Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n v. Shuminsky, 83-1330

• Decision Date: 19 December 1984
• Docket Number: No. 83-1330,83-1330
• Citation: 359 N.W.2d 442
• Court: Iowa Supreme Court
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. Timothy W. SHUMINSKY, Respondent.

Page 442

359 N.W.2d 442

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. Timothy W. SHUMINSKY, Respondent.

No. 83-1330.

Supreme Court of Iowa.

Dec. 19, 1984.

Frank A. Comito, Des Moines, for complainant.

Daniel C. Galvin of O'Brien, Galvin, Kuehl & Mullin, Sioux City, for respondent.

Considered en banc.

REYNOLDSON, Chief Justice.

This is a review of the Grievance Commission's findings in an attorney disciplinary proceeding in which attorney Timothy W. Shuminsky was respondent. We suspend respondent's license to practice law indefinitely with no possibility of reinstatement for three months.

This proceeding arose out of criminal charges lodged against the respondent in Plymouth County. Respondent practiced law in Sioux City, and rented a house on a sixteen acre timbered tract about nine miles from his office. At first he lived on the property alone. Later Timothy B. Kelly moved in and shared the rental payments. Ultimately, the two purchased this real estate on contract. Adjoining land was owned by the Badgerow family and Carter Dennis.

The trial information against respondent, in evidence in this proceeding, discloses that on May 21, 1983, Tim Badgerow and his mother went onto the property owned by respondent and Kelly to find some horses that had been running loose. They noticed the partition fence between this property and the Dennis tract to be cut and laid back at a point where a definite path between the two parcels led down to the Dennis real estate. In a ravine on the latter tract the Badgerows discovered hundreds of marijuana plants in various stages of cultivation, some in pots, together with white pails of the same type Mrs. Badgerow earlier had observed respondent and Kelly carrying. The Badgerows reported these findings to the Plymouth County sheriff's department.

Law officers carried out a surveillance of the area on May 24 and 26. They observed Kelly, but not the respondent, going on the Dennis land to water the marijuana plants. May 26 the officers obtained a warrant to search the property of respondent and Kelly. That same day after Kelly discovered the law officers conducting the surveillance, they served the warrant.

The authorities seized an enormous quantity of marijuana, marijuana seedlings, seeds, fertilizer, instruction books on growing marijuana, starting trays, watering jugs, tools, and other paraphernalia, totaling sixty-five items in all. In respondent's room in the house, law officers found a small bag of marijuana, a pipe with marijuana residue, a bottle containing four amphetamine tablets and a receipt in respondent's name showing the purchase of "flats" from Mosher Greenhouse.

June 15, 1983, a trial information was filed against respondent in Plymouth County. Count I charged he unlawfully manufactured a controlled substance (marijuana) in violation of Iowa Code section 204.401(1)(b); count II charged respondent unlawfully possessed a controlled substance (marijuana) with intent to deliver, a violation of Iowa Code section 204.401(1)(b).

October 5, 1983, the State and respondent entered into a written plea agreement, the State agreeing that the charges would be reduced to two serious misdemeanors: possession of four amphetamine tablets, a schedule II controlled substance; and possession of marijuana, a schedule I controlled substance, all in violation of Iowa Code section 204.401(3). Respondent agreed to plead guilty to these charges, and the State agreed that if penalties of confinement were imposed it would recommend such sentences be suspended, with probation.

On the same day, the charges were reduced and respondent entered guilty pleas. Respondent was sentenced to a $500 fine and six months' imprisonment on the marijuana charge, and a $1000 fine and six months' imprisonment on the amphetamine charge. The jail terms were suspended and respondent was placed on probation for one year.

December 22, 1983, the complainant committee filed its complaint against respondent with the Grievance Commission, charging him with violating Iowa Code sections 610.24(1), (3) and (4); Iowa Supreme Court Rule 118.10; and Iowa Code of Professional Responsibility for Lawyers, DR 1-102(A)(1), (3), (4), (5) and (6), EC 1-5 and EC 9-6.

With the parties' consent, only four lawyers served on the Grievance Commission at the hearing on the complaint. The county attorney for Plymouth County testified that although there was a clear path made by the garden tractor from the residence owned by respondent and Kelly to the plot of marijuana on the Dennis property, the State's evidence could not place respondent on the latter property. During the two and one-half days the area was under surveillance, respondent was not staying at his home, but did come by to pick up his mail. This led to the plea bargain. Kelly pled guilty to the manufacture of a controlled substance, a class D felony. Neither Kelly nor the respondent cooperated with the county attorney with respect to the charges against the other.

The respondent testified he was a trial lawyer engaged in domestic relations, criminal and personal injury cases. He had prosecuted drug cases as assistant Woodbury County attorney, and defended persons charged with drug offenses after he left that office. Respondent testified that during the time in question he was separated from his wife. He slept part of the time in the homes of his girl friend and his parents. He denied any knowledge of the marijuana-growing activities on his premises, but admitted the marijuana and the pipe found in his room were his. Although respondent volunteered he had engaged in the social smoking of marijuana with friends following college, he quit in October 1982, when he "started dating a lady who doesn't smoke marijuana." Respondent testified the amphetamine pills were not his, but that he pled guilty to their possession because he knew they were in the house. The flats he purchased from Mosher Greenhouse, he asserted, were used in his separate gardening activities.

Two lawyers on the commission recommended a reprimand; two recommended a suspension of license "for a minimum period subject to the requirements of Court Rule 118.12."

I. We review the record made before the commission de novo. Committee on Professional Ethics and Conduct v. Getscher, 356 N.W.2d 557, 558 (Iowa 1984). We give respectful consideration to the commission's findings and recommendations although they are not binding on us. Committee on Professional Ethics and Conduct v. Wollenzien, 342 N.W.2d 490, 490 (Iowa 1984). If we find the complainant has established the charges by a convincing preponderance of the evidence, we impose an appropriate sanction, considering not only the respondent's fitness to practice law, but the need to deter others from similar conduct and assure the public that courts will uphold the ethics of the legal profession. Getscher, 356 N.W.2d at 558; Committee on Professional Ethics and Conduct v. Millen, 357 N.W.2d 313, 315 (Iowa 1984). Complainant need not prove respondent was acting as a lawyer at the time of the alleged misconduct; lawyers do not shed their professional responsibility in their personal lives. Millen, 357 N.W.2d at 315; see Committee on Professional Ethics and Conduct v. Gross, 322 N.W.2d 82, 83 (Iowa 1982).

II. With the above...