Attorney Disciplinary Bd. v. Barry

• Decision Date: 20 February 2009
• Docket Number: No. 08-1214.,08-1214.
• Citation: 762 N.W.2d 129
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James P. BARRY, Respondent.
• Court: Iowa Supreme Court

762 N.W.2d 129

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James P. BARRY, Respondent.

No. 08-1214.

Supreme Court of Iowa.

February 20, 2009.

Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.

James P. Barry, Muscatine, pro se.

WIGGINS, Justice.

This case involves a disciplinary action against attorney James Barry for his conduct as the Cass County attorney. The Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Barry with the Grievance Commission of the Iowa Supreme Court alleging Barry committed various violations of the Iowa Code of Professional Responsibility for Lawyers.¹ The Commission found Barry's conduct violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers. A majority of the Commission members recommended we suspend Barry's license to practice law indefinitely with no possibility of reinstatement for a period of eighteen months.²

Because we find Barry's conduct violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers, we suspend Barry's license to practice law indefinitely with no possibility of reinstatement for a period of one year.

I. Scope of Review.

Our review of a report filed by the Commission is de novo. See Iowa Ct. R. 35.10(1). "Under this standard of review, we give weight to the factual findings of the Commission, especially with respect to witness credibility, but we find the facts anew." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 131 (Iowa 2004). The Board must prove ethical violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). "`This burden of proof is greater than that in a civil case but less than that in a criminal case.'" Iowa Supreme Ct. Att'y Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 178 (Iowa 2005) (citation omitted). Although we consider the Commission's recommended sanction, we make the final decision regarding the appropriate discipline. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 697 (Iowa 2008).

II. De Novo Fact Finding.

We make the following findings of fact on our de novo review of the record. Barry graduated from Washington University Law School in 1986. He was licensed to practice law in Missouri and has maintained that license. Barry received his Iowa law license in January 1987. Barry moved to Cass County to take a position as assistant county attorney in fall 1986, but did not start until he received his Iowa license. In 1990, Barry ran for, and was elected, Cass County Attorney.

In January 2003, Barry's position as county attorney became full-time, which meant he could no longer continue the private practice of law. He remained the full-time county attorney until the Iowa District Court for Cass County removed Barry from office after finding he breached his duties knowingly and with a purpose to do wrong.

After his removal from office, Barry worked for Signature Management Company based in the Quad Cities. He left that position in March 2007. Now, he works for Hoffman, Inc. out of Muscatine. Since the district court's ruling, Barry has not engaged in the private practice of law in an office, but has done some work on legal matters with both companies. His current position does not require a law license, but it has been useful in some instances.

Barry has been involved in two previous disciplinary actions. In the most recent disciplinary action, Barry appeared in court to prosecute a client of one of his law partners. Because Barry was unaware of the conflict, the Board issued him a private admonition. In the other disciplinary action, Barry received a public reprimand for reducing speeding charges to permit pleas to offenses that had no factual bases.

As to each count of the complaint, we find the facts as follows.

A. Count I—Cathy A. Prosecution. In November 2002, Barry prosecuted Cathy for possession of marijuana. She pled guilty. The court gave her a deferred judgment, placed her on unsupervised probation, and ordered her to do forty hours of community service. During the time Cathy was required to complete her community service, she became pregnant and felt she could not complete her community service.

In a letter dated December 23, 2003, Barry stated in lieu of community service Cathy could pay a $400 donation to the Cass County sheriff's office. That letter also stated if she did not make the donation, Barry would file a probation violation. Cathy made the donation to the sheriff's office. Barry then had a judge sign an order eliminating community service from her sentence.

At the time Barry negotiated this deal, the Iowa Code allowed a donation of property to a charitable organization in satisfaction of part or all of a defendant's community service obligation. Iowa Code § 907.13(2) (2001). The Code specifically prohibited a donation to a governmental subdivision, such as the sheriff's office. Id.

B. Count II—Ronnie E. Prosecution. In November 2003, Barry charged Ronnie with drug-related felonies and misdemeanors. At Ronnie's arrest, law enforcement took his truck, CB radios, and other items. The Cass County sheriff filed a notice of forfeiture of the seized items pursuant to Iowa Code section 809A.6(5). Forfeited property is deemed to be in the custody of the district court subject to orders and decrees of the court and to the acts of the seizing agency or prosecuting attorney as authorized by chapter 809A. Id. § 809A.7(4) (2003). The prosecuting attorney may authorize the release of the property if forfeiture is unnecessary. Id. § 809A.7(2).

In December, Ronnie applied for the return of his property. Barry told Ronnie that if he donated $500 to the Cass County sheriff's office, he would receive his truck back. Ronnie paid the donation, and his truck was returned.

The court eventually issued an order forfeiting the $500 rather than the truck. The $500 was retained by the sheriff's office. Under Iowa law all forfeited property not needed as evidence must be turned over to the attorney general or the attorney general's designee, unless the attorney general or the attorney general's designee orders the property destroyed, sold, or delivered to another agency. Id. § 809A.17(2). The attorney general never authorized the $500 to be retained by the sheriff's office.

C. Count III—Hans K. Prosecution. In June 2003, Barry charged Hans with an OWI in Cass County. Hans pled guilty to OWI, was given a deferred judgment, and placed on probation under the supervision of the Cass County attorney's office for six months. Hans was also required to pay a $200 probationary fee to the clerk of court. In the county's records, the county recorded this fee as income generated by the county attorney's office, with the revenue going to the general fund of the county. The Iowa Code authorized a $250 probation fee if the person placed on probation was under the supervision of a judicial district department of correctional services established under Code section 905.2. Id. § 905.14(1). There is no provision for a person to pay a fee to the county attorney for providing probationary services. See also Kragnes v. City of Des Moines, 714 N.W.2d 632, 642 (Iowa 2006) (holding any fees charged by a city must be reasonably related to the city's administrative expenses in the exercise of its police power).

Hans later received a minor-in-possession-of-alcohol charge in Cedar Falls in October 2003. As the probation officer, Barry was required to bring the defendant before the court if he had probable cause to believe that Hans violated the terms of his probation. Iowa Code § 908.11(1). It would then be up to the court to determine if a violation occurred and the appropriate sanction for the violation. Id. § 908.11(4). Instead of bringing the violation to the attention of the court, Barry agreed to disregard the violation if Hans donated $250 to the Cass County sheriff's office. Barry admitted and we agree that if he had brought the probation violation to the court as provided by law, he would have been a potential witness for the State in the probation matter. Even with this conflict he failed to withdraw from the case and proceeded to negotiate a deal so Hans could avoid a probation revocation proceeding.

D. Count IV—Charles M. Prosecution. Barry charged Charles with domestic abuse assault in July 2003. Charles pled guilty to the charge, and the court placed him on unsupervised probation. Under federal law, a person convicted of domestic assault cannot possess firearms. 18 U.S.C. § 922(g)(9). The Cass County sheriff's office seized thirty-four guns and ammunition from Charles. The seizure reports did not mention the ammunition.

Originally, the seized items were in the sheriff's office area, but were then moved to storage. The deputy sheriff, Darby McLaren, said there was ammunition in the evidence room at the time, but it was not tagged, so no one was aware that the ammunition was part of the list of items seized from Charles' house. McLaren further added that because the ammunition was not evidence and was not tagged, it was considered sheriff's property. Barry saw the untagged ammunition and asked McLaren about it. McLaren later delivered the ammunition to Barry for his use.

Charles sold all of his weapons to his father, Larry, so his father could claim the firearms. Larry asked for the ammunition and the firearms. When Larry received the seized firearms, he claimed someone had fired three of the guns. Larry also claimed the sheriff's office did not return all the ammunition.

Barry stated that although he had the ammunition, he did not use it, and returned it once he realized his possession of weapons and ammunition would be a source of contention in the upcoming sheriff's election. Barry further admitted he knew at the time that under Iowa law all firearms and ammunition should have gone...