Iowa Supreme Court Attorney Disciplinary Bd. v. Stansberry, 18-1719

• Decision Date: 25 January 2019
• Docket Number: No. 18-1719,18-1719
• Citation: 922 N.W.2d 591
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Benjamin J. STANSBERRY, Respondent.
• Court: Iowa Supreme Court

922 N.W.2d 591

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Benjamin J. STANSBERRY, Respondent.

No. 18-1719

Supreme Court of Iowa.

Filed January 25, 2019

Amended January 25, 2019

Tara van Brederode and Amanda K. Robinson, for complainant.

Christopher A. Clausen of Clausen Law Office, Ames, for respondent.

WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (the Board) brought a complaint against an attorney, alleging numerous violations of the Iowa Rules of Professional Conduct. The attorney stole a woman colleague’s underpants from her home, rifled through and photographed her undergarments in her bedroom, and rifled through female colleagues’ gym bags at the office to photograph their undergarments, all for his personal sexual gratification. A division of the Iowa Supreme Court Grievance Commission (the commission) found the attorney’s conduct violated our ethical rules.

Based on the attorney’s violation of our rules, the commission recommended we suspend his license to practice law for not less than ninety days. On our de novo review, we find the attorney violated three provisions of our rules. However, we disagree with the length of the recommended suspension. We suspend the attorney’s license to practice law indefinitely with no possibility of reinstatement for one year from the date of filing this opinion. We also find that before reinstatement, the attorney must provide an evaluation from a licensed healthcare professional verifying his fitness to practice law.

I. Standard of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton , 784 N.W.2d 761, 764 (Iowa 2010). The Board has the burden of proving ethical misconduct of the attorney 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 a civil case. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conrad , 723 N.W.2d 791, 792 (Iowa 2006). While we give respectful consideration to the commission’s findings and recommendations, they do not bind us. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hoglan , 781 N.W.2d 279, 281 (Iowa 2010) (per curiam). We may impose a sanction greater or lesser than the recommendation of the commission. Id.

II. Findings of Fact.

On this record, we make the following findings of fact. Attorney Benjamin Stansberry received his license to practice law in Iowa in 2004. From 2010 until his resignation in 2016, he worked as an assistant county attorney in the Marshall County Attorney’s Office. On August 22, 2016, Stansberry texted his colleague Jane Doe and asked if he could stop by her home with his three-year-old son. At the time, Stansberry was in a supervisory role at the Marshall County Attorney’s Office, and Doe was an assistant county attorney under Stansberry’s supervision. Doe was mowing her lawn when Stansberry arrived at her home.

Stansberry asked Doe if he could use her restroom and if Doe could watch his sleeping child who was in a stroller while he went inside. Doe agreed and waited outside with Stansberry’s child. Stansberry was inside Doe’s home for about five minutes, then came outside and left with his child. Doe continued doing yard work when she noticed a piece of cloth lying in the middle of her driveway. She soon realized the object was a pair of her underpants.

The same evening, Doe reported the incident to her boss, Marshall County Attorney Jennifer Miller. An investigation ensued, and the county attorney’s office put Stansberry on administrative leave on August 23. When questioned by law enforcement about his actions, Stansberry denied taking anything from Doe’s home, denied taking any photographs in Doe’s home, and denied deleting any photographs from his mobile phone.

The investigation, however, led to a search of Stansberry’s mobile phone. The search revealed Stansberry had deleted photographs showing that he had entered Doe’s bedroom and photographed her undergarment drawer, he had entered Doe’s office and photographed undergarments in her gym bag, and he had entered the office of another colleague—Jane Roe—and photographed her undergarments in her gym bag as well. Stansberry officially resigned from the county attorney’s office on August 26.

At the time he left the county attorney’s office, Stansberry was the counsel of record for the state in approximately 145 cases. Miller found Stansberry had not followed the office protocol of note-taking and saving communications with defense attorneys in the office’s software database. Thus, other county attorneys in the office spent considerable time trying to assess the status of Stansberry’s cases. This resulted in dismissed charges because of missed deadlines, upset victims, and significant additional work for the county attorney’s office and the district court clerk’s office.

The state charged Stansberry with theft in the fifth degree and criminal trespass. Stansberry pled guilty to the charges and paid a $65 fine. The court also entered a no-contact order, with Doe as the protected party.

Doe and Roe both suffered mental and emotional trauma from Stansberry’s actions. The incident so affected Doe that she resigned from her position at the Marshall County District Attorney’s Office, sold her home in Marshalltown, and relocated to a different county.

On August 30, Stansberry self-reported his criminal trespass and theft charges to the Board. The Board filed a complaint on September 27. Responding to the complaint, Stansberry referenced the taking of the underpants, but failed to reference the photographs law enforcement had recovered from his mobile phone.

The Board charged Stansberry with four violations of the Iowa Rules of Professional Conduct: (1) rule 32:8.4(b) (criminal conduct), (2) rule 32:8.4(c) (dishonesty, fraud, deceit, and misrepresentation), (3) rule 32:8.4(g) (sexual harassment or other unlawful discrimination), and (4) rule 32:8.4(d) (conduct prejudicial to the administration of justice). At a hearing before the commission, Stansberry did not deny his conduct but argued he did not violate the ethical rules and asked for a public reprimand. The Board asked the commission to recommend a minimum sanction of license suspension for six months.

The commission found Stansberry violated all four ethical rules. It considered Stansberry’s role as an assistant county attorney, his attempt to "minimize, downplay, and place blame elsewhere for his actions," and his lack of understanding of how his actions affected the victims, as aggravating factors. The commission found no mitigating factors. The commission recommended Stansberry’s license to practice be suspended for a period of not less than ninety days.

Stansberry did not appeal the findings of the commission. Under our rules, if an attorney does not appeal the commission’s recommendations, we review the record made before the commission de novo. Iowa Ct. R. 36.21(1). We will discuss additional facts as needed in the violations and sanction sections of this opinion.

III. Violations.

A. Whether Stansberry Violated Rule 32:8.4(b). Rule 32:8.4(b) states, "It is professional misconduct 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[.]" Iowa R. Prof’l Conduct 32:8.4(b). Stansberry pled guilty to criminal trespass and theft in the fifth degree because of his actions on August 22, 2016. He does not dispute that he committed criminal acts. However, not all illegal conduct violates this rule. Templeton , 784 N.W.2d at 767. The illegal conduct must reflect adversely on the attorney’s "honesty, trustworthiness, or fitness as a lawyer in other respects." Iowa R. Prof’l Conduct 32:8.4(b).

In Templeton , we adopted Oregon’s analysis to determine when a criminal act reflects adversely on a lawyer’s fitness to practice law in Iowa. Templeton , 784 N.W.2d at 767. There we said,

Each case must be decided on its own facts. There must be some rational connection other than the criminality of the act between the conduct and the actor’s fitness to practice law. Pertinent considerations include the lawyer’s mental state; the extent to which the act demonstrates disrespect for the law or law enforcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; and the presence or absence of a pattern of criminal conduct.

Id. (quoting In re Conduct of White , 311 Or. 573, 815 P.2d 1257, 1265 (1991) (en banc)).

Stansberry engaged in a pattern of improper conduct by repeatedly going through his colleagues’ gym bags, culminating in the criminal act of entering Doe’s home under false pretenses and stealing her underpants. Stansberry acted intentionally, and he knowingly violated the privacy of Doe and Roe. He tried to coerce Doe not to report him and denied he has a compulsion. He described his reasoning behind photographing his colleagues’ undergarments as, "It was dangerous and I suppose it was an adrenaline rush."

As we said in Templeton , where we sanctioned an attorney for window peeping,

This conduct ... raises serious misgivings about whether Templeton understands the concept of privacy and respects the law protecting individuals’ privacy rights. For these reasons, we find Templeton’s criminal acts of invading Doe’s, Roe’s, and Poe’s privacy reflects adversely on his fitness to practice law in violation of rule 32:8.4(b).

Id. at 768.

The same concerns exist here. Moreover, the victims of Stansberry’s actions feel sexually violated. We find these criminal actions reflect adversely on his fitness as a lawyer.

Additionally, Stansberry’s criminal acts and subsequent denials to law enforcement demonstrate a lack of respect for the law and law enforcement. Stansberry made misleading statements to the Marshalltown police after he voluntarily agreed to speak with them. His untruthfulness showed a lack of respect for law enforcement....