Schmidt's marriage was tumultuous. In 1997 Schmidt began seeking therapeutic assistance for problems in his marriage. He started taking doctor-prescribed medications, including medications for depression, consisting of Prozac, Wellbutrin, and Effexor. On June 6 Schmidt was taking Effexor http://www.leagle.com/xmlResult.aspx?xmldoc=In%20IACO%2020110408196.xml&docbase=CSLWAR3-2007-CURR
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
RICHARD R. SCHMIDT, Respondent.
Filed April 8, 2011.
Mark McCormick of Belin McCormick, P.C., Des Moines, for respondent.
The Iowa Supreme Court Disciplinary Board filed a complaint alleging the respondent, Richard R. Schmidt, violated ethical rules by communicating with a represented party without the consent of opposing counsel or a court order and by engaging in domestic abuse. The grievance commission found Schmidt's conduct violated provisions of the Iowa Rules of Professional Conduct and recommended Schmidt's license be suspended for six months. Having considered the record, we agree Schmidt committed ethical violations. We disagree, however, with the commission's sanction recommendation; therefore, we suspend his license to practice law in Iowa for thirty days.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 101 (Iowa 2010). The board has the burden of proving an attorney's ethical misconduct 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 the usual civil case." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). We are not bound by the commission's findings and recommendations, but we give them respectful consideration. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d 295, 297 (Iowa 2010). We give particular weight to the commission's assessments of witnesses' credibility. Id. at 299. Upon proof of misconduct, we may impose a greater or lesser sanction than the sanction recommended by the commission. Axt, 791 N.W.2d at 101.
On April 13, 2009, the board filed its complaint against Schmidt. In count I, the complaint alleged Schmidt violated Iowa Rules of Professional Conduct 32:8.4(b), which prohibits misconduct reflecting adversely on a lawyer's fitness to practice law, and 32:8.4(d), which prohibits misconduct prejudicial to the administration of justice, in connection with his commission and conviction of aggravated misdemeanor domestic abuse crimes against his wife. In count II, the complaint claimed Schmidt violated rule 32:8.4(d), as well as rule 32:4.2(a), which prohibits communication with a represented party without the opposing party's consent or a court order. The board claims the violation occurred when Schmidt, or his representative at his direction, was involved in assisting his client in personally obtaining the opposing party's signature on a consent decree when such actions violated a no-contact order and opposing counsel did not consent to the actions nor did a court order permit them.1
In its report, the commission found Schmidt committed the alleged ethical violations. The commission also recommended a six-month suspension.
III. Findings of Fact.
On our de novo review, we find the facts as follow.
A. General Background.
Schmidt was born and raised in Des Moines, Iowa. He attended Iowa State University. In May 1994 Schmidt graduated from Drake Law School and began private practice in the areas of family law, personal injury, and workers' compensation. Schmidt currently practices in Des Moines in a four-lawyer group of sole practitioners.
B. Prohibited Communication with a Represented Party.
In November 2005 Schmidt filed a petition for dissolution of marriage for a wife. Attorney Mason J. Ouderkirk represented the husband. The district court entered several orders, including one continuing a nocontact order between the husband and wife. Schmidt sent Ouderkirk a consent decree that Schmidt's client wanted her spouse to sign. Ouderkirk presented the consent decree to the husband. The husband rejected it. During the course of the representation, Schmidt filed
several applications to show cause as to why the husband was not in violation of the no-contact order.
On May 26, 2006, the husband called Ouderkirk to inform him that he and his wife had come to an agreement and Ouderkirk should be receiving a revised consent decree. The same day, the wife called Schmidt, requesting he prepare the same consent decree he had previously prepared and informing him that her husband would probably terminate Ouderkirk's representation. Schmidt, either personally or through a representative in his law office acting upon his direction, changed the consent decree to indicate the husband was pro se, removing references to Ouderkirk's representation from the decree. The wife then picked up the consent decree and took it to her husband. Both parties signed the decree before a notary public. Schmidt then signed the decree.
After the decree was signed, Schmidt faxed it to Ouderkirk's office. After reviewing the decree, Ouderkirk told Schmidt he found the situation unusual and noted Schmidt had stated the husband was pro se when he knew Ouderkirk was the attorney of record.
Ouderkirk contacted his client, informing him the decree had all the provisions to which the husband had previously objected to, the decree was unfair to the husband, and Ouderkirk did not approve of the decree. Ouderkirk then informed the husband that the husband had to decide whether he wished to continue with the proceedings or agree to the decree. The husband contacted Ouderkirk and stated he did not want to continue with the proceedings.
On May 31 Ouderkirk filed an application to withdraw and Schmidt filed a dismissal of the application to show cause why the nocontact order had not been violated by the husband. In June 2006 the court granted Ouderkirk's motion to withdraw and filed the consent decree.
C. Domestic Abuse.
On June 6, 2006, the incident of domestic abuse by Schmidt of his wife occurred. Prior to June 6 Schmidt had never been violent toward his wife. Moreover, Schmidt had never acted with violence toward anyone else.
Schmidt's marriage was tumultuous. In 1997 Schmidt began seeking therapeutic assistance for problems in his marriage. He started taking doctor-prescribed medications, including medications for depression, consisting of Prozac, Wellbutrin, and Effexor. On June 6 Schmidt was taking Effexor. For about two and one-half years prior to June 6, Schmidt did not share a bedroom with his wife, but slept in the basement of the couple's home. In Spring 2006 Schmidt's wife informed him that she intended to leave him.
In August 2005 Schmidt attempted suicide, but failed. After this attempt, Schmidt sought psychiatric care. In August 2006 Schmidt began seeing Dr. Easton, a psychiatrist. Also after his suicide attempt, Schmidt began seeing P.J. McDonald, a licensed independent social worker and marriage and family therapist. Schmidt continues to see both practitioners.
On the evening of June 6, 2006, Schmidt and his wife began arguing about childcare issues. They were on the concrete patio near their hot tub. When his wife walked away from the argument, Schmidt grabbed her and threw her down, causing her to hit her head. Schmidt then began to choke her, and she temporarily lost consciousness. Schmidt then chased her around the house, choking her two more times into unconsciousness. At some point, Schmidt let her up and she fled the house, running to a neighbor's house. Schmidt followed.
Schmidt attacked his wife again in the neighbor's kitchen as she tried to call 911. Eventually, the couple began running through the neighbor's garage. The neighbor, who was in his backyard, went to his garage after hearing screaming coming from the garage. The neighbor asked Schmidt what happened, and Schmidt said his wife had fallen in the hot tub, hitting her head. The neighbor went to the kitchen, and found the 911 dispatcher still on the line. The dispatcher said help was on the way. Throughout the entire incident, the couple's children watched and chased them. They screamed and cried for Schmidt to stop.
A Polk County sheriff's deputy arrived at the neighbor's house. The deputy put Schmidt in the patrol car so he could assist Schmidt's wife. When he returned to the car, he found Schmidt had broken the screen or "steel cage" between the front and back seats and had moved the deputy's cell phone. Upon the deputy's inquiry, Schmidt said he had to use the cell phone to make some calls.
Schmidt's wife was taken to the emergency room and was seen by a physician. The physician found she was in moderate distress, with abrasions to her neck, a three-centimeter-long head laceration, and abrasions on her nose and knees. Further examination revealed pain and stiffness of the neck, consistent with strangulation.
As a result of this incident, Schmidt pleaded guilty to two aggravated misdemeanors involving domestic abuse crimes. In March 2007 Schmidt was sentenced to incarceration for one year with all but thirty days suspended. The no-contact order prohibiting Schmidt from contact with his wife and children was ordered to remain in full force through March 2012, unless modified by a court order.
In November the couple's marriage was dissolved. In connection with the dissolution proceeding, the no-contact order was modified to permit Schmidt two supervised visitations with his children. The children were too traumatized to visit with Schmidt, and therefore, Schmidt has not seen his children since June 6, 2006.
In addition to the physical injury she sustained, Schmidt's wife lost thirty pounds, was off work for months, undertook intensive counseling, experiences flashbacks, and fears Schmidt. The children were also harmed. The children exhibit symptoms of anxiety, especially when separated from their mother. They have trouble in crowds, unfamiliar surroundings, and staying the night at friends' houses. At least one child has trouble sleeping, has stomach problems, and is on an antidepressant. They have been in counseling.
Even before the disposition of his criminal case, Schmidt began intensive rehabilitative efforts, attending a ten-day program pertaining to therapeutic approaches to change destructive behaviors at a retreat in Arizona; a domestic abuse and intervention program at the West Central Mental Health Center; parent enrichment classes sponsored by the Child Abuse Prevention Council; and a five-week program in anger management that the children's therapist recommended. Schmidt continues counseling with McDonald and Dr. Easton. He has adopted a rigorous exercise regime and has improved his depressive state to the point where he is no longer on medications.
Schmidt takes responsibility for his actions and is remorseful. McDonald expressed surprise, noting that the incident was "out of character" for Schmidt and an "aberration." Even the district court judge who sentenced Schmidt for his aggravated misdemeanors stated that the acts "are most accurately described as an aberration in [Schmidt's] life and do not seem likely to be repeated by" him. We agree with this assessment. We also agree with the commission's finding that Schmidt's conduct has not affected his behavior toward his clients, fellow lawyers, and judges.
IV. Ethical Violations.
A. Violation of Rule 32:4.2(a).
Rule 32:4.2(a) provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Iowa R. Prof'l Conduct 32:4.2(a). In Iowa Supreme Court Attorney Disciplinary Board v. Gailey, 790 N.W.2d 801 (Iowa 2010), we recently had occasion to interpret this rule. In Gailey, we noted that the language of rule 32:4.2(a) is substantially similar to our prior disciplinary rule, DR 7-104(A)(1). Gailey, 790 N.W.2d at 806. DR 7-104(A)(1) stated:
(A) During the course of representing a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party known to be represented by a lawyer in that matter except with the prior consent of the lawyer representing such other party or as authorized by law.
We then observed that we
have interpreted our prior rule to prohibit an attorney from communicating with an adverse party represented by counsel concerning litigation or a transactional matter unless the attorney for the adverse party gives the opposing attorney permission to talk to the adverse party.
Id. We held that we should interpret rule 32:4.2(a) in the same manner we interpreted DR 7-104(A)(1). Id.
The record shows Schmidt, or one of his representatives at Schmidt's direction, prepared the consent decree by removing opposing counsel's name and indicating the husband was proceeding pro se. Schmidt, or one of his representatives at his direction, then gave the consent decree to the wife so that she could personally take it to her husband to sign. The record also indicates that opposing counsel objected, showing Schmidt did not have opposing counsel's consent to act as Schmidt did. These facts establish that Schmidt engaged in a prohibited communication and violated rule 32:4.2(a). Moreover, Schmidt cannot circumvent rule 32:4.2(a) by having his client do what he cannot do, especially when a no-contact order exists prohibiting the parties from contacting each other. Schmidt aided and abetted his client's violation of that order. See id. at 807 (recognizing, "a lawyer should not aid or abet a party to ignore a no-contact order").
The purpose underlying rule 32:4.2(a) is the same as that of DR 7-104(A)(1). The rule protects the represented party from the imbalance of legal skill and acumen between the lawyer and that party. Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Herrera, 626 N.W.2d 107, 113 (Iowa 2001). The rule "promotes the integrity of the attorney-client relationship and serves to prevent a variety of overreaching." Id. at 113-14.
B. Violations of Rule 32:8.4(b).
Rule 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." Iowa R. Prof'l Conduct 32:8.4(b). We recently interpreted rule 32:8.4(b) in Iowa Supreme Court Attorney Disciplinary Board v. Templeton, 784 N.W.2d 761 (Iowa 2010). In Templeton we stated, "The mere commission of a criminal act does not necessarily reflect adversely on the fitness of an attorney to practice law." Templeton, 784 N.W.2d at 767 (citing 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 65.4, at 65-8 to 65-9 (3d ed. 2009 Supp.) [hereinafter The Law of Lawyering]). "One's fitness to practice law . . . is determined by more than one's competency in legal matters. It includes one's [moral] character and one's suitability to act as an officer of the court." Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Mulford, 625 N.W.2d 672, 683 (Iowa 2001).
In assessing whether rule 32:8.4(b) has been violated, we look to "[t]he nature and circumstances of the act . . . to determine if the commission of the criminal act reflects adversely on the attorney's fitness to practice law." Tempelton, 784 N.W.2d at 767. There cannot be too much attention focused on the moral quality of the conduct; instead, the court must focus on the link between the conduct and the actor's ability to function as a lawyer. The Law of Lawyering § 65.4, at 65-8. Whether an attorney is fit to practice law encompasses whether the attorney "can be trusted to represent clients vigorously and without overreaching," and maintain a professional relationship. Id. at 65-9. Whether an attorney is fit to practice law also depends on whether his conduct manifests "character defects calling into question the wisdom of trusting the lawyer with important controversies and confidential information." Id. at 65-9 to 65-10. Pertinent considerations in determining a rule 32:8.4(b) violation 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."
Templeton, 784 N.W.2d at 767 (quoting In re Conduct of White, 815 P.2d 1257, 1265 (Or. 1991)).
An act that signals the characteristic of intemperance is considered to be an act that reflects adversely on a lawyer's fitness to practice law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 124 (Iowa 1999) ("When an attorney's conduct cannot fairly be characterized as temperate and dignified and crosses the line into professional impropriety, such conduct reflects adversely on the attorney's fitness to practice law."). We have found violations of rule 32:8.4(b) for acts of violence. See, e.g., Axt, 791 N.W.2d at 101-02; see also Comm. on Prof'l Ethics & Conduct v. Wilson, 270 N.W.2d 613, 615 (Iowa 1978) (disciplining respondent for intemperate conduct of assa
ult on another attorney under former Canon 1 of our prior Iowa Code of Professional Responsibility for Lawyers).
We note that not all acts of violence will lead to discipline. The Law of Lawyering § 65.4, at 65-8 to 65-9. For example, a lawyer who becomes involved in an isolated incident of assault and battery while drunk, "might well be considered unlikely to commit such a violent outburst in his professional life," and thereby not be subject to discipline. Id. at 65-9. "On the other hand, a lawyer who, nursing a grudge of some kind, deliberately assaulted another would manifest character defects calling into question the wisdom of trusting the lawyer with important controversies and confidential information," and thereby be subject to discipline. Id. at 65-9 to 65-10; see also In re Johnson, 471 P.2d 269, 271 (Ariz. 1970) ("Isolated, trivial incidents of [assault] not involving a fixed pattern of misbehavior find ample redress in the criminal and civil laws. . . . [Such incidents arise] out of the infirmities of human nature. They are not the appropriate subject matter of a solemn reprimand by this Court."); White, 815 P.2d at 1265 ("For example, a misdemeanor assault arising from a private dispute would not, in and of itself, violate [a disciplinary] rule.").
We turn now to an application of the Templeton considerations. Schmidt's acts of violence were more than trivial. As to Schmidt's mental state, he and his wife were having marital problems for a number of years. Over that time, he chose to remain hostile to his wife, rather than end his relationship. At the time of the assaults, he made the conscious decision to act on this hostility and assault his wife multiple times, rather than walk away from the situation. Schmidt's depression does not excuse the choices he made, especially as there was no evidence submitted that this mental condition clouded Schmidt's judgment in any manner. No legal justification, excuse, or defense exists for Schmidt's commission of these acts.
Several actions by Schmidt indicate disrespect of the law or law enforcement. Schmidt prevented his wife from calling 911 and tried to prevent his neighbor from doing the same by lying to him about what had occurred; he broke the steel cage in the police car and then used the police officer's cell phone without permission. The finding of a violation of rule 32:8(4)(b) is also supported by the presence of victims, Schmidt's wife and his children. His wife was physically and mentally injured, and the children were traumatized. The only consideration weighing in favor of finding Schmidt's conduct was not a violation of the rule is the lack of a pattern of criminal conduct. In light of this analysis, we find Schmidt violated rule 32:8.4(b) with his acts of domestic abuse.
C. Violations of Rule 32:8.4(d).
Schmidt violated rule 32:8.4(d) when he communicated with a represented party without opposing counsel's consent, but not when he engaged in private acts of domestic violence. Rule 32:8.4(d) provides, "It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." We have defined conduct prejudicial to the administration of justice to be acts that hamper "`the efficient and proper operation of the courts or of ancillary systems upon which the courts rely'" by violating the well-understood norms and conventions of the practice of law. Templeton, 784 N.W.2d at 768 (quoting Iowa Supreme Ct. Att'y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005)); accord Steffes, 588 N.W.2d at 123.
1. Prohibited communication with a represented party. With regard to Schmidt's communication with a represented party without opposing counsel's consent, the record establishes that Schmidt hampered opposing counsel's representation of the husband so thoroughly that opposing counsel was forced to withdraw from representation because he believed the consent decree hurt the husband's interests. This conduct violates rule 32:8.4(d), as it constitutes the type of overreaching that our ethical rules are meant to prevent in protecting the integrity of the attorney-client relationship. Herrera, 626 N.W.2d at 113-14 (discussing DR 7-104(A)(1), now found in rule 32:4.2(a)).
Further, we stated in Gailey that,
[i]n order for our system of justice to work, attorneys should counsel their clients to abide by court orders. It is outside the well-understood norms and conventions of the practice of law for a lawyer to aid and abet the violation of a nocontact order . . . .
Gailey, 790 N.W.2d at 807. When Schmidt prepared the consent decree for the wife to take to her husband, such actions violated the no-contact order in the case, thereby resulting in a violation of rule 32:8.4(d).
2. Domestic abuse. We have held that, when the basis of a domestic abuse conviction results from personal conduct that is unrelated to the practice of law, no violation of rule 32:8.4(d) occurs. Axt, 791 N.W.2d at 102. We have such a case before us; especially given our finding that the domestic abuse did not affect Schmidt's relationships with his clients, fellow lawyers, and judges. Thus, the board has failed to prove this alleged ethical violation.