Iowa Supreme Court Attorney Disciplinary Bd. v. Moothart

• Decision Date: 06 March 2015
• Docket Number: No. 14–1708.,14–1708.
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Gerald Anthony Lyman MOOTHART, Respondent.
• Court: Iowa Supreme Court

860 N.W.2d 598

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant

v.Gerald Anthony Lyman MOOTHART, Respondent.

No. 14–1708.

Supreme Court of Iowa.

March 6, 2015.

Charles L. Harrington, Elizabeth E. Quinlan, and Teresa A. Vens, Des Moines, for complainant.

Christopher A. Clausen of Moothart & Clausen Law Office, Ames, for respondent.

Opinion

APPEL, Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged attorney Gerald A.L. Moothart with multiple violations of our disciplinary rules in connection with interactions and relationships with five women between 2006 and 2011. These charges include allegations of sexual harassment in the practice of law with each of the five women, sexual relations with a client with two of the women, and an allegation of a concurrent conflict of interest arising as a result of his relationship with one woman.

After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa concluded that Moothart committed each of the alleged violations and recommended a thirty-month suspension. Additionally, the commission recommended that prior to reinstatement, Moothart provide proof of participation in a psychological evaluation and counseling, or other form of treatment, which would provide some indication that he is fit to practice law.

Upon de novo review of the record and the commission's findings of fact, conclusions of law, and recommendations, we agree Moothart committed all the violations found by the commission. Giving particular consideration to the vulnerability of each woman with whom Moothart interacted, we also agree with the commission's recommended sanction and order Moothart's license suspended for thirty months. Additionally, before he is reinstated, we require Moothart to provide this court with an evaluation by a licensed health care professional, including proof of participation in a counseling program specific to sexual harassment, verifying his fitness to practice law.

I. Background Facts and Proceedings.

Respondent Moothart is a licensed Iowa attorney. He graduated from law school in May 1996, passed the Iowa bar examination, and was admitted to practice the following month.

After obtaining his law license, Moothart worked as an assistant county attorney for the Marshall County attorney's office for about one and one-half years. Thereafter, he began working in private practice in Ames, Iowa, where he continues to practice today. He practices primarily in criminal defense and family law. From March 2003 until December 2013, Moothart was a sole practitioner. In December 2013, an associate attorney joined the firm.

Moothart generally has a reputation in the Ames area as a very good defense and family-law attorney. He has developed forms and methods of practice that are used by other attorneys and has been a mentor to new attorneys. He has served as president and as a member of the board of directors of the Center for Creative Justice in Ames.

On March 18, 2011, the State charged Moothart in Story County with assault with intent to commit sexual abuse on Jane Doe # 1¹ in violation of section 709.11 of the Iowa Code. Three days after being charged, Moothart filed a report with the Office of Professional Regulation, which included a copy of the complaint.

Following a trial in June of 2011, Moothart was acquitted of the criminal charge. After the filing of the criminal charge against Moothart, Jane Does # 2, # 3, # 4, and # 5 filed complaints with the Ames police department and later filed complaints with the Iowa Supreme Court Attorney Disciplinary Board. All of these complaints alleged that Moothart engaged in various acts of sexual misconduct.

On December 31, 2013, the Board filed a five-count complaint against Moothart. The complaint alleged Moothart engaged in sexual harassment in the practice of law with each of the five women in violation of Iowa Rule of Professional Conduct 32:8.4(g). In addition, for Jane Doe # 2 and Jane Doe # 3, the Board alleged Moothart engaged in sexual relations with a client, in violation of Iowa Rule of Professional Conduct 32:1.8(j). Lastly, with respect to Jane Doe # 2, the Board additionally alleged a conflict of interest in violation of Iowa Rule of Professional Conduct 32:1.7(a)(2).

The commission held a hearing on May 14 and 15, 2014. All five Jane Does testified, as did Moothart, Jane Doe # 1's father, Jane Doe # 3's caseworker, and attorney Daniel Gonnerman, a character witness for Moothart.

The commission found that Moothart had committed all the violations as charged by the Board. In making its findings and conclusions, the commission generally credited the testimony of the complaining witnesses and not that of Moothart. On legal issues, the commission noted that violation of Iowa Rule of Professional Conduct 32:8.4(g), relating to sexual harassment, did not require an attorney–client relationship, but only that the conduct occur “in the practice of law.” The commission also concluded the term “sexual harassment” in the rule is broadly construed and consent is not a defense in the context of an attorney–client relationship. Based on the vulnerability of the complainants, the pervasiveness of the misconduct, and the balance of aggravating and mitigating factors, the commission recommended that Moothart's license be suspended for thirty months. The commission also recommended that prior to reinstatement, Moothart present proof that he has obtained a psychological evaluation and counseling and that he was fit to practice law.

II. Standard of Review.

We review factual findings of the commission de novo. Iowa Ct. R. 35.11(1) ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 101 (Iowa 2012). We give respectful consideration to the findings of the commission, especially when considering credibility of witnesses, but are not bound by them. Van Ginkel,809 N.W.2d at 101; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 759 (Iowa 2010). The Board must prove charges by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). “This burden is higher than the burden in most civil cases, but lower than in a criminal prosecution.” Van Ginkel, 809 N.W.2d at 102. It is also less stringent than the clear and convincing evidence which is the highest standard of civil proof. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996) (per curiam).

III. Legal Issues.

A. Introduction. Before we review the evidence developed at the hearing and consider the appropriate sanction, if any, we first address several important legal issues that will impact our approach to our de novo review of the record. We will review the nature of the burden of proof in this case; the scope of the phrase “sexual harassment ... in the practice of law” under Iowa Rule of Professional Conduct 32:8.4(g); the proper approach to establishing the existence of an attorney–client relationship under rule 32:1.8(j), which prohibits sexual relations with a client; the applicability of rule 32:1.7(a)(2) prohibiting concurrent conflicts of interest when a conflict arises between one client and another person who is not a client; and two rules of evidence that are applicable to this disciplinary proceeding.

B. Burden of Proof. In this case, as in all disciplinary cases, we note the Board bears the burden of proof of showing a violation of our disciplinary rules by a convincing preponderance of the evidence. See, e.g., Evans, 537 N.W.2d at 784. We note it is one thing to make allegations or claims and another to provide evidence to meet the somewhat heightened burden of proof in an attorney disciplinary case. While we recognize that we live in an age in which there is often a rush to judgment on controversial questions, episodes such as the McMartin child abuse case and the Duke Lacrosse debacle show the fallacy of assuming guilt when sexual misconduct is alleged. On the other hand, we refuse to cast our eyes aside because of the uncomfortable nature of the allegations in cases concerning charges of sexual misconduct involving lawyers. It is our duty in this case, as it is in every case, to carefully sift through the evidence, examine it with a critical eye, and reach a fair and impartial result. We base our judgment solely on the facts of the case and the applicable law.

C. Scope of “Sexual Harassment ... in the Practice of Law” Under Rule 32:8.4(g). Iowa Rule of Professional Conduct 32:8.4(g) provides: “It is professional misconduct for a lawyer to ... engage in sexual harassment ... in the practice of law....” This case presents several legal questions regarding the scope and meaning of the phrase “sexual harassment ... in the practice of law” as used in the rule.

We first note that the rule utilizes the comparatively broad phrase “in the practice of law.” We have noted that this language is “quite broad.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 124 (Iowa 1999). We think the language makes it clear that the rule may be violated even if there is no attorney–client relationship between the lawyer and the person subject to sexual harassment, as long as the attorney is engaged in the practice of law. The rule may be violated if a lawyer sexually harasses witnesses, court personnel, law partners, law-office employees, or other third parties that come into contact with a lawyer engaged in the practice of law.See id.

Cases from other jurisdictions prior to Iowa's adoption of rule 32:8.4(g) have for some time held that sexual harassment against non-clients violated more general ethical rules. See, e.g., People v. Lowery, 894 P.2d 758, 760 (Colo.1995) (en banc) (sexual harassment of employees); In re Discipline of Peters, 428 N.W.2d 375, 376, 381–82 (Minn.1988) (sexual harassment of employees and law students); In re Gould, 4 A.D.2d 174, 176, 164 N.Y.S.2d 48 (N.Y.App.Div.1957) (per curiam) (sexual...