Iowa Supreme Court Attorney Disciplinary Bd. v. Gailey, No. 09-0937.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWIGGINS, Justice.
Citation790 N.W.2d 801
Docket NumberNo. 09-0937.
Decision Date19 November 2010
PartiesIOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. John W. GAILEY, Respondent.

790 N.W.2d 801

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
John W. GAILEY, Respondent.

No. 09-0937.

Supreme Court of Iowa.

Nov. 19, 2010.


790 N.W.2d 802

COPYRIGHT MATERIAL OMITTED.

790 N.W.2d 803

Charles L. Harrington and Amanda K. Robinson, for complainant.

John W. Gailey, Fort Dodge, pro se.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against the respondent, John W. Gailey, alleging multiple violations of our ethical rules. A division of the Grievance Commission of the Supreme Court of Iowa filed a report recommending that we suspend Gailey's license to practice law in Iowa for thirty days. Pursuant to our court rules, we are required to review the report of the commission. See Iowa Ct. R. 35.10. Upon our review, we concur the respondent violated our ethical rules and suspend his license to practice law for sixty days.

I. Scope of Review.

We review lawyer disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 330 (Iowa 2009). The board has the burden to prove disciplinary violations by a convincing preponderance of the evidence. Id. A convincing preponderance of the evidence is “ ‘less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.’ ” Iowa Supreme Ct. Att'y Disciplinary Bd. v. D'Angelo, 710 N.W.2d 226, 230 (Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)). We give weight to the commission's findings, but its findings do not bind us. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 149 (Iowa 2010).

II. Findings of Fact.

Instead of holding a hearing, the commission decided the case on a joint stipulation filed by the board and Gailey. The stipulation contained a stipulation of facts and a stipulation recommending a thirty-day suspension. The fact that the parties stipulated a recommended sanction requires us to conclude the parties also stipulated Gailey's conduct violated Iowa's Rules of Professional Conduct.

We have recognized there are two types of stipulations that a tribunal may use in litigated matters. Matter of Prop. Seized, 501 N.W.2d 482, 485 (Iowa 1993). The first type is a stipulation that admits facts, relieving a party from the inconvenience of proving the facts in the stipulation. Graen's Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 300 (Iowa 1983). The second type is a stipulation that amounts to a concession of an issue in the litigation. Matter of Prop. Seized, 501 N.W.2d at 485.

A stipulation of facts by the parties is binding on the parties. Graen's Mens Wear, Inc., 329 N.W.2d at 299. We construe factual stipulations by attempting to determine and give effect to the parties' intentions. Id. at 300. In doing so, we interpret the stipulation “with reference to its subject matter and in light of the surrounding circumstances and the whole record,

790 N.W.2d 804

including the state of the pleadings and issues involved.” Id.

We treat a stipulation conceding an issue in the case like a settlement agreement. In re Marriage of Briddle, 756 N.W.2d 35, 39-40 (Iowa 2008). If sufficient legal consideration supports this type of stipulation, it is entitled to all of the sanctity of an ordinary contract. Id. at 40. However, we are not bound to enforce these stipulations if they are unreasonable, against good morals, or contrary to sound public policy. In re Estate of Clark, 181 N.W.2d 138, 142 (Iowa 1970).

Applying these principles to a disciplinary case, we will rely on the stipulation to determine the facts in issue. However, we will not be bound by a stipulation of a violation or of a sanction in reaching our final decision in a disciplinary case. We have inherent constitutional power to license and discipline attorneys within the State of Iowa. Comm. on Prof'l Ethics & Conduct v. Gartin, 272 N.W.2d 485, 487 (Iowa 1978). Our rules require us to determine whether an attorney's conduct violates our ethical rules, and if it does, we must determine the proper sanction for the violation. See Iowa Ct. R. 35.10. Nowhere in our rules have we given the parties the authority to determine what conduct constitutes a violation of our ethical rules or what sanction an attorney should receive for such violation. The parties to a disciplinary proceeding cannot substitute their judgment as to what conduct constitutes a violation of our ethical rules or what sanction we should impose for such a violation. The constitution and our court rules vest this function solely in our court. Accordingly, to allow the parties to make these determinations is against the public policy surrounding our attorney disciplinary system.

Therefore, we find the facts from the stipulation of facts. After doing so, we will determine whether the facts establish a violation of the Iowa Rules of Professional Conduct. Finally, if we find a violation, we will determine the appropriate sanction.

Using the stipulation of the parties together with our review of the record, we make the following findings of fact. John Gailey is a seventy-four-year-old attorney, practicing law for forty-five years in Iowa. His son, Denis, told Gailey the state planned to charge Denis with sexual abuse of his stepdaughter. Gailey contacted the county attorney and advised her that he would voluntarily surrender Denis to the authorities and arrange for Denis's bail. On April 25, 2007, before Gailey was able to surrender his son, Gailey learned that his son kidnapped his spouse, Dawn, and their biological child. Upon learning of this kidnapping, Gailey advised the authorities of Denis's actions. Denis was arrested and the state charged him with kidnapping. On April 26 the criminal court entered a no-contact order requiring Denis to have no contact with Dawn.

On April 27 Dawn filed a dissolution of marriage petition. Counsel represented her in the dissolution matter. On May 7 Gailey filed an appearance on behalf of his son in the dissolution matter. Although a second attorney filed an appearance in the dissolution on behalf of Denis, Gailey did not withdraw as attorney in the dissolution action until July 25.

On June 29, while still representing Denis in the dissolution matter, Gailey met with Dawn. Dawn's attorney did not give Gailey permission to contact Dawn. At the meeting, Gailey provided Dawn with a letter from Denis. Denis requested Gailey deliver the letter to Dawn and speak with Dawn face to face on his behalf regarding her potential testimony in the criminal action. Denis violated the no-contact order

790 N.W.2d 805

by having his father deliver the letter to Dawn.

The letter is entitled “My Last Plea for Your Help.” In the letter, Denis states: “I have no fantasies in my head that I'm gonna get off light on all this but I think that you could be my light at the end of the tunnel. People always change their story just a little bit and it allows for some chance in the situation.” (Emphasis added.) Denis goes on to say that he thinks he should be punished but not locked up and the key thrown away.

Dawn reviewed a copy of the letter from Denis and asked Gailey what the letter meant. Gailey responded that he believed that if she were to testify that there was no permanent damage, physically or psychologically, that the criminal charges would be lessened. He also told her he thought Denis would be agreeable to a more favorable division of assets in the dissolution case if she were to testify in this manner. Part of the conversation between Gailey and Dawn also related to her concerns about the prosecutor asking her daughter to testify at trial. Gailey advised Dawn to talk to the county attorney about these concerns. At no time did Gailey directly ask Dawn to lie or change her testimony.

On July 24 the state charged Gailey with tampering with a witness in violation of Iowa Code section 720.4 (2007). That charge was dismissed due to the state's failure to file a timely trial information. Thereafter, the state charged Gailey with suborning perjury in violation of Iowa Code section 720.3 and aiding and abetting a violation of a no-contact order in violation of Iowa Code sections 664A.7 and 703.1. These criminal charges proceeded to trial. The court acquitted Gailey of the charge of suborning perjury, but found him guilty...

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34 practice notes
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Bieber, No. 12–1203.
    • United States
    • United States State Supreme Court of Iowa
    • December 7, 2012
    ...prior disciplinary rule DR 7–102(A)(7) to be instructive in this matter. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 806 (Iowa 2010) (relying on cases applying prior disciplinary rule DR 7–104(A)(1) in interpreting its successor, rule 32:4.2(a)). For example, in I......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Kingery, No. 15–0673.
    • United States
    • United States State Supreme Court of Iowa
    • October 30, 2015
    ...Iowa Supreme Ct. Att'y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 335 (Iowa 2015) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010) ("Nowhere in our rules have we given the parties the authority to determine what conduct constitutes a violation...."). "I......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Nelsen, No. 11–0114.
    • United States
    • United States State Supreme Court of Iowa
    • December 9, 2011
    ...that we can discipline an attorney for aiding and abetting a client to commit a crime. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 807 (Iowa 2010). Further, we have revoked the license of an attorney who was convicted of aiding and abetting the conversion of social se......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Den Beste, No. 19-0360
    • United States
    • United States State Supreme Court of Iowa
    • September 13, 2019
    ...That stipulation of facts is binding on us and the parties. Id. r. 36.16(2) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey , 790 N.W.2d 801, 803 (Iowa 2010).The stipulation provides that Den Beste and his firm had an agreement that required Den Beste to deposit all fees he collected in......
  • Request a trial to view additional results
34 cases
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Bieber, No. 12–1203.
    • United States
    • United States State Supreme Court of Iowa
    • December 7, 2012
    ...prior disciplinary rule DR 7–102(A)(7) to be instructive in this matter. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 806 (Iowa 2010) (relying on cases applying prior disciplinary rule DR 7–104(A)(1) in interpreting its successor, rule 32:4.2(a)). For example, in I......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Kingery, No. 15–0673.
    • United States
    • United States State Supreme Court of Iowa
    • October 30, 2015
    ...Iowa Supreme Ct. Att'y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 335 (Iowa 2015) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 804 (Iowa 2010) ("Nowhere in our rules have we given the parties the authority to determine what conduct constitutes a violation...."). "I......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Nelsen, No. 11–0114.
    • United States
    • United States State Supreme Court of Iowa
    • December 9, 2011
    ...that we can discipline an attorney for aiding and abetting a client to commit a crime. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 807 (Iowa 2010). Further, we have revoked the license of an attorney who was convicted of aiding and abetting the conversion of social se......
  • Iowa Supreme Court Attorney Disciplinary Bd. v. Den Beste, No. 19-0360
    • United States
    • United States State Supreme Court of Iowa
    • September 13, 2019
    ...That stipulation of facts is binding on us and the parties. Id. r. 36.16(2) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Gailey , 790 N.W.2d 801, 803 (Iowa 2010).The stipulation provides that Den Beste and his firm had an agreement that required Den Beste to deposit all fees he collected in......
  • Request a trial to view additional results

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