Iowa Supreme Court Attorney Disciplinary Board v. Peter Sean Cannon , 2012 Iowa Sup. LEXIS 95 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 12–0844
Filed October 19, 2012
IOWA SUPREME COURT
ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
PETER SEAN CANNON,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
The Grievance Commission of the Supreme Court of Iowa
recommends that attorney be publicly reprimanded. LICENSE
SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
David L. Brown and Jay D. Grimes of Hansen, McClintock & Riley,
Des Moines, for appellee.
2
ZAGER, Justice.
The complainant, the Iowa Supreme Court Attorney Disciplinary
Board (Board), alleges the respondent, Peter Sean Cannon, violated Iowa
Rule of Professional Conduct 32:8.4(b). The alleged violation was based
on three separate criminal convictions occurring in 2009 and 2010. The
Grievance Commission of the Supreme Court of Iowa (commission) found
Cannon’s convictions constituted a violation of rule 32:8.4(b) and
recommended we publicly reprimand Cannon. Upon our de novo review,
we find Cannon violated rule 32:8.4(b) and suspend his license to
practice law for thirty days.
I. Background Facts and Proceedings.
Cannon was admitted to the Iowa bar in 1983. He practiced at the
law firm of Connolly, O’Malley, Lillis, Hansen & Olson from 1983 until
1998, when he became a sole practitioner. He has practiced as a sole
practitioner in Iowa since 1998.
The Board filed a three-count complaint against Cannon on June
24, 2011. Count I alleged that on July 13, 2009, Cannon was convicted
of the crime of operating a boat while intoxicated, first offense, in
violation of Iowa Code section 462A.14 (2009). Count II alleged that on
October 8, 2009, Cannon was convicted of possession of cocaine, a
controlled substance, in violation of Iowa Code section 124.401(5).
Finally, Count III alleged that on November 17, 2010, Cannon was
convicted of operating a motor vehicle while intoxicated (OWI), first
offense, in violation of Iowa Code section 321J.2. 1 With regard to these
convictions, the Board invoked issue preclusion under Iowa Court Rule
1Cannon had previously been convicted of OWI, first offense, in 2007. The State
agreed to reduce the charge at issue here to another OWI, first offense, in exchange for
a guilty plea.
3
35.7(3). 2 The Board contends these offenses violate Iowa Rule of
Professional Conduct 32:8.4(b). The commission held a hearing on
December 15, 2011. On May 11, 2012, the commission issued its
findings of fact and conclusions of law and recommended we publicly
reprimand Cannon for the pattern of criminal conduct demonstrated by
the three convictions.
II. Standard and Scope of Review.
We have described our standard of review in attorney disciplinary
proceedings as follows:
Attorney disciplinary proceedings are reviewed de novo. The
Board bears the burden of proving misconduct by a
convincing preponderance of the evidence, which is a lesser
burden than proof beyond a reasonable doubt but a greater
burden than is imposed in the usual civil case. If we
determine the Board has met its burden and proven
misconduct, “we may impose a greater or lesser sanction
than the sanction recommended by the commission.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 9 (Iowa
2012) (citations omitted); see also Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Templeton, 784 N.W.2d 761, 764 (Iowa 2010). When the Board alleges
that a criminal conviction violates rule 32:8.4(b), the Board bears the
additional burden of showing a sufficient nexus between the criminal
conduct and the respondent’s ability to function as an attorney. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Keele, 795 N.W.2d 507, 515
(Iowa 2011). The Board must prove the nexus by a convincing
preponderance of the evidence. Id.
2All citations to the Iowa Court Rules are to the 2012 version, effective February
20, 2012.
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III. Findings of Fact.
The facts in this case are not in dispute. The Board alleged that
Cannon pled guilty to operating a boat while intoxicated, first offense;
possession of cocaine; and OWI, first offense. In his answer to the
Board’s complaint, Cannon admitted each of these convictions.
Moreover, the Board has supplied the court files from each conviction,
which include Cannon’s guilty pleas. The Board has proven each
conviction by a convincing preponderance of the evidence.
IV. Ethical Violations.
The Board alleged that each of Cannon’s convictions constituted a
violation of Iowa Rule of Professional Conduct 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). “[N]ot all criminal acts reflect on an attorney’s fitness
to practice law.” Weaver, 812 N.W.2d at 12. Rather, we focus on the
“link between the conduct and the actor’s ability to function as a lawyer.”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 40
(Iowa 2011) (citing 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering
§ 65.4, at 65-8 (3d ed. Supp. 2009)). The crux of the question centers on
whether Cannon’s conduct demonstrates he has character defects that
would detract from his ability to be trusted with “important controversies
and confidential information.” See id. (citation and internal quotation
marks omitted).
As we noted in Templeton,
[I]llegal conduct can reflect adversely on fitness to practice
law. A pattern of repeated offenses, even ones of minor
significance when considered separately, can indicate
indifference to legal obligation. The mere commission of a
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criminal act does not necessarily reflect adversely on the
fitness of an attorney to practice law. The nature and
circumstances of the act are relevant to determine if the
commission of the criminal act reflects adversely on the
attorney’s fitness to practice law.
Templeton, 784 N.W.2d at 767 (citations and internal quotation marks
omitted).
With these considerations in mind, we have adopted the following
test to determine whether a criminal act violates rule 32:8.4(b):
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. (citation and internal quotation marks omitted); see also Weaver, 812
N.W.2d at 11.
The first factor we consider under Templeton is Cannon’s mental
state. See Templeton, 784 N.W.2d at 767. Cannon argues that his
criminal acts were a result of depression and alcohol issues. He testified
that these issues originated with a surgery he underwent in December of
2006. According to Cannon, approximately eighty percent of his small
intestine was removed, making his absorption rate for alcohol much
higher than it had been previously. This medical issue also led to bouts
of depression. We note that while Cannon’s substance abuse and mental
state may have contributed to his actions, his depression and alcoholism
do not excuse his mistakes. Moreover, Cannon presented no medical
evidence as to how his depression affected his mind and decision
making. See Schmidt, 796 N.W.2d at 41 (holding that attorney’s
depression did not excuse the choices he made, particularly when he did
not present evidence that his mental condition clouded his mind).
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We next examine the factor relating to the presence or absence of a
victim. Many violations of rule 32:8.4(b) involve victims of criminal
conduct. See, e.g., Schmidt, 796 N.W.2d at 41 (attorney’s severe physical
attack on his wife in the presence of his children caused physical and
psychological damage to his wife and psychological trauma to his
children); Templeton, 784 N.W.2d at 770 (attorney’s criminal acts of
invasion of privacy had serious consequences for his victims). While
Cannon’s crimes did not result in any direct physical or psychological
harm to a person, his OWI incident did result in property damage to the
parking lot of a grocery store, thereby making the store a victim of his
criminal action. We also consider potential injury to persons or property
in determining whether a violation of rule 32:8.4(b) occurred. As we
stated in Weaver, operating a motor vehicle while intoxicated “create[s]
. . . grave risk of potential injury” to others. See Weaver, 812 N.W.2d at
11. As described below, each of Cannon’s criminal convictions shows a
reckless disregard for the public.
Cannon’s boating-while-intoxicated conviction arose out of a stop
by a water patrol officer with the Iowa Department of Natural Resources.
The officer observed Cannon accelerating “rather quickly” in the five mile
per hour speed-limit zone at 10:30 p.m. on Friday, July 11, 2008. The
officer noted Cannon had slurred speech, slow reaction times, and
smelled of alcohol. A subsequent breath test revealed Cannon’s blood
alcohol content was .186. By driving a boat at night while intoxicated,
Cannon could have seriously injured other people on the water, himself,
or the passenger on his boat.
Cannon’s conviction for possession of cocaine also arose out of an
incident involving alcohol. Responding to a report of a possible
intoxicated driver, police found a vehicle stopped in the middle of a
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roadway. Cannon was observed walking away from the stopped vehicle.
A woman in the driver’s seat and Cannon both appeared to be
intoxicated. Cannon was arrested for public intoxication, and during a
search conducted incident to that arrest, an officer found a baggy
containing about one gram of cocaine in his suit coat pocket. Cannon
denies he ever used cocaine, and the police officer reported that the
woman he was with appeared to have cocaine on her upper lip. Though
Cannon had not been driving during that incident, he knew his
companion had been drinking, and he had reason to believe she was also
using cocaine. The incident took place in a residential neighborhood in
the early morning hours and could have resulted in serious or even fatal
injury to other drivers or pedestrians.
Finally, Cannon was arrested for OWI after his car struck a barrier
in a grocery store parking lot. When a police officer approached the car,
Cannon and a female acquaintance were standing near it. Cannon
appeared to be under the influence of alcohol. When questioned,
Cannon denied he had been driving the car, even though he was holding
the keys to the car. Cannon would not say who had been driving. He
refused a breath test and was placed under arrest. Cannon later entered
an Alford plea to OWI, first offense. 3 Driving while intoxicated through a
3We have recently described an Alford plea as follows:
An Alford plea is a guilty plea entered pursuant to North Carolina
v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 168, 27 L. Ed. 2d 162, 171–72
(1970). “An Alford plea is a variation of a guilty plea. In effect, the pleas
are the same as the defendant is agreeing to the imposition of a criminal
sentence for the crime charged.” The plea only differs from the
traditional guilty plea “in that when a defendant enters an Alford plea, he
or she does not admit participation in the acts constituting the crime.”
Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 20 n.1 (Iowa 2012) (citations
omitted).
8
grocery store parking lot could have caused serious injuries to
pedestrians, other drivers, or passengers in other vehicles. Based upon
the incidents described above, there was significant potential for injury to
a multitude of people and damage to property.
Another factor we consider in determining whether an attorney has
violated rule 32:8.4(b) is the presence of a pattern of criminal conduct.
Weaver, 812 N.W.2d at 10–11 (citing Templeton, 784 N.W.2d at 767).
Patterns of criminal conduct have sometimes involved repeated
convictions for the same crime. E.g., id. at 11 (finding a pattern of
criminal conduct existed when the attorney had been convicted of three
OWIs); Templeton, 784 N.W.2d at 767–68 (finding a pattern of criminal
conduct was shown by an attorney convicted of six counts of invasion of
privacy). Here, even though Cannon has a variety of convictions, they all
involve substance abuse and the possession of illegal substances.
Cannon was also convicted of OWI, first offense, in September
2007, for which he received a private admonition. Even though the 2007
OWI conviction is not at issue in this proceeding, a prior conviction is
relevant to determining whether an attorney has displayed a pattern of
criminal conduct. See Weaver, 812 N.W.2d at 11 (taking into account
the attorney’s prior OWI convictions and determining there was a pattern
of criminal conduct). Based on these criminal convictions spanning a
relatively short period of time, a clear pattern of criminal conduct is
demonstrated.
Identifying this pattern of criminal conduct is also important to the
analysis of the final Templeton factor—whether Cannon demonstrated a
disrespect for the law and law enforcement. We have previously held
that repeated “convictions for the same offense . . . indicate a pattern of
criminal conduct and demonstrate a disregard for laws.” Id.; see also
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 101–02
(Iowa 2010) (noting attorney’s second conviction for domestic abuse and
repeated violations of a court order banning contact with the victim
demonstrated disrespect for the law); cf. Keele, 795 N.W.2d at 514
(holding that an isolated incident did not indicate disrespect for the law).
Cannon’s repeated convictions for substance abuse-related offenses
demonstrate disrespect for the law and law enforcement. In addition,
police reports in two of Cannon’s convictions indicate that he refused to
cooperate with the officers during their initial investigations, further
suggesting disrespect for law enforcement. See Schmidt, 796 N.W.2d at
41 (finding disrespect for law enforcement when an attorney prevented
his victim from calling 911, lied to a neighbor in order to prevent the
neighbor from calling 911, then broke the steel cage in the police car in
order to use the police officer’s cell phone without permission).
One factor weighs against finding a violation of rule 32:8.4(b).
There was no actual physical or economic harm to clients as a result of
Cannon’s crimes. However, the factors weighing in favor of finding a
violation outweigh this factor: his substance abuse and mental health
issues; his repeated convictions for the same type of criminal conduct;
his repeated disrespect for our laws and law enforcement; and finally, the
very real risk that his repeated, irresponsible conduct could have caused
significant harm to people and property. All these factors weigh in favor
of finding a violation. After reviewing the Templeton factors, we conclude
the Board proved by a convincing preponderance of the evidence that a
sufficient nexus exists between Cannon’s criminal acts and his fitness to
practice law. See Templeton, 784 N.W.2d at 767. Accordingly, we find
that Cannon has violated rule 32:8.4(b). We must now determine an
appropriate sanction.
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V. Sanctions.
There is no standard sanction warranted by any particular type of
misconduct. Weaver, 812 N.W.2d at 13. Though prior cases can be
instructive, the sanction warranted in a particular case must be based
on the circumstances of that case. Id.
In determining the appropriate discipline, we consider the
nature of the alleged violations, the need for deterrence,
protection of the public, maintenance of the reputation of the
bar as a whole, and the respondent’s fitness to continue in
the practice of law, as well as any aggravating and mitigating
circumstances. The form and extent of the sanctions must
be tailored to the specific facts and circumstances of each
individual case. Significant distinguishing factors in the
imposition of punishment center on the existence of multiple
instances of neglect, past disciplinary problems, and other
companion violations.
Id. (citation and internal quotation marks omitted).
“With regard to convictions [for] criminal offenses, an attorney’s
license to practice law may be revoked or suspended depending on the
severity of the offense and any aggravating or mitigating factors.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Carpenter, 781 N.W.2d 263, 270
(Iowa 2010). We have previously found that an attorney’s conviction for
second-offense drunk driving reflected adversely on the attorney’s fitness
to practice law. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750
N.W.2d 71, 79 (Iowa 2008). As in Weaver, Cannon has been convicted of
two OWI offenses, one involving boating and one involving an automobile.
This conduct involves his character and reflects on his fitness to practice
law. It also lessens public confidence in the legal profession. We found
in Weaver that an attorney’s violation of the criminal laws involving
drunk driving was sufficient, standing alone, to warrant a short
suspension. Id. at 91.
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We have also had the opportunity to review an attorney’s fitness to
practice law as a result of drug-related criminal convictions. We have
held that under our code of professional responsibility, attorneys have
special responsibilities to refrain from drug possession and possession of
drug paraphernalia. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Sloan, 692 N.W.2d 831, 832–33 (Iowa 2005). In Sloan, a three-month
suspension was an appropriate sanction for an attorney’s conduct which
resulted in convictions for serious misdemeanor possession of crack
cocaine and simple misdemeanor possession of drug paraphernalia. Id.;
see also Comm. on Prof’l Ethics & Conduct v. Shuminsky, 359 N.W.2d
442, 445–46 (Iowa 1984) (two misdemeanor convictions for drug
possession resulted in a suspension of not less than three months).
After concluding that such conduct reflected on an attorney’s fitness to
practice law, we also concluded that a suspension was necessary to deter
others from similar conduct and assure the public that courts will
uphold the ethics of the legal profession. Sloan, 692 N.W.2d at 833;
Shuminsky, 359 N.W.2d at 445. Here, Cannon has likewise been
convicted of possession of cocaine which, along with his other
convictions, would warrant a suspension of his license to practice law.
We next turn to any aggravating or mitigating circumstances in
determining an appropriate sanction. In considering sanctions, mental
and physical conditions may be mitigating factors. “The full extent of
mitigation depends on the relationship between the unethical conduct
and the mental and physical illnesses.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Kress, 747 N.W.2d 530, 541 (Iowa 2008). “Depression
and alcoholism can be mitigating factors if they contributed to an
attorney’s misconduct.” Weaver, 812 N.W.2d at 13. However, we have
also noted that alcoholism and depression do not constitute “ ‘legal
12
justification, excuse, or defense’ ” for an attorney’s misconduct. Id. at 11
(quoting Schmidt, 796 N.W.2d at 41).
Cannon claims that his physical and mental conditions, including
alcoholism and depression, were factors in his criminal conduct.
According to Cannon, he became depressed and started drinking more
after major abdominal surgery in 2006. His problematic use of alcohol
continued unabated for a number of years, ultimately resulting in his
arrests and subsequent criminal convictions. The record, however, is
devoid of any evidence beyond Cannon’s own testimony to support his
claim that his medical problems were the reason for his alcohol abuse.
Regardless of the cause of his alcoholism and depression, both
were undoubtedly factors in Cannon’s criminal conduct. In Weaver, we
considered Weaver’s untreated depression and alcoholism as aggravating
factors. Id. at 13–14. Weaver had at least a ten-year history of
alcoholism and depression that reflected adversely on his ability to
practice law. Id. at 7–8. Additionally, Weaver had a history of
noncompliance with treatment. Id. at 14 (quoting a letter from an
intensive drug court officer with the Seventh Judicial District that stated,
among other things, that Weaver was “intent on doing things his own
way”); see also Weaver, 750 N.W.2d at 76–77 (detailing Weaver’s
resistance to an OWI sentence which included treatment at an alcohol
treatment correctional facility).
In contrast, Cannon has sought and complied with treatment.
Through addiction counseling spanning the course of two years, he has
been able to recognize the genesis of his problem and has received
treatment for both substance abuse and depression. He has received
additional assistance from Alcoholics Anonymous, a lawyer’s assistance
program, and a holistic Catholic-based substance abuse program called
13
St. Gregory’s Retreat. He has further committed to continuing treatment
and staying sober.
Cannon has provided evidence of compliance with treatment for
both his alcoholism and depression, and he has apparently been
abstinent from alcohol since November 2009. His depression and
alcoholism have not led to further violations of our criminal code or other
ethical complaints. Cannon has now accepted responsibility for his
actions and taken steps to remedy his behavior. We consider accepting
responsibility and demonstrating remorse to be mitigating factors.
Templeton, 784 N.W.2d at 770–71. Cannon also fully cooperated with
the Board in its investigation of these disciplinary proceedings, which we
also deem to be a mitigating factor. Axt, 791 N.W.2d at 103.
However, there are also significant aggravating factors which we
must consider in fashioning an appropriate sanction. Cannon has been
the subject of several prior disciplinary actions, including three public
reprimands and a private admonishment between 1998 and 2010. In
1998, he received a public reprimand for, among other things, violating
the terms of a court order and attempting to interfere with the
disciplinary process. In 2002, Cannon received a second public
reprimand for violating our advertising rules, for neglecting a client
matter, and for failing to respond to the Board’s inquiries. In 2008,
Cannon received a private admonishment for his September 2007 OWI
conviction, first offense.
Finally, on October 15, 2010, we issued another public reprimand
to Cannon, this time for a violation of Iowa Rule of Professional Conduct
32:8.4(c). We found Cannon had engaged in misrepresentation when he
submitted a plagiarized brief to a bankruptcy court. See Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 759 (Iowa 2010).
14
We do not discipline an attorney twice for the same conduct, so
Cannon’s previous violations of our ethical rules will not result in
cumulative sanctions for those violations. See Keele, 795 N.W.2d at 512–
13. Nevertheless, we do consider previous disciplinary action as an
aggravating factor in determining sanctions. Axt, 791 N.W.2d at 103.
Further, we have determined that while private admonishments are not
discipline, they do put an attorney on notice of ethical requirements.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96,
110 (Iowa 2012). As such, a private admonishment is also an
aggravating factor. Id.
Additionally, we have found that a pattern of repeated offenses
warranted increased sanctions. Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Johnson, 792 N.W.2d 674, 683 (Iowa 2010) (finding that an attorney’s
established pattern of neglecting client matters, among other ethical
infractions, warranted severe sanctions); see also Templeton, 784 N.W.2d
at 771 (attorney received a three-month suspension after being convicted
of six counts of invasion of privacy). Cannon’s four criminal convictions
in a relatively short period of time establishes a clear pattern of repeated
offenses warranting an increased sanction.
We also consider experience to be an aggravating factor. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 381 (Iowa
2005). Cannon has practiced law in Iowa since 1983. As an experienced
attorney, he “should have known better.” See id.
The commission recommended that we publicly reprimand Cannon
for his ethical violation. We respectfully disagree. The nature of the
criminal acts, involving operating vehicles while intoxicated and
possession of drugs, are serious violations of our laws. Additionally,
these are not isolated instances of criminal conduct. Rather, there was a
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pattern of criminal conduct by Cannon involving alcohol and drugs. His
interactions with law enforcement also show a disrespect for our laws
and law enforcement. Such conduct undermines the reputation of the
bar as a whole and reflects negatively on Cannon’s fitness to practice
law. Considering all of the aggravating and mitigating factors, Cannon’s
violation of our ethical rule warrants more than a public reprimand. We
conclude that the appropriate sanction in this case is a suspension of
Cannon’s license to practice law for thirty days.
VI. Disposition.
For the above reasons, we suspend the license of Peter Sean
Cannon to practice law in this state for thirty days. The suspension
applies to all facets of the practice of law. Iowa Ct. R. 35.13(3). Cannon
must comply with the notification requirements of rule 35.23, and costs
are taxed against him pursuant to rule 35.27(1). Unless the Board
objects, Cannon’s license will be automatically reinstated on the day
after the thirty-day suspension period expires if all costs have been paid.
Iowa Ct. R. 35.13(2).
LICENSE SUSPENDED.