Iowa Supreme Court Attorney Disciplinary Bd. v. Cannon

• Decision Date: 19 October 2012
• Docket Number: No. 12–0844.,12–0844.
• Citation: 821 N.W.2d 873
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Peter Sean CANNON, Respondent.
• Court: Iowa Supreme Court

821 N.W.2d 873

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Peter Sean CANNON, Respondent.

No. 12–0844.

Supreme Court of Iowa.

Oct. 19, 2012.

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

David L. Brown and Jay D. Grimes of Hansen, McClintock & Riley, Des Moines, for appellee.

ZAGER, Justice.

The complainant, the Iowa Supreme Court Attorney Disciplinary Board (Board), alleges the respondent, Peter Sean Cannon, violated Iowa Rule of Professional Conduct 32:8.4(b). The alleged violation was based on three separate criminal convictions occurring in 2009 and 2010. The Grievance Commission of the Supreme Court of Iowa (commission) found Cannon's convictions constituted a violation of rule 32:8.4(b) and recommended we publicly reprimand Cannon. Upon our de novo review, we find Cannon violated rule 32:8.4(b) and suspend his license to practice law for thirty days.

I. Background Facts and Proceedings.

Cannon was admitted to the Iowa bar in 1983. He practiced at the law firm of Connolly, O'Malley, Lillis, Hansen & Olson from 1983 until 1998, when he became a sole practitioner. He has practiced as a sole practitioner in Iowa since 1998.

The Board filed a three-count complaint against Cannon on June 24, 2011. Count I alleged that on July 13, 2009, Cannon was convicted of the crime of operating a boat while intoxicated, first offense, in violation of Iowa Code section 462A.14 (2009). Count II alleged that on October 8, 2009, Cannon was convicted of possession of cocaine, a controlled substance, in violation of Iowa Code section 124.401(5). Finally, Count III alleged that on November 17, 2010, Cannon was convicted of operating a motor vehicle while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2.¹ With regard to these convictions, the Board invoked issue preclusion under Iowa Court Rule 35.7(3).² The Board contends these offenses violate Iowa Rule of Professional Conduct 32:8.4(b). The commission held a hearing on December 15, 2011. On May 11, 2012, the commission issued its findings of fact and conclusions of law and recommended we publicly reprimand Cannon for the pattern of criminal conduct demonstrated by the three convictions.

II. Standard and Scope of Review.

We have described our standard of review in attorney disciplinary proceedings as follows:

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); see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 764 (Iowa 2010). When the Board alleges that a criminal conviction violates rule 32:8.4(b), the Board bears the additional burden of showing a sufficient nexus between the criminal conduct and the respondent's ability to function as an attorney. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Keele, 795 N.W.2d 507, 515 (Iowa 2011). The Board must prove the nexus by a convincing preponderance of the evidence. Id.

III. Findings of Fact.

The facts in this case are not in dispute. The Board alleged that Cannon pled guilty to operating a boat while intoxicated, first offense; possession of cocaine; and OWI, first offense. In his answer to the Board's complaint, Cannon admitted each of these convictions. Moreover, the Board has supplied the court files from each conviction, which include Cannon's guilty pleas. The Board has proven each conviction by a convincing preponderance of the evidence.

IV. Ethical Violations.

The Board alleged that each of Cannon's convictions constituted a violation of Iowa Rule of Professional Conduct 32:8.4(b). Rule 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). “[N]ot all criminal acts reflect on an attorney's fitness to practice law.” Weaver, 812 N.W.2d at 12. 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. Schmidt, 796 N.W.2d 33, 40 (Iowa 2011) (citing 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 65.4, at 65–8 (3d ed. Supp. 2009)). The crux of the question centers on whether Cannon's conduct demonstrates he has character defects that would detract from his ability to be trusted with “important controversies and confidential information.” See id. (citation and internal quotation marks omitted).

As we noted in Templeton,

[I]llegal 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.

Templeton, 784 N.W.2d at 767 (citations and internal quotation marks omitted).

With these considerations in mind, we have adopted the following test to determine whether a criminal act violates rule 32:8.4(b):

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. (citation and internal quotation marks omitted); see also Weaver, 812 N.W.2d at 11.

The first factor we consider under Templeton is Cannon's mental state. See Templeton, 784 N.W.2d at 767. Cannon argues that his criminal acts were a result of depression and alcohol issues. He testified that these issues originated with a surgery he underwent in December of 2006. According to Cannon, approximately eighty percent of his small intestine was removed, making his absorption rate for alcohol much higher than it had been previously. This medical issue also led to bouts of depression. We note that while Cannon's substance abuse and mental state may have contributed to his actions, his depression and alcoholism do not excuse his mistakes. Moreover, Cannon presented no medical evidence as to how his depression affected his mind and decision making. See Schmidt, 796 N.W.2d at 41 (holding that attorney's depression did not excuse the choices he made, particularly when he did not present evidence that his mental condition clouded his mind).

We next examine the factor relating to the presence or absence of a victim. Many violations of rule 32:8.4(b) involve victims of criminal conduct. See, e.g., Schmidt, 796 N.W.2d at 41 (attorney's severe physical attack on his wife in the presence of his children caused physical and psychological damage to his wife and psychological trauma to his children); Templeton, 784 N.W.2d at 770 (attorney's criminal acts of invasion of privacy had serious consequences for his victims). While Cannon's crimes did not result in any direct physical or psychological harm to a person, his OWI incident did result in property damage to the parking lot of a grocery store, thereby making the store a victim of his criminal action. We also consider potential injury to persons or property in determining whether a violation of rule 32:8.4(b) occurred. As we stated in Weaver, operating a motor vehicle while intoxicated “create[s] ... grave risk of potential injury” to others. See Weaver, 812 N.W.2d at 11. As described below, each of Cannon's criminal convictions shows a reckless disregard for the public.

Cannon's boating-while-intoxicated conviction arose out of a stop by a water patrol officer with the Iowa Department of Natural Resources. The officer observed Cannon accelerating “rather quickly” in the five mile per hour speed-limit zone at 10:30 p.m. on Friday, July 11, 2008. The officer noted Cannon had slurred speech, slow reaction times, and smelled of alcohol. A subsequent breath test revealed Cannon's blood alcohol content was .186. By driving a boat at night while intoxicated, Cannon could have seriously injured other people on the water, himself, or the passenger on his boat.

Cannon's conviction for possession of cocaine also arose out of an incident involving alcohol. Responding to a report of a possible intoxicated driver, police found a vehicle stopped in the middle of a roadway. Cannon was observed walking away from the stopped vehicle. A woman in the driver's seat and Cannon both appeared to be intoxicated. Cannon was arrested for public intoxication, and during a search conducted incident to that arrest, an officer found a baggy containing about one gram of cocaine in his suit coat pocket. Cannon denies he ever used cocaine, and the police officer reported that the woman he was with appeared to have cocaine on her upper lip. Though Cannon had not been driving during that incident, he knew his companion had been drinking, and he had reason to believe she was also using cocaine. The incident took place in a residential neighborhood in the early morning hours and could have resulted in serious or even fatal injury to other drivers or pedestrians.

Finally, Cannon was arrested for OWI after his car struck a barrier in a grocery store parking lot. When a police officer approached the car, Cannon and a female acquaintance were...