Iowa Supreme Ct. Att'y Disciplinary Bd. v. Johnathan Lee Sears ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 19–0712
Filed September 6, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JOHNATHAN LEE SEARS,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
The Iowa Supreme Court Attorney Disciplinary Board filed a
complaint alleging the attorney violated the rule of professional conduct
regarding commission of a criminal act. LICENSE SUSPENDED.
Tara van Brederode and Crystal W. Rink, Des Moines, for
complainant.
Johnathan Lee Sears, Ankeny, pro se.
2
CHRISTENSEN, Justice.
The Iowa Supreme Court Attorney Disciplinary Board (Board)
charged an Iowa attorney with violations of Iowa Rule of Professional
Conduct 32:8.4(b) (commission of a criminal act) in connection with
convictions for operating while intoxicated (OWI), domestic abuse assault
causing bodily injury, and several instances of violating a no-contact
order. After a hearing, the Iowa Supreme Court Grievance Commission
found the alleged violations had occurred and recommended the attorney
be suspended for one year without the possibility of early reinstatement.
Upon our de novo review, we conclude the attorney violated rule
32:8.4(b) as alleged in counts I, II, and III. We order that his license be
suspended indefinitely with no possibility of reinstatement for two years.
I. Background Facts and Proceedings.
Johnathan Sears is an attorney admitted to the Iowa bar in
September of 2017. He is a partner at the Des Moines law firm of Clark &
Sears Law. Five months after his admittance, on February 6, 2018, law
enforcement located Sears on a highway in Polk County pushing a heavily
damaged, disabled vehicle. Sears indicated he rear-ended an unknown
vehicle; he did not understand where he was or where the accident took
place. Law enforcement located an open bottle of vodka in the back seat
of Sears’s car. After failing field sobriety tests, Sears consented to a breath
test, which returned a result of 0.181 blood alcohol concentration. He was
then arrested for OWI in violation of Iowa Code section 321J.2 (2018).
On June 13, Sears pled guilty to OWI, first offense. The sentencing
court placed Sears on probation for one year. The terms of Sears’s
probation prohibited alcohol use, forbade the possession of firearms, and
mandated compliance with state and federal laws. The sentencing court
also required Sears to cooperate with and complete the recommendations
3
of his substance abuse evaluation. That evaluation recommended Sears
complete extended outpatient treatment and attend weekly Alcoholics
Anonymous (AA) meetings. Sears failed to begin the recommended
treatment within thirty days of his sentencing and, as a result, violated
the sentencing court’s order with respect to the terms of his probation.
This failure prompted a September 24 order instructing Sears to obtain a
new substance abuse evaluation.
About two weeks later, on October 7, West Des Moines police
received a 911 call from Jane Doe. 1 The 911 call revealed a panicked Doe
explaining, “[M]y ex . . . is trying to break in” and “he was here and he
attacked me and then I got him to leave, and then he came back.” As it
turns out, Doe is Sears’s former spouse. Apparently, Doe and Sears
divorced in May but remained intimate.
The facts leading to the 911 call on October 7 are not disputed. Doe
and Sears spent that day at Doe’s apartment. Doe did not see Sears
consume alcohol, but around 9:00 or 10:00 p.m., she could smell it on
him. Doe was in her bedroom when she heard Sears, who was in a
different room, pull the slide on a handgun she owned. Sears entered
Doe’s bedroom with the handgun and asked how to disassemble it.
Neither Doe nor Sears could figure out how to disassemble the handgun,
and Sears left the bedroom with the gun. Worried about Sears, Doe walked
to the living room to speak with him. Sears then asked Doe if he could
use the handgun to kill himself. Doe refused.
At some point, Sears threw the handgun at Doe along with the
accompanying bullets. Doe collected the bullets, picked up the handgun,
proceeded to her bedroom, and hid the handgun under her mattress.
1Due to the sensitive nature of the underlying facts, we will use the pseudonym
“Jane Doe” in reference to the victim witness.
4
Sears entered the bedroom and asked for the handgun, but Doe again
refused. This refusal evidently upset Sears. Sears proceeded to grab Doe’s
hair and slam her to the ground. With her back against the ground, Sears
positioned his body on top of Doe, pinning her arms with his legs. At this
point, Sears slammed Doe’s head against the ground and screamed at her.
Doe’s head was slammed four or five times and continued to such an
extent that her vision began to “black out.” At this point, Doe relented and
told Sears the location of the handgun.
Sears then left the bedroom with the handgun. He returned looking
for the bullets, and Doe was able to grab the handgun from Sears.
Eventually, Sears returned to the bedroom and apologized to Doe. Doe
told Sears to leave, and after asking Sears multiple times, he left the
apartment. Doe locked her apartment door and returned to her bedroom.
A short time later, Doe heard Sears pounding on her apartment door, as
though he was “trying to break it open.” In fact, Doe testified Sears’s
pounding cracked her doorframe. At this time, Doe called 911 because
she was afraid Sears “was going to break in and hurt [her].” During the
911 call, Sears left the apartment door for a moment, but returned to Doe’s
door and continued to pound.
Three West Des Moines police officers were dispatched to Doe’s
apartment complex at approximately 10:21 p.m. Officer Brandon Condon
was first on the scene and noticed a man walking out of the complex. The
man identified himself as John, and Officer Condon observed that he had
bloodshot, watery eyes; slurred speech; a strong odor of alcoholic
beverages; and impaired balance. Officer Condon identified the man as
Sears. Upon questioning, Sears admitted to drinking alcohol that night.
Sears also admitted to Officer Condon that it was a possibility someone
was injured in a domestic fight. Sears consented to a search of his cell
5
phone. Officer Condon viewed several text messages sent by Sears to his
current wife. The texts included the following content:
At 10:04:30 PM, Sears texted, “I’m drunk as fuck.”
At 10:04:38 PM, Sears texted, “7 have I gun.”
At 10:05:00 PM, Sears texted, “And I’m leaving her 7.”
At 10:05:37 PM, Sears texted, “Let this make you happy.”
At 10:06:31 PM, Sears texted, “I’ve assaulted her.”
At 10:07:34 PM, Sears texted, “I’ve threatened to kill myself. I can’t
so with her.”
At 10:08:08 PM, Sears texted, “I don’t want to kill her.”
Sears submitted to a preliminary breath test that registered a 0.222 blood
alcohol concentration.
Upon entering Doe’s apartment, Officer Condon observed a small
black handgun on the dining room table. He described Doe’s demeanor
as “[v]ery timid, scared, visibly shaken up, emotional.” Doe said her head,
neck, and ears were sore. She also had a red mark on her inner bicep
from Sears pinning her arms down with his knees. Doe later stated she
suffered from headaches for a week following the assault.
Sears was arrested and charged with domestic abuse assault
causing bodily injury in violation of Iowa Code sections 708.2A(2)(b) and
708.1(2)(a). 2 On October 8, the district court entered an order of
protection restraining Sears from contacting Doe. On October 17, Sears
entered a guilty plea to the domestic abuse assault causing bodily injury.
He admitted to “physically and verbally assault[ing] [his] ex-
wife . . . , placing [her] in fear, and causing visible marks on her arms” and
2Searswas also charged with public intoxication, first offense, in violation of Iowa
Code section 123.46. This charge was dropped upon his petition to plead guilty to
domestic abuse.
6
was sentenced to a one-year probation. He was further ordered to comply
with the no-contact order, complete an Iowa domestic abuse program, and
cooperate with all substance abuse programming recommendations.
Sears’s no-contact order was later modified to permit his return to Doe’s
apartment “one time with law enforcement to retrieve . . . personal and
work related items,” but otherwise remained unchanged with respect to its
prohibition of any contact with Doe until 2023.
A probation revocation hearing also took place on October 17, 2018,
concerning Sears’s OWI probation. Sears stipulated to violating the terms
of his probation by committing domestic abuse assault causing injury and
was found in contempt of court. The district court continued probation,
subject to its original terms, and placed Sears on secured continuous
remote alcohol monitoring.
The Board filed a two-count complaint against Sears on December
14. It alleged Sears violated Iowa Rule of Professional Conduct 32:8.4(b)
for his criminal acts of OWI and domestic abuse assault causing bodily
injury. Sears filed an answer to the complaint and admitted to its entirety.
The Board subsequently filed an amended and substituted
complaint, which added a third count relating to Sears’s alleged violations
of the no-contact order issued on October 8. The Board noted the no-
contact order prevented Sears from communicating or attempting to
communicate with Doe, in writing or by telephone, and provided that Sears
was not to be in the immediate vicinity of Doe’s residence. The amended
complaint outlined six separate instances of alleged conduct by Sears that
violated the no-contact order and asserted this conduct violated Iowa
Rules of Professional Conduct 32:8.4(b) and 32:3.4(c) 3 (knowingly
3The Board subsequently abandoned its position that a violation of rule 32:3.4(c)
occurred.
7
disobeying an order of a tribunal). Sears filed his answer to the amended
complaint. He admitted to the existence and scope of the no-contact order
but denied the factual allegations underlying his contact with Doe.
A hearing took place before the grievance commission on February
28, 2019. Doe and Sears each testified. Sears admitted to operating while
intoxicated and admitted violating the terms of his probation. He did not
complete the extended outpatient treatment nor did he attend weekly AA
meetings within thirty days of the sentencing order, although Sears did
indicate he took recent steps to complete the substance abuse
recommendations. He also admitted that on October 7, he violated the
terms of his probation by consuming alcohol, possessing a firearm, and
assaulting Doe. Sears denied violating the terms of the no-contact order.
He testified that he did not call Doe, and he denied sending her emails.
Sears also denied going to Doe’s apartment on January 30, 2019.
Sears also testified that he was a named plaintiff in a small claims
petition for replevin filed against Doe on December 31, 2018. Sears denied
filing the petition and indicated “[he] didn’t have much involvement with
it,” yet he admitted to attending the hearing with his current wife on behalf
of the plaintiffs. After further questioning, Sears admitted a friend of his
was retained to file the petition. The petition for replevin sought various
items that belonged to Sears and requested damages from Doe for unlawful
retention and loss of consortium. When asked whether the replevin action
was filed to embarrass Doe, Sears responded, “I had nothing to do with
the list.” 4
4The addendum attached to Sears’s replevin action includes a list of seven
different items. In the middle of the list are two different sex toys that are described in
shocking detail.
8
Doe testified to the events surrounding the domestic abuse assault
and to the violation of the October 8 no-contact order. Doe stated she
received two emails from Sears’s email account on October 9. In addition,
Doe testified that Sears attempted to contact her on her cell phone on
November 1, January 30, 2019, and February 11. She further indicated
that she came in contact with Sears on January 30. Doe was exiting her
apartment garage when she noticed Sears was standing outside. Sears
stated he wanted to talk, and because it was cold outside, Doe invited him
up to her apartment. Sears was at Doe’s apartment for an hour and a
half. They discussed the disciplinary hearing, and Sears then asked Doe
to drop the no-contact order and to testify on his behalf at the hearing. At
this time, Doe allowed Sears to look for the items listed in his replevin
action, but “he didn’t want to [look], so—[a] lot of [the conversation] was
just . . . small talk.”
On April 30, the commission issued its findings and
recommendations. It concluded Sears violated rule 32:8.4(b) based on his
convictions for OWI and domestic abuse assault causing bodily injury.
Further, the commission determined a convincing preponderance of the
evidence supported the conclusion that Sears violated the terms of the no-
contact order. The commission rejected Sears’s testimony that he never
contacted Doe at her residence and did not find his denial of sending
emails or making phone calls credible. Ultimately, the commission found
Sears’s violations of the law, the multiple violations of his probation, and
the continued defiance of the no-contact order to be “precisely the sort of
conduct which reflects a connection between the conduct and the fitness
to practice law.”
9
II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 776 (Iowa 2016).
We respectfully consider the commission’s findings and recommendations
but are not bound by them. Id. at 777. The allegations of attorney
misconduct must be proved by a convincing preponderance of the
evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nine, 920 N.W.2d 825,
827 (Iowa 2018). “This standard is more demanding than proof by [a]
preponderance of the evidence, but less demanding than proof beyond a
reasonable doubt.” Id. at 827–28 (alteration in original) (quoting Johnson,
884 N.W.2d at 777). We may impose a lesser or greater sanction than that
recommended by the commission. Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Deremiah, 875 N.W.2d 728, 732 (Iowa 2016).
III. Ethical Violations.
The parties do not dispute Sears violated rule 32:8.4(b) for the
conduct alleged in counts I and II of the complaint. “[W]e nonetheless
exercise independent judgment to ensure that the record and the law
support the conclusion of the commission that ethical violations
occurred.” Id. Sears contested the violation alleged in count III.
Rule 32:8.4(b) states, “It is professional misconduct for a lawyer
to . . . commit a criminal act the reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects.” Iowa R. Prof’l
Conduct 32:8.4(b). We have previously determined not every commission
of a criminal act reflects adversely on an attorney’s fitness to practice law.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761,
767 (Iowa 2010). It is the nature and circumstances surrounding the act
that are relevant in evaluating whether the criminal act reflects adversely
on an attorney’s fitness to practice law. See id. In other words, rule
10
32:8.4(b) “requires the criminal act to have a nexus with the lawyer’s
honesty, trustworthiness, or fitness to practice law.” Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Blessum, 861 N.W.2d 575, 588 (Iowa 2015).
Recognized pertinent considerations include the attorney’s mental state, a
demonstrated disrespect for the law or law enforcement, the presence or
absence of a victim and any injury thereto, and the existence of a pattern
of criminal conduct. Templeton, 784 N.W.2d at 767. Ultimately, we will
consider a number of factors to determine whether the criminal act reflects
adversely on an attorney’s fitness to practice law. Id.The Board alleged Sears violated rule 32:8.4(b) in all three counts of
the complaint. We will use the factors recognized in Templeton to examine
whether each of Sears’s actions constitute a violation of rule 32:8.4(b).
A. Count I. We first consider Sears’s conviction for OWI, first
offense. We have previously stated that operating while intoxicated
“create[s] a grave risk of potential injury to anyone on the same road.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 11 (Iowa
2012). This factor favors a finding that a criminal act violated rule
32:8.4(b). Id. The incident may not result in any direct harm to a person,
yet it still may produce a victim of property damage. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Cannon, 821 N.W.2d 873, 878 (Iowa 2012) (“[The]
OWI incident did result in property damage to the parking lot of a grocery
store, thereby making the store a victim of [Cannon’s] criminal action.”).
Here, Sears’s blood alcohol content was 0.181, more than twice the legal
limit of 0.080. His own car was heavily damaged from rear-ending an
unknown car. Driving while intoxicated could lead to serious injury to
other drivers on the road and did, in this case, result in a collision with an
unknown vehicle.
11
Accordingly, we conclude Sears’s criminal act of OWI resulted in a
victim of property damage and a grave risk of potential injury to others.
Sears’s conduct constitutes a violation of rule 32:8.4(b).
B. Count II. We next consider Sears’s conviction for domestic
abuse assault causing bodily injury. We have long recognized that an
attorney’s criminal act of domestic violence may reflect adversely on his
fitness to practice law. Deremiah, 875 N.W.2d at 735–37 (determining
domestic assault reflected adversely on fitness due to the use of violence
resulting in injury); Blessum, 861 N.W.2d at 590 (finding a nexus between
the attorney’s conviction for assault causing injury and his fitness to
practice law based on the attorney’s conscious decision to assault his
victim and his lack of respect for law enforcement evidenced by his falsely
taking credit for summoning police); Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Schmidt, 796 N.W.2d 33, 41 (Iowa 2011) (holding the attorney
violated rule 32:8.4(b) with acts of domestic abuse because of his
conscious decision to injure the victim and his disrespect for the law by
impeding the victim’s help); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt,
791 N.W.2d 98, 101 (Iowa 2010) (concluding the attorney’s domestic abuse
with significant injuries and repeated violations of no-contact order
demonstrated disrespect for the law reflecting adversely on his fitness to
practice law).
Applying the recognized factors, we conclude Sears’s conviction for
domestic abuse assault causing bodily injury reflects adversely on his
fitness to practice law. First, Sears “made the conscious decision to act
on [his] hostility” at the time of the assault. Schmidt, 796 N.W.2d at 41.
Rather than walking away, Sears threw Doe to the ground and slammed
her head until she neared unconsciousness. Second, Sears demonstrated
a disrespect for the law through his use of violence. “The use of violence
12
to settle disputes is the antithesis of the rule of law. Lawyers who use
violence undermine the legal system which requires respect, restraint, and
resort to the legal process.” Deremiah, 875 N.W.2d at 735. Third, Doe was
clearly a victim who suffered injury. Blessum, 861 N.W.2d at 590. The
911 recording—which demonstrates the absolute fear in Doe’s voice—is a
powerful testament to the violence Sears handed down. Responding law
enforcement further indicated Doe was visibly shaken and bared a red
mark on her inner bicep from Sears pinning her arms down with his knees.
Moreover, she also suffered headaches for a week following the assault.
We agree with the commission that Sears’s criminal act of domestic
abuse assault causing bodily injury violated rule 32:8.4(b). Sears’s
decision to act on his hostility and use violence reflects adversely on his
ability to practice law.
C. Count III. We also conclude a nexus exists between Sears’s
violations of the no-contact order and his honesty, trustworthiness, or
fitness to practice law. 5
An attorney may not simply ignore the order of a tribunal made in
the course of a proceeding. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Gailey, 790 N.W.2d 801, 807 (Iowa 2010). The conduct of an attorney that
violates a court order is evidence of that attorney’s disrespect for a lawful
order of the court. Id. It follows that an attorney who cannot respect a
court order “lacks the required fitness to practice law.” Id.The commission determined a convincing preponderance of the
evidence existed, based upon the credible, unrefuted testimony of Doe,
that Sears violated the court’s no-contact order on at least six separate
5This rule may be violated even though authorities never charged Sears with a
violation of the no-contact order. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Taylor,
887 N.W.2d 369, 378 (Iowa 2016).
13
occasions. The record indicates that on October 8, 2018, Sears received
and signed a copy of the no-contact order prohibiting any contact with
Doe. The very next day, according to Doe’s testimony, she received two
emails from Sears’s email account. 6 Doe further testified that on
November 1, January 30, 2019, and February 11, she received (but did
not answer) calls on her cell phone from Sears’s phone number. In
addition, Doe testified that on January 30, 2019, Sears was outside her
residence. Because it was cold outside, she allowed him to come inside.
He stayed for an hour and a half during which time they talked. Sears
asked Doe to drop the no-contact order and to testify on his behalf at the
disciplinary hearing. They also discussed Sears’s replevin action. With
respect to the emails and phone calls, the commission did not find Sears’s
denials credible. He offered no expert testimony to explain how his email
and phone may have been compromised. The commission also found a
clear violation of the no-contact order based on Doe’s credible testimony
that she encountered Sears at her apartment.
We agree with the commission’s finding. The Board carried its
burden by a convincing preponderance of the evidence that Sears violated
the terms of the no-contact order. In repeatedly violating the no-contact
order, Sears’s conduct is evidence of his disrespect for a lawful court order.
See Gailey, 790 N.W.2d at 807; see also Axt, 791 N.W.2d at 101 (“Axt’s
second conviction for domestic abuse and his repeated violations of a court
order banning contact with the victim clearly demonstrate his disrespect
for the law.”). The repeated violations reflect adversely on Sears’s fitness
6On October 9, 2018, less than twenty-six hours after the issuance of the no-
contact order, Doe received an email from Sears’s email account stating, “Is it ok (with
you) for me to talk to you?” About two hours later, Doe received another email from
Sears’s email account. It stated, “I will take the silence as a no, and I will not contact
you again until you reach out to me.”
14
to practice law. For these reasons, we conclude Sears violated rule
32:8.4(b).
IV. Sanctions.
Particular misconduct does not receive the application of per se
rules to determine sanctions. Deremiah, 875 N.W.2d at 737. Instead, an
appropriate sanction is determined upon consideration of the totality of
facts and circumstances of each case. Id. However, we seek consistency
with our prior cases when determining the appropriate sanction.
Templeton, 784 N.W.2d at 769. That being said, we consider the need to
deter reoffending, deter the misconduct of others, protect the public, and
maintain the reputation of the bar. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Qualley, 828 N.W.2d 282, 293 (Iowa 2013); see also Deremiah, 875
N.W.2d at 737.
We have previously imposed the sanction of a two-year suspension
for an attorney who committed domestic abuse and violated the terms of
a no-contact order. That was the case in Iowa Supreme Court Board of
Professional Ethics & Conduct v. Polson, 569 N.W.2d 612 (Iowa 1997). In
a manner far less severe than Sears’s violent attack on Doe, the attorney
in Polson was prohibited from any contact with his wife after he went to
her home, intoxicated, and grabbed her by the neck. Id. at 613. After the
issuance of a no-contact order, Polson proceeded to violate its terms no
less than thirty different times. Id. One particular violation occurred while
Polson was on probation; he went to his wife’s home and threatened to
break down the door and shoot her. Id. In imposing a minimum two-year
suspension, we noted Polson’s violation of the no-contact orders was
egregious. Id. at 614.
In Axt, we surveyed the range of sanctions imposed against lawyers
committing domestic abuse and concluded the suspension ranges from
15
two months up to two years “depending on the nature and extent of other
misconduct” in the same case. 791 N.W.2d at 102. Axt’s misconduct
included domestic abuse and multiple violations of a no-contact order. Id.
We determined the appropriate sanction would be at the high end of the
range because enhanced sanctions may be imposed when multiple
violations of the disciplinary rules occur. Id. at 102–03. Axt, who
practiced law for more than thirty-one years, had a history of two private
admonitions and was previously suspended as a consequence of
alcoholism. Id. at 100, 103. We put in place a suspension of two years
after considering several mitigating factors including Axt’s attempt to
control his alcohol addiction. Id. at 103.
We handed down an eighteen-month suspension with no possibility
of reinstatement on the attorney in Blessum, 861 N.W.2d at 595. We
compared the facts of Blessum to that of our most recent domestic abuse
case at the time, Schmidt. Id. at 594 (citing Schmidt, 796 N.W.2d 33). We
determined Blessum warranted a much longer suspension than the thirty
days imposed in Schmidt due in part to the fact that Blessum’s victim was
a client. Id. Additionally, the attorney in Schmidt “voluntarily undertook
‘intensive rehabilitative efforts’ after assaulting his wife.” Id. (quoting
Schmidt, 796 N.W.2d at 39). This included a ten-day program on
destructive behaviors, anger management, domestic abuse intervention,
parent enrichment, and counseling with two different professionals. Id.
(citing Schmidt, 796 N.W.2d at 39). We noted Blessum completed his court
ordered programs and abided by the terms of his probation, but we found
Blessum’s discounting of his domestic abuse actions at the commission
hearing to be a significant aggravating factor. Id.
In Deremiah, “we [took] another step in strengthening our
disciplinary approach” for professional conduct violations arising from
16
domestic abuse assault causing bodily injury. 875 N.W.2d at 739.
Deremiah was convicted of domestic abuse assault and trespass after
breaking in his girlfriend’s front door and later punching her in the face
multiple times. Id. at 730. The facts of Deremiah did not show a pattern
of misconduct, yet we noted, “When it comes to the application of rule
32:8.4(b) to violent assaults on intimate partners, one assault is one too
many.” Id. at 736. We reviewed the suggested range of sanctions in Axt
and Schmidt, with Schmidt suggesting cases of injurious domestic assaults
should generally consider a suspension of up to six months before the
applications of aggravating and mitigating factors. Id. at 738 (first citing
Axt, 791 N.W.2d 98; and then citing Schmidt, 796 N.W.2d 33).
The aggravating factors in Deremiah were primarily from the
domestic assault itself. Id. We then acknowledged Deremiah’s case, in
stark contrast to Sears’s case, involved a number of mitigating factors
similar to those considered in Schmidt. Id. Deremiah had no record of
previous discipline after eight years of practice, and he “accepted
responsibility for his acts and seem[ed] genuinely remorseful.” Id. Most
importantly, in complete compliance with the terms of his probation,
Deremiah engaged in “robust efforts” to deal with his substance abuse. Id.At the time of the disciplinary hearing, Deremiah had received his one-
year AA sobriety chip and continued to attend AA meetings on a regular
basis. Id. at 731. He also engaged a therapist for twice a week private
counseling and consulted regularly with the Iowa Lawyers Assistance
Project. Id. Both counselors testified at his hearing that he “was actively
engaged in recovery and that his prognosis with respect to managing his
alcoholism was good.” Id. We concluded the proper sanction was
suspension indefinitely with no possibility of reinstatement for at least
three months. Id. at 739. In doing so, we reemphasized a basic rule:
17
“[D]omestic abuse by lawyers is out-of-bounds conduct that will not be
tolerated by this court.” Id.
Like Blessum and Axt, this case is more serious than the act of
domestic abuse itself. Sears committed domestic abuse assault causing
bodily injury less than four months after being placed on probation for his
OWI conviction. Almost immediately following his conviction for domestic
abuse, Sears violated the terms of his no-contact order, and he repeatedly
violated the terms up until seventeen days before the commission’s
hearing.
What is also striking about this record are the numerous
aggravating factors. We must consider both aggravating and mitigating
factors. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Willey, 889 N.W.2d 647,
657 (Iowa 2017). The commission outlined several factors in its sanction
recommendation that it considered aggravating, and we agree with its
determinations.
As noted, Sears’s conduct extended beyond domestic abuse assault
and included multiple violations of the court’s no-contact order. When
multiple violations of disciplinary rules occur, it is an aggravating factor.
Axt, 791 N.W.2d at 102–03. Relatedly, Sears’s failure to learn from his
mistakes is an aggravating factor. Polson, 569 N.W.2d at 612–13.
Following his OWI conviction, Sears was ordered to obtain a substance
abuse evaluation and follow through with any recommendations. Sears
failed to attend any substance abuse treatment and continued to use
alcohol. On September 24, 2018, Sears’s probation officer requested he
complete a new substance abuse evaluation and begin treatment. Within
two weeks of that request, Sears violated the terms of his probation by
assaulting Doe, possessing a firearm, and consuming alcohol. At the
February 2019 disciplinary hearing, Sears also admitted to consuming
18
alcohol earlier that very month despite the court order to abstain from
alcohol use. It appears whatever efforts Sears undertook to address his
substance abuse issues are of recent origin.
Moreover, falsely testifying to the commission is also an aggravating
factor. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barnhill, 885 N.W.2d
408, 424 (Iowa 2016) (“[P]ersistence . . . in perpetuating [a] falsehood is a
remarkable aggravating factor.” (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McGinness, 884 N.W.2d 456, 466 (Iowa 2014))). Sears’s
testimony to the commission that he had not violated the no-contact order
was found to be false. The commission determined Sears violated the no-
contact order by sending two emails to Doe and attempting to call her on
three separate occasions. Furthermore, Doe testified credibly, and
unrefuted, that on January 30, Sears came to her apartment building and
they talked for an hour and a half.
Lastly, we determine a significant aggravating factor to be Sears’s
ongoing violations of the rules of professional conduct and his
demonstrated lack of remorse. The Board instituted this action against
Sears on December 14, 2018. On January 30 and February 11, 2019, Doe
testified Sears attempted to contact her on her cell phone. Further, Doe
testified that on January 30, Sears was waiting outside her residence and
they spoke to each other. Further still, shortly after the Board filed its
complaint, Sears filed a small claims petition for replevin against Doe on
December 31, 2018. The filing of this replevin action, which captioned
Sears and his wife against Doe, is troubling for several reasons. First,
when the replevin action was filed, the no-contact order had been in effect
for nearly three months (October 8, 2018). In addition, the complaint filed
in this matter by the Board was initiated just two weeks prior (December
19
14, 2018). Also troubling is the list of items attached to the replevin action,
which includes sex toys in shocking detail.
We now turn to mitigating factors. Sears has no record of prior
discipline. We do note, however, that the various conduct at issue in this
matter started only five months after Sears was admitted to the Iowa bar
and continued for one year up until seventeen days before the
commission’s hearing. For those reasons, Sears’s lack of prior discipline
is considered a mitigating factor; however, it does not weigh heavily. Cf.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 339
(Iowa 2015) (recognizing no prior discipline in fifty-three years of practice
a mitigating factor); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bieber, 824
N.W.2d 514, 516, 527 (Iowa 2012) (noting lack of disciplinary record in
thirty-two years of practice as an important mitigating factor).
We determine the significant aggravating factors weigh in favor of a
longer period of suspension. Considering all relevant factors we conclude
Sears’s conduct warrants an indefinite suspension with no possibility of
reinstatement for two years. In addition, prior to reinstatement we require
Sears to provide the court with (1) a substance abuse evaluation indicating
he is fit to practice law and (2) a mental health evaluation by a physician
who has signed an affidavit, indicating he is fit to resume practice and has
complied with any required care. See Deremiah, 875 N.W.2d at 739–40.
We further require Sears to provide the court with evidence verifying the
successful completion of his probation and evidence verifying he has not
been charged with or convicted of criminal offenses with the exception of
minor traffic infractions. We also require that any application for
reinstatement be set for a hearing in front of this court before the
suspension in this case is lifted. Iowa Ct. R. 34.25.
20
V. Disposition.
We suspend Sears’s license to practice law in Iowa indefinitely with
no possibility of reinstatement for two years. This suspension applies to
all facets of the practice of law. Id. r. 34.23(3). Sears must comply with
Iowa Court Rule 34.24 and notify his clients of the suspension. Prior to
reinstatement, Sears must establish that he has not practiced law during
the period of his suspension and that he has conformed with the
requirements set forth in Iowa Court Rule 34.25. Costs of this action are
taxed to Sears pursuant to Iowa Court Rule 36.24(1).
LICENSE SUSPENDED.