Iowa Supreme Court Attorney Disciplinary Bd. v. Jacobsma, 18-1267

• Citation: 920 N.W.2d 813
• Decision Date: 07 December 2018
• Docket Number: No. 18-1267,18-1267
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Michael Jon JACOBSMA, Respondent.
• Court: United States State Supreme Court of Iowa

920 N.W.2d 813

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Michael Jon JACOBSMA, Respondent.

No. 18-1267

Supreme Court of Iowa.

Filed December 7, 2018

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

Jack Bjornstad, Spirit Lake, for respondent.

HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) charged Michael Jacobsma with violating Iowa Rule of Professional Conduct 32:1.8(j) after Jacobsma self-reported having an intimate relationship with a client. The Iowa Supreme Court Grievance Commission (commission) found Jacobsma committed the ethical violation and recommended that his license be suspended for thirty days and that he continue with mental health counseling until discharged by his therapist in writing. Upon our de novo review of the commission’s recommendation, we find Jacobsma engaged in sexual relations with a client and suspend his law license for thirty days.

I. Scope and Standard of Review.

We review attorney disciplinary matters de novo. Iowa Ct. R. 36.21(1) ; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kowalke , 918 N.W.2d 158, 161 (Iowa 2018). "The Board must prove attorney misconduct by a convincing preponderance of the evidence, a burden greater than a preponderance of the evidence but less than proof beyond a reasonable doubt." Iowa Supreme Ct. Att’y Disciplinary Bd. v. Turner , 918 N.W.2d 130, 144 (Iowa 2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morse , 887 N.W.2d 131, 138 (Iowa 2016) ). We give the commission’s findings, conclusions, and recommendations respectful consideration, but we are not bound by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell , 830 N.W.2d 355, 358 (Iowa 2013).

"When an attorney admits facts alleged by the Board in an answer to a complaint, we deem those facts to be established." Iowa Supreme Ct. Att’y Disciplinary Bd. v. Taylor , 887 N.W.2d 369, 373 (Iowa 2016). Similarly, when an attorney makes and the commission accepts a stipulation of facts, that stipulation is binding on us. Iowa Ct. R. 36.16(2).

In contrast, an attorney’s stipulation to a rule violation is not binding on us. Id. r. 36.16(3) ; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Willey , 889 N.W.2d 647, 653 (Iowa 2017). "[W]e will find the attorney violated the Iowa Rules of Professional Conduct only if the record reveals a factual basis for concluding a violation of the rules occurred." Taylor , 887 N.W.2d at 373.

II. Background Facts and Proceedings.

Jacobsma was admitted to practice in Iowa on April 18, 1997. At all times relevant to this proceeding and the alleged underlying conduct, he practiced law in Sioux City and Orange City, Iowa.

From May 2017 through November 30, 2017, Jacobsma maintained an attorney–client relationship with Jane Doe, representing her in various legal matters. On October 1, 2017, Jacobsma began a sexual relationship with Doe. Jacobsma and Doe were not husband and wife at the time of the commencement of the sexual relationship.

On November 22, 2017, after Jacobsma’s two law partners confronted him, Jacobsma admitted to engaging in a sexual relationship with Doe. Jacobsma’s partners informed him that if he did not report his misconduct to the Board, they would file a complaint with the Board as required by Iowa Rule of Professional Conduct 32:8.3(a).

In an email dated November 30, 2017, Jacobsma reported to the Board, "I have violated the provisions of Iowa Rule of Professional Conduct 32:1.8(j) wherein I had a sexual relationship with a client of mine after the lawyer-client relationship was established." Jacobsma supplemented his initial self-reporting with a letter to the Board, dated January 29, 2018, in which he provided "a more detailed report of the facts and circumstances giving rise to the violation with supporting documents as well as legal arguments supporting [his] request for a deferral of further proceedings."

On March 22, 2018, the Board filed a complaint before the commission, alleging Jacobsma’s conduct violated Iowa Rule of Professional Conduct 32:1.8(j). Jacobsma filed his answer on April 16, 2018, admitting he engaged in a sexual relationship with Doe, to whom he was not married, after the initiation of an attorney–client relationship. In his answer, Jacobsma also admitted to violating rule 32:1.8(j).

The Board and Jacobsma subsequently filed a joint stipulation pursuant to Iowa Court Rule 36.16. As factual support for the finding of a rule violation, the parties stipulated that Jacobsma represented Doe in various legal matters between May 2017 and November 30, 2017; "[o]n or about October 1, 2017, Jacobsma began a sexual relationship with Doe"; "Jacobsma and Doe were not husband and wife at the time of the sexual relationship"; and "[t]he attorney-client relationship preceded the intimate relationship with Jane Doe." Additionally, the parties stipulated to a thirty-day suspension of Jacobsma’s law license for the rule violation.

The commission issued its report on July 19, 2018. It found that while engaged in an attorney–client relationship with Doe, Jacobsma and Doe commenced a sexual relationship and "Jacobsma and Doe were not husband and wife at the time of the sexual relationship." The commission concluded "that the facts as set forth in the Stipulated Facts Supporting Violation of Rule 32:1.8(j) set forth above [in the report], prove by a convincing preponderance of the evidence, that Jacobsma violated Rule 32:1.8(j)." Finally, the commission recommended a thirty-day suspension of Jacobsma’s law license as the appropriate sanction and continuing counseling.

III. Rule Violation.

First, we must determine whether the record establishes the alleged rule violation by a convincing preponderance of the evidence. 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." "[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." Id. r. 32:1.8 cmt. [17].

The Board alleged and Jacobsma admitted in his answer that "[f]rom May 2017 through November 30, 2017, Jacobsma represented Jane Doe in several matters in Sioux County"; "[o]n or about October 1, 2017, Jacobsma began a sexual relationship with Doe"; "Jacobsma and Doe were not husband and wife at the time of the intimate relationship"; and the attorney–client relationship preceded the intimate relationship. (Footnote omitted.). Accordingly, we deem those facts established. See Taylor , 887 N.W.2d at 373 ("When an attorney admits facts alleged by the Board in an answer to a complaint, we deem those facts to be established.").

Additionally, Jacobsma made and the commission accepted a stipulation of those same facts. Thus, that factual stipulation is binding on us. See Iowa Ct. R. 36.16(2) ("If the grievance commission accepts a stipulation of facts, the stipulation binds the parties, the grievance commission, and the supreme court.").

Based on those established and binding facts, we find Jacobsma engaged in a sexual relationship with a client, the client was not Jacobsma’s spouse at the time of the sexual relationship, and the sexual relationship did not predate the attorney–client relationship. Consequently, we conclude Jacobsma’s conduct violated rule 32:1.8(j).

IV. Sanction.

Next, we must determine the appropriate sanction. "There is no standard discipline for a particular type of attorney misconduct," Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen , 779 N.W.2d 757, 767 (Iowa 2010) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kadenge , 706 N.W.2d 403, 410 (Iowa 2005) ), and imposing a default sanction for a particular type of misconduct would be inappropriate, see Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton , 784 N.W.2d 761, 769 (Iowa 2010). Nonetheless, "[w]e seek to ‘achieve consistency with prior cases when determining the proper sanction.’ "

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty , 891 N.W.2d 455, 466 (Iowa 2017) (quoting Templeton , 784 N.W.2d at 769 ).

In considering an appropriate sanction, this court considers all the facts and circumstances, including the nature of the violations, the attorney’s fitness to practice law, deterrence, the protection of society, the need to uphold public confidence in the justice system, and the need to maintain the reputation of the bar. We also consider mitigating and aggravating circumstances. The court gives respectful consideration to the findings and recommendations of the commission, but "may impose a greater or lesser sanction than that recommended by the commission."

Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGinness , 844 N.W.2d 456, 463–64 (Iowa 2014) (citations omitted) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wheeler , 824 N.W.2d 505, 509–10 (Iowa 2012) ).

Jacobsma is not the first Iowa lawyer to violate our rule prohibiting sexual relationships with clients. "Our past cases reveal a broad range of discipline for attorneys who engage in sexual relations with a client. This range is between a public reprimand and a lengthy period of suspension from the practice of law." Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson , 884 N.W.2d 772, 780 (Iowa 2016) (quoting Marzen , 779 N.W.2d at 767 ). "The wide range of discipline largely results from the presence or absence of circumstances in addition to the sexual relations that make the overall misconduct more serious." Marzen , 779 N.W.2d at 767.

A. Reprimand or Suspension. In Committee on Professional Ethics & Conduct v. Durham , the attorney and her client, who was an inmate at the time, "engaged in kissing and embracing during the [penitentiary] visits in question, as well as at least occasionally caressing or fondling each other." 279 N.W.2d 280, 282 (Iowa...