Iowa Supreme Court Attorney Disciplinary Bd. v. Schmidt

• Decision Date: 08 April 2011
• Docket Number: No. 10–0912.,10–0912.
• Citation: 796 N.W.2d 33
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,v.Richard R. SCHMIDT, Respondent.
• Court: Iowa Supreme Court

796 N.W.2d 33

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Richard R. SCHMIDT, Respondent.

No. 10–0912.

Supreme Court of Iowa.

April 8, 2011.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for complainant.Mark McCormick of Belin McCormick, P.C., Des Moines, for respondent.WIGGINS, Justice.

The Iowa Supreme Court Disciplinary Board filed a complaint alleging the respondent, Richard R. Schmidt, violated ethical rules by communicating with a represented party without the consent of opposing counsel or a court order and by engaging in domestic abuse. The grievance commission found Schmidt's conduct violated provisions of the Iowa Rules of Professional Conduct and recommended Schmidt's license be suspended for six months. Having considered the record, we agree Schmidt committed ethical violations. We disagree, however, with the commission's sanction recommendation; therefore, we suspend his license to practice law in Iowa for thirty days.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 101 (Iowa 2010). The board has the burden of proving an attorney's ethical misconduct by a convincing preponderance of the evidence. Id. “This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). We are not bound by the commission's findings and recommendations, but we give them respectful consideration. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d 295, 297 (Iowa 2010). We give particular weight to the commission's assessments of witnesses' credibility. Id. at 299. Upon proof of misconduct, we may impose a greater or lesser sanction than the sanction recommended by the commission. Axt, 791 N.W.2d at 101.

II. Proceedings.

On April 13, 2009, the board filed its complaint against Schmidt. In count I, the complaint alleged Schmidt violated Iowa Rules of Professional Conduct 32:8.4(b), which prohibits misconduct reflecting adversely on a lawyer's fitness to practice law, and 32:8.4(d), which prohibits misconduct prejudicial to the administration of justice, in connection with his commission and conviction of aggravated misdemeanor domestic abuse crimes against his wife. In count II, the complaint claimed Schmidt violated rule 32:8.4(d), as well as rule 32:4.2(a), which prohibits communication with a represented party without the opposing party's consent or a court order. The board claims the violation occurred when Schmidt, or his representative at his direction, was involved in assisting his client in personally obtaining the opposing party's signature on a consent decree when such actions violated a no-contact order and opposing counsel did not consent to the actions nor did a court order permit them.¹

In its report, the commission found Schmidt committed the alleged ethical violations. The commission also recommended a six-month suspension.

III. Findings of Fact.

On our de novo review, we find the facts as follow.

A. General Background. Schmidt was born and raised in Des Moines, Iowa. He attended Iowa State University. In May 1994 Schmidt graduated from Drake Law School and began private practice in the areas of family law, personal injury, and workers' compensation. Schmidt currently practices in Des Moines in a four-lawyer group of sole practitioners.

B. Prohibited Communication with a Represented Party. In November 2005 Schmidt filed a petition for dissolution of marriage for a wife. Attorney Mason J. Ouderkirk represented the husband. The district court entered several orders, including one continuing a no-contact order between the husband and wife. Schmidt sent Ouderkirk a consent decree that Schmidt's client wanted her spouse to sign. Ouderkirk presented the consent decree to the husband. The husband rejected it. During the course of the representation, Schmidt filed several applications to show cause as to why the husband was not in violation of the no-contact order.

On May 26, 2006, the husband called Ouderkirk to inform him that he and his wife had come to an agreement and Ouderkirk should be receiving a revised consent decree. The same day, the wife called Schmidt, requesting he prepare the same consent decree he had previously prepared and informing him that her husband would probably terminate Ouderkirk's representation. Schmidt, either personally or through a representative in his law office acting upon his direction, changed the consent decree to indicate the husband was pro se, removing references to Ouderkirk's representation from the decree. The wife then picked up the consent decree and took it to her husband. Both parties signed the decree before a notary public. Schmidt then signed the decree.

After the decree was signed, Schmidt faxed it to Ouderkirk's office. After reviewing the decree, Ouderkirk told Schmidt he found the situation unusual and noted Schmidt had stated the husband was pro se when he knew Ouderkirk was the attorney of record.

Ouderkirk contacted his client, informing him the decree had all the provisions to which the husband had previously objected to, the decree was unfair to the husband, and Ouderkirk did not approve of the decree. Ouderkirk then informed the husband that the husband had to decide whether he wished to continue with the proceedings or agree to the decree. The husband contacted Ouderkirk and stated he did not want to continue with the proceedings.

On May 31 Ouderkirk filed an application to withdraw and Schmidt filed a dismissal of the application to show cause why the no-contact order had not been violated by the husband. In June 2006 the court granted Ouderkirk's motion to withdraw and filed the consent decree.

C. Domestic Abuse. On June 6, 2006, the incident of domestic abuse by Schmidt of his wife occurred. Prior to June 6 Schmidt had never been violent toward his wife. Moreover, Schmidt had never acted with violence toward anyone else.

Schmidt's marriage was tumultuous. In 1997 Schmidt began seeking therapeutic assistance for problems in his marriage. He started taking doctor-prescribed medications, including medications for depression, consisting of Prozac, Wellbutrin, and Effexor. On June 6 Schmidt was taking Effexor. For about two and one-half years prior to June 6, Schmidt did not share a bedroom with his wife, but slept in the basement of the couple's home. In Spring 2006 Schmidt's wife informed him that she intended to leave him.

In August 2005 Schmidt attempted suicide, but failed. After this attempt, Schmidt sought psychiatric care. In August 2006 Schmidt began seeing Dr. Easton, a psychiatrist. Also after his suicide attempt, Schmidt began seeing P.J. McDonald, a licensed independent social worker and marriage and family therapist. Schmidt continues to see both practitioners.

On the evening of June 6, 2006, Schmidt and his wife began arguing about childcare issues. They were on the concrete patio near their hot tub. When his wife walked away from the argument, Schmidt grabbed her and threw her down, causing her to hit her head. Schmidt then began to choke her, and she temporarily lost consciousness. Schmidt then chased her around the house, choking her two more times into unconsciousness. At some point, Schmidt let her up and she fled the house, running to a neighbor's house. Schmidt followed.

Schmidt attacked his wife again in the neighbor's kitchen as she tried to call 911. Eventually, the couple began running through the neighbor's garage. The neighbor, who was in his backyard, went to his garage after hearing screaming coming from the garage. The neighbor asked Schmidt what happened, and Schmidt said his wife had fallen in the hot tub, hitting her head. The neighbor went to the kitchen, and found the 911 dispatcher still on the line. The dispatcher said help was on the way. Throughout the entire incident, the couple's children watched and chased them. They screamed and cried for Schmidt to stop.

A Polk County sheriff's deputy arrived at the neighbor's house. The deputy put Schmidt in the patrol car so he could assist Schmidt's wife. When he returned to the car, he found Schmidt had broken the screen or “steel cage” between the front and back seats and had moved the deputy's cell phone. Upon the deputy's inquiry, Schmidt said he had to use the cell phone to make some calls.

Schmidt's wife was taken to the emergency room and was seen by a physician. The physician found she was in moderate distress, with abrasions to her neck, a three-centimeter-long head laceration, and abrasions on her nose and knees. Further examination revealed pain and stiffness of the neck, consistent with strangulation.

As a result of this incident, Schmidt pleaded guilty to two aggravated misdemeanors involving domestic abuse crimes. In March 2007 Schmidt was sentenced to incarceration for one year with all but thirty days suspended. The no-contact order prohibiting Schmidt from contact with his wife and children was ordered to remain in full force through March 2012, unless modified by a court order.

In November the couple's marriage was dissolved. In connection with the dissolution proceeding, the no-contact order was modified to permit Schmidt two supervised visitations with his children. The children were too traumatized to visit with Schmidt, and therefore, Schmidt has not seen his children since June 6, 2006.

In addition to the physical injury she sustained, Schmidt's wife lost thirty pounds, was off work for months, undertook intensive counseling, experiences flashbacks, and fears Schmidt. The children were also harmed. The children exhibit symptoms of anxiety, especially when separated from their mother. They have trouble in crowds, unfamiliar surroundings, and staying the night at friends' houses. At least one child has trouble sleeping, has stomach problems,...