Attorney Disciplinary Bd. v. Kress

• Decision Date: 14 March 2008
• Docket Number: No. 07-0386.,07-0386.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Kenneth KRESS, Appellant.
• Court: Iowa Supreme Court

747 N.W.2d 530

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Kenneth KRESS, Appellant.

No. 07-0386.

Supreme Court of Iowa.

March 14, 2008.

Rehearing Denied April 22, 2008.

Leon F. Spies of Mellon & Spies, Iowa City, for appellant.

Charles L. Harrington and David J. Grace, Des Moines, for appellee.

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 W. 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 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, 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 that student evaluations are confidential and are to be 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.

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 overhead 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 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 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...