Iowa Supreme Court Attorney Disciplinary Bd. v. Gailey

• Decision Date: 19 November 2010
• Docket Number: No. 09-0937.,09-0937.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. John W. GAILEY, Respondent.
• Court: Iowa Supreme Court

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.

COPYRIGHT MATERIAL OMITTED.

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, 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 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 of aiding and abetting a violation of a no-contact order, a simple misdemeanor.

III. Violations.

In its complaint, the board alleged Gailey's conduct violated the following Iowa Rules of Professional Conduct: 32:3.4(b), 32:4.2(a), 32:8.4(a), 32:8.4(b), 32:8.4(c), and 32:8.4(d). We will discuss each allegation separately.

A. Rule 32:3.4(b). Rule 32:3.4(b) provides that “[a] lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.” Iowa R. Prof'l Conduct 32:3.4(b). As the comment to the rule explains, “[f]air competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” Id. cmt. 1. If Gailey requested Dawn to refrain from giving favorable testimony to the state in the criminal matter involving Denis, Gailey violated rule 32:3.4(b). Matter of Alcantara, 144 N.J. 257, 676 A.2d 1030, 1035 (1995).

In response to Dawn's question as to what the letter meant, Gailey explained to her he believed that if she were to testify that there was no permanent damage, physically or psychologically, the criminal charges against Denis would be lessened. This in and of itself does not violate rule 32:3.4(b). A lawyer is allowed to explain the consequence of a witness's testimony without fear of being accused of counseling or assisting a witness to testify falsely. Moreover, the stipulation affirmatively states Gailey did not ask Dawn to lie or change her testimony.

We do believe, however, Gailey's conduct went farther than...