Committee on Professional Ethics and Conduct of The Iowa State Bar Ass'n v. Cody, 87-720

• Decision Date: 23 September 1987
• Docket Number: No. 87-720,87-720
• Citation: 412 N.W.2d 637
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. John J. CODY, Jr., Respondent.
• Court: Iowa Supreme Court

Page 637

412 N.W.2d 637

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF THE IOWA STATE BAR ASSOCIATION, Complainant, v. John J. CODY, Jr., Respondent.

No. 87-720.

Supreme Court of Iowa.

Sept. 23, 1987.

James E. Gritzner of Nyemaster, Goode, McLaughlin, Emery & O'Brien, and Norman G. Bastemeyer, Des Moines, for complainant.

John J. Cody, Jr., Oak Brook, Ill., pro se.

Considered by REYNOLDSON, C.J., and McGIVERIN, LARSON, SCHULTZ, and LAVORATO, JJ.

LAVORATO, Justice.

This attorney disciplinary proceeding arises out of a guilty plea by the respondent, John J. Cody, Jr., to two counts of theft in the third degree in connection with two insufficient fund checks he executed in July and September 1984. The Grievance Commission found that Cody violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(1) (violating disciplinary rule), (3) (engaging in illegal conduct involving moral turpitude), (4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), (6) (engaging in conduct adversely reflecting on fitness to practice), and EC 1-5 (failing to maintain high standards of professional conduct and failing to refrain from illegal and morally reprehensible conduct). The commission recommended that Cody's license to practice law be suspended for a period of two and one-half years and that such suspension run from December 23, 1985, the date we temporarily suspended Cody's license because of his guilty plea to the two theft charges, see Iowa Sup.Ct.R. 118.14.

Upon our de novo review, see Iowa Sup.Ct.R. 118.10, we agree with the commission that Cody was guilty of several ethical violations regarding the two insufficient fund checks and with its recommendation.

Cody elected not to appear at the hearing before the commission, but he did write a letter in explanation of his conduct which the commission considered. The committee introduced a request for admissions that included in substance all of the factual allegations of the complaint filed against Cody. Cody did not answer the request. Consequently, all matters covered in the request are deemed admitted, and the commission had a right to rely on the admissions in reaching its decision. Committee on Professional Ethics & Conduct v. McKey, 343 N.W.2d 489, 489 (Iowa 1984); see also Iowa R.Civ.P. 127, 128.

At the time Cody wrote the two checks, he was practicing law in Dubuque and was involved in the operation of a small business known as the C.F. Cody Company. In connection with that business, Cody maintained a checking account at the First Federal Savings Bank in Dubuque. He was the only one authorized to sign checks on this account.

Ronway Wholesale Enterprises of Broadview, Illinois, a wholesale dealer of office supplies, began selling supplies to the Cody Company in early 1984 on open account. Because of a poor payment record, Ronway switched the Cody Company's status to "collect on delivery" in July 1984.

On July 24 and 25, 1984, Ronway shipped supplies to the Cody Company through UPS, valued at $345.69. Cody sent Ronway a check for $609 in payment for the supplies, shipping costs, and the open account.

On September 4 and 5, 1984, Ronway again shipped supplies to the Cody Company through UPS. These supplies were valued at $717.64. In payment for the supplies and shipping costs, Cody sent Ronway a check for $658.88.

When both checks were presented for payment to the First Federal Savings Bank, the bank dishonored them because of insufficient funds on deposit. The Cody Company's account at the bank showed numerous prior insufficient fund checks; the bank notified Cody about these insufficient fund checks and charged him ten dollars per check.

In connection with the two recently dishonored checks, Cody was charged with two counts of theft in the third degree under Iowa Code sections 714.1(6) and 714.2(3). He entered a plea of guilty to both counts on July 8, 1985. By his plea, Cody admitted all the essential elements of the offenses. See Committee on Professional Ethics & Conduct v. Christoffers, 348 N.W.2d 227, 229 (Iowa 1984). Theft in the third degree is an aggravated misdemeanor. Iowa Code § 714.2(3). ¹ On the same date, the court deferred judgment for two years, see Iowa Code §§ 901.5(1), 907.3, and placed Cody on probation during that time. The court also ordered Cody to perform one hundred hours of community service and to make restitution to Ronway for sums owing to them.

We have previously summarized the principles for review of attorney disciplinary actions:

[Our review of] the record made before the commission [is] de novo. We give respectful consideration to the commission's findings and recommendations although they are not binding on us. 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. 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.

Committee on Professional Ethics & Conduct v. Shuminsky, 359 N.W.2d 442, 444-45 (Iowa 1984) (citations omitted).

When applied in the context of attorney misconduct, the term "moral turpitude" has been held to connote fraudulent or dishonest intent. See, e.g., Committee on Professional Ethics & Conduct v. Pappas, 313 N.W.2d 532, 534 (Iowa 1981) (first degree theft); Committee on Professional Ethics & Conduct v. Bromwell, 221 N.W.2d 777, 780 (Iowa 1974) (failure to file income tax returns); Committee on Professional Ethics & Conduct v. Kraschel, 260 Iowa 187, 197, 148 N.W.2d 621, 627 (1967); accord In re Hallinan, 43 Cal.2d 243, 247, 272 P.2d 768, 771 (1954); In re Willcher, 447 A.2d 1198, 1200 (D.C.1982) (unlawful solicition of money from indigent defendant whom attorney was appointed to represent); Kentucky State Bar Ass'n v. Scott, 409 S.W.2d 293, 294 (Ky.1966) (grand larceny); Attorney Grievance Comm'n v. Reamer, 281 Md. 323, 326-28, 379 A.2d 171, 173-74 (1977) (mail fraud); Attorney Grievance Comm'n v. Andresen, 281 Md. 152, 157-58, 379 A.2d 159, 162 (1977) (obtaining money under false pretenses); 7 C.J.S. Attorney & Client § 71, at 961-62 (1980).

In State v. Smith, 300 N.W.2d 90, 92 (Iowa 1981), we held that theft by check under section 714.1(6) is established when something of value is obtained by deception. Deception, we said, "is established by the obtaining of something of value through the use of a check which the perpetrator knows is worthless. This guilty knowledge is the mens rea of the offense." Smith, 300 N.W.2d at 92-93 (citation omitted). Clearly, the deception or guilty knowledge required for conviction under section 714.1(6) equates with the fraudulent or dishonest intent elements of moral turpitude proscribed in DR 1-102(A)(3) and EC 1-5, and with the dishonest element proscribed by DR 1-102(A)(4).

Thus, we agree with the commission's finding that Cody was guilty of violating DR 1-102(A)(3), (4), and EC 1-5. Because he violated the disciplinary rules, he also was, as the commission correctly found, in violation of DR 1-102(A)(1). His conduct, as the commission also correctly determined, adversely reflected on his fitness to practice law in violation of DR 1-102(A)(6).

In his letter to the commission Cody attempted to explain his conduct:

There were many things which I would have liked to have said to the committee. Perhaps not in mitigation for what it is alleged I have done, but rather as an explanation. It is very difficult to try to explain...