Iowa Supreme Court Attorney Disciplinary Bd. v. Roush

• Decision Date: 01 March 2013
• Docket Number: No. 12–2089.,12–2089.
• Citation: 827 N.W.2d 711
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Stanley A. ROUSH, Respondent.
• Court: Iowa Supreme Court

827 N.W.2d 711

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Stanley A. ROUSH, Respondent.

No. 12–2089.

Supreme Court of Iowa.

March 1, 2013.

Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.

Stanley A. Roush, Cedar Rapids, pro se.

MANSFIELD, Justice.

This attorney disciplinary proceeding concerns a criminal defense attorney's federal criminal conviction for possession of cocaine base. The incident occurred because the attorney had an untreated substance abuse problem. The attorney does not dispute that he committed an ethical violation, and the main issue we need to decide is the appropriate sanction. Based on our review of this matter, including the aggravating and mitigating circumstances and our relevant precedents, we conclude a sixty-day suspension of the attorney's license to practice law in this state is appropriate.

I. Factual and Procedural Background.

Stanley Roush is a Cedar Rapids attorney, the majority of whose practice consisted until recently of federal criminal defense work. He was admitted to the Iowa bar in 1984, following his graduation from the University of Iowa College of Law. He is also admitted to appear before the United States District Courts for the Northern and Southern Districts of Iowa, and the United States Court of Appeals for the Eighth Circuit.

A number of individuals submitted affidavits in this proceeding attesting to Roush's character and skill as a lawyer. Afriend and client wrote that Roush provided outstanding legal services to him. Another individual, a Cedar Rapids attorney who has known him for twenty-five years, wrote that Roush was a fine lawyer. A fellow attorney and fantasy baseball league member confirmed that Roush “has always been conscientious, honest, and engaging,” and that he is a “gifted attorney who will continue to serve his clients well.” A friend who lost a child noted Roush's compassion, kindness, and sincerity. He relayed that Roush helped establish memorials, scholarships, and financial commitments in his daughter's memory, all free of charge, and added, “I have every confidence in his abilities as a professional.” Another friend and client opined that Roush “has not only been a good friend and father, but also a reliable lawyer.”

Despite these strengths, Roush's alcohol consumption was regular and became problematic, by his own admission. Drinking ultimately became a gateway to his use of cocaine. Roush would drink after work with a happy-hour group, while playing golf with friends, and during football games. Roush acknowledged that “once or twice a week I would drink to excess,” meaning he would consume “six or more” drinks. He indicated that sometimes a main purpose of the golf and football outings was to drink.

Roush also used marijuana casually. He would also occasionally purchase small amounts of marijuana. In 2002, Roush was arrested when he tried to bring marijuana through airport security. On January 13, 2003, based on this event, Roush was convicted of federal misdemeanor possession of a controlled substance, in violation of 21 U.S.C. § 844. Roush self-reported to our attorney disciplinary authority and received a private admonition at that time.

On the heels of his airport arrest and related conviction, Roush's ex-wife confronted him about his marijuana use. She and Roush had divorced in 1994, and he retained primary physical custody of their daughter for ten years. After that, custody of his daughter “kind of went back and forth for a little bit.” At some point, Roush's relationship with his daughter became strained. Roush maintains that his family troubles led to feelings of depression, although he never sought diagnosis or treatment. Instead he continued to drink to excess at times and use marijuana recreationally.

Eventually, according to Roush, his drinking and family-related stress led him to try crack cocaine. He initially used it every couple months, beginning in 2007 or 2008, and was using it approximately every month by the time of his November 2011 arrest. Roush would purchase about $200 worth of crack cocaine each time. Roush claims that he never was intoxicated from crack cocaine while practicing law because he typically used on a Friday or Saturday evening. Roush also believes his crack cocaine use, while generally destructive, did not negatively affect his practice or his clients.

Things came to a head in November 2011, when Roush became the target of a United States Drug Enforcement Administration (DEA) sting operation. A client of Roush's (CS # 1) told the government that a female acquaintance of his (CS # 2) regularly smoked crack cocaine with Roush.¹ Law enforcement then arranged for CS # 1 to purchase crack cocaine from CS # 2 in a controlled buy. At that point, law enforcement officials interviewed CS # 2, who admitted to smoking crack cocaine with Roush. CS # 2 told authorities that Roush purchased crack from her monthly. The DEA task force agents thus set up another controlled buy, this time with Roush as the target and CS # 2 as the cooperating informant. CS # 2 was given a digital recording device and an audio transmitter. She met with Roush, and the two of them then purchased $200 worth of crack cocaine, amounting to two small baggies, from a dealer.

Roush and CS # 2 left the dealer and they drove in Roush's car to a gas station. CS # 2 went inside while Roush remained in the car. CS # 2 called a task force officer, telling him that Roush was holding the crack cocaine in his left hand. A task force officer approached Roush and asked him where the crack was. Roush told officers he was “just getting a ‘whore’ ” and that he had swallowed the crack. Officers searched Roush's person and did not find any contraband; however, a search of his car revealed two plastic baggies of crack cocaine behind the driver's seat, nearest what would have been Roush's left side. After officers offered Roush medical assistance, in light of his claim that he swallowed crack cocaine, he told the officers that he was fine and that medical attention was not necessary. When Roush had received Miranda warnings, he again told officers it was all about the “whore.”

Following Roush's arrest, he was charged on December 6, 2011, with a second offense violation of 21 U.S.C. § 844 for his possession of cocaine base. This is a felony under federal law, but it is undisputed that the same offense would be an aggravated misdemeanor under Iowa law. SeeIowa Code § 124.401(5) (2011) (providing that a second offense for possession of a controlled substance offense is an aggravated misdemeanor). On December 13, Roush entered a guilty plea. The United States District Court for the Northern District of Iowa accepted his plea and later sentenced him to a fifteen-day prison term and a $2500 fine.

On December 9, 2011, Roush self-reported his conduct to the Iowa Supreme Court Attorney Disciplinary Board (Board), conceding that his conduct was in violation of the Iowa Rules of Professional Conduct and indicating “a willingness to accept the appropriate sanction.” Roush has continued to practice law, albeit with a significantly reduced workload. He has stopped taking federal criminal cases and does not know whether he intends to return to that area of practice.

On July 11, 2012, the Board filed a complaint alleging Roush violated Iowa Rule of Professional Conduct 32:8.4(b). Roush answered, admitting all of the Board's factual allegations, as well as its conclusion that Roush violated rule 32:8.4(b). Roush also acknowledged that a suspension was appropriate.

A one-day hearing before a division of the Grievance Commission of the Supreme Court of Iowa (commission) took place on October 4, 2012. Again, Roush conceded his violation. Still, he noted that his behavior, while unethical, did not involve his clients or any dishonesty. Acknowledging his progressing alcoholism, he stated that he had nonetheless continued to effectively attend to all client matters. He traced his criminal behavior to his alcoholism, admitting “I would not have used crack cocaine if I had not been drinking.”

In addition, Roush wrote and later explained to the Commission that he has since sought treatment. He obtained a substance abuse evaluation at St. Luke's Hospital Chemical Dependency Services, which indicated he met the criteria for alcohol dependence and substance abuse. At St. Luke's, Roush met with a counselor six more times after the initial evaluation. The counselor did not recommend further treatment thereafter, and Roush “took issue with him” because he “was finding it so helpful, and [he] enjoyed [the] sessions.” Roush also began to participate in Alcoholics Anonymous (AA), daily for the first ninety days, and three to four times per week after that. He stated that the program includes “things like taking inventory, talking to people, and making a list of people you've harmed, and making amends with them. I have done those sorts of things.” Roush also submits to random urinalysis testing twice a month and has not tested positive for any controlled substances. Roush has served the jail time and paid the fine imposed by the federal district court.

Roush told the commission that he intends to continue AA. He denies having consumed alcohol since his arrest in November 2011. Roush also testified as follows:

Q. How would you describe your prospect for resuming the abuse of alcohol? How do you evaluate that? A. I am optimistic and faithful.

Q. What about the prospect for resuming the consumption of marijuana? A. I'd rather put a hole in my head.

Q. What about your prospect for resuming consumption of cocaine base? A. I'd rather put two holes in my head.

Roush later clarified that his latter two answers were “hyperbolic” and a “bad attempt at humor” and denied that he had ever had a suicidal thought or ideation.

Roush repeatedly indicated that he believes his substance abuse never harmed his practice. He noted, “I believe I have...