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

• Decision Date: 30 May 1979
• Docket Number: No. 62290,62290
• Citation: 279 N.W.2d 280
• Parties: The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Appellee, v. Leona DURHAM, Appellant.
• Court: Iowa Supreme Court

Page 280

279 N.W.2d 280

The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Appellee, v. Leona DURHAM, Appellant.

No. 62290.

Supreme Court of Iowa.

May 30, 1979.

Helen A. Buckley and L. Vern Robinson, Iowa City, for appellant.

Carol S. Egly, Des Moines, for Iowa Civil Liberties Union, amicus curiae.

Duane L. Rohovit, Iowa City, for Iowa City Chapter of National Lawyers Guild, amicus curiae.

Roger J. Kuhle, Des Moines, for appellee.

REES, Justice.

This is an appeal from the report and recommendations of the Grievance Commission in a disciplinary proceeding conducted pursuant to Supreme Court rule 118. On March 21, 1978 the Committee on Professional Ethics and Conduct of the Iowa State Bar Association (complainant) filed a complaint charging Leona Durham (respondent), an attorney admitted to practice in this state, with violations of Ethical Considerations (hereinafter EC 1-5 and 9-6, and Disciplinary Rules (hereinafter DR 1-102(A)(3), (5) and (6). After a hearing before the Second Division of the Grievance Commission on May 23 and June 3 of 1978, the Commission reported its findings that respondent had violated EC 1-5, EC 9-6 and DR 1-102(A)(6). The Commission recommended the respondent "be suspended from the practice of law with no possibility of being reinstated for no less than one year from the filing of the Opinion of the Iowa Supreme Court."

Respondent took a timely appeal from the findings, conclusions and recommendations of the Committee, in accord with Supreme Court rule 118.11, and filed her statement of exceptions on November 13, 1978.

The factual situation which generated this proceeding involves several visits made by respondent to a client, Robert Loney, who was and is an inmate of the Iowa State Penitentiary at Fort Madison. There is considerable dispute as to what exactly occurred during several of these visits. Respondent visited Mr. Loney seven times during the summer of 1977, the visits in question being those of July 2, July 20 and August 5. Respondent admits having kissed and embraced Loney in an affectionate manner during the three visits last referred to. The complainant contends the interaction between Attorney Durham and Loney also involved extensive caressing and petting throughout much of the visits in question. Respondent denies these latter allegations.

All of the visits were conducted in a room called the "south visiting room" in the penitentiary. Consultations and visits were observed by means of a one-way mirror of which both respondent and Loney were aware. Several persons who were then employed at the penitentiary viewed portions of respondent's visits with Loney, and testified at the hearing.

Ronald Myers, a correctional officer, testified regarding the July 2 visit, and stated that he saw the respondent bare a breast for Loney, allowed Loney to rub her legs, and that respondent and Loney were touching each other during almost the entire forty minutes he observed them. He reported such conduct to his superiors at the penitentiary in a handwritten report. His testimony was inconsistent with that of another guard, Sherry Burke (who the record reflects later retained the professional services of the respondent), who was present at approximately the same time as Myers. Burke testified she observed that the respondent's blouse was "puckered" near her breast, but did not report observing any baring of respondent's breast.

There was testimony of several other guards and correctional officers which indicate kissing, caressing and some fondling to have occurred with some regularity during the visits. In addition, photographs taken of one visit by an electrical technician employed by the penitentiary as a photographer were introduced as exhibits before the Commission. These are corroborative of the testimony of the observers to the extent that they show some kissing and caressing to be taking place between respondent and Loney. One photograph indicates respondent's hand placed on Loney's leg. Warden Brewer of the penitentiary also testified that he saw the respondent and Loney embracing on August 5, prior to the time he personally terminated respondent's visit.

Respondent presented testimony in person and by other witnesses with respect to her good moral character. Both she and Loney denied the charges of fondling and more explicit physical contact, but admitted to occasional kissing and embracing during the visits in question.

On the basis of such evidence, the Second Division of the Grievance Commission of this court reached the aforementioned conclusions and recommendations regarding respondent's conduct. We must determine whether they were correct in so doing.

The following issues are presented for review:

(1) Are the findings of fact of the Grievance Commission supported by a convincing preponderance of the evidence in the record?

(2) Are Ethical Considerations 1-5 and 9-6 and Disciplinary Rule 1-102(A)(6), as applied to the conduct of the respondent, so vague as to deny her due process of law as guaranteed by the United States Constitution?

(3) Did the respondent engage in any conduct which violated Ethical Considerations 1-5 and 9-6 or Disciplinary Rule 1-102(A)(6)?

Our review of the findings, conclusions and recommendation of the Grievance Commission is de novo. Iowa Sup.Ct.R. 118.11. The charges against the respondent must be established by a convincing preponderance of the evidence. This burden of proof is greater than that ordinarily required in civil proceedings but less than that required in criminal cases. Committee on Professional Ethics v. Wilson, 270 N.W.2d 613, 615 (Iowa 1978); Committee on Professional Ethics v. Crary, 245 N.W.2d 298, 299 (Iowa 1976).

I. The respondent first contends the Grievance Commission erred in finding there to have been intimate physical contact during her three visits with inmate Loney which are the subject of this inquiry. She denies any physical contact with Loney beyond occasional embracing and kissing and alleges the Commission did not give sufficient weight to testimony in the record attesting to the respondent's reputation for truth and veracity; the net result being a failure by the Committee on Professional Ethics to carry its burden of proof as to physical contact beyond that admitted.

Before reaching the merits of respondent's contention, we note certain ambiguities in the "findings of fact" of the Commission. The findings are stated as summaries of the testimony given and not as derivative determinations based on the whole of the record. It is unclear whether the Commission meant to adopt these summaries in toto, for there is some tension between statements within the testimony. Due to the de novo nature of our review, we draw our own conclusions from the record.

We find a clear preponderance of the evidence in the record indicates respondent and Loney engaged in kissing and embracing during the visits in question, as well as at least occasionally caressing or fondling each other. We do not find a clear preponderance of the evidence to show respondent to have bared a breast for Loney's view.

These findings are drawn from the record, including testimony of those penitentiary employees who viewed the respondent in the visiting room, and that of the respondent and Loney. While there was testimony to the effect that the visits were "very physical", the photographs taken during the visit of July 20 substantiate only the allegations of embracing and kissing, although there is one picture in which the respondent apparently has a hand on the lower portion of Loney's leg.

We conclude that a clear preponderance of the evidence in the record shows the contact between respondent and Loney to have gone, on occasion, beyond kissing and embracing to include caressing and fondling.

II. Before reaching the merits of respondent's constitutional issue, we note that this argument was not presented to, or addressed by, the Grievance Committee. We have recently held that traditional concepts of error preservation are not always applicable to attorney discipline proceedings, especially where the raising of the issue would not have changed the record before the Commission or the course of its proceedings. Committee on Professional Ethics v. Behnke, 276 N.W.2d 838, 841 (Iowa 1979). That case also involved a vagueness challenge to provisions of the Iowa Code of Professional Responsibility. Finding the record adequate for such a determination, we now address the issue.

The respondent contends the provisions of the Iowa Code of Professional Responsibility for Lawyers which the Grievance Committee (hereinafter ICPRL) which the Grievance Committee found she violated, EC 1-5, EC 9-6 and DR 1-102(A)(6) are unconstitutionally vague as applied to her conduct in the case at bar. Citing the Matter of Frerichs, 238 N.W.2d 764, 768 (Iowa 1976), she argues the relevant provisions of the ICPRL do not comply with the mandate of the due process clause in that a person of ordinary intelligence does not have a reasonable opportunity to know what is prohibited. For the reasons set forth below, we hold the relevant provisions of the ICPRL not to be unconstitutionally vague as applied to the respondent.

In making a claim of unconstitutionality, the respondent assumes a heavy burden in light of the presumption of constitutionality. Committee on Professional Ethics v. Behnke, 276 N.W.2d 838, 843 (Iowa 1979); Chicago Title Insurance Co. v. Huff, 256 N.W.2d 17, 25 (Iowa 1977).

The respondent is unable to cite any case in which a provision of the Code of Professional Responsibility has been held to be unenforceably vague, nor has our research uncovered any such instance. Yet, attorney discipline proceedings are subject to due process scrutiny. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); Matter of Frerichs. Other jurisdictions which have approached the question of the constitutionality of...