Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n v. Crary

• Decision Date: 30 August 1976
• Docket Number: No. 58926,58926
• Citation: 245 N.W.2d 298
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. William R. CRARY, Respondent.
• Court: Iowa Supreme Court

Page 298

245 N.W.2d 298

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Complainant, v. William R. CRARY, Respondent.

No. 58926.

Supreme Court of Iowa.

Aug. 30, 1976.

Rehearing Denied Nov. 8, 1976.

Lee H. Gaudineer, Jr., and Hedo M. Zacherle, Des Moines, amicus curiae.

D. G. Ribble, Cedar Rapids, amicus curiae.

En Banc.

UHLENHOPP, Justice.

This proceeding involves a determination of charges of unethical conduct on the part of an attorney, respondent William R. Crary. The record establishes the following by a convincing preponderance of the facts and circumstances in evidence. See Committee on Professional Ethics and Conduct v. Wright, 178 N.W.2d 749 (Iowa).

Respondent, who was himself involved in litigation with his former wife over their children, became enamoured with Sue Evans children by Maury Wetzel Curtis. Respondent children by Maury Wetzel Curtis. Respondent and Mrs. Curtis spent nights, weekends, and longer periods together, and engaged in sexual intercourse. Mr. Curtis and sitters attended the Curtis children during Mrs. Curtis' absences. At the time, respondent and the Curtis family resided in Cedar Rapids, Iowa, about four blocks apart.

Unknown to respondent and Mrs. Curtis, Mr. Curtis employed private investigators to observe Mrs. Curtis.

About March 13, 1970, Mrs. Curtis told her husband she was going to Vail, Colorado, to stay at Tivoli Lodge. Instead, she went to respondent's home on that date and stayed with him until March 22.

On April 29, 1970, Mrs. Curtis commenced a suit against her husband, seeking a divorce, custody of their children, alimony, and child support. She alleged that she had conducted herself as a dutiful and loving wife. Her attorney was Mr. William O. Gray, assisted by respondent who was then Mr. Gray's associate. Mr. Gray was unaware at the time of the relationship between respondent and Mrs. Curtis.

About May 15, 1970, Mrs. Curtis told a sitter that she was going to Chicago, Illinois. Instead, that day she went to Minneapolis, Minnesota, where she stayed with respondent until May 17.

On Wednesday, June 3, 1970, Mr. Justin W. Albright, attorney for Mr. Curtis in the divorce suit, commenced taking the discovery deposition of Mrs. Curtis at the office of Mr. Gray and respondent. In the course of this deposition in respondent's presence, Mrs. Curtis testified falsely regarding the period between March 13 and 22, 1970, when she was in respondent's home. Mrs. Curtis, respondent, and Mr. Albright knew the testimony was false, but Mrs. Curtis and respondent did not realize that Mr. Albright knew of the falsity. Mrs. Curtis did not assert the privilege against self-incrimination, but testified in part concerning the March 13 to 22 period:

Q. (by Mr. Albright) And as I understand it, you told Mr. Curtis that you were going to Vail, Colorado on this trip and that you were going to stay at the Tivoli Lodge, is that correct? A. That's correct. . . .

Q. Well, where did you go? A. I went to Chicago. . . .

Q. And well, where did you stay in Chicago? A. With a friend.

Q. Who is that? A. Mrs. Richard Needham. . . .

Q. And what's her address? A. Just a minute; I will look it up: 537 Rose Mary Road, Lake Forest, Illinois. . . .

Q. Well, did you stay with her all during the time that you were there? A. Uh-huh, yes.

Q. And who all did you see while you were there in Chicago? A. Friends of hers. . . .

Q. And as I understand it then, you stayed all that period of time, from March 13th until March 22nd when you returned home, with Mrs. Richard Needham in Chicago, is that correct? A. I did.

Q. Is that correct? A. Yes.

Q. And well, did you see anyone at all from Cedar Rapids while you were on this trip? A. No. Why would I see anyone from Cedar Rapids? . . .

Q. Well, hadn't you previously arranged that Mary Becker would drive you to the airport there on Friday morning, March 13th? A. Yes. . . .

Q. Who did you leave with from Mary Becker's place, from 212 Twelfth Street, S.E., on the morning of Friday of March 13th? A. Mr. Crary. . . .

Q. And where did you go? A. Downtown. . . .

Q. You went to the Roosevelt Hotel to get a cab? A. Uh-huh, or a limousine, whichever one showed up first.

Q. And then he did not take you to the airport, is that correct? A. Oh, no; heavens no.

Q. Well, what airport did you land at in Chicago? A. O'Hare. . . .

Q. Well, how did you get from O'Hare Airport out to Mrs. Richard Needham's? A. I took a limousine into town.

Q. You went downtown then. How did you get to her place from downtown? A. I drove out with her later in the day. . . .

Q. Well now, on Sunday, March 15th, the Sunday after you left, you called home about 9:30 in the morning and talked with Mr. Curtis, did you not? A. Could be. . . .

Q. And you gave the impression that you were at Vail, Colorado? A. Why, of course. . . .

Q. Well now, on Sunday March 22nd, about 9:30 in the morning, you called your home and talked to Mr. Curtis didn't you? That's the day you came back . . . A. Yeah, it was the day I returned, yes.

Q. And didn't he ask you where you were, and you said you were still in Vail? A. Yup-yes. . . .

Q. And then he offered to meet the plane, did he not, and you said absolutely not? A. That's right. . . .

Q. Well on all these calls, I take it they were made from Lake Forest, Illinois? A. They were.

At no time during this portion of the deposition did respondent request a recess or interrupt the perjury.

At 3:00 p.m. on June 3, 1970, the parties recessed the deposition until 1:00 p.m. on Friday, June 5, 1970. During that interim, respondent, knowing that Mrs. Curtis' Wednesday testimony was false, took no measure to correct it, to withdraw from the case as an attorney, to warn Mrs. Curtis she should lie no further, to inform Mr. Gray of the perjury, or to reveal the true situation to anyone.

The deposition resumed on June 5 with the same individuals present. At that time Mrs. Curtis testified falsely regarding the weekend of May 15 to 17, 1970, which she actually spent in Minneapolis with respondent. Again Mrs. Curtis, respondent, and Mr. Albright knew the testimony was false, but again Mrs. Curtis and respondent did not realize that Mr. Albright knew it was false--until later in the deposition. Mrs. Curtis testified in part:

Q. (by Mr. Albright) Well, did you go with anyone? A. No.

Q. Well, just tell us where you went. A. I went to Chicago to see Mrs. Needham. . . .

Q. Well now, the second passenger who was right behind you was Mr. William R. Crary, was that correct, getting off this flight? A. I have no idea who was getting off behind me. . . .

Q. Did you happen to see him on the plane on Ozark Flight No. 917? A. Not that I recall. . . .

Q. And then at the bottom of the steps after you got off the plane, you were observed to meet with Mr. William R. Crary and walked together with him into the terminal, is that correct? A. I don't remember. . . .

Q. Well, now, where did you board this Ozark plane on Flight No. 917 on May 17, 1970? . . . A. I told you I went to Chicago to see Mrs. Needham, and I came home.

Respondent did not seek to recess the deposition during this perjury or to halt Mrs. Curtis from falsely testifying.

As the deposition progressed, Mr. Albright's questions made evident that investigators had followed Mrs. Curtis and that Mr. Albright knew the truth. Respondent's testimony in later proceedings revealed what then happened at the Friday session of the deposition:

It became obvious, from the questions and the answers that I--or the questions that were being asked, that she had been followed by private detectives and that her former husband and her husband at that time (Mr. Curtis) knew everything that she had done and where she had been and who she had seen.

Q. Was the deposition then adjourned? A. Yes, it was. Actually what happened is that she became very shaken about the whole thing and asked to go to the ladies' room, and Bill Gray said, come on, let's go and find out about this. And he and I went into an office, and he said, is she lying about these things with you and with her? And I said, yeah, she is, and I was. And he said, we can't go on with this. She can't sit there and tell this story. And he said, what do you think we ought to do? And I said, I think we ought to recess the deposition, and we can't go on. I know we can't go on with it, no way. And so he went back into the office--or into the library, where we had been taking the deposition, and I gather adjourned it or recessed it or whatever.

Respondent later testified additionally:

Well, the deposition, as I said, terminated sometime in the middle or late Friday afternoon. Saturday morning I went back down, and, of course, our office was open Saturday morning, so everybody was there, and I discussed it with Bill Gray, ran through the thing with him, and he said, well, I think you better tell the other members of the firm what has happened. He said, obviously we have got a really sticky mess on our hands. And I said, obviously we do. And so I went around and told Ray Stefani, Keith Stapleton, and B. D. Silliman what had occurred, that she had lied on her deposition and she had been seeing me and that I was sitting there in the deposition when she did it. . . .

Q. At that time had you formulated a plan as to what you should do, other than the fact that you were getting out of the case? A. Well, what I should do with regard to her testimony?

Q. Right. A. Well, the first thing that was necessary to do was to get her an attorney, because Bill said, I will not represent her any longer. I will have no part of it. You and I have to withdraw from the case, which we did.

Mrs. Curtis thereupon obtained other counsel, and in subsequent proceedings she testified that her testimony at the deposition was false.

In the divorce suit, Mr. and Mrs. Curtis entered into a stipulation giving Mr. Curtis custody of their three children, and the district court decreed Mr. Curtis a divorce and...