Iowa Supreme Court Attorney Disciplinary Bd. v. Rhinehart

• Decision Date: 08 January 2021
• Docket Number: No. 20-0824,20-0824
• Citation: 953 N.W.2d 156
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Richard Scott RHINEHART, Respondent.
• Court: Iowa Supreme Court

953 N.W.2d 156

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Richard Scott RHINEHART, Respondent.

No. 20-0824

Supreme Court of Iowa.

Submitted October 15, 2020

Filed January 8, 2021

Tara van Brederode and Wendell J. Harms, Des Moines, for complainant.

Richard Scott Rhinehart, Sioux City, pro se.

McDonald, J., delivered the opinion of the court, in which all justices joined. Christensen, C.J., filed a special concurrence in which Waterman, J., joined.

McDONALD, Justice.

The Iowa Supreme Court Attorney Disciplinary Board filed a two-count complaint against attorney Richard Rhinehart arising out of Rhinehart's conduct in two separate litigation matters. Each count of the complaint corresponded to one of the litigation matters. In each count, the Board alleged multiple violations of the rules of professional conduct. A division of the Iowa Supreme Court Grievance Commission found Rhinehart violated the rules in five respects and recommended this court suspend Rhinehart's license to practice law for not less than ninety days. On de novo review, we conclude the Board failed to prove the alleged violations, and we dismiss the complaint.

I.

"We review attorney disciplinary proceedings de novo." Iowa Sup. Ct. Att'y Disciplinary Bd. v. Mathahs , 918 N.W.2d 487, 489 (Iowa 2018). In the context of attorney disciplinary proceedings, which invokes this court's regulatory authority, de novo review means we review the violations and sanctions anew without regard to whether the parties have preserved or raised the issues. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. Tindal , 949 N.W.2d 637, 643 (Iowa 2020) ("In our view, we may undertake de novo review of the commission's record, including any rule violations alleged by the Board, even if the commission found the Board failed to prove the violation. Indeed, we have the power to review the commission record de novo and impose sanctions when no party appeals or applies for permission to appeal."). "We may impose a greater or lesser sanction than what the commission has recommended upon proof of an ethical violation." Iowa Sup. Ct. Att'y Disciplinary Bd. v. Noyes , 936 N.W.2d 440, 442 (Iowa 2019) (quoting Mathahs , 918 N.W.2d at 489 ).

II.

A.

Count one of the Board's complaint arose out of a family law matter. In that case, Rhinehart represented the mother in an action to modify a decree of dissolution of marriage entered in Nebraska. The decree awarded the mother physical care of the parties’ child, N.V. Rhinehart filed the petition for modification in Iowa in October 2012. In the petition for modification, the mother alleged N.V. had been sexually abused by one of the child's cousins, B.B., while in the father's care during visitation. The record shows the cousin licked N.V.’s penis, taught N.V. how to pull up his pants, and told N.V. not to tell anyone about the incident. At the time of the abuse, B.B. was five years old and N.V. was three years old. In the petition, the mother prayed the father's visitation with N.V. be supervised until the court could determine N.V. was no longer in danger while in the father's care.

On November 28, 2012, Rhinehart filed an application on behalf of the mother for an emergency hearing on temporary custody and physical care. The application alleged the father failed to supervise and protect N.V. during visitation. The application was supported by an affidavit from the mother. The affidavit stated N.V. told the mother B.B. was sexually abusing him. B.B.’s mother admitted the child had been doing inappropriate things with two other children as well. The affidavit stated the mother was taking N.V. to psychiatrist Dr. Daniel Gillette. Dr. Gillette stated N.V. had posttraumatic stress disorder (PTSD) and the plan of treatment included therapy and removal of N.V. from the abusive situation.

The application for temporary matters came on for hearing in March 2013. Amanda Korinke, a therapist at the Mercy Child Advocacy Center, testified for the mother. She testified she also began treating N.V. after the allegations of sexual abuse. She testified the child was suffering from PTSD and was afraid to go to the father's residence for visitation. The mother put into evidence the affidavit of Dr. Gillette. Dr. Gillette's affidavit concluded, "I would consider it appropriate to stop contact with the father and would tend to support such a decision by the courts." The mother testified at the hearing. She testified N.V. told her B.B. "licked his penis" and told N.V. not to tell. B.B.’s mother also testified. She testified she learned the children were licking each other. When she learned of it, she took B.B. to treat with Dr. Angela Stokes. B.B.’s mother testified the department of human services was notified of the situation, investigated the situation, and did not confirm a finding of sexual abuse. The father put into evidence the affidavit of Dr. Stokes. Dr. Stokes opined there was no evidence B.B. was a perpetrator. Dr. Stokes's affidavit stated the children's sexual behaviors were age appropriate sex play, according to the research. In her opinion, B.B. had not engaged in deviancy.

The district court denied the application regarding temporary custody and physical care. The court found restriction of contact between N.V. and the father was "not the correct course of action. Rather, the parties should look to addressing N.V.’s current behaviors through an expansion of N.V.’s counseling that would include both parents." While the court denied the application for supervised visitation, the court ordered the father "should not allow N.V. any unsupervised contact with the offending cousins."

Rhinehart took the deposition of Dr. Gillette on July 11, four months after the hearing on temporary matters. Leading up to the deposition, Dr. Gillette issued a report based on evaluations of N.V. that occurred after the hearing on temporary matters. Dr. Gillette opined,

It is my opinion beyond a reasonable doubt that ongoing sexual abuse has been occurring against [N.V.] perpetrated by an older cousin ... and that the father has been aware of this abuse, and has taken no meaningful steps to prevent the ongoing abuse ....

(Emphasis added.) Dr. Gillette further stated N.V. "developed clear and compelling symptoms of [PTSD] which are a direct result of the sexual abuse that he has endured in the past and continues to endure while in his father's care." (Emphasis added.) Dr. Gillette recommended that "all contact with the father be cut off by order of the court."

After taking Dr. Gillette's deposition, Rhinehart filed a renewed application for emergency hearing on temporary custody and physical care. The father resisted and argued this issue had already been before the court. The father also requested sanctions. The district court agreed with the father and denied the renewed application. The district court concluded the allegations in the petition were not new and did not constitute an emergency. The district court found,

[T]he actions of counsel [Rhinehart] in this matter particularly disturbing. Counsel was aware that this information was not new. Under the current paperless system that the court is utilization [sic] for its operation by designating the matter as an "emergency" and placing it in red letters in the filing queue, counsel was aware that it would be placed in front of other pending matters of equal or higher importance and chose to mislead the court by so doing.

The court granted the father attorney fees in the amount of $2000 and sanctioned Rhinehart $2000 for intentionally abusing the court's emergency process.

The matter came on for trial in March 2014. At that time, the district court observed that the original decree was issued in Nebraska. The district court sua sponte concluded it lacked jurisdiction pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), Iowa Code chapter 598B, and it dismissed the modification action.

The court of appeals affirmed the dismissal. See LaCroix v. Verdoorn , No. 14-0619, 2016 WL 4384429, at *4–5 (Iowa Ct. App. Aug. 17, 2016). The court of appeals also affirmed the sanctions. Id. at *6. The court of appeals concluded there was substantial evidence supporting the district court's finding "there was not an ‘emergency’ as a matter of fact." Id.

B.

The alleged rule violations in this case arise out of the renewed application for emergency hearing on temporary custody and physical care. It is the Board's burden to prove "ethical violations by a convincing preponderance of the evidence." Noyes , 936 N.W.2d at 442 (quoting Mathahs , 918 N.W.2d at 489 ). "A convincing preponderance of the evidence lies between the preponderance-of-the-evidence standard in a civil case and the reasonable-doubt standard in a criminal case." Id. at 442. We address each alleged violation in turn.

1.

The commission found Rhinehart violated Iowa Rule of Professional Conduct 32:3.1 in filing the renewed application. The rule provides:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.

The commission found Rhinehart violated this rule because the information presented at the second emergency hearing was the same information presented at the first emergency hearing.

The commission's finding is not supported by the record. At the hearing in August 2013, the mother testified there had been instances since March where B.B. initiated or attempted to initiate sexual contact with N.V. According to the mother, there was an instance in July where B.B. tried to convince N.V. to touch tongues. The father admitted he was "aware of the oral sex that's taken place between [N.V.] and [his] nephew [B.B.]." The father admitted he was aware of a recent allegation that B.B. tried to talk N.V. into "touching tongues and kissing tongues." Dr....