IOWA SUPREME COURT ATTY. DISC. v. Marzen
| Citation | 779 NW 2d 757 |
| Decision Date | 19 March 2010 |
| Docket Number | No. 08-1546.,08-1546. |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellant, v. Jesse M. MARZEN, Appellee. |
| Court | United States State Supreme Court of Iowa |
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for appellant.
Roger L. Sutton of Sutton Law Office, Charles City, for appellee.
The Iowa Supreme Court Attorney Disciplinary Board alleged Jesse M. Marzen committed numerous violations of the Iowa Rules of Professional Conduct by engaging in a sexual relationship with a client, disclosing client confidences to the public, and making a misrepresentation to a judge. The grievance commission found there was insufficient evidence of an ethical violation on the charges of a sexual relationship with a client and a misrepresentation to a judge, but found Marzen violated disciplinary rules by disclosing client confidences. Upon our de novo review, we find Marzen violated the rules of professional conduct and impose an indefinite suspension not to exceed six months.
Jesse M. Marzen is an Iowa lawyer. He was admitted to the practice of law in 2004 after graduating from St. Thomas School of Law. He practiced law in Charles City and is currently the Floyd County Attorney.
In September 2006, a complaint was filed against Marzen with the disciplinary board. It was filed by a woman named "Jane Doe."1 She alleged Marzen engaged in a sexual relationship with her after representing her in a mental health commitment hearing. Soon after, a district court judge also filed a complaint against Marzen after hearing testimony from Doe, in the course of a hearing in an action to modify child custody, regarding a sexual relationship with Marzen.
Marzen was a candidate for the position of Floyd County Attorney at the time the complaints were filed. News of the allegations against Marzen and of a potential investigation by the disciplinary board quickly spread throughout the immediate community and beyond and was highly publicized by the local and surrounding media. In response to media inquiries, Marzen spoke publicly about the allegations. He was subsequently elected as Floyd County Attorney in a hotly contested three-way race.
In 2007, the board brought three disciplinary charges against Marzen. Count I alleged Marzen engaged in sexual relations with Doe when she was his client. Count II alleged Marzen made a misrepresentation to a judge during the mental health commitment proceeding concerning Doe. Count III alleged Marzen disclosed information about Doe to the local press that he obtained in confidence during an attorney-client relationship. The board further alleged Marzen revealed information to the press that he knew was false.
At the hearing on the complaint, Doe testified she had sexual intercourse with Marzen on numerous occasions while he represented her. Marzen steadfastly denied any intimate contact with Doe. Following the hearing, the commission dismissed Count I (sexual misconduct) and Count II (misrepresentation) based upon insufficient evidence. It found the board proved Marzen revealed confidential information to the media without the consent of Doe, as alleged in Count III. The commission recommended Marzen be suspended for a period of three months. One member of the commission dissented from the dismissal of Count I. The dissenting member believed the events established at least one occasion of sexual intercourse between Doe and Marzen during the course of their attorney-client relationship.
The board filed an application to appeal Count I. We granted the application and further granted Marzen the right to cross-appeal. Marzen only cross-appealed as to Count III.
We review attorney disciplinary proceedings de novo. Iowa Ct. R. 35.10(1). Although we give weight to the commission's factual findings, especially when considering the credibility of witnesses, we are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. O'Brien, 690 N.W.2d 57, 57 (Iowa 2004). The board has the burden to prove the allegations of misconduct contained in the complaint by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). While this burden is higher than the burden in civil cases, it is lower than in a criminal prosecution. Id.; accord Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996).
1. Legal framework. The legal framework for considering a charge of sexual misconduct is well-established. Under our ethical rules, an attorney is prohibited from having a sexual relationship with a client when the client is not the lawyer's spouse or when the sexual relationship did not predate the initiation of the attorney-client relationship. Iowa R. Prof'l Conduct 32:1.8(j). This court has recognized that "`the professional relationship renders it impossible for the vulnerable layperson to be considered "consenting"'" to the sexual relationship. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Furlong, 625 N.W.2d 711, 714 (Iowa 2001) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hill, 540 N.W.2d 43, 44 (Iowa 1995) (Hill II)).
In addition, a sexual relationship between an attorney and a client can be accompanied by circumstances that aggravate the misconduct. For instance, when the sexual relationship between an attorney and client involves a sex-for-fees arrangement, the misconduct is considered much more serious. See Iowa Supreme Ct. Att'y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 703-04 (Iowa 2006).
2. Background facts. The relevant facts relating to the charge of sexual misconduct first surfaced in January 2006, when Doe was involuntarily hospitalized after she overdosed on prescription drugs and alcohol and expressed suicidal thoughts. Marzen was court-appointed to represent her in the hospitalization commitment hearing. He met Doe for the first time on January 10, just prior to the hearing at the Mitchell County Courthouse in Osage, although he had seen her in town at various times in the past. Doe was released from the hospitalization commitment by the presiding judge at the conclusion of the hearing to pursue outpatient treatment.
After the hearing, Doe indicated she needed transportation to Charles City, and Marzen agreed to give her a ride. The two left together, alone, in Marzen's car, and two inconsistent accounts of what transpired in the following hours, days, and weeks emerged at the disciplinary hearing.
During the trip from Osage to Charles City, Doe discussed her need for additional legal services. Marzen agreed to represent her in a dispute with her mother, a child support collection action, and a modification-of-child-custody proceeding.
Doe testified Marzen took her to his house in Charles City after arriving from the hospitalization hearing in Osage, where they eventually engaged in various sex acts in the living room of the house. This occurred after they consumed a few beers and exchanged a few vague references to an exchange of services. To support her testimony, Doe provided a description of the layout of Marzen's home and offered testimony about the presence of a quartersized mole on his back. Additionally, she said Marzen had "funny"-appearing buttocks due to a loose fold of skin hanging from the lower portion of his buttocks.
Doe testified she engaged in sexual intercourse with Marzen on four additional occasions—once more in Marzen's home, once in the home where she was residing, once in an automobile driven by Marzen and once at Marzen's law office. She described each encounter in graphic detail. The car sex described by Doe occurred when the two drove to a storage facility in Osage under the auspices that it was necessary to examine the contents of a storage unit.
The board called several witnesses at the hearing in support of the testimony of Doe. One witness, John Steiert, testified Marzen admitted in his presence during a confrontation at Doe's apartment and at a later meeting with Marzen and Doe at Marzen's law office to a sexual relationship with Doe. Another witness, Amanda Knapp, testified she observed Marzen and Doe emerge from a bedroom in the house where Doe was living following her release from the hospitalization commitment. The house was owned by Amanda's mother, Connie Knapp, who was very close to Doe. Amanda had stopped by the house unannounced when she observed Doe and Marzen walking out of the bedroom. The situation was momentarily uncomfortable for Amanda, and Doe hastily offered a reason for her presence in the bedroom with Marzen. Amanda believed the clumsy explanation was fabricated. Additionally, Amanda testified she drove Doe to Marzen's office one evening and dropped her off at the building.
Another witness, Connie Knapp, testified Doe mentioned to her that she had gone for a ride with Marzen in his car on one occasion to a storage unit in Osage. Judith O'Donohoe, a lawyer, testified Doe told her about her sexual relationship with Marzen. This revelation occurred during a conference at her office in February of 2006, long before Marzen filed papers to run for Floyd County Attorney in August 2006. This testimony was given in response to a claim by Marzen that Doe made up the claim of sexual misconduct to hinder his campaign for county attorney.
Marzen denied the existence of any sexual relationship at any time with Doe. He testified Doe was never at his house. However, he acknowledged he had been at the house where Doe was staying on multiple occasions, but only for business purposes. Marzen denied Amanda confronted them emerging from a bedroom. Instead, he testified he was in the living room of the house with Doe when Amanda arrived. He also denied making any admissions of a sexual relationship to Steiert. He further disputed the accuracy of Doe's description of the house,...
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