Iowa Supreme Court Attorney Disciplinary Bd. v. Johnson

• Decision Date: 02 September 2016
• Docket Number: No. 16–0625.,16–0625.
• Citation: 884 N.W.2d 772
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Deborah Lynn JOHNSON, Respondent.
• Court: Iowa Supreme Court

884 N.W.2d 772

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Deborah Lynn JOHNSON, Respondent.

No. 16–0625.

Supreme Court of Iowa.

Sept. 2, 2016.

Tara M. van Brederode and Elizabeth Quinlan, Des Moines, for complainant.

David L. Brown of Hansen, McClintock & Riley, Des Moines, for respondent.

MANSFIELD, Justice.

An Iowa attorney engaged in an intimate relationship with one of her clients whom she was representing in several criminal and civil matters. When their relationship was discovered, the attorney self-reported her conduct and withdrew from representation of the client. The Iowa Supreme Court Attorney Disciplinary Board charged her with violations of Iowa Rules of Professional Conduct 32:1.8(j) (sexual relationship with a client) and 32:8.4(d) (conduct prejudicial to the administration of justice).

The parties reached a factual stipulation, agreed that the charged violations had occurred, and jointly proposed a thirty-day suspension as a sanction. The Grievance Commission considered the matter without a hearing and concluded the attorney had violated both rules. The commission recommended the attorney's license be suspended for thirty days. Upon our de novo review, we conclude that the attorney violated rule 32:1.8(j). We do not find a violation of rule 32:8.4(d). We agree with the commission's recommended sanction and suspend the attorney's license to practice law for thirty days.

I. Background Facts and Proceedings.

Deborah Lynn Johnson is a solo practitioner in Altoona. She was admitted to the Massachusetts bar in 2001 and worked several years at an insurance defense firm in Boston. In 2004, she moved to Iowa and was admitted to the Iowa bar. Beginning in 2006, Johnson practiced at a firm in Newton. When that firm closed in 2010, Johnson opened her own law office. As a substantial part of her practice, Johnson represents indigent defendants by court appointment.

In May 2011, Johnson was appointed to represent John Doe in a child-in-need-of-assistance (CINA) matter. Doe was incarcerated at the time. The matter was resolved later that year. Johnson next saw Doe at the Jasper County Courthouse in January 2013, after Doe had been released from prison. The two of them spoke briefly.

In the spring of 2013, Doe contacted Johnson with some guardianship questions. Soon thereafter, Johnson was appointed to represent Doe at his request in a criminal case. She was later appointed to represent him in approximately eight other criminal cases. Additionally, Johnson handled several civil matters for Doe pro bono.

In mid-January 2014, while Johnson was representing Doe on a number of these matters, she and Doe began to have an intimate relationship. Johnson and Doe are not married to one another. On March 4, while the relationship was still ongoing, Doe was arrested on federal charges. The case involved a confidential informant (CI), whose identity was known to Doe. While being held in the Polk County Jail, Doe asked Johnson to call Doe's former girlfriend and tell her to “stay away from [the CI].” Johnson did call the former girlfriend and passed along the message. She did not furnish any other details or answer any questions.

Doe's detention hearing on the federal charges took place on March 7. Johnson attended the hearing. During the hearing, the CI's name came up several times. A Federal Bureau of Investigation (FBI) agent testified that Doe was a member of a prison gang. Johnson had no prior knowledge of the gang or Doe's affiliation with it. That evening, Doe asked Johnson to contact a friend of his and give him the CI's name. Johnson spoke with the friend and told him that Doe was being held on a federal weapons charge in the Polk County Jail, but she did not pass along the name of the CI.

On March 6 and 9, Doe made monitored and recorded phone calls from the jail to Johnson. A few days later, FBI agents appeared at Johnson's law office. They asked about her relationship with Doe. Initially, Johnson said, “He is my client, we are friends, we go out to lunch and to [Alcoholics Anonymous] meetings.” The FBI agents indicated they did not believe this statement. They told Johnson that jail personnel from the Polk County Jail had seen Johnson and Doe's interactions and listened to the recorded phone calls between them. Based on these observations, the jail officials had come to believe that Johnson and Doe maintained a personal relationship and had notified the FBI of their suspicions. The FBI agents told Johnson they were concerned that her relationship with Doe could threaten the safety of their CI. Johnson then admitted that her relationship with Doe was “more than attorney/client/friend.” The agents told Johnson she would no longer be allowed unrestricted access to Doe at the jail. Johnson did not object. The agents also advised Johnson that the gang to which Doe allegedly belonged was very dangerous. Johnson agreed to inform the FBI if she learned anything that might jeopardize the safety of their CI. She later sent several text messages to the FBI about information she received.

On March 12, Johnson received a letter from the Jasper County Attorney's office asking her to withdraw from Doe's four pending criminal matters because of a “personal conflict.” The letter also requested she abstain from representing Doe in any future criminal cases. Johnson responded by agreeing to withdraw after informing Doe. That same day she contacted Doe and told him she would be withdrawing from his pending criminal and civil matters. Johnson filed motions to withdraw in all six cases. Johnson arranged for another attorney to take over Doe's civil cases pro bono. The court appointed new counsel for Doe in the criminal matters on March 24.

Johnson also telephoned an employee of the Board on March 13 or 14 and “self-reported that she had been involved in an intimate relationship with Doe while representing him in State court matters.” On July 9, she sent a detailed letter to the Board. In the letter, she admitted that the relationship between her and Doe had become “personal in nature” in January 2014. “During that time, [she] continued to represent [Doe] on the four criminal actions ... the two civil custody actions and the second civil petition for relief from domestic abuse.” She acknowledged that she should have withdrawn and self-reported her conduct immediately upon the initiation of the intimate relationship with Doe. Her failure to do so “was wrong.” She stated that her “professional relationship with [Doe], and the friendship and relationship that developed, became blurred and [she] made an error in judgment.”

Johnson began seeing a therapist in late March. She was prescribed anti-depressants. Around that same time, Johnson notified a district court judge that she wanted to be temporarily removed from the list of attorneys available for court appointments. On June 26, when a long-term client requested Johnson, she advised the court that she was willing to accept court appointments again.

On July 8, 2015, the Board filed a complaint against Johnson alleging that she had engaged in sexual relations with a client in violation of Iowa Rule of Professional Conduct 32:1.8(j) and conduct that was prejudicial to the administration of justice in violation of rule 32:8.4(d). Johnson answered and initially denied she had engaged in sexual relations with Doe. Later, the Board and Johnson submitted a joint stipulation pursuant to Iowa Court Rule 35.9, waiving the required formal hearing. According to the stipulation, “Johnson was representing Doe ... pro bono when they began an intimate relationship in mid-January 2014.” The parties agreed that Johnson had violated rules 32:1.8(j) and 32:8.4(d). As a sanction, the parties jointly proposed a thirty-day suspension.

The matter was submitted to the commission for its consideration without a hearing on the basis of the stipulation. The parties did not file briefs. On April 11, 2016, the commission issued its findings and recommendation. The commission found that both violations were factually supported and recommended that Johnson's license be suspended for thirty days.

II. Standard of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Blessum,

861 N.W.2d 575, 582 (Iowa 2015). We respectfully consider the findings and recommendations of the commission but are not bound by them. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 171 (Iowa 2013). The Board must prove its allegations of attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Moothart, 860 N.W.2d 598, 603 (Iowa 2015). “This standard is more demanding than proof by preponderance of the evidence, but less demanding than proof beyond a reasonable doubt.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Ouderkirk, 845 N.W.2d 31, 33 (Iowa 2014).

When the parties enter into a stipulation, as here, they are bound by the stipulated facts, which we interpret with reference to their subject matter and in light of the surrounding circumstances and the whole record. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Haskovec, 869 N.W.2d 554, 557 (Iowa 2015). We are not bound by stipulations as to ethical violations or the appropriate sanction. Id.

III. Ethical Violations.

A. Rule 32:1.8 : Sexual Relations with a Client. Iowa Rule of Professional Conduct 32:1.8(j) provides, “A lawyer shall not have sexual relations with a client, or a representative of a client, unless the person is the spouse of the lawyer or the sexual relationship predates the initiation of the client-lawyer relationship.” The rule forbids such relationships even if the relationship is consensual. See Iowa R. Prof'l. Conduct 32:1.8 cmt. 17 (“[T]his rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.”).

This prohibition...