Iowa Supreme Court Attorney Disciplinary Bd. v. Bixenman
| Decision Date | 22 April 2022 |
| Docket Number | 21-1641 |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Scott L. BIXENMAN, Respondent. |
| Court | Iowa Supreme Court |
Tara van Brederode and Lawrence F. Dempsey, IV, Des Moines, for complainant.
Scott L. Bixenman, Le Mars, pro se.
In this disciplinary action, the Iowa Supreme Court Attorney Disciplinary Board (the Board) charged an Iowa attorney with violation of disciplinary rules: misconduct arising out of assault and child endangerment and, separately, failure to exercise reasonable diligence in responding to discovery requests, timely comply with court orders, and timely prepare a stipulation. On a stipulated record, the Iowa Supreme Court Grievance Commission (commission) found that Bixenman violated the ethics rules as charged by the Board. As a result of the violations, the commission recommended a public reprimand. On our de novo review, we agree with the commission that ethics rules were violated but conclude that Bixenman's license to practice law should be suspended for sixty days.
A. Introduction. Scott Bixenman is an attorney licensed to practice law in the State of Iowa. He has practiced law in this state since 1996. He currently practices in Sioux City. On April 21, 2021, the Board filed a two-count complaint against Bixenman. The first count alleged misconduct for committing criminal acts in violation of Iowa Rule of Professional Conduct 32:8.4(b). The second count alleged lack of reasonable diligence and promptness in connection with Bixenman's representation of a client in a dissolution proceeding in violation of Iowa Rule of Professional Conduct 32:1.3. The Board and Bixenman agreed to a stipulation resolving factual and legal issues. In the stipulation, Bixenman agreed that he violated the ethics rules as alleged by the Board.
B. Misconduct in Violation of Iowa Rule of Professional Conduct 32:8.4(b). Iowa Rule of Professional Conduct 32:8.4(b) provides: "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."
The misconduct claim in this case arose out of a domestic conflict that occurred at Bixenman's home on January 9, 2020. According to the parties’ stipulation, at about 10 p.m., Bixenman and his wife got into a shouting match in their bedroom about chores. The screaming was so loud that two children aged 13 and 11 came to check on the welfare of their mother. The older child thought Bixenman was about to assault his mother and he jumped on Bixenman. Bixenman pushed this child to the floor. Bixenman then realized that the younger child was filming the incident on her cell phone. When Bixenman ran toward the younger child to stop the filming, her older sibling came to her defense and confronted Bixenman. Bixenman "threw or pushed" the older child to the ground, who hit his head on a door frame and suffered a welt on his head. The children stated that Bixenman pushed their mother, grabbed a picture frame, and threatened to hit her with it.
The police were called and Bixenman was arrested. The original complaint charged him with assault causing bodily injury. On January 13, Bixenman contacted the Board to self-report his arrest, and on January 21 he filed a written self-report. On February 7, the state filed a trial information charging him with assault causing bodily injury under Iowa Code section 708.2(2) (2020) and child endangerment under Iowa Code section 726.6(1)(a ) and (7). According to the deferred prosecution agreement in the case, Bixenman was charged with domestic abuse assault, a simple misdemeanor, under Iowa Code section 708.2A, in a separate action.
Ultimately, Bixenman entered into a deferred prosecution agreement with the state on all three charges and was admitted to the Woodbury County Veterans Treatment Court program. Under the agreement, upon successful completion of the program the state agreed to dismiss the criminal charges against him.
In his self-report, Bixenman stated he suffers from anxiety and depression and believes that these conditions contributed to the incident that led to his arrest. At the time of the entry of the commission's findings of fact, conclusions of law, and recommendation, Bixenman was receiving mental health services as a part of the court-sponsored treatment program.
C. Lack of Reasonable Diligence and Promptness Based on Iowa Rule of Professional Conduct 32:1.3. Iowa Rule of Professional Conduct 32:1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client."
The lack of reasonable diligence charge arose from Bixenman's representation in a family law matter. On March 21, 2018, Bixenman entered an appearance on behalf of a client in the dissolution of marriage action involving child custody modification. On November 5, 2019, the opposing party, proceeding pro se, served discovery requests on Bixenman's client. Bixenman did not provide a response to the discovery, and on March 14, 2020, the opposing party filed a motion to compel. Bixenman did not resist the motion to compel, and on April 1, the district court entered an order granting the motion and requiring Bixenman to provide answers within fourteen days. The district court noted in its order that failure to provide the answers could lead to the imposition of sanctions.
Bixenman did not respond within the fourteen-day deadline. The opposing party filed another motion for sanctions. On May 5, the district court held a hearing. It declined to impose sanctions but ordered Bixenman to comply with the discovery by May 22. The district court further declared that by not filing timely responses, Bixenman had waived all objections to the discovery.
This time, Bixenman did file responses within the court-imposed deadline. The opposing party, however, regarded the answers as incomplete and claimed that certain documents requested had not been provided. The opposing party filed another motion for sanctions.
The district court held another hearing on discovery matters on July 7. The district court noted, "[I]t is clear that the Petitioner has only made a half-hearted effort at responding to the Respondent's discovery requests." The district court ordered that Bixenman provide the opposing party with a list of all witnesses he planned to call at trial with a detailed summary of their expected testimony, as well as all exhibits he intended to introduce by September 14. The district court further stated that Bixenman would be prohibited from introducing into evidence in his case-in-chief or in rebuttal regarding income, debts or creditors, or daycare or babysitters, beyond the specific information provided by the deadline. Bixenman did not provide the list of witnesses or exhibits by the September 14 deadline as required by the court order.
The matter, however, proceeded to mediation where the parties came to an agreement. A mediator's report dated August 21, 2020, provides that Bixenman would "prepare the mediated stipulated agreement." Bixenman did not prepare the stipulated agreement.
On November 3, a new attorney appeared on behalf of Bixenman's client. Bixenman then withdrew from the matter.
D. Sanctions Briefing Before the Commission. According to the stipulation reached by the parties in this case, the record was closed unless the commission directed further proceedings. But in his pro se hearing brief, Bixenman provided what he characterized as supplemental facts and attached three documents for the commission's consideration that were not included in exhibits covered by the stipulation. We are troubled by this end-around of the stipulation and the ordinary hearing processes that include opportunities for discovery and cross-examination of witnesses.
But the Board did not object to what amounted to a reopening of the record, and it appears that the commission relied at least in part upon some of the facts asserted in Bixenman's brief in considering the proper sanction in this case. Under the circumstances, we conclude that the factual assertions in the pro se brief filed by Bixenman amounted to a professional statement and were properly before the commission. Further, the Board did not object to the submission of the letters attached to Bixenman's brief. We therefore consider them as part of the record in this case.
In his pro se brief, Bixenman highlighted a long history of depression and anxiety beginning in his college years. He served nine years in the Iowa Army National Guard, including deployment in Iraq, Saudi Arabia, and Kuwait. Although he has not been diagnosed with post-traumatic stress disorder
or service-related issues, Bixenman states that he had counseled about those mental health issues. Bixenman states that for a year and a half prior to the domestic assault incident he was seeking mental health treatment but had difficulty accessing various providers because of conflicts, relocation, termination of employment, and death. After calling the Iowa Lawyers Assistance Program, Bixenman found a treating physician. But Bixenman believes the medication prescribed by his physician had a negative effect on his anger and agitation. He asserts that after the domestic assault incident he received genetic testing and is now taking beneficial medications.
Following his arrest, Bixenman observes that his law partners of twenty-three years told him they no longer wanted to be associated with him. He left that practice and rented an office from a Sioux City practitioner, Donald Molstad. When Molstad tragically passed away, Bixenman took over the practice. Bixenman states he was able to keep the law office running and pay employees their normal salaries, but that his family lives month to month.
Bixenman asserts a suspension would impose further...
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