Iowa Supreme Court Attorney Disciplinary Board v. Richard R. Schmidt , 2011 Iowa Sup. LEXIS 19 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–0912
Filed April 8, 2011
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
RICHARD R. SCHMIDT,
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 filed a
report recommending respondent’s license be suspended for six months.
LICENSE SUSPENDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
complainant.
Mark McCormick of Belin McCormick, P.C., Des Moines, for
respondent.
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WIGGINS, Justice.
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.
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II. Proceedings.
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
1Also in connection with counts I and II, the board alleged, and the commission
found, violations of rule 32:8.4(a), which prohibits misconduct in violation of the rules
of professional conduct. We do not consider a violation of this rule as a separate ethical
infraction, and so we give it no further consideration. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010).
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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 no-
contact 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
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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 no-
contact 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
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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.
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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
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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:
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(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 Prof’l Ethics & Conduct v. Herrera, 626 N.W.2d 107, 113 (Iowa
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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 Prof’l 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
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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 assault
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
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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
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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)).
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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 no-
contact 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.
V. Sanction.
“ ‘There is no standard sanction for a particular type of
misconduct, and though prior cases can be instructive, we ultimately
determine an appropriate sanction based on the particular
circumstances of each case.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Ackerman, 786 N.W.2d 491, 497 (Iowa 2010) (quoting Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 308 (Iowa 2009)). In
tailoring the sanction to the particular circumstances of each case,
“we consider the nature of the violations, the attorney’s
fitness to continue in the practice of law, the protection of
society from those unfit to practice law, the need to uphold
public confidence in the justice system, deterrence,
maintenance of the reputation of the bar as a whole, and any
aggravating or mitigating circumstances.”
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 61
(Iowa 2009) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland,
748 N.W.2d 498, 502 (Iowa 2008)).
In the past, attorneys have been admonished for violations of
ethical rules prohibiting communications with represented parties.
Comm. on Prof’l Ethics & Conduct v. Zimmermann, 522 N.W.2d 619, 621
(Iowa 1994). Unlike a public reprimand, an admonition does not amount
to discipline. Id. We have also disciplined attorneys for violating ethical
rules prohibiting communications with represented parties. Sanctions
have ranged from public reprimands, suspensions of law licenses, and
revocation of law licenses. See, e.g., Gailey, 790 N.W.2d at 808
(imposing sixty-day suspension of license of respondent with two
incidents of prior discipline for aiding and abetting client’s violation of a
no-contact order and offering witness an inducement to testify that is
prohibited by law); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Box, 715
N.W.2d 758, 765 (Iowa 2006) (imposing a public reprimand on
respondent with no prior disciplinary record when prohibited
communication resulted in substantial harm; rejecting request to
privately admonish respondent); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Sullins, 556 N.W.2d 456, 457 (Iowa 1996) (imposing a public
reprimand on respondent for direct contact with child witness in child
abuse proceedings when respondent knew lawyer would soon be
appointed for child and refusal to respond to ethical committee’s
inquiries on an unrelated matter); Comm. on Prof’l Ethics & Conduct v.
Shepler, 519 N.W.2d 92, 93 (Iowa 1994) (revoking respondent’s license
for intentionally taking advantage of elderly woman with diminished
capacity by obtaining her signature on three subordination agreements
after being told woman would not subordinate her interest in property,
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as well as by failing to contact woman’s lawyer concerning any business
dealings after being told to do so); Comm. on Prof’l Ethics & Conduct v.
Hoffman, 402 N.W.2d 449, 451 (Iowa 1987) (imposing a public reprimand
on respondent whose nine intemperate letters involved some persons
known to be represented by counsel).
Attorneys also have been admonished for first offense domestic
violence. Axt, 791 N.W.2d at 100 (indicating that respondent was
admonished for committing his first offense of domestic abuse assault
against his wife and for resisting arrest while intoxicated). Again, this
does not amount to discipline. Zimmermann, 522 N.W.2d at 621. In
light of our determination that domestic abuse violence is a
“reprehensible crime,” we now find that admonishment for such acts to
be inappropriate. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Polson, 569 N.W.2d 612, 613 (Iowa 1997). Under circumstances where
admonitions have been found sufficient for committing domestic abuse
assault, we now hold that the more appropriate disposition is to at least
impose the discipline of a public reprimand.
In one nondomestic assault case involving other serious
misconduct, we imposed a two-month suspension. Iowa Supreme Ct.
Bd. of Prof’l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 135–36
(Iowa 1999) (imposing two-month suspension on respondent’s license for
conviction of assault and criminal trespass). As to our prior domestic
abuse cases, we have imposed the discipline of suspension ranging from
three months to two years, depending on the nature and extent of other
misconduct proved by the board in the same case. See, e.g., Axt, 791
N.W.2d at 102–03 (imposing two-year suspension of respondent’s license
with prior record of discipline for second offense domestic abuse assault
and multiple violations of a court’s no-contact order); Iowa Supreme Ct.
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Bd. of Prof’l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 89 (Iowa 2001)
(imposing six-month suspension of respondent’s license for domestic
abuse and OWI-third offense convictions); Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Apland, 599 N.W.2d 453, 454–56 (Iowa 1999)
(imposing two-year suspension on respondent’s license for “embarking
on a course of harassment, threats, misrepresentations, and outright
lies” toward his ex-wife and representing himself to be an attorney when
his license was under suspension); Polson, 569 N.W.2d at 613–14
(imposing two-year suspension on respondent’s license for conviction of
domestic abuse causing injury and thirty-one violations of a protective
order); Comm. on Prof’l Ethics & Conduct v. Lapointe, 415 N.W.2d 617,
620 (Iowa 1987) (imposing fourteen-month suspension on respondent’s
license for convictions of assault on his girlfriend and tampering with a
witness); Comm. on Prof’l Ethics & Conduct v. Patterson, 369 N.W.2d 798,
799, 801 (Iowa 1985) (imposing three-month suspension on
respondent’s license for conviction of domestic assault lasting two hours
where photographs “taken the following day show a badly disfigured and
battered woman, a dramatic testimonial to respondent’s eighteen-month
instruction in the martial arts”). The common thread in these assault
cases in which we imposed a suspension is that the attorney also
committed other serious misconduct.
The mitigating circumstances present include the following. First,
Schmidt has no prior record of discipline. Lustgraaf, 792 N.W.2d at 301–
02 (considering prior ethical practices in fashioning sanction). Second,
Schmidt suffered from clinical depression and he has received in-depth
treatment for his depression and domestic abuse. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Fields, 790 N.W.2d 791, 799–800 (Iowa 2010)
(considering depression a mitigating circumstance and noting
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respondent’s “efforts to get healthy must be considered in fashioning an
appropriate sanction”). Third, Schmidt takes responsibility for his
actions and is remorseful. Id. at 799 (noting respondent “acknowledged
his misconduct and has not attempted to shift blame for his actions”).
Fourth, the incident of domestic abuse was out of character for Schmidt
and an aberration. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter,
781 N.W.2d 263, 271 (Iowa 2010) (noting imposition of public reprimand
was appropriate when ethical violation was an isolated incident involving
client trust account violations). Fifth, Schmidt’s domestic-abuse conduct
did not affect his behavior toward his clients, fellow lawyers, or judges.
Axt, 791 N.W.2d at 102 (holding no violation of rule 32:8.4(d) occurred
because the domestic abuse did not occur within the context of
respondent’s practice). Finally, the mere act of communicating with a
represented party without opposing counsel’s consent is normally not an
offense requiring suspension of an attorney’s license. Box, 715 N.W.2d
at 765 (imposing a public reprimand on respondent with no prior
disciplinary record for communicating with a represented party without
opposing counsel’s consent); Sullins, 556 N.W.2d at 457; Hoffman, 402
N.W.2d at 451. While none of these mitigating circumstances excuse
Schmidt’s conduct, they nevertheless constitute factors that we take into
account in imposing less severe discipline. Fields, 790 N.W.2d at 799–
800 (recognizing mitigating circumstances do not excuse conduct, but
are considered in fashioning discipline).
Acts of domestic abuse committed by attorneys are serious and will
not be tolerated by this court. Schmidt’s acts were not trivial. He had no
legal justification or defense for his actions. His actions are especially
egregious, not only because his conduct caused substantial harm to his
spouse and his children, but also because he attempted to prohibit his
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spouse from contacting the authorities and, when apprehended, he
displayed a disregard towards the police by breaking the screen between
the front and back seats of the police vehicle. Generally, these
circumstances would require us to suspend Schmidt’s license for a
period of up to six months. However, the mitigating circumstances
compel us to suspend Schmidt’s license to practice law for a shorter
period. We consider the most important mitigating factors being his lack
of prior discipline, his taking responsibility for his actions, his
remorsefulness, and the fact that this act was a one-time aberration and
not a part of a pattern of abuse. We also note that he has taken
significant steps to prevent this from happening again.
VI. Disposition.
Accordingly, we suspend Schmidt from the practice of law for thirty
days. This suspension applies to all facets of the practice of law. See
Iowa Ct. R. 35.12(3). Schmidt must comply with Iowa Court Rule 35.22
dealing with notification of clients and counsel. Costs of this action are
taxed to Schmidt pursuant to Iowa Court Rule 35.26. Absent an
objection by the board and under the condition that Schmidt has paid all
costs assessed under rule 35.26, we shall reinstate Schmidt’s license to
practice law on the day after the thirty-day suspension period expires.
See Iowa Ct. R. 35.12(2).
LICENSE SUSPENDED.
All justices concur except Mansfield, J., who takes no part.