Committee on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Kaufman, 93-1885
| Decision Date | 20 April 1994 |
| Docket Number | No. 93-1885,93-1885 |
| Citation | 515 N.W.2d 28 |
| Parties | COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. Gary L. KAUFMAN, Respondent. |
| Court | Iowa Supreme Court |
Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
Peter W. Berger of Berger & Culp, P.C., Des Moines, for respondent.
Considered McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.
The respondent, Gary L. Kaufman, pleaded guilty to nine counts of drug offenses--most of which were felonies. As a result, the district court sentenced Kaufman to concurrent terms of imprisonment not to exceed twenty-five years. Following his convictions, Kaufman was held in contempt of court for refusing to testify against his supplier. The Committee on Professional Ethics and Conduct filed a two-count complaint with the Grievance Commission against Kaufman because of the convictions and contempt. As to the convictions, the commission recommended suspension of Kaufman's license to practice law indefinitely with no possibility of reinstatement until the latter of (1) a period of two years, or (2) Kaufman's release from prison. As to the contempt, the commission recommended a public reprimand. Upon our de novo review we conclude Kaufman's license to practice law should be revoked.
Kaufman graduated from law school in 1974 and was admitted to practice law in Iowa that same year. He held a variety of legal positions until December 1978 when he became legal counsel for the Iowa Legislative Service Bureau. At the time of his arrest, Kaufman was senior legal counsel for the Bureau.
Kaufman admittedly was (1) a recreational user of lysergic acid diethylamide (LSD), and (2) addicted to marijuana. His legal and ethical problems stemming from his drug activities began in 1992. Lee Stoddard, whom Kaufman characterized as a personal friend of about five years, called Kaufman several times about securing drugs for Stoddard. Stoddard told Kaufman he intended to give the drugs to his new "boss." Unbeknownst to Kaufman, Stoddard was working as an undercover informant. In each phone call, Stoddard implored Kaufman to buy some LSD and marijuana for Stoddard's "boss." The "boss" was in reality a narcotics officer posing as a Greyhound executive just arrived in Des Moines from San Francisco.
Kaufman resisted Stoddard's requests at first. But Stoddard ultimately convinced Kaufman--in their final phone conversation--to procure the drugs. Kaufman testified he was influenced to do so by Stoddard's claims that procuring the drugs would help (1) Stoddard's relationship with his new boss, and (2) Stoddard's dire financial situation.
Kaufman met with Stoddard's boss three times. At the first meeting, Kaufman delivered four LSD dosages and approximately one ounce of marijuana. Kaufman made two more deliveries to Stoddard's boss after this transaction. At the second, he delivered twenty dosage units of LSD and one and one-quarter ounce of marijuana. At the third, he delivered approximately one and one-quarter ounce of marijuana. In all, a total of $835.00 changed hands.
Kaufman was arrested on September 23, 1992, after the third transaction. Authorities executed a search warrant at his home. Among the articles they seized were (1) a small bag plus two plastic containers of marijuana, (2) Kaufman's collection of LSD blotters and common LSD units, (3) a vial of cocaine, (4) a roach clip, (5) a smoking bong, and (6) scales.
The State charged Kaufman in an eleven-count trial information. Seven of the counts dealt with delivery of the marijuana and LSD. Two counts dealt with failure to possess a tax stamp. See Iowa Code §§ 204.401(1)(b)(5), 204.401(1)(d), 421A.3. Two conspiracy counts were later dismissed.
Shortly after the trial information was filed and before Kaufman's guilty plea, the prosecutor approached Kaufman with an offer. The offer was this: If Kaufman would provide information about his supplier, the State would recommend a ninety-day shock probation to the sentencing judge. Kaufman rejected the offer.
On December 31, 1992, Kaufman pleaded guilty to the nine remaining counts. While awaiting sentence, Kaufman waived his opportunity, in writing, to show cause why his license should not be temporarily suspended. See Iowa Sup.Ct.R. 118.14 (). In his letter to us, dated February 19, 1993, Kaufman conceded that it would be "totally inappropriate" for him to engage in the practice of law in his situation. He went on to ask that his license to practice law be suspended for a period of not less than two years and that at that time he be given the opportunity to demonstrate that he was recovered from his drug addiction.
On February 24, 1993, the district court sentenced Kaufman to concurrent terms of imprisonment not to exceed a total of twenty-five years.
Shortly after Kaufman was sentenced, the prosecutor obtained a subpoena to compel Kaufman to answer questions under oath about his supplier. Kaufman asserted his Fifth Amendment privilege against self-incrimination and refused to be sworn.
The prosecutor then procured a district court order granting Kaufman immunity from prosecution for relevant statements made during his sworn testimony. Again, Kaufman refused to be sworn to testify. He was then found in contempt and jailed. See Iowa Code § 665.2(4). His jail time for contempt was not credited to his sentence.
Kaufman did not challenge the contempt order. The district court released him from jail when the supplier pleaded guilty to the charges against him. Kaufman was then returned to prison to serve his twenty-five year sentence.
On August 4, 1993, the committee filed a two-count complaint with the commission against Kaufman. Count I alleges that Kaufman's conviction of multiple felony counts is in violation of the Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1), (3), (4), (5), and (6). Count II alleges that Kaufman's refusal to be sworn and testify after being granted immunity is in violation of DR 1-102(A)(1), (5), and (6) and DR 7-106(A).
The record made in the hearing before the commission includes the complaint, the committee's request for admissions which were not denied, the record from the criminal and contempt proceedings, Kaufman's testimony, and other evidence.
After finding that the allegations of the complaint were proven, the commission recommended the two year suspension and reprimand referred to earlier.
Our review is de novo. See Iowa Sup.Ct.R. 118.10. We independently determine the matter and take appropriate action on it. Id. We may impose a lesser or greater sanction than that recommended by the commission. Id.
Because our review is de novo, the commission's findings--while considered--are not binding on us. The allegations in the complaint must be proven by a convincing preponderance of the evidence. Committee on Professional Ethics & Conduct v. Sturgeon, 487 N.W.2d 338, 341 (Iowa 1992).
Our determination of appropriate discipline is guided by the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole, and Kaufman's fitness to continue in the...
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