Iowa Supreme Court Attorney Disciplinary Bd. v. Khowassah

• Decision Date: 27 September 2013
• Docket Number: No. 13–0283.,13–0283.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Tarek A. KHOWASSAH, Respondent.
• Court: Iowa Supreme Court

837 N.W.2d 649

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Tarek A. KHOWASSAH, Respondent.

No. 13–0283.

Supreme Court of Iowa.

Sept. 27, 2013.

Charles L. Harrington and Nicholas Trè Critelli III, Des Moines, for complainant.

Tarek A. Khowassah, Iowa City, pro se.

ZAGER, Justice.

This matter comes before us on the report of a division of the Grievance Commission of the Supreme Court of Iowa. SeeIowa Ct. R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board (Board) alleged the respondent, Tarek A. Khowassah, violated our ethical rules by operating a motor vehicle while intoxicated and misappropriating funds. The grievance commission found Khowassah's actions violated the Iowa Rules of Professional Conduct and recommended Khowassah's license to practice law be suspended for either three months or six months. Based on our de novo review of the findings of fact, conclusions of law, and recommendation of the commission, we conclude the Board established by a convincing preponderance of the evidence that Khowassah committed violations of our ethical rules. As a result, we suspend Khowassah's license to practice law indefinitely with no possibility of reinstatement for three months.

I. Background Facts and Proceedings.

Khowassah was admitted to the Iowa bar in 2005. He was in the private practice of law from September 2005 until October 2010. In April 2011, Khowassah was hired by the Waterloo office of the state public defender.

On April 9, 2011, Khowassah was arrested for operating while intoxicated (OWI), first offense, and was subsequently convicted of the charge. Khowassah self-reported this conviction to the Board, which found that he violated Iowa Rule of Professional Conduct 32:8.4(b) by “commit[ting] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” For this violation, the Board privately admonished Khowassah on December 29, 2011.

Khowassah was a member of the U.S. Army Reserves. On March 24, 2012, Khowassah began a leave of absence from his employment with the state public defender pursuant to military orders requiring he report to active duty at Fort Huachuca, Arizona, for a period of 120 days. Prior to commencing his leave of absence, and consistent with his employer's policy on military leave, Khowassah completed and submitted time sheets that would entitle him to thirty days of paid military leave.

On March 25, 2012, shortly before leaving Iowa to begin his military service, Khowassah was arrested for OWI, second offense. He immediately called his commanding officer and reported the arrest. As a result of the arrest, his active duty orders were rescinded on March 28, 2012. Khowassah never advised his supervisor with the state public defender of his arrest or that his military orders had been rescinded. Khowassah did not thereafter report to work, but began receiving military leave pay from his employer. Khowassah did nothing to prevent the direct deposit of $5678.40 in military leave pay.

Khowassah contends that he did not inform his employer of his rescinded orders because he anticipated he would be able to quickly resolve the outstanding charge and his military orders would be reissued, thus entitling him to the military leave pay he had received. On May 7, 2012, Khowassah sent an email to his employer, inquiring as to a possible overpayment of his military leave pay, but failing to mention the rescission of his military orders. Khowassah did nothing to correct the previously submitted time sheets claiming military leave pay.

In June 2012, the state public defender began an investigation into the above-described events. At a meeting with the state public defender and his immediate supervisor on June 26, 2012, Khowassah acknowledged that his orders had been rescinded and that he had not informed his employer of this fact. He further acknowledged he had retained the military leave pay, despite knowing he was not entitled to the money. On that same day, Khowassah wrote a check for $5678.40, reimbursing his employer for the entire amount of military leave pay he had improperly retained. On October 23, 2012, Khowassah was convicted of the lesser included offense of OWI, first offense.

II. Standard and Scope of Review.

We have consistently articulated our standard of review in attorney disciplinary cases in the following manner:

Attorney disciplinary proceedings are reviewed de novo. The Board bears the burden of proving misconduct by a convincing preponderance of the evidence, which is a lesser burden than proof beyond a reasonable doubt but a greater burden than is imposed in the usual civil case. If we determine the Board has met its burden and proven misconduct, we may impose a greater or lesser sanction than the sanction recommended by the commission.

Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 9 (Iowa 2012) (citations omitted).

The Board and Khowassah entered a joint stipulation of facts and conclusions of law. We note that stipulations of facts are binding on each of the parties. Iowa Supreme Ct. Att'y Disciplinary Bd. v. McCarthy, 814 N.W.2d 596, 601 (Iowa 2012). “However, a stipulation is not binding as to a violation or a sanction. We will determine whether a violation occurred and the appropriate sanction based upon the facts we find from the stipulation and our review of the record.” Id. (citations omitted).

III. Ethical Violations.

The Board charged Khowassah with two violations of rule 32:8.4(b) and one violation of rule 32:8.4(c) of the Iowa Rules of Professional Conduct. The commission concluded the Board proved these charges by a convincing preponderance of the evidence. We review these attorney disciplinary proceedings de novo. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Powell, 830 N.W.2d 355, 357 (Iowa 2013). Though we are not bound by the commission's findings and recommendations, we do give respectful consideration to them. Id. at 358.

A. Committing a Criminal Act. Iowa Rule of Professional Conduct 32:8.4(b) states, “It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” Iowa R. Prof'l Conduct 32:8.4(b). The Board alleges Khowassah committed two criminal acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer: operating while intoxicated and theft for the misappropriation of funds. We acknowledge Khowassah was not acting as an attorney when he committed the acts the Board classified as criminal acts. Nevertheless, we have consistently held this fact is irrelevant when determining whether attorneys violate rule 32:8.4(b). Weaver, 812 N.W.2d at 12–13. We will address both the OWI charge and the theft charge in turn.

Initially, we note that “not all criminal acts reflect on an attorney's fitness to practice law. Rather, we focus on the link between the conduct and the actor's ability to function as a lawyer.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cannon, 821 N.W.2d 873, 877 (Iowa 2012) (citations and internal quotation marks omitted). We have observed:

“Illegal conduct can reflect adversely on fitness to practice law. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. The mere commission of a criminal act does not necessarily reflect adversely on the fitness of an attorney to practice law. The nature and circumstances of the act are relevant to determine if the commission of the criminal act reflects adversely on the attorney's fitness to practice law.”

Id. (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 767 (Iowa 2010)).

We consider specific factors in determining whether a sufficient nexus exists to support the conclusion that a criminal act reflects adversely on the attorney's fitness to practice law.

“There must be some rational connection other than the criminality of the act between the conduct and the actor's fitness to practice law. Pertinent considerations include the lawyer's mental state; the extent to which the act demonstrates disrespect for the law or law enforcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; and the presence or absence of a pattern of criminal conduct.”

Id. at 877–78 (quoting Templeton, 784 N.W.2d at 767).

1. OWI Conviction. Khowassah has stipulated to his OWI conviction. We have consistently noted that “we find stipulations of facts by the parties to be binding on them.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Knopf, 793 N.W.2d 525, 528 (Iowa 2011). Thus, we conclude the Board has proven Khowassah was convicted of the offense of operating while intoxicated, first offense, by a convincing preponderance of the evidence.

We initially note “[a]n act that signals the characteristic of intemperance is considered to be an act that reflects adversely on a lawyer's fitness to practice law.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 41 (Iowa 2011). We now apply the Templeton factors to determine if this criminal act reflects adversely on Khowassah's fitness to practice law. See Cannon, 821 N.W.2d at 877–78.

We begin by examining Khowassah's mental state. See id. at 878. Khowassah acknowledges he struggles with alcohol problems and depression. He contends marital and child custody issues contributed to his depression and alcohol abuse. We have repeatedly said that “ ‘depression and alcoholism do not excuse’ ” attorneys from violating our ethical rules. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Roush, 827 N.W.2d 711, 717 (Iowa 2013) (quoting Cannon, 821 N.W.2d at 878).

We also consider whether Khowassah's conduct shows disrespect for the law and law enforcement. See Cannon, 821 N.W.2d at 877. We previously held an attorney who prevented his wife from calling 911 to report his...