Ia Sup. Ct. Atty. Disciplinary v. Mcgrath

• Decision Date: 21 April 2006
• Docket Number: No. 05-0575.,05-0575.
• Citation: 713 N.W.2d 682
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James W. MCGRATH, Respondent.
• Court: Iowa Supreme Court

Page 682

713 N.W.2d 682

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James W. MCGRATH, Respondent.

No. 05-0575.

Supreme Court of Iowa.

April 21, 2006.

Rehearing Denied May 23, 2006.

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Charles L. Harrington and David J. Grace, Des Moines, for complainant.

David L. Brown and Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for respondent.

TERNUS, Justice.

This case is one of troubling contrasts. The respondent, James W. McGrath, has practiced law for many years in this state and has a good reputation among the bench and bar. Former female clients have accused him of attempting to obtain and in fact accepting sexual favors in payment for his legal services. McGrath's testimony cannot be reconciled with those of the complaining witnesses. With no small measure of disappointment in this respected member of the bar, we are convinced he is guilty of the misconduct described by his former clients. Therefore, we suspend his license to practice law in this state indefinitely with no possibility of reinstatement for three years.

I. Procedural Background.

On December 22, 2003, the Iowa Supreme Court Board of Professional Ethics and Conduct (now the Iowa Supreme Court Attorney Disciplinary Board) filed a one-count complaint against the respondent alleging that on December 30, 2000, McGrath "made sexual advances toward Heather Williams[, his client,] by proposing an exchange of sex for fees." The board claimed this conduct violated the Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(5), (6) and (7).

Nearly a year later, on November 3, 2004, the board was allowed to amend its complaint to add a second count. In Count II, the board alleged that beginning in 2000, the respondent represented one "Jane Doe" in a marriage dissolution action. The board asserted that McGrath and Doe engaged in sexual relations in exchange for legal services. This conduct, the board alleged, violated DR 5-101(B) and DR 1-102(A)(1), (5) and (6).

After a hearing before a division of the Iowa Supreme Court Grievance Commission, the commission issued its Findings of Fact, Conclusions of Law and Recommendations. Four of the five commissioners found the testimony of Heather Williams "credible and compelling" and determined the board had proven that McGrath offered to represent Williams in a visitation dispute in exchange for sex, as alleged in count I. A one-year suspension was recommended. One commissioner dissented, notwithstanding his conclusion that "Williams believed at the time, and believed as she testified in the hearing, that respondent made sexual advances to her in a proposed exchange for legal fees." This commissioner concluded the board had not met its burden of proof, however, "[i]n light of the denials of the respondent, and in light of the extensive and credible character evidence respondent ... presented."

With respect to count II, involving Jane Doe, four of the five commissioners concluded her testimony "was not sufficiently credible for the board to meet its burden of proof" in view of Doe's own admissions of having lied under oath and being a "compulsive liar." One commissioner dissented from this part of the commission's decision. (This commissioner was not the same one who had dissented from the commission's findings on count I of the complaint.) This dissenting commissioner found Doe to be a credible witness despite the respondent's attempts at impeachment. The dissenter gave numerous reasons for his credibility determination, stating in summary that Doe's "testimony rang true," and he "could find no reasonable motive for Jane Doe to have lied."

II. Issues on Appeal.

The respondent has appealed from the commission's report, raising several constitutional and evidentiary issues that we will address prior to considering the merits of the board's complaint. First, McGrath claims the commission erred in refusing to allow discovery of the board's investigative file and the medical and psychological records of the complaining witness in count I. He also argues the denial of this discovery violated his rights to due process and equal protection of the laws. The respondent raises similar issues concerning the commission's refusal to allow him to depose the board's investigator. Finally, McGrath complains about the allowance of the amendment adding count II, the allowance of testimony from Doe and her former husband, and the general "unfairness" of the proceedings.¹ We will discuss each contention separately and then consider whether the board has proved the allegations made in its complaint.

III. Discovery of Board's Work Product.

A. Factual background. After the board filed its one-count complaint, the respondent requested production of the board's complete investigative file. The board produced 345 pages of documents, but objected to the production of "the work product of staff counsel, investigators or administrators of the board," pursuant to Iowa Court Rule 34.4. Rule 34.4(2) states that the board's files "shall be provided to the respondent within a reasonable time upon the respondent's request," "except for the work product of staff counsel, investigators, or administrators of the board." Iowa Ct. R. 34.4(2), para. 2.² In response to interrogatories filed by the respondent, the board identified Elayne Sobel, the board's paralegal/investigator, as a person involved in the board's investigation.

After receiving the board's responses, the respondent sought to compel production of the withheld work-product materials, claiming the failure to produce these documents violated his due process right to "evidence favorable to the accused [that is] material to either guilt or punishment." He also claimed his rights under the federal and state Equal Protection Clauses were violated because similarly situated individuals—judges subjected to disciplinary proceedings—are allowed to view all records and papers contained in the investigative file of the Commission on Judicial Qualifications. See Iowa Ct. R. 52.5(3) (prohibiting disclosure of "[a]ny records and papers contained in the commission's investigation file" other than to "the judicial officer, employee, the attorneys, or the attorneys' agents involved in the proceeding before the commission"). The respondent also noticed the deposition of Sobel, the board's investigator, but the board objected to the taking of her deposition, claiming her work product was confidential under court rule 34.4 and Iowa Rule of Civil Procedure 1.503. See generally Iowa Ct. R. 35.6 (stating discovery shall be permitted in a disciplinary action as provided in specified rules of civil procedure, including Iowa Rule of Civil Procedure 1.503).

On April 13, 2004, the commission ruled on the respondent's motion to compel and the board's objections to Sobel's deposition. Although the commission ordered the board to furnish a list of persons interviewed by Sobel, it denied the remainder of McGrath's motion. The commission also refused to allow the deposition of Sobel. Both decisions were based on the protection of work product found in court rule 34.4(2).

After the board amended its complaint on November 4, 2004, to add a second count involving Jane Doe, it amended its answers to interrogatories on December 8, 2004, to indicate that Doe and Doe's ex-husband would testify at the hearing and Sobel may be called as a witness "[i]f necessary" to "testify that on August 17, 2004, [Jane Doe] told her that [Doe] had sex with respondent in exchange for his legal services." The respondent then renewed his request for the board's investigatory file and for Sobel's deposition. On the same day the respondent filed his discovery demands, the board obtained a signed affidavit from Doe admitting her sex-for-fees arrangement with McGrath, and so a few days later, the board withdrew Sobel from its witness list. Thereafter, the commission denied the respondent's discovery requests, and the matter proceeded to hearing on January 11, 2005.

As noted earlier, McGrath claims the commission's rulings protecting the board's work product from discovery were erroneous. He also asserts the limitations imposed on his discovery violated his due process and equal protection rights.

B. Correctness of rulings. This court has held that Iowa Court Rule 34.4(2) protects from discovery the board's investigative reports and the work product of its counsel and staff. See Comm. on Prof'l Ethics & Conduct v. Hurd, 375 N.W.2d 239, 241-42 (Iowa 1985) (applying Rule of Procedure 2.1(d) of the Professional Ethics & Conduct Committee, now Iowa Court Rule 34.4(2)) (Hurd II); Comm. on Prof'l Ethics & Conduct v. Hurd, 360 N.W.2d 96, 100-01 (Iowa 1984) (same) (Hurd I). In essence, such materials "are made privileged" by the rule. Hurd I, 360 N.W.2d at 101. Because the board produced its entire file with the exception of work product materials, the commission properly denied McGrath's motion to compel. The additional documents sought by the respondent were clearly privileged and not subject to discovery. See Hurd II, 375 N.W.2d at 242 (holding commission's denial of attorney's request for board's reports and investigation was proper because these documents were confidential); Hurd I, 360 N.W.2d at 101 (holding commission correctly denied respondent access to board's investigative report and staff counsel's work product because these materials were privileged).

We are also convinced the testimony of the board's investigator is protected by the same rule. The privilege accorded the board's work product by rule 34.4(2) would have little value if the person preparing that work product could be compelled to testify. This conclusion is not altered by the fact Sobel was briefly listed by the board as a potential witness. To the extent the board waived the protection afforded by rule 34.4(2) by its short-lived designation of...