Citation625 N.W.2d 672
Decision Date25 April 2001
Docket NumberNo. 01-0015.,01-0015.
CourtUnited States State Supreme Court of Iowa

625 N.W.2d 672

Michael K. MULFORD, Respondent

No. 01-0015.

Supreme Court of Iowa.

April 25, 2001.

625 N.W.2d 675
Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant

Michael K. Mulford, Kellogg, pro se.

Considered en banc.

TERNUS, Justice.

The Grievance Commission of the Supreme Court of Iowa reported to the court that the respondent, Michael Mulford, had violated Disciplinary Rule 1-102(A)(5) and (6) of the Iowa Code of Professional Responsibility for Lawyers based on his willful avoidance of prosecution on a federal indictment for almost ten years. The Commission recommended a public reprimand. Upon our de novo review, the court agrees that Mulford has committed an ethical violation. The court believes, however, that Mulford's misconduct, aggravated by his actions during the course of the disciplinary process and his continued refusal to acknowledge the seriousness of his actions, warrants a suspension.

I. Background Facts and Proceedings.

Mulford was admitted to practice law in the States of Iowa and Florida in 1980. He established a law firm in Florida shortly after passing the bar.

On April 30, 1987, a federal grand jury in the Northern District of Texas indicted Mulford and twenty-one other defendants on various conspiracy and tax-fraud charges. The indictment charged that from 1981 through 1985 Mulford and his alleged co-conspirators engaged in schemes to promote and sell false and fraudulent tax deductions to be claimed on United States income tax returns. Contemporaneously with the filing of the indictment, the United States District Court for the Northern District of Texas issued a warrant for Mulford's arrest.

Mulford was living in the Cayman Islands at the time the indictment was filed and the arrest warrant was issued. He did not return to the United States. For the next ten years, Mulford lived in various places around the world, including Panama, Europe, and Africa.

On March 19, 1997, Mulford came back to the United States and surrendered to federal authorities in Texas. He then negotiated a plea agreement with the federal prosecutor. Under the terms of this agreement, Mulford agreed to plead guilty to criminal contempt in violation of 18

625 N.W.2d 676
U.S.C. § 401(3). The information1 charging Mulford with this crime stated in pertinent part that
[f]rom in or about late April-May 1987, continuing to in or about March 1997, [Mulford] did willfully, knowingly and unlawfully, disobey and resist a lawful writ, process, order, rule[,] decree and command of the United States District Court for the Northern District of Texas [in that an] [a]rrest warrant [was] issued for ... Mulford [and] [s]hortly after the warrant was issued, continuing up to the date he surrendered in Dallas, Texas, on or about March 19, 1997, Mulford remained outside the United States and willfully disobeyed and resisted the lawful process of the Court and did not surrender to the Court in United States v. Bryan et al.

In addition to pleading guilty to contempt, Mulford promised to "cooperate with the government by giving truthful and complete information and/or testimony concerning his knowledge of criminal activities." In exchange, the federal prosecutor agreed "not [to] bring any additional charges against Mulford for any offenses presently ... known to the government [and] agree[d] to dismiss ... the pending Indictment against [Mulford]." The written plea agreement signed by Mulford also stated that the factual resume prepared by the federal prosecutor was "true and correct."

Because the factual resume is crucial to the credibility of Mulford in the current disciplinary proceedings, we set it out in full:

Had this case proceeded to trial, the United States would have proved the following beyond a reasonable doubt:
1. Defendant, Michael K. Mulford, was indicted on or about April 30, 1987, along with 21 other defendants in a 25-count Indictment by the Federal Grand Jury sitting in the Northern District of Texas, Dallas Division: U.S. v. Bryan, et al. 3:87-CR-0116-T.
2. Mulford was charged in Counts 1, 8, 20, 21, 22, and 23.
3. An arrest warrant was issued for Mulford's arrest on or about April 30, 1987.
4. Shortly after the warrant was issued, Mulford became aware of the Indictment and his requirement to make himself available to the jurisdiction of the Court.
5. Mulford remained outside the United States and did not surrender himself to the jurisdiction of the United States District Court for the Northern District of Texas, Dallas Division, until on or about March 19, 1997.
6. Mulford thereby willfully disobeyed and resisted a lawful writ, process, order and command of the Court.

(Emphasis added.) Mulford and his attorney signed this document on June 5, 1997, indicating that they had "[s]een [it] and [a]greed" with it.

A hearing on Mulford's plea was held on June 5, 1997, in the United States District Court for the Northern District of Texas. Mulford stated that he wished to plead guilty. At the court's request, the factual resume that Mulford had signed was read aloud. The judge then asked Mulford: "Do you agree that those are the facts of this case as they apply to you?" Mulford replied that he did. The court ruled that the factual resume provided a factual basis for Mulford's guilty plea to the charge of

625 N.W.2d 677
criminal contempt in violation of 18 U.S.C. § 401(3)

At sentencing, Mulford's attorney suggested that Mulford had remained out of the country because threats had been made against his life due to his alleged cooperation with the United States government and Cayman authorities in investigating the illegal drug trade. The prosecutor's attempt to introduce evidence that Mulford had not provided any substantial assistance to the drug investigation was rejected by the court on the basis that Mulford's assertions were irrelevant to the court's sentencing decision. More important to the present matter, however, is the fact that Mulford acknowledged during the course of this discussion that he was aware of the indictment from the beginning: "While it is true that I learned about the indictment, I did not return because I did [not] feel it was safe to do so."

The court sentenced Mulford to a six-month prison term on the contempt charge, and dismissed the counts against Mulford in the original indictment. Mulford served his sentence at the Fort Des Moines Residential Halfway House in Des Moines.

During the period of time involved in the indictment, Mulford practiced law and maintained an active Iowa license. He went to inactive status in Florida and Iowa when he fled to Europe. After Mulford had completed his sentence, his request to return his Iowa license to active status was granted. Mulford did not inform the Iowa licensing officials of his criminal record. Since reactivating his license Mulford has served as counsel for the Iowa legislature and has been active in the Iowa State Bar Association.

II. Disciplinary Proceedings.

The Board of Professional Ethics and Conduct became aware of Mulford's criminal contempt conviction when it received a copy of the contempt citation from an anonymous source. The Board filed a complaint against Mulford in September 2000 alleging that the conduct that formed the basis for the contempt conviction was a violation of the Iowa Code of Professional Responsibility, specifically DR 1-102(A)(5) (conduct prejudicial to the administration of justice) and DR 1-102(A)(6) (conduct reflecting adversely on fitness to practice law).

At the hearing before the Grievance Commission, the Board asserted that the contempt conviction itself established Mulford's ethical misconduct under the doctrine of issue preclusion. Alternatively, the Board contended that the misconduct was established by Mulford's own admissions in the criminal contempt proceeding.

Mulford vehemently argued that his contempt conviction provided no basis for a finding of any ethical violation. Initially, he asserted that the Board had no jurisdiction because he was not acting as an attorney nor did he have an active Iowa license at the time of the alleged misconduct. He further contended that the doctrines of laches and estoppel supported dismissal of the disciplinary charges.

With respect to the contempt conviction, Mulford argued that the elements of issue preclusion were not established. He also launched a collateral attack on the contempt conviction. Mulford asserted that the contempt citation itself violated his federal constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as state constitutional guarantees. He attacked the drafting of the criminal information filed against him and asserted a lack of correct procedural notice relating to the contempt proceeding.

Mulford additionally contended that a contempt conviction pursuant to 18 U.S.C.

625 N.W.2d 678
§ 401(3) did not constitute a crime and the Board should not be allowed to rely upon a "petty indirect contempt [citation] for failure to appear for [an] indictment, which lacked any factual or legal basis, and [which] was dismissed in all respects relating to the Respondent." He also asserted that the elements of the contempt charge were not proved because he had no notice of the underlying indictment and therefore could not have been in willful disobedience to any lawful writ, order, decree, or command

Finally, Mulford denied that his contempt conviction established a violation of DR 1-102(A)(5) or DR 1-102(A)(6). He argued with respect to the prejudicial-to-the-administration-of-justice charge:

It is quite obvious that the Respondent did not engage in any activity that was prejudicial to the administration of justice by voluntarily surrendering to [the] court after discovering the dismissed indictment. The Respondent had received no summons, warrant or notification that would have required his

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