Iowa Supreme Court Attorney Disciplinary Bd. v. Weaver

• Decision Date: 16 March 2012
• Docket Number: No. 11–1626.,11–1626.
• Citation: 812 N.W.2d 4
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James A. WEAVER, Respondent.
• Court: Iowa Supreme Court

812 N.W.2d 4

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.James A. WEAVER, Respondent.

No. 11–1626.

Supreme Court of Iowa.

March 16, 2012.

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

James A. Weaver, Muscatine, pro se.

ZAGER, Justice.

The complainant, the Iowa Supreme Court Attorney Disciplinary Board, alleges the respondent, James A. Weaver, violated Iowa Rule of Professional Conduct 32:8.4(b). The alleged violation was based on Weaver's 2009 guilty pleas to charges of violating Iowa Code section 321J.2 (2009), operating while intoxicated (OWI), third offense, and section 708.7(4), harassment in the third degree. The grievance commission found Weaver's conduct violated rule 32:8.4(b) and recommended we suspend Weaver's license to run concurrently with his disability suspension. The commission also recommended Weaver be required to include medical documentation of his fitness to practice law and of his maintained sobriety prior to reinstatement. Upon our de novo review, considering the present violation and Weaver's overall conduct as a judicial officer and practicing attorney, we suspend Weaver's license to practice law for a period of two years.

I. Factual Background.

Weaver was admitted to the Iowa bar in 1979 and served as an associate district court judge from 1982 until 2004. In 2002, Weaver was convicted of his first OWI. Following his 2002 conviction, this court found Weaver violated multiple cannons of the Iowa Code of Judicial Conduct and issued a public reprimand on December 10, 2004. Prior to that time, however, Weaver had been arrested for a second OWI in November 2004. Weaver retired from his judicial position on December 17, 2004, and resumed his career as a practicing attorney.

Weaver pled guilty to OWI second offense on April 18, 2005. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 76 (Iowa 2008). At sentencing, the district court rejected the State's sentencing recommendation. Weaver was sentenced to an indeterminate term in prison not to exceed two years, ordered into placement in an alcohol treatment correctional facility, and fined $1500. Id. Weaver appealed his sentence. Id. at 77. Weaver also accused the sentencing judge of “not being honest about the reasons why he committed [Weaver] to the Department of Corrections.” Id. at 78. The court of appeals affirmed his sentence, and this court denied further review. Id.

Based upon his conviction of OWI, second offense, and his intemperate statements about the sentencing judge, the Board filed ethical charges against Weaver. Id. at 74. This court found Weaver committed a number of ethical violations relating to the statements he made about the sentencing judge. See id. at 80–91. We also specifically found that, even though a second OWI conviction was not a felony, Weaver's criminal act reflected adversely on his fitness to practice law, in violation of our ethical rules. See id. at 79–80. Accordingly, on March 28, 2008, we suspended Weaver's license to practice law for three months. Id. at 92. Weaver failed to notify all of his clients of the suspension in violation of Iowa Court Rule 35.22. We therefore extended his suspension for sixty days, with no possibility of reinstatement until August 28, 2008. Weaver's license was reinstated on December 3, 2008.

On March 21, 2009, Weaver was pulled over for speeding and failing to stop at a stop sign. A subsequent breathalyzer test revealed his blood alcohol content (BAC) was .166. Following this latest incident, we granted an application for disability suspension on May 4. In June of 2009, Weaver pled guilty to OWI, third offense, a class D felony. On August 6, Weaver was sentenced to five years in prison and fined $3125. The sentencing judge reported the conviction to the Board on August 10.

On November 23, 2009, three days after being released from the Davenport Work Release Facility (DWRF), Weaver was arrested for third-degree harassment and for violating his parole. These charges stemmed from Weaver calling his estranged wife twenty-six times in a period of a few hours. Weaver's parole officer, Nancy Boyle, testified before the commission. Boyle testified she received phone calls regarding the harassment from Weaver's wife and the Moline, Illinois Police Department. Weaver's wife told Boyle she believed Weaver had been drinking. The Moline police called Boyle and informed her that as a result of numerous phone calls to Weaver's wife, who worked in some capacity for the Moline school system, school officials contacted them, and the school district had “locked down” an elementary school.¹ Based on these phone calls, and her concern that Weaver may be drinking, Boyle had officers from the intensive supervision unit perform a safety check on Weaver to “find out what was going on.” After making contact with Weaver, a breathalyzer reading showed a BAC of .265 at 10:00 a.m. that morning. Weaver refused voluntary substance abuse treatment and was arrested for a parole violation. Weaver pled guilty to the harassment charge on January 21, 2010. As a result, his parole was revoked, and he was again placed at the DWRF.

Weaver was released from the work release facility on June 9. On June 16, seven days after his release from the work release facility, Boyle was contacted by Weaver's now ex-wife. Weaver had gone to her house the previous Friday as scheduled to retrieve some personal property. Weaver became belligerent and upset, and she noted he had been drinking. As a result of this confrontation, she called the Scott County Sheriff's Department. She also advised Boyle that she had been contacted by Weaver's daughter. Weaver's daughter had called because she had been trying to reach Weaver for six days without success. She was concerned not only for her father, who gets depressed and suicidal when he drinks, but also for the safety of his ex-wife because he gets very angry when he drinks. As a result of these concerns, Boyle, along with Davenport police officers, performed a safety check on Weaver. After some difficulty making entry into the house, they discovered Weaver intoxicated, despondent, and making comments about suicide. Weaver was again arrested for violation of his parole. Weaver agreed to inpatient substance abuse treatment at that time. As a result of this incident, however, Weaver's parole was revoked, and he was sent to prison. The court will set forth additional facts in this opinion when it discusses an appropriate sanction.

The Board filed a two-count complaint on December 30, 2010, but later withdrew Count II in an amended complaint. The amended complaint alleged that Weaver had pled guilty to OWI, third offense, and third-degree harassment. The amended complaint also noted that Weaver's parole had been revoked for consuming alcohol and that he was sentenced to prison. The Board alleged Weaver's conduct violated rule 32:8.4(b), which provides it is professionalmisconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” The commission held a hearing on the matter on September 12, 2011, and found Weaver's conviction for OWI, third offense, was a “sua sponte violation of [d]isciplinary [r]ule 32:8.4(b).” It recommended that we suspend Weaver's license concurrently with his disability suspension and that we require Weaver to present medical documentation of his sobriety and fitness to practice law prior to reinstatement.

II. Scope and Standard of Review.

Attorney disciplinary proceedings are reviewed de novo. Iowa Ct. R. 35.10(1); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 764 (Iowa 2010). The Board bears the burden of proving misconduct by a convincing preponderance of the evidence, which is a lesser burden than proof beyond a reasonable doubt but a greater burden than is imposed in the usual civil case. Templeton, 784 N.W.2d at 764. If we determine the Board has met its burden and proven misconduct, “we may impose a greater or lesser sanction than the sanction recommended by the commission.” Id.; see alsoIowa Ct. R. 35.10(1).

III. Findings of Fact.

The Board alleged that Weaver pled guilty to OWI, third offense and harassment in the third degree and that Weaver drank alcohol in violation of his parole. Under Iowa Court Rule 35.7(3), Weaver was precluded from disputing that he had been convicted of the OWI charge.² However, the Board did not provide notice of issue preclusion regarding the harassment conviction, and therefore, we must determine whether the Board has met its burden and proven Weaver committed the criminal act of harassment before we can find a violation of rule 32:8.4(b).

Weaver pled guilty to harassment in the third degree on January 21, 2010. According to the harassment complaint offered by the Board at the hearing, Weaver called his estranged wife twenty-six times in a six-hour period. Weaver admitted making annoying calls to his wife but denied that he used threatening language. Under the Iowa Code, “[a] person commits harassment when, with intent to ... annoy ... another person, the person ... [c]ommunicates with another by telephone ... without legitimate purpose and in a manner likely to cause the other person annoyance or harm.” Iowa Code § 708.7(1)( a)(1). Weaver pled guilty to harassment and admitted to the commission that he made annoying comments to his wife.³ We find that the Board has proven by a convincing preponderance of the evidence that Weaver committed the criminal act of harassment.

The Board alleged Weaver's parole was revoked for consuming alcohol in violation of a condition of his parole. In support of this allegation, the Board offered the testimony of Nancy Boyle, Weaver's parole officer, who testified that on June 16, 2010, she received a call from Weaver's ex-wife, who stated that Weaver had been drinking and had gone to her home and...