Iowa Supreme Court Attorney Disciplinary Board v. Jamie F. Deremiah , 875 N.W.2d 728 ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 15–1917
Filed February 26, 2016
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JAMIE F. DEREMIAH,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommended thirty-day suspension of
attorney’s license. LICENSE SUSPENDED.
Tara J. Van Brederode and Susan A. Wendel, Des Moines, for
complainant.
F. Montgomery Brown of F.M. Brown Law Firm, P.L.L.C., West Des
Moines, for respondent.
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APPEL, Justice.
In this disciplinary case, the Iowa Supreme Court Attorney
Disciplinary Board charged the respondent, Jamie F. Deremiah, with
violations of Iowa Rule of Professional Conduct 32:8.4(b) (stating it is
professional misconduct to “commit a criminal act that reflects adversely
on a lawyer’s honesty, trustworthiness, or fitness as a lawyer”) in
connection with a domestic assault on Jane Doe. After a hearing, the
majority of the Grievance Commission of the Supreme Court of Iowa
(commission) recommended a thirty-day suspension of the respondent’s
license; a two-year probationary period, with conditions related to
maintaining his sobriety; and medical documentation showing his
compliance with treatment providers’ recommendations. One member of
the commission dissented on the sanction, recommending instead a
ninety-day suspension. A second commission member also dissented on
the sanction but recommended a public reprimand.
For the reasons expressed below, we conclude that the respondent
violated Iowa Rule of Professional Conduct 32:8.4(b). We suspend the
respondent’s license to practice law indefinitely with no possibility of
reinstatement for three months and impose conditions upon any
application for reinstatement.
I. Factual and Procedural Background.
A. Factual Findings. Most of the facts are not disputed.
Witnesses at the hearing before the commission included police officers
and a county attorney with knowledge related to the underlying criminal
case, persons engaged in Deremiah’s treatment for alcoholism, and
Deremiah himself. Based on our review of the entire record, we make the
following findings of fact.
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Deremiah began drinking alcohol at an early age and had a
number of alcohol-related incidents prior to becoming a lawyer.
Specifically, he had “two or three” citations for possession of alcohol and
one incident of operating a motor vehicle while under the influence (OWI)
while attending college but prior to attending law school. He had no
involvement with the criminal justice system for alcohol-related offenses
until the recent events described in this opinion.
Deremiah graduated from law school in 2008 and is licensed to
practice law in Iowa. He practiced in a number of professional settings
for relatively short periods of time. One firm terminated Deremiah for
what he described as alcohol-related absences.
Deremiah is currently employed as “of counsel” with a Des Moines
metropolitan area law office. He practices primarily in the areas of
criminal and family law. Under his arrangement with the law office, he
retains fifty percent of his billings collected from clients.
Deremiah and Doe knew each other in high school but began
dating only after meeting at a bar several years ago. During the course of
their relationship, they maintained separate residences, but they usually
slept together in the evening. Doe gave Deremiah a set of keys to her
home, where she lived with her ten-year-old daughter.
The relationship, however, was marked by jealousy and allegations
of infidelity. In April 2014, Des Moines police responded to a domestic
incident at Doe’s home. The facts of this incident were not thoroughly
developed at the hearing, but police were apparently called to Doe’s home
after a jealous and intoxicated Deremiah burned some of Doe’s DVDs
and refused to leave the residence. Police who arrived at the scene called
a cab to transport Deremiah home. At this point, Doe retrieved the keys
to her residence from Deremiah.
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The April 2014 event was a precursor for the events that gave rise
to this disciplinary proceeding. Deremiah and Doe had been drinking at
various Des Moines bars on the night of July 25, 2014. An argument
ensued at one of the locations, resulting in Deremiah and Doe going their
separate ways. After the altercation, Deremiah went to Doe’s home and
broke in the front door, causing damage to the door. Doe, however, was
not at home. Deremiah then left the Doe residence.
Deremiah later returned to the residence. This time Doe was at
home. Deremiah asserts he suffered from an alcohol-related blackout
and does not remember what happened next. Similarly, Doe’s memory of
the event is cloudy. Nonetheless, the record establishes that Deremiah
assaulted Doe in her bedroom. He punched Doe in the face multiple
times, causing facial swelling and bruising to her eyes. Her left eye soon
became swollen shut. According to a police officer who responded to the
reported domestic assault, “I thought it was a broken eye socket because
it was so swollen.” Deremiah also pulled Doe’s hair, leaving a clump of
hair in the bedroom where the assault occurred. After the assault,
Deremiah called his father who picked him up and drove him to his
home, where Deremiah was also living at the time.
Doe called 911 in the early morning hours of July 26. After
interviewing her and investigating the scene, the police took photographs
of Doe’s injuries, the clump of hair in the bedroom, and the damage to
the door. Police noted that Doe was distraught. After completing their
investigation at the scene, police traveled to Deremiah’s father’s home
and, after Deremiah admitted he had been with Doe the previous
evening, he was arrested. The district court entered a no-contact order
following Deremiah’s arrest.
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The state charged Deremiah with two crimes. In Count I, the state
charged him with domestic abuse assault with intent to inflict a serious
injury, an aggravated misdemeanor. Iowa Code §§ 708.1, .2A(2)(c)
(2013). In Count II, the state charged Deremiah with trespass causing
bodily injury and/or property damage, a serious misdemeanor. Id.
§§ 716.7, .8(2).
Deremiah pled guilty to both charges. On Count I, the court
sentenced Deremiah to two years in prison with all but two days
suspended and two years of probation with fines and surcharges. On
Count II, the court sentenced him to one year in prison, all suspended, to
run consecutively with the sentence under Count I.
As result of his probation, Deremiah was required to undergo
substance abuse evaluation. The substance abuse evaluation
recommended treatment. Deremiah was further required to attend a
twenty-four-week program related to domestic assaults. Deremiah
complied with these recommendations and requirements of probation.
He also engaged a therapist, Winnie Hall, to provide him with private
counseling twice a week. As part of his recovery program, Deremiah
attends Alcoholics Anonymous (AA) meetings regularly, meets with his
sponsor, and has consulted regularly with Hugh Grady of the Iowa
Lawyers Assistance Project.
At the time of the hearing, Deremiah had recently received his one-
year AA chip commemorating his sobriety. He was also continuing to
attend AA meetings on a regular basis and to receive counseling from
Hall and Grady on a regular basis.
Deremiah testified that he has come to understand the role of
alcohol in his life. Both Hall and Grady testified at the hearing that
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Deremiah was actively engaged in recovery and that his prognosis with
respect to managing his alcoholism was good.
At the time of the hearing, Deremiah and Doe talked to each other
on a daily basis and saw each other weekly. Deremiah testified that he
avoids being with Doe when she consumes alcohol.
B. Proceedings Before the Commission Related to Sanctions.
The parties agreed that Deremiah’s conduct violated rule 32:8.4(b). The
central contested issue before the commission was the appropriate
sanction under the facts and circumstances.
The Board argued for a three-month suspension. It emphasized
that in this case, Deremiah committed two serious infractions, one
relating to the breaking into Doe’s home and the other arising out of the
assault. As a result, the Board contended this was not a case of a single-
incident domestic assault, but a case involving multiple incidents of
wrongful conduct.
The Board also asserted the record showed a lack of remorse on
Deremiah’s part and some minimizing of his behavior. It further noted
that Deremiah had not taken proactive steps to reimburse Doe’s landlord
for the damage to the door or to reimburse Doe for her medical expenses
that arose from her injuries.
Deremiah argued the appropriate sanction was a public
reprimand. Among other things, Deremiah asserted a suspension would
have a severe impact on his legal practice and on his clients. He noted
that he was involved in long-term representations in a number of juvenile
matters and that it would be difficult to get another attorney up to speed
in these cases, thereby causing damage to clients. Deremiah also
submitted financial information to the commission that showed his
income was sufficient to meet his expenses with little to spare, that his
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very modest assets were exceeded by credit card debt accumulated in his
drinking days, and that he was also carrying substantial debt from law
school.
The commission fractured on the question of sanction. Three
members of the commission recommended a one-month suspension, a
probationary period of two years, and various reporting requirements.
One member of the commission proposed a ninety-day suspension.
Another member of the commission proposed a public reprimand, along
with a two-year probationary period and various reporting requirements.
II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Stowe, 830 N.W.2d 737, 739 (Iowa
2013). An attorney’s ethical misconduct must be proved by a convincing
preponderance of the evidence. Id. “We respectfully consider the
commission’s findings and recommendations, but are not bound by
them.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Englemann, 840
N.W.2d 156, 158 (Iowa 2013). “If we find a violation, we ‘may impose a
lesser or greater sanction than the discipline recommended by the
grievance commission.’ ” Id. (quoting Iowa Ct. R. 35.11(1)).
III. Discussion.
A. Violation of Iowa Code of Professional Conduct 32:8.4(b).
The parties do not dispute that Deremiah violated Iowa Rule of
Professional Conduct 32:8.4(b). While the parties agreed to the violation,
we nonetheless exercise independent judgment to ensure that the record
and the law support the conclusion of the commission that ethical
violations occurred. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Wright, 857 N.W.2d 510, 514 (Iowa 2014).
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We begin with a discussion of general principles. We have long
held that domestic assault cases may give rise to professional discipline.
For instance, in Committee on Professional Ethics & Conduct v. Patterson,
we suspended a lawyer’s license for three months as a result of a
domestic assault lasting two hours that occurred in front of a child and
caused bodily injury. 369 N.W.2d 798, 799, 801 (Iowa 1985). We also
cited domestic assaults as subject to sanction in other cases involving a
number of additional violations of our ethical rules. See, e.g., Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 87 (Iowa 2001)
(concerning an OWI and domestic assault); Comm. on Prof’l Ethics &
Conduct v. Lapointe, 415 N.W.2d 617, 618–19 (Iowa 1987) (involving
domestic assault and tampering with a witness).
These cases, however, arose under ethical rules somewhat different
than our present regime. Our findings related to ethical violations
arising out of domestic assaults rested on “moral turpitude” under the
Iowa Code of Professional Responsibility. See, e.g., Ruth, 636 N.W.2d at
88; Lapointe, 415 N.W.2d at 619; Patterson, 369 N.W.2d at 800–01. In
2005, we adopted an Iowa version of the Model Rules of Professional
Responsibility. The model rules removed ethical provisions related to
moral turpitude from the lawyer’s ethics regime. The deletion of moral
turpitude was based on fear that the open-ended provision could draw
within its scope activities that did not have any impact on the ability of a
person to practice law and did not adversely reflect on the law or the
courts in any substantial way. See Ellen J. Bennett, et al., Annotated
Model Rules of Professional Conduct, R. 8.4 cmt. 2 (8th ed. 2015)
(explaining how the concept of moral turpitude could be construed to
contain matters of personal morality that have no specific connection to
fitness to practice law).
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But while we deleted provisions related to moral turpitude, our
rules defined professional misconduct broadly enough to include offenses
not directly involved in the practice of law. See 2 Geoffrey C. Hazard, Jr.,
et al., The Law of Lawyering, § 69.04, at 69-11 (4th ed. 2015 Supp.)
[hereinafter The Law of Lawyering] (referring to moral turpitude as
“notoriously ambiguous”). Instead, the new rules provide 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).
This rule is both broader and narrower than prior disciplinary
rules. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Keele, 795 N.W.2d 507,
512 (Iowa 2011) (citing a prior edition of The Law of Lawyering, now at
69-12). Under rule 32:8.4(b), not all crimes subject a lawyer to
professional discipline. Only those crimes with a nexus to the practice of
law subject a lawyer to professional discipline. Keele, 795 N.W.2d at
512.
We considered the application of rule 32:8.4(b) in what has been
referred to as a landmark case in Iowa Supreme Court Attorney
Disciplinary Board v. Templeton, 784 N.W.2d 761 (Iowa 2010). See
Gregory C. Sisk & Mark S. Cady, 16 Iowa Practice Series, Lawyer and
Judicial Ethics, § 12:4(c), at 10.55 (2015). In Templeton, the respondent
engaged in repeated incidents of window peeping. 784 N.W.2d at 765.
Templeton was ultimately convicted of six counts of invasion of privacy.
Id. at 765–66. We concluded that Templeton engaged in a pattern of
criminal conduct that “raise[d] serious misgivings about whether
Templeton underst[ood] the concept of privacy and respect[ed] the law
protecting individuals’ privacy rights.” Id. at 767–68. As a result, we
found a violation of rule 32:8.4(b). Id. at 768.
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In reaching our result in Templeton, we discussed at length, and
ultimately adopted, an approach to rule 32:8.4(b) similar to that adopted
under a comparable disciplinary rule by the Oregon Supreme Court in In
re White, 815 P.2d 1257 (Or. 1991). In White, the Oregon Supreme Court
observed that not every criminal act reflects adversely on the lawyer’s
fitness to practice law. Id. at 1265. In particular, the court noted that a
simple misdemeanor assault arising from a private dispute would not, in
and of itself, be sufficient to establish a violation. Id. In analyzing
criminal misconduct, the Oregon Supreme Court stated that each case
must be judged upon its own facts in determining whether a violation of
disciplinary rules occurred. Id. Factors to be considered included
the lawyer’s mental state; the extent to which the act
demonstrates disrespect for the law or law enforcement; the
presence or absence of a victim; the extent of actual or
potential injury to a victim; and the presence or absence of a
pattern of criminal conduct.
Id.
We embraced the approach of White in Templeton. Templeton, 784
N.W.2d at 767. Although the substantive language changed with our
adoption of the model rules, our approach in Templeton was consistent
with the methodology under our previous ethics regime in which we
emphasized the need to avoid per se rules or mechanical application of
labels in determining the existence of ethical violations. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 79 (Iowa 2008); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci, 543 N.W.2d 879,
883 (Iowa 1996). We now consistently use the Templeton factors to
determine whether a lawyer’s criminal misconduct amounts to an ethical
violation under rule 32:8.4(b). See, e.g., Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Blessum, 861 N.W.2d 575, 588–89 (Iowa 2015); Iowa
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Supreme Ct. Att’y Disciplinary Bd. v. Rousch, 827 N.W.2d 711, 716 (Iowa
2013); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cannon, 821 N.W.2d
873, 877–78 (Iowa 2012); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Weaver, 812 N.W.2d 4, 11 (2012).
After the adoption of the model rules and our gloss in Templeton,
we considered the rule in the context of domestic assault in Iowa
Supreme Court Attorney Disciplinary Board v. Schmidt, 796 N.W.2d 33
(Iowa 2011). In Schmidt, an attorney who had never before been violent
toward his wife assaulted her, chased her around the house, choked her
to the point of unconsciousness, and pursued her into a neighbor’s
garage in the presence of the couple’s children. Id. at 37–38. Schmidt
further attempted to prevent her and a neighbor from calling 911. Id. at
37, 41. When arriving officers placed him in a police car, he damaged
the steel cage in the interior of the vehicle. Id. at 38. Schmidt’s spouse
was taken to the emergency room at a local hospital in moderate distress
with abrasions to her neck, a three-centimeter laceration, abrasions on
her neck and knees, and pain and stiffness of the neck. Id.
We concluded that Schmidt’s behavior violated rule 32:8.4(b). Id.
at 41. In doing so, we applied the Templeton factors. Id. at 40–41. While
we stated that not all acts of violence will lead to professional discipline,
we noted that the acts of violence by Schmidt were more than trivial. Id.
at 41. We cited Schmidt’s conscious decision to act on his hostility to his
wife and assault her multiple times instead of walking away from the
situation. Id. We further noted that Schmidt attempted to prevent his
wife from calling 911 and lied to a neighbor to prevent him from calling
911. Id. We stated that while Schmidt suffered from depression, this did
not excuse the choices he made, particularly in light of the lack of
medical support that his mental condition clouded his judgment. Id.
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Finally, we noted that the lack of a pattern of misconduct did not prevent
his violent acts from amounting to a violation of rule 32:8.4(b). Id.
We now turn to apply the Templeton factors to determine whether
there has been a violation of rule 32:8.4(b) in this case. On the issue of
mental state of mind, Deremiah suggests that he does not remember the
assault because of an alcohol-related blackout. In several cases, we
rejected such claims, noting that they were not supported by adequate
medical testimony. See Rousch, 827 N.W.2d at 717 (finding that
respondent presented no evidence that depression or alcohol clouded his
judgment); Cannon, 821 N.W.2d at 878 (explaining that depression and
substance abuse are not excuses, especially with no medical evidence of
their effect on respondent’s mental state); Schmidt, 796 N.W.2d at 41
(stating depression and alcohol did not excuse mistakes, and no medical
evidence as to how depression affected his mind and decision-making
was submitted); Patterson, 369 N.W.2d at 801 (noting beyond his own
contentions, no professional opinion offered to support respondent’s
claim that he lost his reason and had no recollection of the event).
Here, Deremiah presented the testimony of Winnie Hall, a licensed
mental health therapist and a certified substance abuse counselor. She
stated that “he was in a blackout” when the event occurred. It is not
entirely clear from the transcript whether Hall was stating an opinion or
simply reporting what Deremiah had told her. Hall further testified that
when an alcoholic is in a blackout state, the alcoholic can fully function
but does not remember what happened.
Deremiah has presented more evidence concerning alcoholic
blackouts than was presented in Patterson, Cannon, Rousch, and
Schmidt. Yet, Hall testified that an alcoholic in a blackout state could
still distinguish between right and wrong. Further, while we have
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generally found that the use of drugs or mental illness may be relevant
for mitigation of sanctions, they do not provide an excuse for ethical
violations. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841
N.W.2d 114, 129 (Iowa 2013) (stating depression and posttraumatic
stress disorder were mitigating factors, but did not excuse misconduct);
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 661
(Iowa 2013) (holding alcoholism may be considered in mitigation where
alcohol contributed to misconduct and lawyer undertakes rehabilitative
efforts to control addiction); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Van Beek, 757 N.W.2d 639, 644 (Iowa 2008) (finding depression and
alcoholism to be mitigating factors); Iowa Supreme Ct. Bd. of Prof’l Ethics
& Conduct v. Grotewold, 642 N.W.2d 288, 295 (Iowa 2002) (noting
depression does not excuse unethical conduct but is a mitigating
circumstance). Our view is consistent with the vast majority of cases in
other jurisdictions. See In re Harrington, 293 P.3d 686, 694 (Kan. 2013)
(per curiam) (including addiction to alcohol as a mitigating factor when
supported by medical evidence); In re Arata, 150 So. 3d 302, 306 (La.
2014) (recognizing that chemical dependence, along with meaningful
efforts to address this dependence, serves as mitigation); In re Karlsen,
778 N.W.2d 307, 313 (Minn. 2010) (describing depression and medical
issues as mitigating factors when established by clear and convincing
evidence); In re Charron, 918 S.W.2d 257, 261 (Mo. 1996) (explaining
that depression could serve to mitigate punishment, but not excuse
guilt). We adhere to these cases today.
The second Templeton factor is disrespect of the law or law
enforcement. The use of violence 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. See In
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re Walker, 597 N.E.2d 1271, 1272 (Ind. 1992) (observing that attorneys
who commit violent acts can cause the public to rightfully question
“whether the system itself is worthy of respect”); In re Grella, 777 N.E.2d
167, 171 (Mass. 2002) (describing the essential role of a lawyer as
facilitating resolutions of conflict without violence); In re Magid, 655 A.2d
916, 919 (N.J. 1995) (stating that society condemns acts of violence and
that domestic violence always involves victims); In re Rosenblatt, 687
N.Y.S.2d 23, 25 (App. Div. 1999) (admonishing that an attorney is
expected to use legal means to solve his problems, not violence).
Further, the trespass issue here is problematic. Like the
trespasses in Templeton, breaking through a locked door of a home does
not show respect for the sanctity of the home and the privacy interests
associated with it. Such an invasive violent act shows disrespect for the
law, which consistently recognizes the special value of the home as a
place of safety and refuge. See Iowa Code § 561.16 (providing for an
unlimited exemption of one’s homestead from judicial sale); People v.
Jones, 821 N.E.2d 955, 957 (N.Y. 2004) (discussing the exception to the
self-defense duty to retreat when the defender is at home and noting
“peoples’ homes are their castles, and that as such one’s home is a place
of sanctuary”); Margaret Jane Radin, Property and Personhood, 34 Stan.
L. Rev. 957, 987 (1982) (describing how one tends to identify one’s
“home” as an attribute of oneself and not a mere possession); Stephanie
M. Stern, Residential Protectionism and the Legal Mythology of Home, 107
Mich. L. Rev. 1093, 1100–05 (2009).
The third Templeton factor is the existence of a victim and the
degree of injury resulting from the lawyer’s misconduct. Here, Deremiah
engaged in an escalating course of conduct that included destruction of
Doe’s private property, trespass of her home with intent to commit a
15
serious injury, and an ongoing assault that resulted in significant
bruising and swelling of both eyes, swelling in her face, hair being ripped
out, and obvious resulting psychological harm. This was not a case
involving slight or no injury. There clearly was a victim with palpable
injuries.
Fourth, on the question of a pattern of conduct, we note that
Deremiah makes the argument that the domestic assault occurring in
July was a singular event. In Keele, for instance, we found that the
federal firearms violation was an isolated event that did not give rise to a
violation. Keele, 795 N.W.2d at 514. Our cases have often emphasized
the pattern of misconduct. See, e.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Cross, 861 N.W.2d 211, 226–27 (Iowa 2015); Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 442 (Iowa 2012); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 589 (Iowa
2011).
The facts of this case do not show a persistent pattern of repeated
misconduct. Yet, there was the event in April, which involved Deremiah
burning Doe’s DVDs and a resulting call to the police. This occurrence
seems to have been a precursor to events in July. We have in our cases
noted that two occasions of misconduct are cause for concern. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Khowassah, 837 N.W.2d 649, 654
(Iowa 2013); Rousch, 827 N.W.2d at 718. In any event, when violent acts
resulting in significant injury occur, a pattern of conduct is not required
to establish a violation of our disciplinary rules. See Schmidt, 796
N.W.2d at 41. When it comes to the application of rule 32:8.4(b) to
violent assaults on intimate partners, one assault is one too many.
Finally, in addition to the specific Templeton factors, we consider
whether the domestic assault and trespass in this case has a bearing on
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Deremiah’s legal practice. In Schmidt, we stated that “domestic-abuse
conduct did not affect [the attorney’s] behavior toward his clients, fellow
lawyers, or judges.” Schmidt, 796 N.W.2d at 44. We made a similar
statement in Iowa Supreme Court Attorney Disciplinary Board v. Axt, 791
N.W.2d 98, 102 (Iowa 2010).
These observations in Schmidt and Axt were used only in the sense
that the specific acts of misconduct in question had no direct impact on
a particular identifiable case or client. Yet, our other cases recognize
that a lawyer’s misconduct can have an indirect impact on the lawyer’s
ability to practice law. For example, in Rousch, the attorney’s illegal drug
usage did not have a direct impact on a particular case or client. 827
N.W.2d at 718. We noted, however, that a criminal attorney’s illegal drug
use could lead to difficult situations in his law practice when he
represented drug offenders. Id. We noted that Rousch was violating the
category of laws that he regularly encountered in his work. Id.
Here, Deremiah’s practice included family and criminal law. A
competent family lawyer must be able to recognize and effectively deal
with situations involving domestic abuse. See In re Walker, 597 N.E.2d
at 1272; Magid, 655 A.2d at 919 (stating an attorney’s commission of
domestic violence calls into question the zealousness of his advocacy
when representing victims of such crimes or prosecuting perpetrators).
For example, the American Bar Association has developed screening tools
to assist lawyers in identifying domestic abuse and materials for
comprehensive representation and advocacy of domestic abuse clients.
See Comm’n on Domestic Violence, Am. Bar Ass’n Tool for Attorneys to
Screen for Domestic Violence (2005), http://www.american
bar.org/content/dam/aba/migrated/domviol/screeningtoolcdv.authchec
kdam.pdf; Comm’n on Domestic Violence, Am. Bar Ass’n Comprehensive
17
Issue Spotting: A Tool for Civil Attorneys Representing Victims of Domestic
& Dating Violence, Sexual Assault & Stalking, (2008),
http://www.americanbar.org/content/dam/aba/migrated/domviol/pdfs
/Issue_Spotting_FINAL.authcheckdam.pdf. A lawyer engaged in the
practice of family law who engages in acts of domestic abuse may be less
effective in screening and addressing similar incidents of abuse
experienced by clients. A family lawyer must protect clients from acts of
family violence, not commit them. Cf. Magid, 655 A.2d at 919.
We conclude that consideration of the Templeton factors establish
a violation of rule 32:8.4(b). In particular, the criminal trespass and
violent injurious assault are salient facts showing a disrespect for the law
as contemplated in the second Templeton factor.
B. Sanctions. We now turn to the question of sanctions. In
considering sanctions, we must focus on their purpose. We do not seek
in our sanctions to inflict punishment for criminal conduct in any
general sense. That is the function of the criminal law. The range of
penalties for criminal activities are established by the legislature and are
enforced through criminal prosecutions. Imposing greater punishment
for domestic assault crimes is a matter for the legislature and public
prosecutors who exercise their discretion in enforcing the law.
That said, in addition to providing a mechanism to police poor
lawyering, the rules authorize us to protect the public and maintain
public confidence in the legal profession through the disciplinary
process. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Iversen, 723 N.W.2d
806, 810 (Iowa 2006). We further seek to impose discipline to deter
individual attorneys from reoffending. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Qualley, 828 N.W.2d 282, 293 (Iowa 2013). We also
seek to deter the misconduct of others. Templeton, 784 N.W.2d at 771;
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Thompson, 595 N.W.2d at 134. In calibrating our sanctions, we focus on
these issues and not generalized criminal punishment.
In determining sanctions, we have generally rejected per se rules
and have instead considered the totality of facts and circumstances of an
individual case. Nonetheless, we have sometimes referred to general
ranges of sanctions that arise from certain types of misconduct. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Said, 869 N.W.2d 185, 193 (Iowa
2015) (“When determining what sanctions to impose, we consider those
imposed in similar cases while remaining aware of the different
circumstances in each case.”). In Axt, we suggested that the sanctions
imposed against lawyers committing domestic abuse “ranged from a
suspension of two months to a suspension of two years depending on the
nature and extent of other misconduct proved by the board in the same
case.” 791 N.W.2d at 102.
In Schmidt, we suggested that in cases involving domestic assaults
with injuries to the victims we generally would consider a suspension of
up to six months before consideration of aggravating and mitigating
factors. 796 N.W.2d at 45. In that case, we determined that the singular
nature of the offense plus especially robust efforts to address alcohol and
mental health problems were sufficient to lessen the suspension to a
one-month period. Id.
The aggravating facts arise here primarily from the violation itself.
The victim of domestic assault suffered notable physical injuries and
psychological harm from an assault in her own bedroom. We do not find
the domestic nature of the assault a mitigating factor; indeed it is an
aggravating factor. Violence by an intimate partner is a raw assault on
the basic individual right to physical security that lies at the core of
civilized society.
19
We also note the escalating violence in this case. Although not
well-developed in the record, it is clear that in April, Deremiah engaged
in conduct cumulating in the destruction of Doe’s property and resulting
in a 911 call by Doe to stabilize the situation. This, of course, is a lesser
event compared to what occurred in July, but it should have been a clear
harbinger to Deremiah. The significance of the event was not lost on
Doe, who retrieved the key to her home from Deremiah after this
incident. Yet, on July 26, Deremiah engaged in an act of trespass by
breaking into Doe’s home and, ultimately, proceeded to repeatedly punch
Doe in the face and pull out her hair in the confines of her bedroom in
the early morning hours.
Finally, there is an issue regarding restitution. Deremiah damaged
the door to Doe’s residence when committing the trespass offense. It is
true that the damage was relatively minor and that a court order
detailing required restitution was not entered. Yet, Deremiah must have
known of the damage, and yet he appears to have taken no proactive
steps to assume responsibility for it. This is, perhaps, an error of
negligent omission more than anything else, but it does not foster
confidence that Deremiah has forthrightly assumed full responsibility for
his actions.
As in Schmidt, there are mitigating factors. Deremiah has not had
prior discipline, which we have recognized as a mitigating factor. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 339
(Iowa 2015). Notwithstanding the restitution issue, he has accepted
responsibility for his acts and seems genuinely remorseful, a mitigating
factor. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kingery, 871 N.W.2d
109, 122 (Iowa 2015). In addition, Deremiah has engaged in robust
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efforts to deal with his substance abuse. We regard the effort to obtain
help as a mitigating factor. Id. at 122; Schmidt, 796 N.W.2d at 39, 45.
We think the various opinions of the members of the commission
reflect the range of possible sanctions in this case. We cannot, however,
accept a public reprimand as an adequate sanction. Here, the escalating
tumultuous relationship between Deremiah and Doe led to an assault
resulting in substantial injuries. Notwithstanding the mitigating factors,
we think a mere reprimand is not adequate under the circumstances.
We give respectful consideration to the majority’s recommendation
of a thirty-day suspension, but we note that the majority also suggests a
two-year period of probation. The majority thus proposed a sanction that
offers protection well beyond the period of suspension. We have not
imposed probation beyond the period of suspension in our prior cases on
the ground that we lack the administrative machinery to provide effective
supervision. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 792
N.W.2d 674, 683 (Iowa 2010); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lickiss, 786 N.W.2d 860, 871–72 (Iowa 2010); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 819 (Iowa 2007).
We could impose a thirty-day suspension as in Schmidt. The
nature of the assaults are somewhat similar. The physical harm in this
case bears a resemblance to those in Schmidt. As in Schmidt, Deremiah’s
acts included some damage to property.
There are also differences. There is no evidence that Deremiah
interfered with efforts to summon help as in Schmidt. See Schmidt, 794
N.W.2d at 41. And, although the assault in Schmidt occurred in front of
children (which produced trauma so great that they did not want to see
their father during subsequent visitations), id. at 38, the assault in this
case did not involve injury to children who witnessed the abuse. Schmidt
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also involved a violation of an ethical rule unrelated to domestic abuse in
the case, id. at 39–40; there was no similar unrelated infraction in
Deremiah’s case. Yet, Deremiah was found guilty of two criminal
infractions—one involving trespass and the other involving assault.
From time to time we step back and consider whether our
approach to sanctions in our cases is generally sufficient to advance the
purposes of our ethics rules. For example, we increased the sanctions
for failure to file income tax returns in order to protect the reputation of
the bar. Comm. on Prof’l Ethics & Conduct v. Jones, 368 N.W.2d 157, 157
(Iowa 1985) (“[W]e are determined to continue to impose sanctions and, if
necessary to end tax violations by members of the profession, to increase
the periods of suspension.”). Similarly, in Schmidt, we took a step in
ratcheting up the floor of sanctions for domestic assault by declaring that
while an admonition for domestic abuse might have been appropriate in
the past, we no longer considered an admonition a sufficient sanction for
domestic abuse resulting in serious injury. 796 N.W.2d at 43.
After reviewing our cases and considering the issues raised in this
matter, we take another step in strengthening our disciplinary approach
to injurious domestic assaults by imposing a sanction in excess of the
one-month suspension imposed in Schmidt. We impose the increased
sanction in part because of the destruction of property and trespass of
the home, which occurred prior to the assault, but also to reemphasize
what was said in Schmidt, namely, that domestic abuse by lawyers is
out-of-bounds conduct that will not be tolerated by this court. Id. at 44.
In escalating the sanctions for domestic abuse, we seek to preserve the
reputation of the bar, ensure that family law lawyers are fit to offer
holistic legal advice, and deter other lawyers from committing similar
violations. We conclude that the proper sanction in this case is a
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suspension of Deremiah’s license to practice law indefinitely with no
possibility of reinstatement for at least three months.
In addition, Deremiah should continue to address the issues of his
substance abuse and mental health. The record demonstrates that
Deremiah has made a good start in this regard. Before reinstating
Deremiah’s license, however, we require that Deremiah present to us
evidence that he is continuing in his recovery efforts and that he is
mentally fit to practice law.
As a result, at the time of any application for reinstatement, we
require Deremiah to provide the court with (1) a mental health evaluation
by a physician who has signed an affidavit indicating that he is fit to
resume the practice of law, and (2) a substance abuse evaluation
indicating he is fit to practice law. See Rousch, 827 N.W.2d at 721. We
also require that any application for reinstatement be set for hearing
before us before the suspension in this case is lifted. Iowa Ct. R.
34.25(2).
IV. Conclusion.
For the above reasons, we suspend Deremiah’s license to practice
law indefinitely with no possibility of reinstatement for three months.
This suspension applies to all facets of the practice of law. See Iowa Ct.
R. 34.23(3). Deremiah must comply with Iowa Court Rule 34.24 dealing
with the notification of clients and counsel. Costs for this action are
taxed to Deremiah pursuant to Iowa Court Rule 36.24. Upon application
for reinstatement, Deremiah must demonstrate that he has not practiced
law during the period of his suspension and that he has complied with
all of the requirements for reinstatement provided in Iowa Court Rule
34.25. In any application for reinstatement, Deremiah must present an
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affidavit from a mental health professional and a substance abuse
evaluation demonstrating Deremiah’s fitness to practice law.
LICENSE SUSPENDED.