SUP. CT. BD. OF PROF'L ETHICS v. Lyzenga

• Decision Date: 16 November 2000
• Docket Number: No. 00-1102.,00-1102.
• Parties: IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Linda Jean LYZENGA a/k/a Linda Lyzenga Shields, Respondent.
• Court: Iowa Supreme Court

619 N.W.2d 327

IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Linda Jean LYZENGA a/k/a Linda Lyzenga Shields, Respondent.

No. 00-1102.

Supreme Court of Iowa.

November 16, 2000.

Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.

Linda Jean Lyzenga, Davenport, pro se.

Considered en banc.

LAVORATO, Chief Justice.

In this lawyer disciplinary proceeding, we review the Grievance Commission's recommendation that Linda Jean Lyzenga's license to practice law in Iowa be revoked for her multiple violations of DR 1-102(A)(3), (4), (5), and (6) stemming from her fourteen convictions for theft, prostitution, trespass, forgery, and deceptive practices. Upon our de novo review, we agree with the commission that Lyzenga's license should be revoked.

I. Background Facts and Proceedings.

From May 1991 to April 1995, Lyzenga had been practicing at the State of Iowa Public Defender's Office. In April 1995, she moved to Davenport to handle her mother's estate. Unable to find work in Davenport, she discontinued practicing law.

On March 15, 2000, the Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with the commission alleging that Lyzenga had violated Iowa Code of Professional Responsibility DR 1-102(A)(3) (lawyer shall not engage in illegal conduct involving moral turpitude), (4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), (5) (lawyer shall not engage in conduct prejudicial to the administration of justice), (6) (lawyer shall not engage in any other conduct reflecting adversely on fitness to practice law).

The complaint was based on the following criminal convictions entered against Lyzenga from 1996 to 1999:

1. Three aggravated misdemeanor convictions for prostitution on February 25, 1997, and one such conviction on May 21, 1999.

2. Three aggravated misdemeanor convictions for theft on January 1, 1996, February 25, 1997, and May 21, 1999.

3. Four simple misdemeanor convictions for theft on March 18, 1996, June 25, 1996, September 26, 1996, and February 9, 1997.

4. One simple misdemeanor conviction for trespass on September 26, 1996.

5. One felony conviction for forgery on April 4, 1996.

6. One misdemeanor conviction for deceptive practices on April 4, 1996.

As to the deceptive practices conviction and three of the theft convictions, Lyzenga wrote bad checks. As to the felony forgery conviction, Lyzenga wrote a check on an account for which she was not a listed executor. As to the five other theft charges, Lyzenga shoplifted a sweater, food, and undisclosed merchandise. As to the trespass conviction, Lyzenga was on shopping mall property from which she had previously been banned.

Except for two, all of these convictions occurred in Iowa. The two exceptions— felony conviction for forgery on April 4, 1996, and misdemeanor conviction for deceptive practices on April 4, 1996—occurred in Illinois.

A request for admissions accompanied the complaint. The board requested Lyzenga to admit or deny the foregoing criminal convictions as well as its assertion that her license was already under suspension pursuant to Court Rules 121 and 123 for failure to comply with client security and continuing legal education requirements.

Lyzenga sent the board a letter on August 9, 1999, in response to a complaint the board had received. She acknowledged the convictions and the license suspension, but offered a variety of explanations for her conduct, mostly centering on the death of her parents, the collapse of her marriage, an abusive relationship, and her inability to find work both in and outside the legal profession.

The commission held a hearing on May 30, 2000. Although the record shows she was served, Lyzenga did not appear.

Following the hearing, the commission filed its findings of fact, conclusions of law, and recommendation. The commission deemed admitted the statements in the request for admissions based on its finding that Lyzenga had failed to respond to the request. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Palmer, 563 N.W.2d 634, 635 (Iowa 1997)

. The commission further found that, in her letter to the board, Lyzenga had not acknowledged personal responsibility for her criminal convictions and had given no information that she had sought or received counseling for any personal problems that may have contributed to her criminal behavior.

Based on the criminal convictions, the commission concluded that Lyzenga had violated DR 1-102(A)(3), (4), (5), and (6). The commission further concluded that her felony forgery conviction was conclusive evidence of conduct involving dishonesty and therefore warranted revocation.

II. Scope of Review.

Lyzenga has not appealed from the commission's recommendation. See Ct. R. 118.11. Nevertheless, we review the record de novo. Ct. R. 118.10. We give respectful consideration to the commission's recommendation; however, we must ultimately determine what discipline is appropriate under the facts of each case. Id.; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Leon, 602 N.W.2d 336 (Iowa 1999). The board must prove the alleged ethical violations by a convincing preponderance of the evidence, a burden of proof that is greater than in a civil case but less than in a criminal case. Leon, 602 N.W.2d at 337.

Several important considerations guide our determination of the appropriate discipline. They include the nature of the alleged violations, the need for deterrence, the protection of the public, the maintenance of the reputation of the bar, and Lyzenga's fitness to continue in the practice of law. See Committee on Prof'l Ethics & Conduct v. Kaufman, 515 N.W.2d 28, 30 (Iowa 1994)

.

III. The Commission's Findings.

We agree with the commission that the board established all of the convictions. We also agree with the commission that Lyzenga's criminal convictions for theft, trespass, forgery, and deceptive practices reflect adversely on her fitness to practice law in violation of DR 1-102(A)(6). See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Schatz, 595 N.W.2d 794, 796 (Iowa 1999)

(felonious theft—conversion of law firm funds); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 134 (Iowa 1999) (trespass); Committee on Prof'l Ethics & Conduct v. Cody, 412 N.W.2d 637, 640 (Iowa 1987) (aggravated misdemeanor theft by bad (dishonored) checks); see also Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 286 (Iowa 1998) (though no underlying criminal conviction, forgery of court documents held to be a violation of DR 1-102(A)(6)).

These convictions for theft, trespass, forgery, and deceptive practices also constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). Any time a lawyer violates essential criminal laws, such conduct prejudices the administration of justice because "`there inexorably follows an intensified loss of lay persons' respect for the law.'" Committee on Prof'l Ethics & Conduct v. Lapointe, 415 N.W.2d 617, 619 (Iowa 1987) (quoting Committee on Prof'l Ethics & Conduct v. Patterson, 369 N.W.2d 798, 801 (Iowa 1985)).

Lyzenga's convictions for theft, forgery, and deceptive practices also demonstrate conduct involving dishonesty, fraud, deceit, and misrepresentation in violation of DR 1-102(A)(4). See, e.g., Schatz, 595 N.W.2d at 796

(felonious theft—conversion of law firm funds); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sylvester, 548 N.W.2d 144, 147 (Iowa 1996) (felonious theft—conversion of client and law firm funds); see also Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 603 N.W.2d 772, 777 (Iowa 1999) (though no underlying criminal conviction, writing bad check to client violated DR 1-102(A)(4)); Lesyshen, 585 N.W.2d at 286 (though no underlying criminal conviction, forgery of court documents held to violate DR 1-102(A)(4)). These convictions also constitute illegal conduct involving moral turpitude in violation of DR 1-102(A)(3). See, e.g., Schatz, 595 N.W.2d at 796 (felonious theft—conversion of law firm funds); Cody, 412 N.W.2d at 640 (aggravated misdemeanor theft by bad (dishonored) checks); Committee on Prof'l Ethics & Conduct v. Rabe, 284 N.W.2d 234, 236 (Iowa 1979) (serious misdemeanor theft— shoplifting); see also Committee on Prof'l Ethics & Conduct v. West, 387 N.W.2d 338, 341 (Iowa 1986) (though no underlying criminal conviction, attorney's conduct in forging warranty deed conveying property to himself and subsequently causing his secretary to notarize the purported signatures violated DR 1-102(A)(3)).

Because the convictions for prostitution are violations of our criminal code, they necessarily constitute conduct (1) prejudicial to the administration of justice in violation of DR 1-102(A)(5) and (2) reflecting adversely on Lyzenga's fitness to practice law in violation of DR 1-102(A)(6). Cf. Richland County Bar Ass'n v. Brightbill, 56 Ohio St.3d 95, 96, 564 N.E.2d 471, 472 (1990) (holding that conviction for soliciting a prostitute to engage in sexual activity for hire was prejudicial to the administration of justice); In re Katz, 109 N.J. 17, 19, 532 A.2d 729, 730 (1987) (holding that attorney's misdemeanor conviction for promotion of prostitution reflected adversely on his fitness to practice law).

On the question whether the prostitution convictions constitute illegal conduct involving moral turpitude, courts have acknowledged the problematic moral underpinnings of prostitution and conduct centering on prostitution:

Prostitution was not a common-law crime, unless the manner in which it was engaged constituted a public nuisance. It became a crime through statute and, despite suggestions that prostitution should be decriminalized, virtually all jurisdictions in this country continue to punish prostitution for utilitarian as well as religious and moral reasons.

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