based on an attorney’s representation of a judge in a matter
concerning the judge’s official acts.
16
her former attorney–client relationship with an attorney who presently
represents a party appearing before the judge in an unrelated matter.
Compare Model Code of Judicial Conduct R. 2.11(A) (Am. Bar Ass’n
2011), with Iowa Code of Judicial Conduct R. 51:2.11(A). Nor do existing
authorities discussing the circumstances in which a judge must
disqualify himself or herself based on the judge’s former representation
by a party’s attorney reveal a clear consensus. See Powell v. Anderson,
660 N.W.2d 107, 117 & n.8 (Minn. 2003). Courts generally agree that
once significant time has passed since the conclusion of a former
attorney–client relationship between a judge and a party’s attorney, any
appearance of bias or impropriety arising therefrom is insufficient to
warrant disqualification. See, e.g., Noland v. Noland, 932 S.W.2d 341,
342–43 (Ark. 1996) (three years); In re Disqualification of Park, 28 N.E.3d
56, 58 (Ohio 2014) (sixteen years); Young v. Young, 971 S.W.2d 386, 390
(Tenn. Ct. App. 1997) (ten years). In contrast, most courts and judicial
ethics commissions to consider the disqualification issue in the context
of a judge’s recent representation by a party’s attorney appear to have
adopted one of two approaches to determining whether a reasonable
person would conclude the prior representation might constitute a
reasonable basis for questioning the judge’s impartiality.
Under the first approach, the question of whether judicial
disqualification is required based on a former attorney–client relationship
between a judge and an attorney representing a party in an unrelated
matter turns primarily on how much time has passed since the
relationship ended. Among commissions adopting this approach,
however, disagreement exists as to how much time must pass before a
former attorney–client relationship no longer constitutes a reasonable
basis for questioning the judge’s impartiality. See, e.g., N.Y. Advisory
17
Comm. on Judicial Ethics, Joint Op. 08-171/08-174 (2009),
www.nycourts.gov/ip/judicialethics/opinions/08-171and%2008-
174.htm (two years); Utah Judicial Conduct Comm., Joint Op. 00-4
(2000), www.utcourts.gov/resources/ethadv/ethics_opinions/2000/00-
4.htm (six months). Moreover, some commissions endorse a variant of
this approach whereby a judge must consider whether the circumstances
make continued disqualification appropriate after the requisite time
during which disqualification is required has passed. See, e.g., Colo.
Judicial Ethics Advisory Bd., Advisory Op. 2006-05 (2006),
www.courts.state.co.us/userfiles/File/Court_Probation/Supreme_Court/
Committees/Judicial_Ethics_Advisory_Board/opinion2006-05_1.pdf (one
year unless circumstances such as the length, nature, extent, cost, and
recency of the representation make continued disqualification
appropriate); N.C. Judicial Standards Comm’n, Formal Op. 2011-02
(2011), www.aoc.state.nc.us/www/public/coa/jsc/formaladvisoryopini
ons/11-02.pdf (six months unless circumstances such as the length,
nature, extent, cost, and recency of the representation make continued
disqualification appropriate).
Under a second approach recently adopted by the supreme courts
of Minnesota and Mississippi, a reviewing court should generally weigh
four factors to determine whether a former attorney–client relationship
between a judge and an attorney requires the judge to disqualify himself
or herself. Powell, 660 N.W.2d at 118; Washington Mut. Fin. Grp., LLC v.
Blackmon, 925 So. 2d 780, 791 (Miss. 2004). Under this approach, a
reviewing court should determine whether recusal was required by
considering (1) the extent of the attorney–client relationship; (2) the
nature of the representation; (3) the frequency, volume, and quality of
the contacts between the judge and the attorney; and (4) special
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circumstances that might enhance or diminish the likelihood that the
judge deciding a matter in which a party is represented by the attorney
might reasonably create an appearance of impropriety from the
perspective of the public. Powell, 660 N.W.2d at 118; Blackmon, 925 So.
2d at 791.
Similarly, the American Bar Association Standing Committee on
Ethics and Professional Responsibility advises that several factors
influence whether judicial disqualification is required based on an
attorney’s former representation of a judge because “a reasonable person
would believe, in light of the time that had elapsed, that the judge’s
fairness and impartiality could still be questioned.” ABA Comm. on
Ethics & Prof’l Responsibility, Formal Op. 07-449 (2007). According to
the committee, these factors include (1) whether the matter was
consequential or relatively inconsequential; (2) the size of the fee the
judge paid to the attorney; (3) whether the representation concerned an
isolated matter or several matters over time; and (4) whether the
representation concerned a matter that was highly confidential or highly
publicized. Id.
In 1989, the Iowa Supreme Court Board of Professional Ethics and
Conduct addressed this issue in an advisory opinion intended for the
benefit of practicing attorneys within the state. See Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct, Op. 90-47 (1991). The opinion advised an
attorney may not properly appear before a judge for a period of one year
following the performance of “actual legal activities” on the judge’s behalf
by the attorney or the attorney’s firm. Id.
Nevertheless, this court has never determined the precise
circumstances under which rule 51:2.11(A) requires a judge to disqualify
himself or herself in a matter in which an attorney with whom the judge
19
once had an attorney–client relationship represents a party. We
conclude that we need not do so today. Under our existing precedents
interpreting the language in rule 51:2.11(A), it is clear that a judge who
fails to disqualify himself or herself from a proceeding in which an
attorney who recently represented the judge in a personal matter
represents a party violates rule 51:2.11(A) unless the judge complies with
rule 51:2.11(C) by disclosing the relevant facts to and obtaining a
disqualification waiver from both parties in advance. 4 See Bride v.
Heckart, 556 N.W.2d 449, 455 (Iowa 1996) (relying on a prior
interpretation of the language in the prior version of rule 51:2.11(A));
Forsmark v. State, 349 N.W.2d 763, 767–69 (Iowa 1984) (interpreting
language in the prior version of rule 51:2.11(A)). Indeed, we have long
expected trial judges to follow the procedures contained in rule
51:2.11(C) and comment 5 before deciding a matter when a possible
basis for recusal exists in order to permit the parties to determine
whether to request disqualification.
In Forsmark, we considered an appeal from a district court
judgment denying a motion to vacate a judgment in a medical-negligence
action. 5 349 N.W.2d at 765. The plaintiffs had filed the motion to vacate
the judgment upon discovering the estate of the trial judge’s brother had
a pending wrongful-death action against the plaintiffs’ chief medical
witness. Id. The trial judge found in the defendant’s favor without ever
4Of course, trial judges frequently recuse themselves from proceedings without
notifying the parties of their basis for doing so upon being designated by court
administration to hear a case.
5Although not relevant for purposes of our analysis, we note the trial judge who
failed to disclose the possible basis for his disqualification during the trial recused
himself from deciding the motion to vacate the judgment. Forsmark, 349 N.W.2d at
765.
20
disclosing this fact to the plaintiffs. Id. The plaintiffs asserted the trial
judge’s failure to recuse himself constituted an irregularity in the
obtaining of the judgment that amounted to a basis for vacating it under
our rules of civil procedure. Id.
We determined it was neither practical nor necessary to determine
whether the trial judge was required to recuse himself in order to decide
the appeal. Id. at 768. In doing so, we reasoned,
No meaningful way existed after trial to reconstruct how the
issue would have been resolved before trial. The judge failed
before trial to disclose facts creating a substantial and
serious issue concerning his duty to disqualify himself. As a
result plaintiffs were denied an opportunity to raise the issue
or be heard on it.
Id. Accordingly, the precise question before us was not whether recusal
was in fact required, though we acknowledged the judge “should have
known that a party in plaintiffs’ position might question his impartiality.”
Id.
Ultimately, we concluded the trial judge’s failure to disclose the
possible basis for disqualification constituted an irregularity in obtaining
the judgment within the meaning of our rules of civil procedure because
it denied plaintiffs the opportunity to raise or be heard on the potential
basis for disqualification. Id. at 767–68. Accordingly, because we
determined the plaintiffs presented sufficient evidence to generate an
issue for the trier of fact, we vacated the district court order denying their
motion to vacate the judgment. Id. at 768–69.
Years later, in Bride, we considered another appeal based on a trial
judge’s failure to disclose a basis for disqualification to the parties
appearing before him. 556 N.W.2d at 455. Specifically, the trial judge
had failed to disclose that less than two years prior to the start of the
21
trial he was represented by the same law firm that represented a party
appearing before him. Id. Relying on language in the prior version of
rule 51:2.11(A) nearly identical to that appearing in the current version
of the rule, we concluded the trial judge’s failure to disclose the basis for
disqualification was error. Id. In doing so, we reasoned the trial judge’s
mere nondisclosure constituted error because it deprived the party before
him an opportunity to make a timely request for disqualification. Id.
Thus, based in part on the trial judge’s failure to disclose his former
attorney–client relationship with a party’s attorney, we reversed a district
court decision denying a motion to vacate the judgment. Id.
Neither of these cases required us to decide whether judicial
discipline was appropriate. See Bride, 556 N.W.2d at 455 (appeal based
on a trial judge’s failure to disclose a possible basis for disqualification);
Forsmark, 349 N.W.2d at 767–69 (appeal based on a trial judge’s failure
to disqualify himself). Yet, in Bride, we implicitly acknowledged a
reasonable person might question the impartiality of a judge who
presides over a proceeding in which an attorney who recently represented
the judge in a personal matter appears without disclosing that fact to the
parties. See Bride, 556 N.W.2d at 455 (“The judge should have known
that, based on his recent, prior representation by defense counsel’s law
firm, a party in plaintiff's position might question his impartiality.”).
When a basis for disqualification exists because a reasonable
person knowing all the facts might reasonably question a trial judge’s
impartiality, the judge must either disqualify himself or herself pursuant
to rule 51:2.11(A) or disclose the relevant facts and obtain a waiver of the
22
disqualification requirement from the parties under rule 51:2.11(C). 6 If
the judge wishes to hear a matter despite the existence of a possible
basis for disqualification, the judge should “disclose on the record
information that the judge believes the parties or their lawyers might
reasonably consider relevant to a possible motion for disqualification” in
order to assure the parties have an opportunity to raise and be heard on
the potential basis for disqualification. Iowa Code of Judicial Conduct R.
51:2.11(C) & cmt. 5; see Bride, 556 N.W.2d at 455; Forsmark, 349
N.W.2d at 767–68. When it is debatable whether a basis for
disqualification actually exists, the best practice is for the judge to
disclose all the relevant facts to the parties “even if the judge believes
there is no basis for disqualification.” Iowa Code of Judicial Conduct R.
51:2.11 cmt. 5. If the parties thereafter waive disqualification, the judge
may then decide the matter. Id. r. 51:2.11(C).
6We note the section of the Iowa Code addressing the circumstances under
which a judicial officer is disqualified also emphasizes the importance of disclosure in
this context. In relevant part, the Code provides,
1. A judicial officer is disqualified from acting in a proceeding,
except upon the consent of all of the parties, if any of the following
circumstances exists:
a. The judicial officer has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary facts concerning
the proceeding.
....
2. A judicial officer shall disclose to all parties in a proceeding
any existing circumstances in subsection 1, paragraphs “a” through “d”,
before the parties consent to the judicial officer’s presiding in the
proceeding.
Iowa Code § 602.1606(1)(a), (2). Unlike rule 51:2.11(A) of the Iowa Code of Judicial
Conduct, Iowa Code section 602.1606(1) does not mandate judicial disqualification
merely because a judge’s impartiality might reasonably be questioned. Rather, section
602.1606(1) provides an exclusive list of circumstances under which disqualification or
disclosure and waiver is required. See Iowa Code § 602.1606(1).
23
2. Application of legal principles. Notably, Judge Howes recognized
she could not preside over any matter in which an attorney who was
currently representing her represented a party. Judge Howes and
Ms. Pauly testified that no attorney–client relationship existed between
them on July 25 when Judge Howes signed the order granting the
temporary injunction Ms. Pauly sought on behalf of Mr. Khawaja.
Despite this testimony, the Commission concluded Judge Howes
was obligated to disqualify herself from any case in which Ms. Pauly was
representing a party when she signed the order even if Ms. Pauly was not
currently representing her. More precisely, the Commission determined
that under either approach described above, Judge Howes was obligated
to disqualify herself from deciding whether to grant the temporary
injunction because Judge Howes and Ms. Pauly admitted they had an
attorney–client relationship in May 2013.
“Generally, in a civil action, once the period for motions and
appeals expires, the lawyer’s representation of his or her client ends.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 814 N.W.2d 532, 538
(Iowa 2012); see 16 Gregory C. Sisk & Mark S. Cady, Iowa Practice
Series: Lawyer and Judicial Ethics § 5:3(e), at 181 (2015) (“If the lawyer
has been retained to represent the client with respect to a specific
matter, the attorney–client relationship ends with the completion of legal
services for that matter, and the lawyer has no ongoing responsibility to
address other legal concerns of the client.”). Accordingly, we recognize
Judge Howes and Ms. Pauly did not have an ongoing attorney–client
relationship extending from the entry of the dissolution decree in May
2012 to the date in May 2013 on which Ms. Pauly sent the letter to
Mr. Kepros.
24
Nonetheless, Judge Howes does not dispute that Ms. Pauly
represented her in two highly confidential personal matters within the
two years preceding the date on which she signed the ex parte order
granting the temporary injunction that Ms. Pauly sought on behalf of her
client. Nor does Judge Howes dispute that she and Ms. Pauly shared an
attorney–client relationship when Ms. Pauly sent the letter to Mr. Kepros
on her behalf just two months before she signed that order.
Furthermore, Judge Howes does not deny that she did not pay for the
legal services Ms. Pauly provided.
Given these facts, we agree with the Commission that it is
unnecessary to decide the precise standard that governs determinations
as to whether disqualification is required under rule 51:2.11(A) based on
a former attorney–client relationship between a judge and an attorney
appearing before the judge in this case. Instead, we conclude a
reasonable person with knowledge of all the facts on July 25 might have
had a reasonable basis for questioning Judge Howes’s impartiality when
she signed the ex parte order even if Judge Howes did not have an
ongoing attorney–client relationship with Ms. Pauly on that date. 7 See
Bride, 556 N.W.2d at 455; see also Mann, 512 N.W.2d at 532. When an
attorney who contemporaneously represents or recently represented a
judge in a personal matter appears before the judge in another case and
the judge does not disclose that fact to the parties, the judge’s
impartiality might reasonably be questioned.
Accordingly, unless Judge Howes disclosed all the facts relevant to
her representation by Ms. Pauly to the parties and obtained a waiver of
7Under these facts and our caselaw, we find it unnecessary to determine
whether the attorney–client relationship Judge Howes and Ms. Pauly shared in May
2013 was ongoing when Judge Howes signed the ex parte order.
25
the disqualification requirement under rule 51:2.11(C), she was required
to disqualify herself from deciding whether to grant the application for a
temporary injunction under rule 51:2.11(A) so long as the rule of
necessity did not apply. Under our caselaw interpreting the language of
rule 51:2.11, Judge Howes was required to disclose to the parties every
relevant fact concerning her representation by Ms. Pauly before signing
the order, including the fact that she did not pay for the legal services
Ms. Pauly provided, in order to assure the parties received an
opportunity to file and be heard on a motion seeking her disqualification
unless she actually disqualified herself. See Bride, 556 N.W.2d at 455;
see also Forsmark, 349 N.W.2d at 768–69.
Thus, because Judge Howes signed the order granting the
temporary injunction ex parte, we agree with the Commission that her
inability to disclose the facts concerning her representation by Ms. Pauly
to Ms. Jadoon or Ms. Jadoon’s counsel obligated her to recuse herself
unless the rule of necessity excused her from the sua sponte
disqualification requirement.
3. Governing legal principles concerning the rule of necessity. The
rule of necessity constitutes an exception to the general rule obligating a
judge to disqualify himself or herself from any judicial proceeding in
which his or her impartiality might reasonably be questioned. Iowa Code
of Judicial Conduct R. 51:2.11 cmt. 3. Because the disqualification rule
rests on sound public policy, the rule of necessity is strictly construed.
State ex rel. Brown v. Dietrick, 444 S.E.2d 47, 55 (W. Va. 1994). Thus,
although necessity may afford a judge who would otherwise be
disqualified the power to hear a case, necessity extends such power only
when the occasion truly requires.
26
Although the rule of necessity has its genesis in the common law,
state and federal courts alike recognize its continued vitality in modern
times. United States v. Will, 449 U.S. 200, 213, 101 S. Ct. 471, 480, 66
L. Ed. 2d 392, 405 (1980). The common law tradition has “long regarded
the absence of an appropriate forum in which to resolve a legitimate case
to be intolerable.” Bd. of Trs. of Pub. Emps’ Ret. Fund v. Hill, 472 N.E.2d
204, 206 (Ind. 1985). The rule of necessity thus reflects the longstanding
principle that to deny an individual access to courts for the vindication of
his or her rights constitutes a far more egregious wrong than to permit a
judge to hear a matter in which he or she has some interest. See
Weinstock v. Holden, 995 S.W.2d 408, 410 (Mo. 1999) (en banc) (per
curiam).
When the matter to be decided affects the interests of every judge
qualified to hear it, the rule of necessity clearly applies “without resort to
further factual development.” State ex rel. Hash v. McGraw, 376 S.E.2d
634, 639 (W. Va. 1988) (McGraw, J., noting his disqualification). The
theory on which the rule rests when such circumstances arise is that
“where all are disqualified, none are disqualified.” Ignacio v. Judges of
U.S. Ct. of Appeals for Ninth Circuit, 453 F.3d 1160, 1165 (9th Cir. 2006)
(quoting Pilla v. Am. Bar Ass’n., 542 F.2d 56, 59 (8th Cir. 1976)). Courts
ordinarily invoke the rule of the necessity in such circumstances because
disqualifying every judge with an interest in the matter to be decided
would leave the parties with no court in which to resolve a dispute. See,
e.g., id. (applying the rule because a litigant sued all the judges in a
federal circuit); Hill, 472 N.E.2d at 206 (applying the rule to consider a
challenge to a statutory amendment affecting judicial retirement
benefits); Weinstock, 995 S.W.2d at 410 (applying the rule to consider a
resolution affecting judicial pay). Similarly, the rule of necessity has
27
been invoked to prevent an attorney who represented every judge within
a jurisdiction from having no court in which to practice. See Reilly by
Reilly v. Se. Pa. Transp. Auth., 489 A.2d 1291, 1295 (Pa. 1985).
The rule of necessity contemplated in comment 3 to rule 51:2.11(A)
is broader than the common law rule in that it may also override the
disqualification obligation of a judge who is “the only judge available in a
matter requiring immediate judicial action” when certain conditions are
met. Iowa Code of Judicial Conduct R. 51:2.11(A) cmt. 3. Nonetheless,
the rule of necessity applies on this basis only when (1) the matter to be
decided requires “immediate judicial action,” (2) the judge is “the only
judge available” to decide it, (3) the judge “disclose[s] on the record the
basis for possible disqualification,” and (4) the judge makes “reasonable
efforts to transfer the matter to another judge as soon as practicable.”
Id.
A judge has an affirmative obligation to assure deciding a matter is
in fact necessary before relying on the rule of necessity to excuse a duty
of disqualification based on the unavailability of another judge. To
establish necessity excused a disqualification requirement, a judge must
show he or she made reasonable efforts to transfer the particular matter
to which it applied to another judge “as soon as practicable.” Id. It
follows that when a judge learns it is practicable to transfer a matter
from which he or she would ordinarily be disqualified to another judge
before considering it, the rule of necessity does not permit the judge to
consider it. Stated another way, a judge with a duty of disqualification
can only show he or she was the only judge available to decide a matter
requiring immediate attention when the evidence shows it was not
practicable for the judge to transfer the matter to another judge before
deciding it. Thus, under such circumstances, a judge must assess
28
whether any available options for transferring the matter to another
judge satisfies the degree of urgency called for before relying on the rule
of necessity.
4. Application of the rule of necessity. Judge Howes contends the
rule of necessity excused her from any duty she had to disqualify herself
from deciding whether to grant the temporary injunction. We agree with
Judge Howes that an application for a temporary injunction is the sort of
matter that may require immediate judicial attention. 8 But we conclude
the circumstances existing when Judge Howes signed the ex parte order
did not excuse her from disqualification based on necessity for two
reasons. 9
First, we are not persuaded that Judge Howes was the only judge
available to consider the application for a temporary injunction. The
record indicates at least six or seven of the eight district court judges
with chambers in the Scott County Courthouse were present on the
morning Ms. Pauly presented the ex parte application to Judge Howes.
Judge Howes presented evidence revealing that every judge present in
the courthouse when she signed the order granting the temporary
injunction had a full morning according to the assignment schedule.
However, we conclude this evidence, though relevant, was insufficient to
conclude necessity excused her failure to disqualify herself from
considering the ex parte application for the injunction.
8Because we decide necessity did not excuse Judge Howes from disqualification
on other grounds, we do not address whether the application Ms. Pauly presented to
her warranted a conclusion that the requisite degree of urgency existed.
9Similarly, because we conclude necessity did not excuse Judge Howes from
disqualification on other grounds, we need not decide whether necessity may excuse a
judge’s duty of disqualification without advance disclosure of the basis for
disqualification to the party not present in an ex parte proceeding permitted by law if
disclosure is made on the record during that proceeding.
29
Ample testimony indicated the assignment schedule often included
matters that had fallen off the schedule because they settled at the last
minute. That was precisely the reason Judge Howes was available the
morning she considered the application for a temporary injunction
despite the assignment schedule indicating she would not be.
Additionally, the evidence demonstrated the assignment judge was
scheduled to hear motions in fifteen-minute intervals for the remainder
of the morning following the morning order hour. Thus, the evidence
unequivocally established not only that at least one judge present in the
courthouse was not in the midst of a jury trial, but also that it would be
possible to interrupt that judge to request that he consider an emergency
matter within fifteen minutes. We are confident any judge who had been
informed by Judge Howes or a court administrator that he or she was the
only judge without a conflict available to consider an emergency
application for a temporary injunction would have agreed to take five
minutes to consider it.
Moreover, we note Judge Howes presented no evidence to suggest
she attempted to verify she was the only judge available before
considering the application for a temporary injunction. Because there
were at least a half dozen judges in the courthouse that morning, it was
not obvious that necessity permitted Judge Howes to consider the
application despite her conflict, as might have been the case had she
been the only judge in the courthouse. Yet the record reflects no
evidence suggesting Ms. Pauly told Judge Howes she had attempted to
present the application to the other judges in the courthouse. Nor does
the record reveal any evidence suggesting Judge Howes asked Ms. Pauly
if she had done so. In fact, the record reflects no evidence suggesting
30
Judge Howes consulted the assignment schedule or called the court
administrator before considering the application.
Second, we are not persuaded that Judge Howes made reasonable
efforts to transfer the matter to another judge or considered whether
transfer was practicable under the circumstances before considering it.
The record reveals no evidence suggesting Judge Howes attempted to
assess whether transfer was practicable under the circumstances. There
was no evidence suggesting Judge Howes investigated the degree of
urgency called for by questioning Ms. Pauly. 10 Nor did the evidence
suggest Judge Howes checked with the court administrator or the clerks
in the chambers of any of the other judges before deciding to consider
the application herself. During her testimony before the Commission,
Judge Howes acknowledged that, given the nature of the application, it
was immediately apparent to her that considering it would take mere
minutes. Thus, in light of the many other judges present in the
courthouse, Judge Howes had no basis for concluding transfer to
another judge was wholly impracticable without some investigation.
Under these circumstances, we conclude her failure to investigate and
her failure to attempt to find another judge to consider the ex parte
application fatally undermine her claim of necessity.
Our research has not uncovered a single case in which a judge
successfully invoked the rule of necessity under similar circumstances.
See Huffman v. Ark. Judicial Discipline & Disability Comm’n, 42 S.W.3d
386, 393 (Ark. 2001) (concluding there was no showing of necessity when
it was unclear a party seeking a temporary restraining order could not
10For example, had Judge Howes questioned Ms. Pauly, she might have learned
that Ms. Pauly prepared the application for a temporary injunction the night before yet
arrived at the courthouse after the morning order hour had ended.
31
have waited “until another judge could be found” or been sent to the
chambers of a judge on the bench in the same courthouse “to wait for
him to take a recess or otherwise become available”). Unless necessity is
evident from the circumstances, a judge may not invoke the rule of
necessity to circumvent his or her duty of disqualification without first
attempting to determine whether transfer was practicable under the
circumstances.
The record in this case does not support a finding that necessity
was evident from the circumstances existing when Judge Howes
considered the application for a temporary injunction. Nor does the
record support a finding that Judge Howes determined transfer of the
matter to another judge was impracticable. Therefore, we conclude the
rule of necessity did not excuse Judge Howes from the duty of
disqualification that arose due to her attorney–client relationship with
Ms. Pauly. Accordingly, we agree with the Commission that Judge
Howes violated rule 51:2.11(A) and canon 2 of the Iowa Code of Judicial
Conduct when she decided whether to grant the application for a
temporary injunction Ms. Pauly presented to her on July 25, 2013.
B. Rule 51:3.13(A) and Canon 3. We next consider whether
Judge Howes violated rule 51:3.13(A) and canon 3 of the Iowa Code of
Judicial Conduct by failing to minimize the risk of conflict with her
judicial obligations and accepting gifts of free legal services from
Mr. Jasper and Ms. Pauly.
1. Governing legal principles. Canon 3 of the Iowa Code of Judicial
Conduct provides that “a judge shall conduct the judge’s personal and
extrajudicial activities to minimize the risk of conflict with the obligations
of judicial office.” Because judges accepting gifts creates a risk of conflict
with their judicial obligations, rule 51:3.13 limits the circumstances
32
under which a judge may accept a gift or thing of value from another
person.
First, rule 51:3.13(A) sets forth two considerations a judge must
take into account before accepting any gift or thing of value. It provides,
“A judge . . . shall not accept or solicit any gift, loan, bequest, benefit, or
other thing of value, if acceptance is prohibited by law or would appear to
a reasonable person to undermine the judge’s independence, integrity, or
impartiality.” Iowa Code of Judicial Conduct R. 51:3.13(A). Under this
rule, a judge may not accept a gift or thing of value in violation of the
state gift laws set forth in chapter 68B of the Iowa Code. See Iowa Code
§§ 68B.2, .22, .23, .34. In addition, a judge may not accept a gift or
thing of value when its acceptance would reasonably appear to
undermine his or her independence, integrity, or impartiality. Iowa Code
of Judicial Conduct R. 51:3.13(A).
Second, rule 51:3.13(B) sets forth an exclusive list of gifts and
things of value a judge may accept from a “restricted donor.” Any party
or other person involved in a case pending before a judge qualifies as a
“restricted donor.” See id., Terminology. Therefore, the rule identifies
the only gifts or things of value a judge may accept from an individual
involved in a pending case before him or her. Id. r. 51:3.13 cmt. 1.
Third, rule 51:3.13(C) describes circumstances under which a
judge may accept a gift or thing of value from an individual who is not a
restricted donor. It provides that a judge may accept gifts and things of
value “from friends, relatives, or other persons, including lawyers, whose
appearance or interest in a proceeding pending or impending before the
judge would in any event require disqualification of the judge under rule
51:2.11.” Id. r. 51:3.13(C)(1). Under this rule, a judge may generally
accept gifts or things of value from lawyers or other individuals whose
33
appearance before the judge would require disqualification or disclosure
under rule 51:2.11 with the important caveat that acceptance may not
otherwise be prohibited under rule 51:3.13(A). Id. r. 51:3.13(C).
“Whenever a judge accepts a gift or other thing of value without
paying fair market value, there is a risk that the benefit might be viewed
as intended to influence the judge’s decision in a case.” Id. r. 51:3.13
cmt. 1. Nevertheless, the Iowa Code of Judicial Conduct recognizes that
acceptance of a gift is unlikely to appear to a reasonable person to
undermine judicial independence, integrity, or impartiality when the
circumstances quite clearly indicate the person giving the gift did not
give it based on the recipient’s status as a judge. Rule 51:3.13 generally
does not prohibit judges accepting special pricing, discounts, and other
benefits made available to the public or certain classes of persons by
businesses or financial institutions:
Businesses and financial institutions frequently make
available special pricing, discounts, and other benefits,
either in connection with a temporary promotion or for
preferred customers, based upon longevity of the
relationship, volume of business transacted, and other
factors. A judge may freely accept such benefits if they are
available to the general public, or if the judge qualifies for
the special price or discount according to the same criteria
as are applied to persons who are not judges. As an
example, loans provided at generally prevailing interest rates
are not gifts, but a judge could not accept a loan from a
financial institution at below-market interest rates unless
the same rate was being made available to the general public
for a certain period of time or only to borrowers with
specified qualifications that the judge also possesses.
Id. r. 51:3.13 cmt. 3. Accordingly, rule 51:3.13(B) permits a judge to
accept “commercial or financial opportunities and benefits, including
special pricing and discounts” offered by restricted donors so long as “the
same opportunities and benefits . . . are made available on the same
34
terms to similarly situated persons who are not judges.” Id.
r. 51:3.13(B)(2).
Because legal services constitute a thing of value, rule 51:3.13(A)
forbids a judge from accepting free legal services if doing so would appear
to a reasonable person to undermine his or her independence, integrity,
or impartiality. Attorneys with matters presently before a judge fall
within the definition of “restricted donor” precisely because a judge
accepting a thing of value from such an attorney would appear to a
reasonable person to undermine the judge’s independence, integrity, or
impartiality.
However, an attorney or firm who is currently providing legal
services to a judge is an attorney or firm whose appearance before the
judge would trigger the disqualification or disclosure requirement of rule
51:2.11. Therefore, under rule 51:3.13(C), a judge may accept free legal
services from an attorney or firm currently representing him or her
because it would trigger the disqualification or disclosure requirement of
rule 51:2.11 if that attorney or firm were to appear before the judge.
Ordinarily, a reasonable person would not perceive a judge’s acceptance
of free legal services to undermine the judge’s independence, integrity, or
impartiality if the judge is required to disclose the relevant facts and
obtained a waiver of disqualification from the parties under rule
51:2.11(C) before deciding a matter.
In contrast, when a judge accepts free legal services from an
attorney or firm and then permits the attorney or firm to appear before
him or her in court without disclosing the relevant facts and obtaining a
waiver as required by rule 51:2.11(C), the judge’s conduct might appear
to a reasonable person to undermine his or her independence, integrity,
or impartiality. The language of 51:3.13(C) explicitly acknowledges a
35
judge deciding a matter in which a party is represented by a lawyer from
whom the judge accepted free legal services is sufficient to trigger the
disqualification or disclosure requirement of rule 51:2.11 so long as the
matter was impending when the services were accepted.11 Its clear
implication is that a reasonable person might believe a judge’s
independence, integrity, or impartiality has been compromised if the
judge fails to disclose his or her recent acceptance of free legal services
from an attorney or firm before deciding a matter in which the attorney
or firm appears.
Because rule 51:3.13(A) requires judges to avoid accepting gifts or
things of value under circumstances that might erode or diminish
confidence in the judicial system, it would be ill-served to the task for
which it was intended if we were to construe it in an overly mechanical
fashion. Accordingly, we conclude any judge who accepts free legal
services from an attorney or firm has a continuing obligation under
51:3.13(A) and canon 3 to ensure his or her acceptance of those services
would not appear to a reasonable person to undermine his or her
independence, integrity, or impartiality by honoring the disclosure and
waiver requirements of rule 51:2.11(C) before deciding a matter in which
the attorney or firm appears.
Because rule 51:3.13 does not forbid judges accepting free legal
services under all circumstances, occasionally an attorney from whom a
judge accepted free legal services will be scheduled to appear before the
judge in court. Once a judge has accepted free legal services from an
attorney or firm, the judge must either disqualify himself or herself from
11The Iowa Code of Judicial Conduct defines “impending matter” as “a matter
that is imminent or expected to occur in the near future.” Iowa Code of Judicial
Conduct, Terminology.
36
any matter in which the attorney or firm who provided the services
appears or disclose his or her acceptance of free legal services and obtain
a waiver of the disqualification requirement from the parties. See id.
r. 51:2.11(A), (C). A judge violates rule 51:3.13(A) and canon 3 of the
Iowa Code of Judicial Conduct by failing to ensure his or her acceptance
of free legal services does not reasonably appear to undermine his or her
independence, integrity, or impartiality.
2. Application of legal principles. Though Judge Howes offered to
pay Mr. Jasper and Ms. Pauly for their legal services, the record indicates
she accepted free legal services from both attorneys when they refused
her offers for payment. The Commission concluded Judge Howes
violated rule 51:3.13(A) because it found her acceptance of free legal
services from Mr. Jasper and Ms. Pauly would appear to a reasonable
person to undermine her independence, integrity, or impartiality. 12
Judge Howes had an attorney–client relationship with each of the
attorneys from whom she accepted free legal services at the time she
accepted the services. Furthermore, the record contains no evidence
suggesting the attorneys from whom Judge Howes accepted free legal
services were restricted donors. Accordingly, we conclude Judge Howes
did not violate rule 51:3.13 merely by accepting free legal services. See
id. r. 51:3.13(C)(1).
However, the record also reveals Judge Howes failed to honor her
continuing obligation to ensure her acceptance of free legal services from
Ms. Pauly would not reasonably appear to undermine her independence,
12Ms. Pauly filed the petition for dissolution of the marriage between
Mr. Khawaja and Ms. Jadoon in the district court on November 9, 2012. However, the
Commission did not charge Judge Howes with violating 51:3.13(B) or find that
Ms. Pauly was a restricted donor.
37
integrity, or impartiality by failing to disqualify herself from a matter in
which Ms. Pauly appeared or disclose her acceptance of free legal
services from Ms. Pauly to the parties and obtain a waiver of the
disqualification requirement. 13 Because Judge Howes failed to disqualify
herself or disclose her acceptance of free legal services from an attorney
who appeared before her, we agree with the Commission that she
violated rule 51:3.13(A) and canon 3 of the Iowa Code of Judicial
Conduct. 14
C. Rules 51:1.1 and 51:1.2 and Canon 1. We now consider
whether Judge Howes violated rules 51:1.1 and 51:1.2 as well as canon 1
of the Iowa Code of Judicial Conduct by failing to comply with the rules
set forth therein, failing to avoid the appearance of impropriety, and
failing to promote public confidence in the independence, integrity, and
impartiality of the judiciary.
1. Governing legal principles. Canon 1 of the Iowa Code of Judicial
Conduct provides that “a judge shall uphold and promote the
independence, integrity, and impartiality of the judiciary and shall avoid
impropriety and the appearance of impropriety.” Rule 51:1.1 provides
that judges “shall comply with the law, including the Iowa Code of
Judicial Conduct.” Id. r. 51:1.1. Rule 51:1.2 provides that a judge must
“act at all times in a manner that promotes public confidence in the
13We note the record does not indicate whether Judge Howes honored these
requirements when Mr. Jasper appeared before her after she accepted free legal services
from him.
14Because we conclude rule 51:3.13(A) imposes a continuing obligation on a
judge who accepts free legal services from an attorney to ensure his or her acceptance
of those services would not reasonably appear to undermine his or her independence,
integrity, or impartiality by honoring the disqualification or disclosure requirement of
rule 51:2.11 before deciding a matter in which the attorney appears, we need not decide
whether the matter Judge Howes decided constituted an “impending matter.” See Iowa
Code of Judicial Conduct, Terminology; id. r. 51:3.13(C)(1).
 38
independence, integrity, and impartiality of the judiciary and shall avoid
impropriety and the appearance of impropriety.” Id. r. 51:1.2. For
purposes of applying this rule, the term “impropriety” means “conduct
that violates the law, court rules, or provisions of the Iowa Code of
Judicial Conduct, and conduct that undermines a judge’s independence,
integrity, or impartiality.” Id., Terminology. The term “integrity” means
“probity, fairness, honesty, uprightness, and soundness of character.”
Id.
As the preamble to the Iowa Code of Judicial Conduct provides,
judges “should aspire at all times to conduct that ensures the greatest
possible public confidence in their independence, impartiality, integrity,
and competence.” Id., Preamble [2]. Accordingly, rule 51:1.2 governs a
judge’s conduct both on and off the bench. In re Meldrum, 834 N.W.2d
650, 653 (Iowa 2013); Block, 816 N.W.2d at 364; see Iowa Code of
Judicial Conduct R. 51:1.2 cmt. 1.
The comments to rule 51:1.2 describe various means by which a
judge might fail to promote public confidence in the judiciary or fail to
avoid the appearance of impropriety. In particular, conduct undermines,
rather than promotes, public confidence in the judiciary when it appears
to compromise the independence, integrity, and impartiality of a judge.
Iowa Code of Judicial Conduct R. 51:1.2 cmt. 3. Conduct creates an
appearance of impropriety when it violates the Iowa Code of Judicial
Conduct or creates in reasonable minds the perception that a judge
engaged in conduct reflecting adversely on his or her impartiality or
fitness as a judge. Id. r. 51:1.2 cmt. 5.
2. Application of legal principles. Judge Howes decided a matter
from which she failed to disqualify herself when the rule of necessity did
not apply without disclosing all the relevant facts and obtaining a waiver
39
of the disqualification requirement from the parties. She also failed to
ensure her acceptance of free legal services did not reasonably appear to
undermine her independence, integrity, or impartiality by deciding a
matter in which an attorney from whom she accepted free legal services
represented a party without disclosing her acceptance of free legal
services from the attorney and obtaining a waiver of the disqualification
requirement from the parties. By this conduct, Judge Howes failed to
comply with the Iowa Code of Judicial Conduct, failed to avoid the
appearance of impropriety, and failed to promote public confidence in the
independence, integrity, and impartiality of the judiciary. Therefore, we
agree with the Commission that Judge Howes violated rules 51:1.1 and
51:2.1 as well as canon 1.
D. Rules 51:1.1, 51:1.2, and 51:2.16(A) as well as Canons 1
and 2. Finally, we consider whether Judge Howes violated rules 51:1.1,
51:1.2, and 51:2.16(A) as well as canons 1 and 2 of the Iowa Code of
Judicial Conduct by failing to be honest and candid with the
Commission. Rule 51:2.16(A) provides that judges “shall cooperate and
be candid and honest with judicial and lawyer disciplinary agencies.”
The Commission charged Judge Howes with failing to be honest
and candid with it based on statements appearing in her letter explaining
her conduct. Judge Howes sent the letter in response to the
Commission’s request that she provide a written explanation of her
conduct addressing the circumstances under which she signed the
ex parte order and whether Ms. Pauly represented her at that time. In it,
Judge Howes stated she had not contacted or hired Ms. Pauly upon
receiving the letter from Mr. Henderkott in which he requested she
reimburse him the money deducted from his tax return.
40
This statement conflicted with a statement appearing in the
response Judge Howes sent to Mr. Henderkott upon receiving his letter.
Specifically, in the response to Mr. Henderkott, Judge Howes indicated
she had discussed the tax issue with her attorney, whom she identified
as Ms. Pauly.
During the hearing before the Commission, Judge Howes testified
she never intended to mislead the Commission about her
communications with Ms. Pauly. Judge Howes also acknowledged the
statement in her response to Mr. Henderkott indicating she had spoken
to Ms. Pauly was untruthful. Judge Howes did not remember precisely
why she wrote the untruthful statement to Mr. Henderkott, but she
indicated it might have been because she intended to tell Ms. Pauly
about Mr. Henderkott’s letter at the time or because she wished to
assume a particular posture in her communications with him.
Although the Commission expressed concern that Judge Howes
did not thoroughly review her records before responding to its request for
a written explanation of her conduct, it concluded Judge Howes did not
intentionally deceive it. Therefore, the Commission concluded there was
not a convincing preponderance of the evidence indicating Judge Howes
failed to cooperate with its investigation or deceived it in violation of any
particular rule or canon.
After careful review of the record, we also conclude the evidence
was inadequate to prove Judge Howes was intentionally dishonest with
the Commission. What Judge Howes wrote to the Commission was
inconsistent with what she wrote to Mr. Henderkott. However, in both
her written explanation of her conduct and her testimony before the
Commission, Judge Howes acknowledged that Ms. Pauly wrote the
May 22 letter on her behalf. In addition, Judge Howes consistently
41
indicated to the Commission that she communicated about the tax
dispute with Ms. Pauly only after Ms. Pauly received the letter from
Mr. Kepros, and Ms. Pauly corroborated this account of the timeline in
her testimony.
Although a convincing preponderance of the evidence indicates
Judge Howes made an inaccurate statement, the record indicates it was
probably the statement in her letter to Mr. Henderkott, not the statement
in her written explanation of her conduct to the Commission. However
carefully worded the letter Judge Howes wrote to the Commission might
have been, the evidence was inadequate to prove she violated any rule or
canon in the manner charged by a convincing preponderance of the
evidence. Accordingly, we agree with the Commission the evidence does
not prove Judge Howes violated rules 51:1.1, 51:1.2, and 51:2.16(A) as
well as canons 1 and 2 of the Iowa Code of Judicial Conduct in the
manner charged.
IV. Sanction.
We impose sanctions in judicial discipline proceedings “not to
punish the individual judge, but to restore and maintain the dignity,
honor, and impartiality of the judicial office.” In re McCormick, 639
N.W.2d 12, 16 (Iowa 2002). We also impose sanctions to protect the
public by deterring judges from engaging in unethical conduct in the
future. Block, 816 N.W.2d at 365.
There are no standard sanctions in judicial discipline cases based
on the rule or rules violated. Meldrum, 834 N.W.2d at 654. Ultimately,
we determine the suitable sanction by considering the goals served by
judicial discipline and the entire record before us. In re Dean, 855
N.W.2d 186, 192 (Iowa 2014). We tailor the sanction to the particular
case by considering all the aggravating or mitigating factors that may
42
bear upon the appropriate sanction for the offending conduct. Krull, 860
N.W.2d at 46.
We begin our analysis concerning the appropriate sanction in a
judicial discipline case by considering the following factors:
1. whether the misconduct is isolated or a pattern of
misconduct;
2. the nature, extent, and frequency of the acts of
misconduct;
3. whether the misconduct occurred in or out of the
courtroom;
4. whether the misconduct occurred in the judge’s official
capacity or in his or her private life;
5. whether the judge has acknowledged or recognized the
misconduct;
6. whether the judge has made an effort to change or modify
his or her conduct;
7. the length of service on the bench;
8. whether there have been any prior complaints;
9. the effect of the misconduct upon the integrity of and
respect for the judiciary; and
10. the extent to which the judge exploited the judicial office
to satisfy personal interests.
Krull, 860 N.W.2d at 46 (quoting Block, 816 N.W.2d at 365–66). We may
also consider any additional factors we find relevant to calibrating the
sanction to the particular misconduct, including the sanctions imposed
in cases involving similar misconduct and the subjective motivations of
the judge who engaged in misconduct. See id. at 46–47; McCormick, 639
N.W.2d at 16–18.
The Commission recommended Judge Howes be publicly
reprimanded, rather than temporarily suspended, in light of a
43
consideration it found to mitigate the severity of her misconduct. In
particular, the Commission concluded the legal culture in which Judge
Howes works likely contributed to her apparent confusion regarding the
applicable standards for identifying conflicts that warrant judicial recusal
and the appropriateness of judges accepting free legal services from
attorneys likely to appear before them. We give respectful consideration
to the Commission’s recommendation regarding an appropriate sanction,
but we are not bound by it. Krull, 860 N.W.2d at 43.
On the one hand, several factors we ordinarily weigh in considering
the appropriate sanction for judicial misconduct counsel in favor of a
serious sanction here. Though Judge Howes’s misconduct took place
during an isolated episode, it was particularly likely to erode the
confidence of litigants appearing before her. Furthermore, though Judge
Howes never engaged in misconduct in a public courtroom, she
committed misconduct in her chambers while acting in her official
capacity. Additionally, misconduct of the sort at issue in this case is
understandably likely to undermine public respect for and public
confidence in the integrity of the judiciary.
On the other hand, several additional factors we traditionally find
relevant to determining an appropriate sanction in a judicial discipline
case counsel in favor of a lighter sanction. The conduct by which Judge
Howes violated her ethical duties involved an isolated decision. In view
of the charges against her, Judge Howes appears to have at least
resolved to be more cautious about ensuring her conduct complies with
her ethical duties in the future. Judge Howes has served the state as a
member of the judiciary for approximately twenty-three years, and she
has never been disciplined before. Nor does the evidence suggest Judge
Howes exploited her judicial role to her personal benefit. On the
44
contrary, judges and attorneys who appeared before the Commission on
her behalf indicated she has an excellent reputation as a judge.
We agree with the Commission that additional circumstances are
relevant to selecting the appropriate sanction in this case. Based on the
testimony of the other judges who appeared before the Commission on
her behalf, it is evident Judge Howes was not alone in her mistaken
beliefs concerning her ethical obligations. But we are mindful that
judges are responsible for assuring that they understand the parameters
of their ethical duties. Because avoiding even the appearance of
impropriety is of paramount importance to maintaining the public trust
and respect for the judiciary, judges should conduct themselves
especially cautiously whenever those parameters appear to be unclear or
debatable. Accordingly, we conclude the apparent lack of clarity
concerning the rules violated counsels only slightly in favor of a lighter
sanction.
In addition, Judge Howes has reassured us that she did not
intentionally or knowingly disregard her ethical obligations. Rather, it is
clear that, were it not for her mistaken beliefs concerning the rules
governing her conduct, she would have conducted herself differently to
avoid violating them. Judge Howes acted in good faith and took care to
assure she honored what she understood those requirements to be.
Moreover, we are firmly convinced Judge Howes did not intend to give
Ms. Pauly or her client any advantage by granting the application for a
temporary injunction. Rather, the order she signed was merely a
temporary order maintaining the status quo pending a further hearing,
and she believed that an emergency warranting immediate action existed.
We conclude these facts also counsel in favor of a lighter sanction.
45
Under the circumstances of this case, we believe a formal
reprimand is unnecessary to maintain the dignity, honor, and
impartiality of judiciary. See McCormick, 639 N.W.2d at 16. Judge
Howes clearly violated the Iowa Code of Judicial Conduct, but she would
have conducted herself differently had she understood her ethical
obligations. See In re Frerichs, 238 N.W.2d 764, 770 (Iowa 1976).
Shared confusion concerning the parameters of those obligations directly
and understandably contributed to her conduct.
In appropriate cases, a public admonition may be adequate to
repair an appearance of impropriety in service to the public interest. See
Comm. on Prof’l Ethics & Conduct v. Liles, 430 N.W.2d 111, 112–13 (Iowa
1988) (“The public’s interest in guarding against even an appearance of
impropriety can be adequately served here by an admonition.”). A public
admonishment may also perform the important function of avoiding the
appearance of impropriety in the future by instructing members of the
bench as to how to avoid violating their ethical obligations when similar
circumstances arise. See id. at 113. Accordingly, we conclude a public
admonishment will serve the fundamental purposes of judicial discipline
in this case. Block, 816 N.W.2d at 365; McCormick, 639 N.W.2d at 16.
We are mindful of statutory and constitutional limits on our power
to sanction a judicial officer. Section 602.2106(3)(b) of the Iowa Code
permits this court to discipline or remove a judicial officer when the
Commission files an application for judicial discipline. Iowa Code
§ 602.2106(3)(b). In the context of attorney disciplinary proceedings,
however, we have previously recognized that public admonitions
constitute something “considerably less severe than reprimands, and . . .
something less than actual discipline.” Liles, 430 N.W.2d at 113.
46
Notwithstanding this distinction, we conclude this court has the
power to admonish, rather than reprimand, suspend, or remove, a judge
when the Commission files an application for judicial discipline for the
following reasons. First, section 602.2106(4) states that this court may
“render the decree that it deems appropriate” when it finds an
application for judicial discipline “should be granted in whole or in part.”
Iowa Code § 602.2106(4). Second, the Iowa Constitution grants this
court “supervisory and administrative control over all inferior judicial
tribunals throughout the state.” Iowa Const. art. V, § 4. Thus, we
conclude that when the Commission makes an application for discipline
of a judicial officer to this court, upon deciding to grant the application
this court has the power to admonish rather than reprimand, suspend,
or remove a judicial officer.
V. Conclusion and Sanction.
We conclude Judge Howes violated rules 51:1.1, 51:1.2,
51:2.11(A), and 51:3.13(A) as well as canons 1, 2, and 3 of the Iowa Code
of Judicial Conduct. We therefore grant the Commission’s application for
judicial discipline and publicly admonish Judge Howes for her conduct.
APPLICATION GRANTED AND JUDGE PUBLICLY ADMONISHED.