Iowa Supreme Court Attorney Disciplinary Board Vs. John W. Gailey ( 2010 )


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  •               IN THE SUPREME COURT OF IOWA
                                  No. 09–0937
    
                             Filed November 19, 2010
    
    
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
    
          Complainant,
    
    vs.
    
    JOHN W. GAILEY,
    
          Respondent.
    
    
    
          On review of the report of the Grievance Commission of the
    
    Supreme Court of Iowa.
    
    
    
          Grievance commission reports respondent has committed ethical
    
    infractions and recommends a thirty-day suspension of respondent’s
    
    license to practice law. LICENSED SUSPENDED.
    
    
    
          Charles L. Harrington and Amanda K. Robinson, for complainant.
    
    
    
          John W. Gailey, Fort Dodge, pro se.
                                         2
    
    WIGGINS, Justice.
    
          The Iowa Supreme Court Attorney Disciplinary Board brought a
    
    complaint against the respondent, John W. Gailey, alleging multiple
    
    violations of our ethical rules. A division of the Grievance Commission of
    
    the Supreme Court of Iowa filed a report recommending that we suspend
    
    Gailey’s license to practice law in Iowa for thirty days. Pursuant to our
    
    court rules, we are required to review the report of the commission. See
    
    Iowa Ct. R. 35.10. Upon our review, we concur the respondent violated
    
    our ethical rules and suspend his license to practice law for sixty days.
    
          I. Scope of Review.
    
          We review lawyer disciplinary proceedings de novo. Iowa Supreme
    
    Ct. Att’y Disciplinary Bd. v. Marks, 
    759 N.W.2d 328
    , 330 (Iowa 2009).
    
    The board has the burden to prove disciplinary violations by a convincing
    
    preponderance of the evidence. Id. A convincing preponderance of the
    
    evidence is “ ‘less than proof beyond a reasonable doubt, but more than
    
    the preponderance standard required in the usual civil case.’ ”       Iowa
    
    Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 
    710 N.W.2d 226
    , 230
    
    (Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
    
    Lett, 
    674 N.W.2d 139
    , 142 (Iowa 2004)).           We give weight to the
    
    commission’s findings, but its findings do not bind us. Iowa Supreme Ct.
    
    Att’y Disciplinary Bd. v. Hauser, 
    782 N.W.2d 147
    , 149 (Iowa 2010).
    
          II. Findings of Fact.
    
          Instead of holding a hearing, the commission decided the case on a
    
    joint stipulation filed by the board and Gailey. The stipulation contained
    
    a stipulation of facts and a stipulation recommending a thirty-day
    
    suspension.    The fact that the parties stipulated a recommended
    
    sanction requires us to conclude the parties also stipulated Gailey’s
    
    conduct violated Iowa’s Rules of Professional Conduct.
                                          3
    
          We have recognized there are two types of stipulations that a
    
    tribunal may use in litigated matters. Matter of Prop. Seized, 
    501 N.W.2d 482
    , 485 (Iowa 1993). The first type is a stipulation that admits facts,
    
    relieving a party from the inconvenience of proving the facts in the
    
    stipulation. Graen’s Mens Wear, Inc. v. Stille-Pierce Agency, 
    329 N.W.2d 295
    , 300 (Iowa 1983). The second type is a stipulation that amounts to a
    
    concession of an issue in the litigation.       Matter of Prop. Seized, 501
    
    N.W.2d at 485.
    
          A stipulation of facts by the parties is binding on the parties.
    
    Graen’s Mens Wear, Inc., 329 N.W.2d at 299.             We construe factual
    
    stipulations by attempting to determine and give effect to the parties’
    
    intentions. Id. at 300. In doing so, we interpret the stipulation “with
    
    reference to its subject matter and in light of the surrounding
    
    circumstances and the whole record, including the state of the pleadings
    
    and issues involved.” Id.
    
          We treat a stipulation conceding an issue in the case like a
    
    settlement agreement. In re Marriage of Briddle, 
    756 N.W.2d 35
    , 39–40
    
    (Iowa 2008).     If sufficient legal consideration supports this type of
    
    stipulation, it is entitled to all of the sanctity of an ordinary contract. Id.
    
    at 40. However, we are not bound to enforce these stipulations if they
    
    are unreasonable, against good morals, or contrary to sound public
    
    policy. In re Estate of Clark, 
    181 N.W.2d 138
    , 142 (Iowa 1970).
    
          Applying these principles to a disciplinary case, we will rely on the
    
    stipulation to determine the facts in issue.       However, we will not be
    
    bound by a stipulation of a violation or of a sanction in reaching our final
    
    decision in a disciplinary case. We have inherent constitutional power to
    
    license and discipline attorneys within the State of Iowa. Comm. on Prof’l
    
    Ethics & Conduct v. Gartin, 
    272 N.W.2d 485
    , 487 (Iowa 1978). Our rules
                                          4
    
    require us to determine whether an attorney’s conduct violates our
    
    ethical rules, and if it does, we must determine the proper sanction for
    
    the violation. See Iowa Ct. R. 35.10. Nowhere in our rules have we given
    
    the parties the authority to determine what conduct constitutes a
    
    violation of our ethical rules or what sanction an attorney should receive
    
    for such violation.   The parties to a disciplinary proceeding cannot
    
    substitute their judgment as to what conduct constitutes a violation of
    
    our ethical rules or what sanction we should impose for such a violation.
    
    The constitution and our court rules vest this function solely in our
    
    court. Accordingly, to allow the parties to make these determinations is
    
    against the public policy surrounding our attorney disciplinary system.
    
          Therefore, we find the facts from the stipulation of facts.      After
    
    doing so, we will determine whether the facts establish a violation of the
    
    Iowa Rules of Professional Conduct. Finally, if we find a violation, we will
    
    determine the appropriate sanction.
    
          Using the stipulation of the parties together with our review of the
    
    record, we make the following findings of fact. John Gailey is a seventy-
    
    four-year-old attorney, practicing law for forty-five years in Iowa.    His
    
    son, Denis, told Gailey the state planned to charge Denis with sexual
    
    abuse of his stepdaughter.     Gailey contacted the county attorney and
    
    advised her that he would voluntarily surrender Denis to the authorities
    
    and arrange for Denis’s bail. On April 25, 2007, before Gailey was able
    
    to surrender his son, Gailey learned that his son kidnapped his spouse,
    
    Dawn, and their biological child.         Upon learning of this kidnapping,
    
    Gailey advised the authorities of Denis’s actions. Denis was arrested and
    
    the state charged him with kidnapping. On April 26 the criminal court
    
    entered a no-contact order requiring Denis to have no contact with
    
    Dawn.
                                             5
    
            On April 27 Dawn filed a dissolution of marriage petition. Counsel
    
    represented her in the dissolution matter.         On May 7 Gailey filed an
    
    appearance on behalf of his son in the dissolution matter. Although a
    
    second attorney filed an appearance in the dissolution on behalf of
    
    Denis, Gailey did not withdraw as attorney in the dissolution action until
    
    July 25.
    
            On June 29, while still representing Denis in the dissolution
    
    matter, Gailey met with Dawn.            Dawn’s attorney did not give Gailey
    
    permission to contact Dawn. At the meeting, Gailey provided Dawn with
    
    a letter from Denis. Denis requested Gailey deliver the letter to Dawn
    
    and speak with Dawn face to face on his behalf regarding her potential
    
    testimony in the criminal action. Denis violated the no-contact order by
    
    having his father deliver the letter to Dawn.
    
            The letter is entitled “My Last Plea for Your Help.” In the letter,
    
    Denis states: “I have no fantasies in my head that I’m gonna get off light
    
    on all this but I think that you could be my light at the end of the tunnel.
    
    People always change their story just a little bit and it allows for some
    
    chance in the situation.” (Emphasis added.) Denis goes on to say that he
    
    thinks he should be punished but not locked up and the key thrown
    
    away.
    
            Dawn reviewed a copy of the letter from Denis and asked Gailey
    
    what the letter meant. Gailey responded that he believed that if she were
    
    to   testify   that   there   was   no   permanent   damage,   physically   or
    
    psychologically, that the criminal charges would be lessened.        He also
    
    told her he thought Denis would be agreeable to a more favorable
    
    division of assets in the dissolution case if she were to testify in this
    
    manner. Part of the conversation between Gailey and Dawn also related
    
    to her concerns about the prosecutor asking her daughter to testify at
                                             6
    
    trial.   Gailey advised Dawn to talk to the county attorney about these
    
    concerns. At no time did Gailey directly ask Dawn to lie or change her
    
    testimony.
    
             On July 24 the state charged Gailey with tampering with a witness
    
    in violation of Iowa Code section 720.4 (2007).               That charge was
    
    dismissed due to the state’s failure to file a timely trial information.
    
    Thereafter, the state charged Gailey with suborning perjury in violation
    
    of Iowa Code section 720.3 and aiding and abetting a violation of a no-
    
    contact order in violation of Iowa Code sections 664A.7 and 703.1. These
    
    criminal charges proceeded to trial.          The court acquitted Gailey of the
    
    charge of suborning perjury, but found him guilty of aiding and abetting
    
    a violation of a no-contact order, a simple misdemeanor.
    
             III. Violations.
    
             In its complaint, the board alleged Gailey’s conduct violated the
    
    following Iowa Rules of Professional Conduct: 32:3.4(b), 32:4.2(a),
    
    32:8.4(a), 32:8.4(b), 32:8.4(c), and 32:8.4(d).           We will discuss each
    
    allegation separately.
    
             A. Rule 32:3.4(b). Rule 32:3.4(b) provides that “[a] lawyer shall
    
    not falsify evidence, counsel or assist a witness to testify falsely, or offer
    
    an inducement to a witness that is prohibited by law.”            Iowa R. Prof’l
    
    Conduct 32:3.4(b).          As the comment to the rule explains, “[f]air
    
    competition in the adversary system is secured by prohibitions against
    
    destruction     or   concealment    of       evidence,   improperly   influencing
    
    witnesses, obstructive tactics in discovery procedure, and the like.” Id.
    
    cmt. 1.      If Gailey requested Dawn to refrain from giving favorable
    
    testimony to the state in the criminal matter involving Denis, Gailey
    
    violated rule 32:3.4(b). Matter of Alcantara, 
    676 A.2d 1030
    , 1035 (N.J.
    
    1995).
                                        7
    
          In response to Dawn’s question as to what the letter meant, Gailey
    
    explained to her he believed that if she were to testify that there was no
    
    permanent damage, physically or psychologically, the criminal charges
    
    against Denis would be lessened. This in and of itself does not violate
    
    rule 32:3.4(b).   A lawyer is allowed to explain the consequence of a
    
    witness’s testimony without fear of being accused of counseling or
    
    assisting a witness to testify falsely.       Moreover, the stipulation
    
    affirmatively states Gailey did not ask Dawn to lie or change her
    
    testimony.
    
          We do believe, however, Gailey’s conduct went farther than just
    
    explaining the consequence of Dawn’s testimony.        When Gailey told
    
    Dawn that he thought Denis would be agreeable to a more favorable
    
    division of assets in the dissolution case if she were to testify in this
    
    manner, he crossed the line. By offering Dawn a favorable dissolution
    
    settlement, Gailey violated rule 32:3.4(b), which forbids an attorney to
    
    offer an inducement to a witness that is prohibited by law.
    
          We see no problem with an attorney reimbursing a witness for his
    
    or her actual expenses, including the witness’s loss of time from
    
    employment. We also recognize in the case of expert witnesses, experts
    
    should receive reasonable compensation from an attorney for the expert’s
    
    time in preparing and testifying at trial. Generally, courts around the
    
    country allow these types of payments by an attorney to a person when
    
    the person is called as a witness to testify. 2 Geoffrey C. Hazard, Jr. et
    
    al., The Law of Lawyering § 30.6, at 30-10 (3d ed. 2001).
    
          Gailey’s conduct goes well beyond reimbursement for expenses,
    
    reimbursement for time lost from employment, and expert witness fees.
    
    Here, Gailey offered Dawn a favorable dissolution settlement as an
    
    inducement for her to testify in a certain way. The dissolution settlement
                                             8
    
    was   unrelated      to   any   lawful   reimbursement    for   her   testimony.
    
    Accordingly, offering Dawn a favorable dissolution settlement is an
    
    inducement prohibited by law and a violation of rule 32:3.4(b).
    
          B. Rule 32:4.2(a). Rule 32:4.2(a) provides:
    
          In representing a client, a lawyer shall not communicate
          about the subject of the representation with a person the
          lawyer knows to be represented by another lawyer in the
          matter, unless the lawyer has the consent of the other lawyer
          or is authorized to do so by law or a court order.
    
    Iowa R. Prof’l Conduct 32:4.2(a).            The language of rule 32:4.2(a) is
    substantially similar to our prior disciplinary rule, DR 7–104(A)(1). Our
    
    prior rule stated:
    
                (A) During the course of representing a client a lawyer
          shall not:
    
                (1) Communicate or cause another to communicate on
          the subject of the representation with a party known to be
          represented by a lawyer in that matter except with the prior
          consent of the lawyer representing such other party or as
          authorized by law.
    
    Iowa Code of Prof’l Responsibility DR 7–104(A)(1).
    
          We have interpreted our prior rule to prohibit an attorney from
    
    communicating with an adverse party represented by counsel concerning
    litigation or a transactional matter unless the attorney for the adverse
    
    party gives the opposing attorney permission to talk to the adverse party.
    
    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Box, 
    715 N.W.2d 758
    , 763
    
    (Iowa 2006). We see no reason not to interpret our present rule in the
    
    same manner.
    
          The record establishes Gailey communicated with Dawn about a
    
    financial settlement in the dissolution matter at a time when she was
    
    represented by counsel. The record also reveals that Gailey did not have
    
    the permission of Dawn’s attorney when they had that conversation.
                                          9
    
    Therefore, we find Gailey’s conduct in communicating with Dawn violated
    
    rule 32:4.2(a).
    
          C. Rule 32:8.4(a). Rule 32:8.4(a) states that “[i]t is professional
    
    misconduct for a lawyer to . . . violate or attempt to violate the Iowa
    
    Rules of Professional Conduct.”      Iowa R. Prof’l Conduct 32:8.4(a).     We
    
    have previously held that we will not consider a violation of rule 32:8.4(a)
    
    as a separate violation for purposes of determining an attorney’s
    
    sanction.    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 
    784 N.W.2d 761
    , 769 (Iowa 2010).         Accordingly, we give this charge no
    
    further consideration.
    
          D.     Rule 32:8.4(b).       Rule 32:8.4(b) provides that “[i]t is
    
    professional misconduct for a lawyer to . . . commit a criminal act that
    
    reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as
    
    a lawyer in other respects.” Iowa R. Prof’l Conduct 32:8.4(b). Gailey was
    
    convicted of aiding and abetting a violation of a no-contact order in
    
    violation   of    Iowa   Code   sections   664A.7   and   703.1,    a   simple
    
    misdemeanor.       We have the authority to discipline an attorney who is
    
    convicted of a misdemeanor that violates the rules of professional
    
    conduct. Iowa Ct. R. 35.10(2).
    
          Not all criminal convictions violate rule 32:8.4(b).         To prove a
    
    violation of rule 32:8.4(b) the board must show some rational connection
    
    between the attorney’s conduct and the attorney’s fitness to practice law
    
    other than the criminality of the act. Templeton, 784 N.W.2d at 767. We
    
    find the board has met this burden.
    
          Attorneys cannot ignore a ruling of a tribunal made in the course
    
    of a proceeding.     Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 
    728 N.W.2d 806
    , 813 (Iowa 2007). It follows that a lawyer should not aid or
    
    abet a party to ignore a no-contact order. It is essential that the aider
                                           10
    
    and abettor have knowledge of the perpetrator’s criminal activity prior to
    
    its commission. State v. Vesey, 
    241 N.W.2d 888
    , 891 (Iowa 1976). Here,
    
    Gailey had knowledge of his son’s intent to violate the no-contact order
    
    by having the letter delivered to Dawn.       The conduct of an attorney
    
    helping another person violate a court order evidences the attorney’s
    
    disrespect for a lawful order of the court. Gailey’s disrespect for a court
    
    order leads us to the conclusion that an attorney who cannot respect a
    
    lawful order of the court lacks the required fitness to practice law. Thus,
    
    we find a rational connection between Gailey’s conduct and Gailey’s
    
    fitness to practice law other than the criminality of the act. Therefore, we
    
    find Gailey violated rule 32:8.4(b).
    
          E. Rule 32:8.4(c). Rule 32:8.4(c) states that “[i]t is professional
    
    misconduct for a lawyer to . . . engage in conduct involving dishonesty,
    
    fraud, deceit, or misrepresentation.”       The stipulation acknowledged
    
    Gailey did not ask Dawn to lie or change her testimony. Therefore, the
    
    board has not proved Gailey violated rule 32:8.4(c).
    
          F. Rule 32:8.4(d). Rule 32:8.4(d) provides that “[i]t is professional
    
    misconduct for a lawyer to . . . engage in conduct that is prejudicial to
    
    the administration of justice.”   We have defined conduct prejudicial to
    
    the administration of justice to be acts that hamper “ ‘the efficient and
    
    proper operation of the courts or of ancillary systems upon which the
    
    courts rely’ ” by violating the well-understood norms and conventions of
    
    the practice of law.     Templeton, 784 N.W.2d at 768 (quoting Iowa
    
    Supreme Ct. Att’y Disciplinary Bd. v. Howe, 
    706 N.W.2d 360
    , 373 (Iowa
    
    2005)).   In order for our system of justice to work, attorneys should
    
    counsel their clients to abide by court orders.     It is outside the well-
    
    understood norms and conventions of the practice of law for a lawyer to
    
    aid and abet the violation of a no-contact order or offer a witness an
                                           11
    
    inducement to testify that is prohibited by law. Thus, we find Gailey’s
    
    conduct violated rule 32:8.4(d).
    
             IV. Sanction.
    
             In determining the sanction a lawyer must face for misconduct, we
    
    have stated:
    
             The goal of the Code of Professional Responsibility is “to
             maintain public confidence in the legal profession as well as
             to provide a policing mechanism for poor lawyering.” When
             deciding on an appropriate sanction for an attorney’s
             misconduct, we consider “the nature of the violations,
             protection of the public, deterrence of similar misconduct by
             others, the lawyer’s fitness to practice, and [the court’s] duty
             to uphold the integrity of the profession in the eyes of the
             public.”    We also consider aggravating and mitigating
             circumstances present in the disciplinary action.
    
    Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Honken, 
    688 N.W.2d 812
    , 820 (Iowa 2004) (alteration in original) (quoting Comm. on Prof’l
    
    Ethics & Conduct v. Gill, 
    479 N.W.2d 303
    , 306 (Iowa 1991) (first quote);
    
    Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. D’Angelo, 
    619 N.W.2d 333
    , 338 (Iowa 2000) (second quote)).
    
             Aggravating factors include a prior reprimand of Gailey for
    
    engaging      in   conduct    involving     dishonesty,   fraud,   deceit,   and
    
    misrepresentation when he falsely advised an adverse party in a
    
    deposition that he had a tape recording of a prior conversation with that
    
    party.    Another aggravating factor is a previous private admonishment
    
    for making an extrajudicial statement regarding a pending criminal
    
    matter concerning his two sons.
    
             We have previously given attorneys a public reprimand when the
    
    attorneys communicated with an adverse party who is represented by
    
    counsel when the attorneys did not have permission from counsel to
    
    communicate with the adverse party.             See Box, 715 N.W.2d at 765
                                         12
    
    (finding an attorney with no prior disciplinary record should receive a
    
    public reprimand where his communication with a represented client
    
    resulted in substantial harm); Comm. on Prof’l Ethics & Conduct v.
    
    Hoffman, 
    402 N.W.2d 449
    , 451 (Iowa 1987) (holding lawyer’s writing nine
    
    intemperate letters, some to persons known to be represented by
    
    counsel, warranted public reprimand).
    
          However, this case is more serious than merely communicating
    
    with an adverse party, given our finding that Gailey aided and abetted
    
    his son in violating the no-contact order and offered Dawn an
    
    inducement to testify that is prohibited by law.        The fact Gailey was
    
    helping his family is not an excuse. See Iowa Supreme Ct. Bd. of Prof’l
    
    Ethics & Conduct v. Thompson, 
    595 N.W.2d 132
    , 134 (Iowa 1999) (stating
    
    court not swayed by attorney’s argument that his actions were those of a
    
    concerned father, not an attorney, and therefore should not be held to
    
    have reflected adversely on fitness to practice law).
    
          Accordingly, we suspend Gailey’s license to practice law in the
    
    State of Iowa for sixty days. This suspension applies to all facets of the
    
    practice of law. See Iowa Ct. R. 35.12(3). Gailey must comply with Iowa
    
    Court Rule 35.22 dealing with notification of clients and counsel. Costs
    
    of this action are taxed to Gailey pursuant to Iowa Court Rule 35.26.
    
    Absent an objection by the board and under the condition that Gailey
    
    has paid all costs assessed under rule 35.26, we shall reinstate Gailey’s
    
    license to practice law on the day after the sixty-day suspension period
    
    expires. See Iowa Ct. R. 35.12(2).
    
          LICENSE SUSPENDED.
    
          All justices concur except Cady, J., who takes no part.