Iowa Supreme Court Attorney Disciplinary Board Vs. Jeffrey Mark Johnson , 774 N.W.2d 496 ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 09–0765
Filed October 23, 2009
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JEFFREY MARK JOHNSON,
Respondent.
On review of the report of the grievance commission.
Grievance commission recommends attorney’s license be suspended
for nine months. LICENSE SUSPENDED.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
complainant.
Jeffrey M. Johnson, Davenport, pro se.
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PER CURIAM.
This matter comes before us on the report of a division of the
Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10.
The Iowa Supreme Court Attorney Disciplinary Board alleged that the
respondent, Jeffrey Mark Johnson, violated ethical rules as a result of his
conviction of operating a motor vehicle while intoxicated (OWI), third offense,
a class “D” felony. The grievance commission concluded that Johnson
engaged in the alleged misconduct and recommended we suspend Johnson’s
license with no possibility of reinstatement for a period of not less than nine
months. It also recommended that, upon application for reinstatement,
Johnson provide documentation from a licensed health care professional
verifying his maintenance of sobriety and fitness to practice law.
Upon our respectful consideration of the findings of fact, conclusions
of law, and recommendation of the commission, we find the respondent
committed the alleged ethical violations and suspend his license to practice
law indefinitely with no possibility of reinstatement for six months. Upon
application for reinstatement, Johnson shall provide medical documentation
from a licensed heath care professional of his maintenance of sobriety and
his fitness to practice law.
I. Standard of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa Ct. R.
35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d
812, 815 (Iowa 2007); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713
N.W.2d 199, 201 (Iowa 2006). The commission's findings and
recommendations are given respectful consideration, but we are not bound
by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Isaacson, 750 N.W.2d
104, 106 (Iowa 2008). The board has the burden of proving attorney
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misconduct by a convincing preponderance of the evidence. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006).
“This burden is less than proof beyond a reasonable doubt, but
more than the preponderance standard required in the usual
civil case. Once misconduct is proven, we ‘may impose a lesser
or greater sanction than the discipline recommended by the
grievance commission.’ ”
Id. (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674
N.W.2d 139, 142 (Iowa 2004)); accord Dull, 713 N.W.2d at 201.
II. Factual Background and Prior Proceedings.
Johnson has been licensed to practice law in this state since 1981.
During this time, he has engaged in private practice of a general nature and
has served as a magistrate for three terms.
Johnson has an acknowledged long history of alcohol abuse, including
two prior OWI convictions. He has also appeared intoxicated in a public
park and received a private admonition for appearing in juvenile court while
intoxicated. After his second OWI offense, on April 25, 2006, Johnson
signed an affidavit in which he acknowledged his conduct was prejudicial to
the administration of justice in violation of the Iowa Code of Professional
Responsibility for Lawyers and agreed to cooperate with the Iowa Lawyers
Assistance Program, participate in Alcoholics Anonymous (AA), and comply
with all criminal and traffic laws. In return, the board deferred its
investigation of Johnson’s conduct for one year. Eighteen months later,
however, on October 12, 2007, Johnson was arrested for operating a motor
vehicle while intoxicated, third offense.
Johnson pled guilty to OWI, third offense, in violation of Iowa Code
section 321J.2(1)(a)–(b) (2007) and was sentenced to an indeterminate five-
year term of incarceration. He was also fined and ordered to pay court costs
and attorney fees.
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Subsequently, the board filed this complaint against Johnson, alleging
Johnson’s conduct violated several provisions of the Iowa Rules of
Professional Conduct. 1 In his answer, Johnson admitted the allegations of
the complaint, except for a clarification that he had not practiced law since
September 2005. Currently, his license is on inactive status.
On January 30, 2009, the grievance commission held a hearing. The
board presented its evidence, which included the record of Johnson’s felony
conviction for OWI, third offense. Under Iowa Code section 602.10122, “[t]he
record of [the felony] conviction is conclusive evidence” that the accused
attorney committed the alleged felony.
Johnson represented himself at the hearing. He offered evidence of his
efforts to reach and maintain sobriety to argue against license revocation
and in support of a finding of his fitness to practice law. Johnson reported
that since 2004 he has undergone extensive treatment for alcohol abuse
through several different programs. He provided documentation of his
attendance and participation in these treatment programs. Furthermore, he
testified that he has not imbibed alcohol since October 12, 2007.
The respondent testified that he is currently on parole and lives in a
structured environment that facilitates his rehabilitation. His parole and
work release program require him to provide urine samples every week to
two weeks, attend AA meetings three times a week, refrain from alcohol
consumption, refrain from associating with felons, remain in Scott County,
and report to his parole officer. His parole program continues until May 23,
1
In a letter dated July 22, 2008, the board informed Johnson that, because he had
successfully completed the deferral program, it had closed its investigation and would not be
seeking discipline with regard to the OWI, second offense. In the same letter, however, the
board reminded Johnson that the OWI, third offense, was still the subject of the current
disciplinary action.
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2010, subject to early release. He is currently working full time redacting
documents.
Based on the evidence presented, the grievance commission
determined that Johnson violated Iowa Rules of Professional Conduct
32:8.4(a) (“It is professional misconduct for a lawyer to . . . violate . . . [a]
Rule[] of Professional Conduct . . . .”); 32:8.4(b) (“It is professional
misconduct for a lawyer to . . . commit a criminal act that reflects adversely
on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects[.]”); and 32:8.4(d) (“It is professional misconduct for a lawyer to . . .
engage in conduct that is prejudicial to the administration of justice[.]”). The
commission recommended that we suspend Johnson’s license with no
possibility of reinstatement for a period of not less than nine months. It also
recommended that, upon application for reinstatement, Johnson provide
documentation from a licensed health care professional verifying his
maintenance of sobriety and fitness to practice law.
III. Ethical Violations.
We agree the board has proven Johnson’s ethical violations of rules
32:8.4(a), 32:8.4(b), and 32:8.4(d). In Dull, we held that a conviction of OWI,
third offense, violated DR 1–102(A)(1) (now rule 32:8.4(a)), DR 1–102(A)(5)
(now rule 32:8.4(d)), and DR 1–102(A)(6) (now rule 32:8.4(b)). 2 Dull, 713
N.W.2d at 204; see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver,
750 N.W.2d 71, 79 (Iowa 2008) (holding conviction of OWI constituted
conduct reflecting poorly on fitness to practice law); Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 88 (Iowa 2001) (same); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 881
(Iowa 1996) (same). The fact that Johnson was not practicing law at the time
2The
Iowa Rules of Professional Conduct became effective on July 1, 2005, replacing
the Iowa Code of Professional Responsibility for Lawyers.
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of his offense does not require a different conclusion as to whether he
engaged in misconduct. We have held: “It makes no difference that
respondent was not acting as a lawyer at the time of his misconduct.
Lawyers do not shed their professional responsibility in their personal lives.”
Comm. on Prof’l Ethics & Conduct v. Millen, 357 N.W.2d 313, 315 (Iowa 1984).
IV. Sanction.
There is no standard sanction for a particular type of misconduct, and
though prior cases can be instructive, we ultimately determine an
appropriate sanction based on the particular circumstances of each case.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Plumb, 589 N.W.2d 746,
748–49 (Iowa 1999); accord Dull, 713 N.W.2d at 206.
In determining the appropriate discipline, we consider “the
nature of the alleged violations, the need for deterrence,
protection of the public, maintenance of the reputation of the
[bar] as a whole, and the respondent’s fitness to continue in the
practice of law,” [as well as] any aggravating and mitigating
circumstances.
Ruth, 636 N.W.2d at 88 (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999)). The form and
extent of the sanction “ ‘must be tailored to the specific facts and
circumstances of each individual case.’ ” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (quoting Comm. on Prof'l
Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981)). Significant
distinguishing factors in the imposition of punishment center on “ ‘the
existence of multiple instances of neglect, past disciplinary problems, and
other companion violations.’ ” Id. (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)).
Under Iowa Court Rule 35.10(2), we “may revoke or suspend the
license of an attorney admitted to practice in Iowa upon . . . conviction of a
felony.” Similarly, under Iowa Code section 602.10122, an attorney’s license
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may be revoked or suspended “[w]hen the attorney has been convicted of a
felony.” We have specifically held that conviction for OWI, third offense, is
ground for revocation or suspension. Marcucci, 543 N.W.2d at 882. Based
upon the specific facts and our prior case law, we conclude suspension, not
revocation, is warranted in this case.
The underlying facts presented here are very similar to those found in
Marcucci. Like Johnson, Marcucci was convicted of operating a motor
vehicle while under the influence, third offense. Id. at 880. In determining
the appropriate sanction, we noted Marcucci’s rehabilitative efforts and the
fact that no clients had been hurt by the attorney’s misconduct as factors
supporting a more lenient sanction. Id. at 881–83. We rejected, however,
the sufficiency of a public reprimand, noting the seriousness of the
underlying offense and its reflection on an attorney’s fitness to practice law.
Id. at 882; see also Comm. on Prof’l Ethics & Conduct v. Tompkins, 415
N.W.2d 620, 624 (Iowa 1987) (“We might ask ourselves how the public can
have confidence in our system of justice if we overlook or minimize knowing
and willful criminal conduct.”). Based upon these facts, we held a six-month
suspension was warranted. Marcucci, 543 N.W.2d at 883.
Similarly, here, there was no evidence presented that indicated
Johnson neglected or injured any of his clients by his drinking. In addition,
he has fully cooperated with the board in this and other disciplinary
proceedings. See Ruth, 636 N.W.2d at 88 (considering attorney’s cooperation
with the commission in the determination of the appropriate sanction). In
addition, Johnson is in full compliance with his parole and work release
conditions and is actively attempting to control his alcoholism. Id. at 88–89
(considering attorney’s efforts to sustain sobriety as mitigation in assessing
sanctions).
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We note, however, that a prior private admonition was given to
Johnson in 2005 for appearing at a court hearing while under the influence.
Our prior case law makes such a private admonition an aggravating
circumstance. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lemanski,
606 N.W.2d 11, 14 (Iowa 2000).
Based upon these facts and considering similar prior cases, we
conclude a six-month suspension, rather than the nine-month suspension
recommended by the commission, is warranted. Cf. Ruth, 636 N.W.2d at 89
(suspending attorney’s license for six months as a result of two criminal
convictions—domestic abuse assault causing injury and OWI, third offense—
after noting attorney’s diligent efforts at rehabilitation with regard to both
convictions); Marcucci, 543 N.W.2d at 881–83 (six-month suspension
warranted when no harm to clients and attorney’s rehabilitative efforts were
significant), with Dull, 713 N.W.2d at 205–08 (attorney’s acts, including
appearing in court intoxicated; conviction of OWI, third offense; harmfully
neglecting clients’ cases; and failing to respond to the board’s inquiries,
warranted two-year license suspension). We agree, however, that Johnson,
upon applying for reinstatement, should be required to establish his fitness
to practice law through medical documentation. We have a well-established
history of imposing such conditions. See Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Curtis, 749 N.W.2d 694, 703–04 (Iowa 2008) (conditions imposed
regarding depression and attention deficit disorder); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 205–06 (Iowa 2006)
(conditions imposed with regard to depression); Dull, 713 N.W.2d at 207–08
(conditions imposed with regard to alcoholism); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96–97 (Iowa 2006) (conditions
imposed with regard to depression and anxiety). Therefore, upon application
for reinstatement, Johnson shall provide documentation from a licensed
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health care professional regarding the maintenance of his sobriety and
fitness to practice law.
V. Conclusion.
We suspend Johnson’s license to practice law indefinitely with no
possibility of reinstatement for six months from the date of the filing of this
opinion. This suspension shall apply to all facets of the practice of law.
Iowa Ct. R. 35.12(3). Upon any application for reinstatement, Johnson shall
have the burden to show he has not practiced law during the period of
suspension and that he meets the requirements of Iowa Court Rule 35.13.
He shall also provide medical documentation from a licensed health care
professional regarding the maintenance of his sobriety and his fitness to
practice law. Johnson shall provide all of the notifications required by Iowa
Court Rule 35.22. Costs are taxed to Johnson pursuant to Iowa Court Rule
35.26(1).
LICENSE SUSPENDED.
This opinion shall be published.