Iowa Supreme Court Attorney Disciplinary Board Vs. Kenneth Kress ( 2008 )


Menu:
  •               IN THE SUPREME COURT OF IOWA
    No. 95 / 07-0386
    Filed March 14, 2008
    IOWA SUPREME COURT ATTORNEY
    DISCIPLINARY BOARD,
    Appellee,
    vs.
    KENNETH KRESS,
    Appellant.
    On review of the report of the Grievance Commission.
    Iowa Supreme Court Grievance Commission recommends a one-year
    suspension of the respondent’s license to practice law.            LICENSE
    SUSPENDED.
    Leon F. Spies of Mellon & Spies, Iowa City, for appellant.
    Charles L. Harrington and David J. Grace, Des Moines, for appellee.
    2
    APPEL, Justice.
    This attorney disciplinary proceeding stems from allegations of
    academic impropriety by an Iowa lawyer. The Iowa Supreme Court Attorney
    Disciplinary Board (Board) charged former University of Iowa law professor
    Kenneth Kress with two violations of the Iowa Code of Professional
    Responsibility for Lawyers—DR 1–102(A)(4) (a lawyer shall not engage in
    conduct involving dishonesty, fraud, deceit, or misrepresentation) and
    DR 1–102(A)(6) (a lawyer shall not engage in any other conduct that
    adversely reflects on the fitness to practice law). The charges stem from
    allegations that Kress raised the scores on two student evaluations and
    manufactured three highly positive evaluations in order to improve
    markedly his teaching effectiveness score.
    After an evidentiary hearing, the Iowa Supreme Court Grievance
    Commission (Commission) sustained the violations and recommended that
    Kress be suspended from the practice of law for a period not less than one
    year. Upon our de novo review, we find Kress violated DR 1–102(A)(4). We
    suspend Kress’s license indefinitely with no possibility of reinstatement for
    three months and impose conditions on his possible readmission.
    I. Factual and Procedural Background.
    A. Background of Kenneth Kress. Originally from California, Kress
    graduated from Boalt Hall School of Law at the University of California,
    Berkeley, in 1985. After graduating law school, Kress accepted a teaching
    position at the University of Iowa College of Law. Four years later, he
    earned a doctorate in jurisprudence and social policy from Boalt and was
    promoted from associate professor of law to full professor. Over his lengthy
    academic career, Kress has lectured on a multitude of topics, ranging from
    Torts to Jurisprudence to Mental Health Law.          Nationally recognized
    3
    scholars have glowingly praised Kress’s scholarship for its originality,
    incisiveness, and descriptive power.     While Kress has published in a
    number of areas of law, he is particularly well-known as one of the leading
    scholars nationally in mental health law. Without question, Kress is an
    intellectually gifted lawyer.
    Unfortunately, Kress has had a difficult medical history.           He
    experienced depression as a child. In adolescence and as a young adult, he
    suffered two head injuries, one of which was quite severe. After a period of
    psychological difficulty, Kress was diagnosed in 1990 as having bipolar
    affective disorder. His mental health difficulties have been exacerbated by
    physical health complications. Among other things, Kress suffers from
    obstructive sleep apnea and diabetes mellitus. As a result of sleep apnea,
    Kress is often awake late into the night. Regulation of his diabetes requires
    Kress to monitor his blood sugar level regularly and inject insulin as
    needed. The combination of these mental and physical illnesses resulted in
    hospitalizations in 1990, 1994, and 2002.          Hospital records reveal
    occasions when Kress was noncompliant with hospital rules, engaged in
    conflict with hospital staff, and refused to follow medical advice.
    B. Events in April 2004. In early April, Kress exhausted his supply
    of Risperdal, a drug which his treating psychiatrist, Dr. Richard
    Michaelson, prescribed to treat his bipolar disorder. Kress’s significant
    other, Donna Meek, is a mental health advocate knowledgeable about
    psychological disorders. Meek noted that in the days preceding the incident
    in question Kress “just sort of wilted” and retreated to a bedroom in his
    basement for the weekend. Meek observed that Kress generally had an
    inability to track over the weekend and suffered from delusions.         On
    Sunday, Meek questioned whether Kress should go to school the next day,
    4
    but Kress indicated that he would go straight to school and come straight
    home afterward.
    On Monday, April 19, the students in Kress’s classes were to complete
    faculty evaluations.    Scores on student evaluations are a factor in
    determining who is appointed to faculty chairs at the law school. Kress
    believed that he had been treated badly by the law school because he
    deserved to be appointed to a faculty chair, but had not yet received one.
    In order to protect the integrity of the student evaluation process,
    written university policy requires student evaluations to be confidential and
    completed without the presence of the faculty member. Faculty members
    are advised to have their secretary administer the evaluations, collect them,
    and present them to the administration in order to avoid all appearances of
    impropriety.
    The evaluations for Kress’s first class in the afternoon were
    administered properly and without incident. The second class was a mental
    health law seminar consisting of ten students which met in the evening
    after his secretary had gone home for the day. Kress arrived at the seminar
    as scheduled.
    At the evening seminar, Kress decided to pass out the evaluations
    himself. Prior to disseminating them, however, Kress gave a ten-to-fifteen-
    minute speech about the importance of the evaluations, stressing that his
    job was “on the line.” Kress attributed his problems at the law school to
    jealousy among the faculty. The only student who testified at the hearing
    indicated that Kress’s demeanor was normal, that he spoke at his normal
    rate, did not exhibit frenzied excitement or seem confused, his speech was
    not disordered or rambling, and that he seemed logical.
    5
    After handing out the evaluations, Kress remained in the classroom.
    His continued presence while students completed the evaluations was
    against university policy. His research assistant, however, urged him to
    leave the room, and Kress complied.
    After Kress left, the students engaged in a discussion about his
    conduct. Several students indicated that they were going to fill out the
    evaluations honestly regardless of Kress’s comments. The students agreed
    that Kress’s research assistant should collect the finished evaluations and
    return them to the administration in the morning, a common practice when
    classes are held in the evening.
    When the students left the classroom after completing the
    evaluations, they found Kress in the immediate area outside, giving rise to
    concern that Kress may have overheard their discussion about the propriety
    of his conduct. When Kress’s research assistant told Kress that he would
    drop off the evaluations with the secretary in the morning, Kress directed
    that he and his assistant would take the evaluations up to the secretary’s
    office that evening.   This conversation took place in front of the other
    students, who exchanged concerned glances with each other. Kress then
    escorted his research assistant to his secretary’s office, where Kress
    unlocked the door, and instructed the research assistant to leave the
    evaluations inside. His research assistant hoped that Kress would leave the
    building with him, but Kress remained behind.         When the research
    assistant left the building, he met classmates and a further discussion of
    their concerns over the evaluation process ensued.
    The next day a student informed Associate Dean of Student Affairs
    Linda McGuire about Kress’s actions.         Thereafter, the law school
    administration conducted a confidential investigation. The investigation
    6
    determined that three neutral or unfavorable evaluations were discarded
    and replaced with favorable versions, two were altered in order to raise the
    scores, and two evaluations were unchanged. The effect of the changes was
    to raise Kress’s composite teaching effectiveness score on a five point scale
    from 2.86, a relatively low score that might attract the attention of law
    school administrators, to 4.86, a very high score that few members of the
    faculty were able to achieve.    When confronted with the results of the
    investigation, Kress did not claim a medical or mental defense.
    C. Defense of Diabetic and/or Psychotic Delirium.
    1. Direct testimony by Kress. At the hearing, Kress admitted in light
    of the evidence that he must have tampered with the evaluations. Kress
    asserted, however, that at the time he suffered from mental and physical
    illnesses that excused or mitigated his conduct.
    With respect to April 19, Kress recalled giving what he characterized
    as an “irrelevant speech” to the evening seminar about the law school
    conspiracy against him. He further testified that he recalled going to his
    secretary’s office with his research assistant after class.
    Kress noted that after going with his research assistant to his
    secretary’s office, he woke up in his own office, either from sleep or from a
    “delirious loss of consciousness” after hallucinating about two dogs. He told
    the Commission that he believed that conspirators had succeeded in
    sending rays into the students’ minds, changing their neurons, and altering
    their answers on the evaluations. Kress further testified that in light of the
    mind-changing rays, he believed that it was only fair for him to change the
    evaluations back, so they would be correct.
    Kress believed he was confronted with a matter of life or death. He
    hallucinated about being in prison, where a medieval jury was laughing at
    7
    him for failing to save the world from the parade of horribles that was
    coming. Changing the evaluations thus was transformed from a personal
    matter to a universal struggle between good and evil.
    After recounting this delusionary experience, Kress maintained that
    he had no recollection of actually altering the evaluations. He did recall
    checking his blood sugar in his office at some time, which he asserts yielded
    a score of 565, the highest level Kress had ever personally recorded. Kress
    then administered thirty units of insulin to address the problem. Kress
    further recalled retrieving some reading materials from his secretary’s office
    and walking out of the building, but did not recall the trip home.
    The records of the device used in his office to monitor his blood sugar
    were not available at the hearing, but Kress offered into evidence records
    from the machine he used at home. These records indicated that after he
    left the building and returned home at 11:00 p.m., Kress’s blood sugar
    reading was at 403. It then gradually rose to a high of 548 after midnight
    before receding.
    2. Medical report offered by the Board. The Board submitted a report
    by Dr. Anna Lembke, a psychiatrist in the Department of Psychiatry and
    Behavioral Sciences at the Stanford University School of Medicine. While
    conceding that delirium was plausible, Lembke opined that it was “not
    probable that the incident in question was due to delirium.” Citing the
    Diagnostic and Statistical Manual of Mental Illness IV’s (DSM IV) definition
    of delirium, Lembke noted that Kress was able to converse intelligibly with a
    classroom of students, wait in a purposeful manner while the evaluations
    were being completed, accompany his research assistant to the office with
    the evaluations, read the evaluations, remove the ones that reflected poorly
    on him, and systematically manufacture or alter evaluations to produce a
    8
    desired result. This sustained, purposeful, and concentrated effort “would
    not have been achievable by an individual with [the] waxing and waning of
    consciousness” normally associated with delirium. Further, Lembke noted
    that it was “not probable” that Kress would have been able to check his
    blood sugar after the lecture, administer insulin, and drive home, as he
    reported doing, if he was in a state of delirium.
    Lembke also addressed more generally the role of mental illness in
    connection with the incident. She noted that Kress reported to her that his
    delusional thoughts were completely resolved the day after the incident.
    Lembke opined that such rapid resolution is not the natural pattern of
    psychosis, particularly manic psychosis, which ordinarily takes weeks to
    resolve. Additionally, she also noted that while Kress described himself as
    someone who immediately seeks treatment when he knows he is medically
    ill, Kress did not do so on April 19 notwithstanding his self-reported severe
    and dramatic psychotic symptoms.
    Lembke did, however, allow that mental illness might have played a
    minor contributing role in the events on April 19.       She theorized that
    narcissistic personality traits, which made negative reviews of any kind
    intolerable to Kress’s fragile ego, possibly combined with hypomania, may
    have contributed to Kress’s conduct.
    3. Medical reports and testimony submitted by Kress. In response to
    Lembke’s report, Kress offered several expert medical reports and live
    testimony from Michaelson. Michaelson believed that high levels of blood
    sugar can cause delirium, which he defined as an acute, confused state
    consisting of a waxing and waning state of consciousness and impaired
    attention, often accompanied by delusions or hallucinations and marked
    distractibility. A person suffering from delirium would probably appear
    9
    disturbing, troubling, unusual, and erratic. Michaelson further noted that
    Kress had a minor history of delusions.
    Assuming the accuracy of Kress’s rendition of the facts, Michaelson
    concluded that Kress was suffering from delirium on the night in question,
    was not able to know what he was doing, and did not know the difference
    between right and wrong.
    Kress also offered into evidence a letter from his treating therapist,
    Dr. Charles Fisher. Fisher stated that he was very concerned about Kress’s
    deteriorating mental condition in March and early April 2004. Based on his
    discussions with Kress, Fisher concluded that the April 19 incident was
    caused by delirium, due to out of control diabetes, complicated by mental
    illness. Other medical evidence, however, questioned the role of Kress’s
    diabetes in the incident. Fisher also emphasized his view that Kress was an
    individual of unusually high integrity and that he had been utterly frank
    with him about his behavior, including when it was potentially
    disadvantageous to him.
    Fisher also challenged the veracity of Lembke’s results. Fisher took
    Lembke to task for failing to consider criteria for delirium in the DSM IV, for
    expressing her opinions in a conclusory manner, for noting but not
    considering the impact of traumatic brain injury in her analysis, for failing
    to consider Kress’s history of cognitive or amnesic episodes, for confusing
    delirium and delusion, and for suggesting that narcissistic personality
    disorder would be consistent with an intolerance to negative student
    reviews.
    Kress further submitted a letter by Dr. Richard LeBlond, Professor of
    Internal Medicine at the University of Iowa College of Medicine who had
    treated Kress over the past several years. LeBlond characterized the events
    10
    of April 19 as a “distinctly unusual event” for Kress. He reviewed the blood
    sugar levels that Kress experienced, noting that the elevated levels “can
    induce significant metabolic abnormalities.” LeBlond noted that Kress’s
    memory loss suggested that his judgment may have been clouded by a
    metabolic brain state due to high blood sugar and medications inducing a
    transient delirium. LeBlond noted, however, that it was impossible to make
    a firm determination of the nature of the event, but that the possibility of
    metabolic disturbance needs to be considered.
    Kress also submitted a report by Dr. Michael First, a psychiatrist on
    the faculty at Columbia University. First opined that Kress was suffering
    from an exacerbation of his long-standing bipolar disorder and met criteria
    for a manic episode with psychotic features.      First concluded that the
    episode was related to the discontinuation of his antipsychotic medication
    two weeks earlier and daily doses of stimulants. First opined that the fact
    that Kress could lecture earlier in the evening and then have severe
    clouding of consciousness was not inconsistent with a diagnosis of delirium.
    First noted that Kress’s manner of altering the evaluations was
    consistent with his opinion. First observed that if Kress had intended to
    alter the evaluations, it is unlikely that he would have preceded the
    evaluation process with an appeal for leniency. Further, First cited the
    crudeness of the alterations—the use of the same dark pencil on all
    substituted evaluations, the use of the same handwriting style on all altered
    forms, and the crude erasure of average scores and replacement with top
    scores—as indicating manic delusions. Kress’s actions, according to First,
    were a direct manifestation of his psychotic belief that he was counteracting
    the effects of the administration’s mind control efforts which was a
    manifestation of the acute exacerbation of his long-standing bipolar illness.
    11
    Each of the doctors presented divergent opinions as to Kress’s present
    and future fitness to practice law. Lembke advised that Kress’s current
    psychiatric problems qualified him for total disability. Michaelson indicated
    that Kress could not handle the stress of teaching law but might be able to
    handle a limited practice. Fisher indicated that the complicated set of
    circumstances which Kress experienced in April 2004 were unlikely to
    recur. First stated that if Kress immediately sought consultation at the first
    sign of hypomania and discontinued the use of stimulants at high doses,
    his future prognosis to return to work is excellent.
    D.   Findings and Recommendations of the Commission.                The
    Commission determined that the Board had proven the alleged ethical
    violations by a convincing preponderance of the evidence. In making this
    finding, the Commission relied on the analysis and conclusions in the
    Lembke report, the testimony of Michaelson that delirium is usually
    accompanied by disturbing, troubling, unusual or erratic behavior (evidence
    of which was notably absent from the record), the presence of a motive for
    Kress to alter the evaluations, the lack of supportive contemporaneous
    medical records upon which Kress’s experts could rely in reaching their
    exculpatory opinions, and Kress’s demeanor, which the Commission found
    resembled a person who thought he was above the law until he was caught.
    The Commission recommended, based upon the seriousness of the
    alleged misconduct and its determination that Kress had an apparent intent
    to deceive it, that his license to practice law be suspended indefinitely with
    no possibility of reinstatement for one year.          The Commission also
    suggested that Kress undergo and pass a complete mental health evaluation
    by a mental health professional before reinstatement and comply with all
    12
    physicians’ orders regarding his ongoing mental health care as a condition
    for maintaining his license.
    II. Standard of Review.
    In disciplinary matters, this court engages in a de novo review. Iowa
    Ct. R. 35.11(3); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 
    712 N.W.2d 683
    , 684 (Iowa 2006). The Board must prove ethical violations by a
    convincing preponderance of the evidence. 
    Id. On review,
    the court may
    adopt, increase, or reduce the sanction recommended by the Commission.
    Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Eich, 
    652 N.W.2d 216
    ,
    217 (Iowa 2002).
    III. Discussion.
    A.      Positions of the Parties.    Kress does not deny that he
    manufactured and altered the student evaluations on April 19, 2004. He
    also recognizes that this court has long rejected contentions that a lawyer’s
    mental or emotional problems constitute a defense to attorney disciplinary
    actions.   See, e.g., Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
    Thompson, 
    595 N.W.2d 132
    , 136 (Iowa 1999); Comm. on Prof’l Ethics &
    Conduct v. Tompkins, 
    415 N.W.2d 620
    , 623 (Iowa 1987); Comm. on Prof’l
    Ethics & Conduct v. Silver, 
    395 N.W.2d 877
    , 878–79 (Iowa 1986).
    Kress attempts to distinguish these cases, however, by arguing that
    under DR 1–102(A)(4), intent is an element that the Board must prove by a
    convincing preponderance of the evidence. Kress cites cases from other
    jurisdictions finding such an intent requirement in equivalent ethical
    provisions.    Disciplinary Matter Involving West, 
    805 P.2d 351
    , 353–54
    (Alaska 1991); State ex rel. Okla. Bar Ass’n v. McMillian, 
    770 P.2d 892
    , 899
    (Okla. 1989). Kress argues in light of the “unique and unprecedented
    circumstances” of this case, he could not form the level of intent necessary
    13
    to commit this ethical violation. In the alternative, Kress argues that his
    health status should mitigate any sanction.
    In response, the Board does not challenge Kress’s assertion that
    intent must be proven in order to establish a violation of DR 1–102(A)(4).
    Instead, the Board responds by emphasizing the purposeful nature of
    Kress’s activities on April 19. The Board also asserts that Kress’s behavior
    amounts to conduct adversely reflecting on the practice of law, as then
    prohibited by DR 1–102(A)(6).
    B.    Requirement of Intent and Availability of Affirmative
    Defenses Related to Mental Capacity. This court has held that intent is a
    required element for misrepresentation under DR 1–102(A)(4).             Iowa
    Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 
    683 N.W.2d 549
    , 553
    (Iowa 2004). We believe there is also an intent requirement for fraud,
    dishonesty, and deceit under DR 1–102(A)(4). Att’y Grievance Comm’n of
    Maryland v. Clements, 
    572 A.2d 174
    , 179 (Md. 1990). For the purpose of
    the disciplinary rules, the intent requirement is satisfied where the evidence
    shows that the actor intends the natural and logical consequences of his or
    her acts. Matter of Levy, 
    637 N.E.2d 795
    , 799 (Ind. 1994) (holding that
    intent is shown “where lawyer acts with conscious awareness of the nature
    or attendant circumstances of his or her conduct but without the conscious
    objective or purpose to accomplish a particular result”). Where the record
    reveals mere haste or oversight, however, there is no violation of DR 1–
    102(A)(4). Comm. on Prof’l Ethics & Conduct v. Bitter, 
    279 N.W.2d 521
    , 526
    (Iowa 1979). In order for Kress’s conduct to arise to a DR 1–102(A)(4)
    violation, the Board must prove intent by a convincing preponderance of the
    evidence. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 
    674 N.W.2d 139
    , 142 (Iowa 2004) (“This burden is less than proof beyond a
    14
    reasonable doubt, but more than the preponderance standard required in
    the usual civil case.”).
    Once the Board has shown an intentional act of fraud, dishonesty,
    deceit, or misrepresentation, the affirmative defenses of insanity or mental
    incapacity are unavailable.    While insanity is a recognized defense in
    criminal proceedings, it is not recognized in attorney disciplinary
    proceedings. 
    Silver, 395 N.W.2d at 878
    –79. Certainly, where fraudulent,
    deceitful, or dishonest acts occur, claims that the attorney was acting as a
    result of mental aberration or amnesia depriving him or her of the ability to
    distinguish between right and wrong are of no avail. See, e.g., In re Hoover,
    
    745 P.2d 939
    , 945–46 (Ariz. 1987) (holding that manic depressive could not
    assert as a complete defense his inability to distinguish right from wrong in
    case involving misappropriation of client funds); La. State Bar Ass’n v.
    Theard, 
    62 So. 2d 501
    , 503 (La. 1952) (holding that insanity defense was
    not available where attorney engaged in forgery and conversion of client
    funds even though he had no recollection of events); In re Houtchens, 
    555 S.W.2d 24
    , 26 (Mo. 1977) (holding that attorney who converted client funds
    who suffered from pscyhotemporal epilepsy reflected in periodic amnesia,
    disorientation, and confusion could not raise defense of severe mental or
    physical problems); In re Fallick, 
    286 N.Y.S. 581
    , 583 (App. Div. 1936)
    (holding that a lawyer who converted funds but suffered from mental illness
    and lapse of memory was subject to sanction). But see In re Conduct of
    Holman, 
    682 P.2d 243
    , 261 (Ore. 1984) (holding that heavy alcohol abuse
    and addiction to prescription drugs showed lack of appreciation of ethical
    violation necessary to support violation of ethical rule prohibiting conduct
    involving dishonesty).
    15
    The principal reason for refusing to accept affirmative defenses based
    on mental health is the need to protect the public from dishonest acts of
    lawyers regardless of their mental health status. See 
    Silver, 395 N.W.2d at 879
    ; 
    Theard, 62 So. 2d at 503
    ; 
    Houtchens, 555 S.W.2d at 26
    ; In re 
    Fallick, 286 N.Y.S. at 583
    . The primary purpose of attorney discipline is to protect
    the public, not mete out punishment. Iowa Supreme Ct. Bd. of Prof’l Ethics
    & Conduct v. Mulford, 
    625 N.W.2d 672
    , 684 (Iowa 2001).
    There is a question, however, as to whether a claim of
    unconsciousness due to mental or other illness may under any
    circumstance wholly negate the intent requirement of DR 1–102(A)(4). To
    the extent there is any possibility that an attorney may claim
    unconsciousness to vitiate the intent element of the prima facie case in
    disciplinary cases involving dishonesty, fraud, deceit, or misrepresentation,
    the record must demonstrate a total and complete unconsciousness and not
    merely an assertion that the conduct in question was caused by or was a
    result of mental or other illness. See State ex rel. Okla. Bar Ass’n v. Krug, 
    92 P.3d 67
    , 79 (Okla. 2004) (Opala, C.J., dissenting) (discussing whether the
    criminal defense of automatism or total unconsciousness applies in
    attorney disciplinary context under applicable statute).
    The framework of analysis is different, however, when considering
    alleged violations of DR 1–102(A)(6). Unlike DR 1–102(A)(4), intent is not a
    requirement for violation of DR 1–102(A)(6). Under DR 1–102(A)(6), the
    focus is on conduct, not the mental status of the actor. Iowa Supreme Ct.
    Att’y Disciplinary Bd. v. Joy, 
    728 N.W.2d 806
    , 814–15 (Iowa 2007); State Bar
    v. Lerner, 
    859 S.W.2d 496
    , 499–500 (Tex. Ct. App. 1993). With respect to
    violations of DR 1–102(A)(6), the Board is not required to show intent, but
    16
    only to show that the objective conduct of the lawyer reflects adversely on
    his or her fitness to practice law.
    C. Application of Legal Principles.
    1. Alleged violation of DR 1–102(A)(6). The Board asserts that Kress
    violated DR 1–102(A)(6) by failing to manage his medical problems. See
    
    Tompkins, 415 N.W.2d at 623
    (holding that a lawyer who fails to get help for
    compulsive mental illness while practicing law violates disciplinary rule).
    We are reluctant, however, to rely upon DR 1–102(A)(6) in this case. The
    new Model Rules of Professional Conduct adopted by this court in 2005
    materially altered DR 1–102(A)(6) by limiting its scope to acts that amount
    to criminal transgressions. While Kress’s failure to manage his medical
    conditions may have put him at risk of odd behavior, his failure to monitor
    and control his health problems does not amount to criminal activity.
    Although DR 1–102(A)(6) was in effect at the time of the alleged
    transgressions, we prefer not to impose a potentially serious sanction based
    upon an ethical norm that is no longer applicable. We find that the more
    pertinent question is whether Kress violated DR 1–102(A)(4) (conduct
    involving dishonesty, fraud, deceit, or misrepresentation), which is carried
    over in virtually identical form in the current Model Rules. See Iowa R.
    Prof’l Conduct 32:8.4(d).
    2. Alleged violation of DR 1–102(A)(4). In determining whether Kress
    violated DR 1–102(A)(4), it is not disputed that Kress altered two student
    evaluations and manufactured three others to improve the overall composite
    rating of his teaching ability. Kress claims, however, that the Board cannot
    show the necessary intent because he was unconscious—due to delirium—
    when the acts were committed. We do not find it necessary to reach the
    theoretical question of whether intent can ever be defeated in a disciplinary
    17
    proceeding by claims of total unconsciousness because we find that Kress
    did not act in a totally unconscious fashion sufficient to vitiate intent.
    We note that the independent expert from Stanford, Dr. Lembke,
    came to the conclusion that it was not probable that the incident in
    question occurred as a result of delirium in light of Kress’s concerted,
    purposeful activity. Although Kress presented opposing medical testimony
    and reports, those opinions assume that Kress was in fact unconscious and
    then present diverse views on how such a mental state might have been
    caused. Further, even Kress’s own medical reports do not consistently urge
    that Kress was totally unconscious when he altered and manufactured the
    student evaluations, but often suggest merely that Kress’s conduct was out
    of character and that he was acting under the influence of delusions and
    psychotic beliefs.
    In addition, the medical evidence presented by Kress was not always
    consistent with other evidence.        For instance, Kress’s own expert,
    Dr. Michaelson, testified that if Kress suffered from delirium, he would have
    probably appeared disturbing, troubling, unusual, and erratic to his
    students. The only student who testified at the hearing, however, stated
    that Kress appeared normal and that he did not appear rambling, confused,
    or frenzied.
    Further, the total picture of Kress’s behavior on the evening of
    April 19 suggests intentional, conscious conduct. The sequence of objective
    facts, which were essentially undisputed, show that Kress made improper
    remarks to his class about the student evaluations, remained in the
    classroom when the students were completing the forms in violation of
    university policy and left only when asked to do so by his research
    assistant, stationed himself just outside the classroom in a fashion that
    18
    caused student concern about his potential eavesdropping, did not allow his
    research assistant to take the evaluations home but instead escorted him to
    his secretary’s office, to which he had a key, where the forms were left. It is
    undisputed that these acts amounted to intentional, conscious conduct.
    Kress then admits to altering the forms in a fashion that eliminated three
    neutral or negative evaluations, replaced them with newly minted favorable
    evaluations, and materially raised the score of two other evaluations. These
    actions were certainly not negligent, mistaken, or accidental. It is difficult
    to find that Kress was totally unconscious when he performed the
    systematic and organized acts of altering and manufacturing student
    evaluations in a fashion that dramatically improved his composite
    evaluation, particularly when these acts are consistent with his admittedly
    intentional and conscious conduct throughout the evening of April 19.
    Kress’s version of events does not challenge the objective facts but
    repeatedly focuses on his subjective state of mind. Even accepting Kress’s
    testimony about his delusions, the asserted pattern of intentional,
    conscious conduct, interrupted at the key moment by a brief period of
    unconscious delirium in which the actus reus was performed on five
    evaluations, seems as improbable to us as it did to Lembke. Further, as
    noted by the Commission, Kress had motivation—possible promotion to an
    endowed chair—to change the evaluations.
    Finally, while this court engages in de novo review, findings of
    credibility by the Commission are entitled to consideration. Iowa Supreme
    Ct. Att’y Disciplinary Bd. v. McGrath, 
    713 N.W.2d 682
    , 695 (Iowa 2006).
    While Kress offered evidence of his character and integrity, the Commission
    did not believe Kress’s rendition of events based in part on his demeanor.
    The Commission’s finding with respect to Kress’s demeanor is a factor that
    19
    reinforces our conclusion that the Board met its burden of showing a
    violation of DR 1–102(A)(4) in this case.
    D. Sanctions. In considering sanctions, we agree with Kress that
    mental and physical conditions may be mitigating factors. The full extent of
    mitigation depends upon the relationship between the unethical conduct
    and the mental and physical illnesses. Iowa Supreme Ct. Bd. of Prof’l Ethics
    & Conduct v. Grotewold, 
    642 N.W.2d 288
    , 295 (Iowa 2002).
    Based on our review of the record, we find that Kress’s health status
    obviously played a role in his behavior and should be considered in
    mitigation. While his acts remain intentional, and thus subject to sanction,
    we believe the record shows that Kress was experiencing an episode of
    mental health instability, along with poorly controlled diabetes. These
    conditions undoubtedly clouded his judgment on April 19.
    We note that Kress has not had a history of disciplinary problems in
    the past and that he has spent years as a dedicated teacher. He has been
    engaged in the representation of mentally-ill clients on a pro bono basis or
    for a highly-discounted fee. These are mitigating factors to be considered in
    fashioning sanctions. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
    Frerichs, 
    671 N.W.2d 470
    , 477–78 (Iowa 2003); Comm. on Prof’l Ethics &
    Conduct v. Conzett, 
    476 N.W.2d 43
    , 46 (Iowa 1991); Comm. on Prof’l Ethics &
    Conduct v. Nadler, 
    467 N.W.2d 250
    , 254 (Iowa 1991).
    A potential aggravating feature is Kress’s refusal to acknowledge the
    intentional nature of his misconduct.       The nub of the issue is the
    truthfulness of Kress’s claim not to remember altering and manufacturing
    the student evaluations. While it is possible that Kress does not remember
    the specifics of his actions as a result of amnesia, we conclude that Kress
    has been less than candid in his testimony to the Commission.
    20
    The most important factor in developing sanctions in this case,
    however, is protection of the public. 
    Silver, 395 N.W.2d at 879
    . Kress
    concedes that he changed the scores on the student evaluations in a
    fashion that dramatically improved his composite score. Public confidence
    in our legal system demands more than a mild sanction for this type of
    conduct.
    Under all the facts and circumstances, we order that Kress’s license
    be suspended indefinitely with no possibility of reinstatement for three
    months. Upon application for reinstatement, Kress shall prove that he has
    not practiced law during the period of suspension and that he met the
    requirements for client notification set forth in Iowa Court Rule 35.21.
    Additionally, we further order that before Kress is readmitted to practice in
    Iowa, he undergo a comprehensive mental and physical health examination,
    which evaluates his present condition as well as his ability to control his
    diabetes and bipolar disorder, by a provider or providers approved by the
    Board. We further order that upon any application for reinstatement, Kress
    provide the Board with statements from his treating physicians that he has
    complied with all physicians’ orders regarding his ongoing mental and
    physical health care.
    IV. Conclusion.
    Based on our de novo review, we order that the respondent’s license
    to practice law be suspended indefinitely with no possibility of
    reinstatement for three months and place conditions on possible
    reinstatement.
    LICENSE SUSPENDED.
    

Document Info

Docket Number: 95 - 07-0386

Filed Date: 3/14/2008

Precedential Status: Precedential

Modified Date: 2/28/2018

Authorities (23)

Matter of Hoover , 155 Ariz. 192 ( 1987 )

Matter of Levy , 637 N.E.2d 795 ( 1994 )

Iowa Supreme Court Attorney Disciplinary Board v. Walker , 712 N.W.2d 683 ( 2006 )

Committee on Professional Ethics & Conduct of the Iowa ... , 476 N.W.2d 43 ( 1991 )

Iowa Supreme Court Board of Professional Ethics & Conduct v.... , 625 N.W.2d 672 ( 2001 )

COMMITTEE ON PROF. ETHICS, ETC. v. Bitter , 279 N.W.2d 521 ( 1979 )

Iowa Supreme Court Board of Professional Ethics & Conduct v.... , 642 N.W.2d 288 ( 2002 )

COM. ON PRO. ETHICS & CONDUCT v. Nadler , 467 N.W.2d 250 ( 1991 )

Committee on Professional Ethics & Conduct of the Iowa ... , 395 N.W.2d 877 ( 1986 )

IA SUP. CT. ATTY. DISCIPLINARY v. McGrath , 713 N.W.2d 682 ( 2006 )

Iowa Supreme Court Board of Professional Ethics & Conduct v.... , 674 N.W.2d 139 ( 2004 )

Iowa Supreme Court Attorney Disciplinary Board v. Joy , 728 N.W.2d 806 ( 2007 )

BD. OF PROF. ETHICS & CONDUCT v. Thompson , 595 N.W.2d 132 ( 1999 )

Committee on Professional Ethics & Conduct of the Iowa ... , 415 N.W.2d 620 ( 1987 )

ATTORNEY GRIEV. COMM'N OF MARYLAND v. Clements , 319 Md. 289 ( 1990 )

Louisiana State Bar Ass'n v. Theard , 222 La. 328 ( 1952 )

Iowa Supreme Court Board of Professional Ethics & Conduct v.... , 683 N.W.2d 549 ( 2004 )

Iowa Supreme Court Board of Professional Ethics & Conduct v.... , 652 N.W.2d 216 ( 2002 )

IA S. CT. BD. OF PROF. ETHICS v. Frerichs , 671 N.W.2d 470 ( 2003 )

In Re Houtchens , 555 S.W.2d 24 ( 1977 )

View All Authorities »