Iowa Supreme Court Attorney Disciplinary Board Vs. Jesse M. Marzen ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 08–1546
Filed March 19, 2010
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellant,
vs.
JESSE M. MARZEN,
Appellee.
On appeal of the report of the Grievance Commission of the
Supreme Court of Iowa.
Appeal and cross-appeal from grievance commission decision
finding respondent disclosed privileged information, but did not engage
in a sexual relationship with a client. LICENSE SUSPENDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
appellant.
Roger L. Sutton of Sutton Law Office, Charles City, for appellee.
2
CADY, Justice.
The Iowa Supreme Court Attorney Disciplinary Board alleged
Jesse M. Marzen committed numerous violations of the Iowa Rules of
Professional Conduct by engaging in a sexual relationship with a client,
disclosing client confidences to the public, and making a
misrepresentation to a judge. The grievance commission found there
was insufficient evidence of an ethical violation on the charges of a
sexual relationship with a client and a misrepresentation to a judge, but
found Marzen violated disciplinary rules by disclosing client confidences.
Upon our de novo review, we find Marzen violated the rules of
professional conduct and impose an indefinite suspension not to exceed
six months.
I. General Background Facts and Proceedings.
Jesse M. Marzen is an Iowa lawyer. He was admitted to the
practice of law in 2004 after graduating from St. Thomas School of Law.
He practiced law in Charles City and is currently the Floyd County
Attorney.
In September 2006, a complaint was filed against Marzen with the
disciplinary board. It was filed by a woman named “Jane Doe.” 1 She
alleged Marzen engaged in a sexual relationship with her after
representing her in a mental health commitment hearing. Soon after, a
district court judge also filed a complaint against Marzen after hearing
testimony from Doe, in the course of a hearing in an action to modify
child custody, regarding a sexual relationship with Marzen.
1Due to the nature of the complaint and the accompanying factual background,
we use the pseudonym “Jane Doe” to identify the woman involved in the proceedings
against Marzen.
3
Marzen was a candidate for the position of Floyd County Attorney
at the time the complaints were filed. News of the allegations against
Marzen and of a potential investigation by the disciplinary board quickly
spread throughout the immediate community and beyond and was
highly publicized by the local and surrounding media. In response to
media inquiries, Marzen spoke publicly about the allegations. He was
subsequently elected as Floyd County Attorney in a hotly contested
three-way race.
In 2007, the board brought three disciplinary charges against
Marzen. Count I alleged Marzen engaged in sexual relations with Doe
when she was his client. Count II alleged Marzen made a
misrepresentation to a judge during the mental health commitment
proceeding concerning Doe. Count III alleged Marzen disclosed
information about Doe to the local press that he obtained in confidence
during an attorney-client relationship. The board further alleged Marzen
revealed information to the press that he knew was false.
At the hearing on the complaint, Doe testified she had sexual
intercourse with Marzen on numerous occasions while he represented
her. Marzen steadfastly denied any intimate contact with Doe. Following
the hearing, the commission dismissed Count I (sexual misconduct) and
Count II (misrepresentation) based upon insufficient evidence. It found
the board proved Marzen revealed confidential information to the media
without the consent of Doe, as alleged in Count III. The commission
recommended Marzen be suspended for a period of three months. One
member of the commission dissented from the dismissal of Count I. The
dissenting member believed the events established at least one occasion
of sexual intercourse between Doe and Marzen during the course of their
attorney-client relationship.
4
The board filed an application to appeal Count I. We granted the
application and further granted Marzen the right to cross-appeal.
Marzen only cross-appealed as to Count III.
II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa Ct. R.
35.10(1). Although we give weight to the commission’s factual findings,
especially when considering the credibility of witnesses, we are not
bound by them. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
O’Brien, 690 N.W.2d 57, 57 (Iowa 2004). The board has the burden to
prove the allegations of misconduct contained in the complaint by a
convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). While this
burden is higher than the burden in civil cases, it is lower than in a
criminal prosecution. Id.; accord Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996).
III. Discussion.
A. Sexual Relationship.
1. Legal framework. The legal framework for considering a charge
of sexual misconduct is well-established. Under our ethical rules, an
attorney is prohibited from having a sexual relationship with a client
when the client is not the lawyer’s spouse or when the sexual
relationship did not predate the initiation of the attorney-client
relationship. Iowa R. Prof’l Conduct 32:1.8(j). This court has recognized
that “ ‘the professional relationship renders it impossible for the
vulnerable layperson to be considered “consenting” ’ ” to the sexual
relationship. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Furlong,
625 N.W.2d 711, 714 (Iowa 2001) (quoting Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Hill, 540 N.W.2d 43, 44 (Iowa 1995) (Hill II)).
5
In addition, a sexual relationship between an attorney and a client
can be accompanied by circumstances that aggravate the misconduct.
For instance, when the sexual relationship between an attorney and
client involves a sex-for-fees arrangement, the misconduct is considered
much more serious. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
McGrath, 713 N.W.2d 682, 703–04 (Iowa 2006).
2. Background facts. The relevant facts relating to the charge of
sexual misconduct first surfaced in January 2006, when Doe was
involuntarily hospitalized after she overdosed on prescription drugs and
alcohol and expressed suicidal thoughts. Marzen was court-appointed to
represent her in the hospitalization commitment hearing. He met Doe for
the first time on January 10, just prior to the hearing at the Mitchell
County Courthouse in Osage, although he had seen her in town at
various times in the past. Doe was released from the hospitalization
commitment by the presiding judge at the conclusion of the hearing to
pursue outpatient treatment.
After the hearing, Doe indicated she needed transportation to
Charles City, and Marzen agreed to give her a ride. The two left together,
alone, in Marzen’s car, and two inconsistent accounts of what transpired
in the following hours, days, and weeks emerged at the disciplinary
hearing.
During the trip from Osage to Charles City, Doe discussed her
need for additional legal services. Marzen agreed to represent her in a
dispute with her mother, a child support collection action, and a
modification-of-child-custody proceeding.
Doe testified Marzen took her to his house in Charles City after
arriving from the hospitalization hearing in Osage, where they eventually
engaged in various sex acts in the living room of the house. This
6
occurred after they consumed a few beers and exchanged a few vague
references to an exchange of services. To support her testimony, Doe
provided a description of the layout of Marzen’s home and offered
testimony about the presence of a quarter-sized mole on his back.
Additionally, she said Marzen had “funny”-appearing buttocks due to a
loose fold of skin hanging from the lower portion of his buttocks.
Doe testified she engaged in sexual intercourse with Marzen on
four additional occasions—once more in Marzen’s home, once in the
home where she was residing, once in an automobile driven by Marzen,
and once at Marzen’s law office. She described each encounter in
graphic detail. The car sex described by Doe occurred when the two
drove to a storage facility in Osage under the auspices that it was
necessary to examine the contents of a storage unit.
The board called several witnesses at the hearing in support of the
testimony of Doe. One witness, John Steiert, testified Marzen admitted
in his presence during a confrontation at Doe’s apartment and at a later
meeting with Marzen and Doe at Marzen’s law office to a sexual
relationship with Doe. Another witness, Amanda Knapp, testified she
observed Marzen and Doe emerge from a bedroom in the house where
Doe was living following her release from the hospitalization
commitment. The house was owned by Amanda’s mother, Connie
Knapp, who was very close to Doe. Amanda had stopped by the house
unannounced when she observed Doe and Marzen walking out of the
bedroom. The situation was momentarily uncomfortable for Amanda,
and Doe hastily offered a reason for her presence in the bedroom with
Marzen. Amanda believed the clumsy explanation was fabricated.
Additionally, Amanda testified she drove Doe to Marzen’s office one
evening and dropped her off at the building.
7
Another witness, Connie Knapp, testified Doe mentioned to her
that she had gone for a ride with Marzen in his car on one occasion to a
storage unit in Osage. Judith O’Donohoe, a lawyer, testified Doe told her
about her sexual relationship with Marzen. This revelation occurred
during a conference at her office in February of 2006, long before Marzen
filed papers to run for Floyd County Attorney in August 2006. This
testimony was given in response to a claim by Marzen that Doe made up
the claim of sexual misconduct to hinder his campaign for county
attorney.
Marzen denied the existence of any sexual relationship at any time
with Doe. He testified Doe was never at his house. However, he
acknowledged he had been at the house where Doe was staying on
multiple occasions, but only for business purposes. Marzen denied
Amanda confronted them emerging from a bedroom. Instead, he testified
he was in the living room of the house with Doe when Amanda arrived.
He also denied making any admissions of a sexual relationship to Steiert.
He further disputed the accuracy of Doe’s description of the house,
claiming her drawing was not even close to depicting the actual layout of
his residence. With respect to the physical description of his body,
Marzen claimed he had more than ten moles on his back, which Doe
failed to mention, as well as a mole on the lower portion of his abdomen
that Doe should have mentioned if her descriptions of their sex acts were
truthful.
Marzen denied the presence of a flap of loose skin on the bottom
portion of his buttocks. He did, however, acknowledge he weighed 325
pounds when he graduated from high school and lost between 125 and
150 pounds since that time. He also acknowledged he has loose skin
around his waist and inside his arms. Marzen agreed he had a large
8
mole on his back as described by Doe, but believed she could have seen
the mole when he was at the swimming pool in Charles City during the
summer of 2006. Marzen recalled that Doe and her son were at the pool
on one occasion when he was swimming at the pool. He also said he
commonly removed his shirt when he mowed his lawn. Marzen did not
deny he was at the storage facility with Doe, but denied any sexual
activity occurred. He said they drove to the facility in separate vehicles.
In addition to his testimony, Marzen offered testimony from a
number of witnesses. Rod Mulcahy, a lawyer in Marzen’s former law
office, testified the attorneys and staff at the office would work on tax
matters in the office in January until eight or nine o’clock in the evening.
He felt it would be difficult for Marzen to have had sex in his office during
this time without being noticed.
Marzen also offered testimony from a number of witnesses
designed to show Doe had a propensity to lie or exaggerate. In
particular, Marzen offered the testimony of David Skilton, an attorney,
who represented Doe’s mother in an action brought by Doe to obtain an
injunction against her mother. Skilton said Doe testified at the hearing
on the injunction that “no one had ever hurt her or . . . done anything to
her in a sexual way except one time” in an incident with her parole
officer. Skilton also said Doe testified that Marzen “didn’t do a good job”
in his representation of her.
Marzen offered testimony from John Farrell, a probation officer
formerly assigned to Doe. Doe had sued Farrell for sexual misconduct,
intentional infliction of emotional distress, assault, and false
imprisonment. Although Farrell denied any sexual harassment or other
such conduct, he settled the lawsuit for $5000. Marzen argues the
Farrell lawsuit establishes a motive for Doe to concoct a similar claim
9
against him. He believes Doe merely wanted to avoid paying him for his
legal services and, eventually, wanted to file a lawsuit against him to
force a settlement.
The parties introduced a number of exhibits. In particular, the
exhibits showed that a comforter in a bedroom of the house where Doe
was residing and a coat allegedly worn by Doe during the car-sex episode
were tested for DNA by the Iowa Department of Criminal Investigation.
The test results were negative. The exhibits also contained a report from
a doctor who examined Marzen’s back and buttocks for purposes of this
proceeding. However, the report did not indicate the doctor understood
that one of the purposes of the examination was to confirm or deny the
presence of visible additional layers of tissue or fat, medically referred to
as panniculi, on his lower buttocks. The report documented only that
Marzen’s buttocks and perineum appeared “normal,” without a specific
statement affirming or denying the presence of loose folds of skin. The
medical examination indicated Marzen did have a mole in the middle of
his back that was recently surgically removed.
3. Ethical violation. The critical factual issues presented in the
sexual-misconduct charge are whether the evidence adduced before the
commission supported a prohibited sexual relationship by a convincing
preponderance of the evidence and, if so, the degree of aggravation
associated with the ethical violation. We readily recognize only two
people know the truth of the sexual-misconduct allegations at the center
of this case, and we can only perform our role in the course of our
de novo review of the record to sort through the evidence to piece
together our view of the facts by using our common principles of fact-
finding. In making our factual determinations, our task is complicated
by the many complexities and inconsistencies in the evidence as well as
10
gaps in the record. Further, there were credibility problems for both Doe
and Marzen. The commission noted Doe had a history of accusation of
wrongdoing against persons in authority, had her credibility questioned
by a district court judge, and had a history of lying to authorities. On
the other hand, the commission noted Marzen had illusions of grandeur
and had demonstrated an ability to stretch the truth to fit his needs.
Upon our de novo review of the record, we basically agree with the
assessments of the commission with respect to the credibility of Marzen
and Doe. The issue, however, is not whether Doe or Marzen always tell
the truth. The issue is whether one of them was truthful regarding the
issues presented in this case. See McGrath, 713 N.W.2d at 701. In the
end, we can only find a violation of sexual misconduct if we find by a
convincing preponderance of the evidence that Marzen and Doe engaged
in sexual relations during the time Marzen represented Doe. Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784
(Iowa 1995) (burden of proof). We readily understand the commission
had the advantage of hearing and seeing the witnesses who testified at
the hearing and made a finding that the board failed to prove sexual
relations occurred between Marzen and Doe. We give this finding weight,
but also recognize the commission was not unanimous in its finding. We
also consider the view of the dissenting member of the commission, who
was convinced Marzen and Doe engaged in sexual relations.
While the testimony by Doe and Marzen over the fighting issue of
sexual relations was wildly conflicting, some evidence tended to both
corroborate and discredit the testimony of both persons, while other
evidence surfaced to expose Marzen generally as a person who was quick
to deny even testimony and evidence against him that was otherwise
credible in light of the other evidence presented and common experience.
11
For example, contrary to the assertion by Marzen, the sketch drawn by
Doe of the layout of Marzen’s home, while not to scale, correctly
identified the positions of the living room, dining room, kitchen,
bathroom, hallways, and bedrooms. It was the type of sketch to be
expected from a person with limited familiarity with the house. More
importantly, it was the type of sketch expected to be drawn by a person
who had in fact been in the house. Marzen’s criticism of the sketch at
the hearing was not only dubious and overdone, but suspicious and
unreasonable.
Similarly, Marzen flatly denied Doe’s description of his buttocks.
Yet, he failed to further counter the claim of panniculi on his buttocks
with equally sharp and decisive evidence to verify his denial. The claim
involved an unusual but distinctive condition of a private part of a
person’s body, and Marzen had the ability to disprove the existence of the
condition and discredit Doe. The medical examination was such an
opportunity, but the written report by the doctor who examined Marzen
failed to either confirm or deny the presence of panniculi on his lower
buttocks. Moreover, the claim of panniculi on Marzen’s buttocks was
consistent with the presence of panniculi he admitted was present on
other areas of his body. The claim itself was unusual enough that a
person accusing another of sexual impropriety would not likely conceive
of and fabricate the condition as an identifying mark to falsely frame an
accused, especially when the condition would appear to be easily
disproven by the accused if it did not exist.
We also find Doe’s testimony regarding the location of a mole on
Marzen’s back, which was surgically removed after the alleged incidents,
was significant. While it is possible Doe could have observed the mole
under circumstances other than as testified by Doe, her testimony about
12
the mole was another piece of evidence to support her version of their
relationship. Furthermore, the testimony of Amanda that Doe and
Marzen emerged from a bedroom under what Amanda thought were
suspicious circumstances, while of limited value in and of itself, added to
the credibility of Doe’s testimony. Although not a disinterested witness,
Steiert testified in clear and unambiguous terms that Marzen had twice
admitted to him the existence of a sexual relationship with Doe.
Finally, we consider the issue of motivation. We credit the
testimony of O’Donohoe that Doe presented at her office on February 27,
2006, and reported the sexual relationship. At that point in time, there
was no suggestion Marzen would press Doe to collect his fee, which
would have given Doe motivation to make a false claim against Marzen.
Further, there was no political motivation on the part of O’Donohoe or
Doe to fabricate the existence of a sexual relationship. Finally, there was
no reason to think at that point in time that the disclosure would
advance Doe in the custody dispute with her former husband. Indeed,
as events ultimately unfolded, the district court used Doe’s relationship
with Marzen as a factor in granting a modification of child custody
adverse to Doe.
It is conceivable that Doe’s need for attention could have motivated
her to make a false claim. Yet, there is no doubt Marzen suddenly
started to give considerable attention to Doe following the involuntary
commitment hearing, both in and out of his office. Further, while Doe
conceivably could have been trying to set Marzen up for a bogus claim,
she did not file a lawsuit against him contemporaneously with her
original disclosure to O’Donohoe. She filed her action only after her
relationship with Marzen had been exposed publicly in the media eight
months after her meeting with O’Donohoe. Further, there was no
13
evidence that Marzen, as a young, inexperienced lawyer in a small town,
was a good target for a financial windfall.
On the other hand, Marzen’s denials beginning in September 2006
were suspect. He had much at stake, including his law license and his
legal career. Thus, he had substantial motivation to deny the existence
of a sexual relationship. His evidence in support of this denial of sexual
relations was not nearly as credible as the evidence by Doe to support
her testimony.
On the whole, we find Doe’s testimony, coupled with the
corroborating evidence, is sufficient for us to conclude the board
demonstrated by a convincing preponderance of the evidence that Doe
and Marzen engaged in a sexual relationship. We also conclude the
sexual relationship occurred during the time Marzen represented Doe on
several legal matters.
4. Aggravating circumstances. We next consider whether the
board proved any aggravating circumstances. We begin by considering
whether the board proved by a convincing preponderance of evidence
that Marzen engaged in a sex-for-fees arrangement with Doe. Unlike her
testimony regarding the sex acts, Doe’s testimony on this point was
vague. She contended there was no explicit discussion of sex for fees,
but that it was “like, you help me, I’ll help you.” She did not specifically
attribute this statement to Marzen, and it may have simply reflected her
state of mind. Further, while it is plausible her phraseology amounted to
a sex-for-fees offer, it is also plausible that it was simply an expression
that a consensual sexual relationship would be satisfying to both parties.
The documentary trail on the sex-for-fees issue did not present
convincing evidence in support of the board’s position. Marzen appeared
to have contemporaneously recorded his time and ultimately presented
14
bills to Doe or to her significant other. He appeared to exercise billing
judgment in reducing his first invoice on private pay matters. Once he
presented an invoice, he further marked down the invoice “per
agreement,” but this did not establish sex for fees but only an agreement
to reduce the bill. On this issue, we also believe Doe’s tendency to
exaggerate is pertinent. It may be that she thought it necessary to
engage in sex to keep Marzen adequately engaged in her legal affairs. It
may also be true that she thought she would get a reduction in fees if
she did so. These beliefs, however, do not establish a sex-for-fees
arrangement. On the record presented, we do not find convincing
evidence of a sex-for-fees agreement.
The absence of convincing proof of a sex-for-fees agreement does
not end our inquiry into the presence of other aggravating
circumstances. In considering the presence of other aggravating
circumstances in this case, it is important to keep in mind Doe had just
been discharged from an involuntary mental health commitment at the
time of the sexual relationship. She had no money and no place to live.
She had a difficult relationship with her mother that was reaching a
boiling point. Her continued custody of her child was also in question.
These circumstances presented unique challenges to the maintenance of
her sobriety. Thus, even if the evidence failed to establish a sex-for-fees
arrangement, the evidence did show Marzen, as an attorney, took
advantage of a client who was extremely vulnerable. Such conduct
constitutes an aggravating factor to support a more severe sanction. See
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d
121, 125 (Iowa 1999) (two-year suspension for egregious sexual
exploitation of a very vulnerable client).
15
B. Public Disclosure of Confidential Information.
1. Background facts and legal framework. On October 27, 2006,
Marzen was interviewed by KIMT News Channel 3 of Mason City. Marzen
was asked to comment on Doe’s allegations and the ongoing disciplinary
investigation. Marzen responded, “[Doe] stated she had been in a
situation with her probation officer. I didn’t find out until later that it
was sexual misconduct.” Marzen further told print reporters that Doe
ended his representation when she could not pay her bill. The board
alleged this behavior violated Iowa Rule of Professional Conduct
32:1.6(a). See Iowa R. Prof’l Conduct 32:1.6(a) (“A lawyer shall not reveal
information relating to the representation of a client unless the client
gives informed consent, the disclosure is impliedly authorized in order to
carry out the representation, or the disclosure is permitted by paragraph
(b) or required by paragraph (c).”).
In contrast to Count I, resolution of Count III presents a legal
question. Factually, there is no doubt that Marzen publicly disclosed
Doe’s prior history with and litigation involving her former probation
officer. Further, there is no factual question that Marzen learned this
information through a confidential conversation with his client. 2 Doe
also testified that she never consented to Marzen’s disclosure. The
question thus presented is whether an attorney violates the rules of
confidentiality by disclosing information learned through client
confidences when that information is also available in the public forum.
2In his brief, Marzen suggests that the information he released may have come
from public sources. While it is clear that such information may have been publicly
available, Marzen’s own testimony recognizes that he learned of this information
through his conversations with Doe. Prior to representing Doe, Marzen only had a
vague notion that there was an issue with one of the probation officers. It was through
his representation of Doe that he discovered the specifics.
16
2. Ethical violation. While Marzen’s attempt to evade application of
the rule of confidentiality is novel, it cannot be sustained. Although Iowa
has no case law directly on point, the Kansas Supreme Court recently
dealt with a similar scenario. In In re Bryan, 61 P.3d 641, 645 (Kan.
2003), an attorney disclosed to a store manager and to a loss-prevention
manager that his former client “has a history of making false claims.”
The attorney defended his disclosure, arguing “that information
previously disclosed to the general public in court pleadings does not
retain any confidentiality that would prohibit subsequent disclosure of
that information.” Bryan, 61 P.3d at 656. The Kansas Supreme Court
rejected the argument. Id. The court noted that the ethical requirement
of confidentiality is broader than the narrowly interpreted attorney-client
privilege. Id. Thus, the rule of confidentiality must apply to all
communication between the lawyer and client, even if the information is
otherwise available.
This result is consistent with the approach taken in other
jurisdictions. See Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 572–
73 (2d Cir. 1973) (“[T]he client’s privilege in confidential information
disclosed to his attorney ‘is not nullified by the fact that the
circumstances to be disclosed are part of a public record, or that there
are other available sources for such information, or by the fact that the
lawyer received the same information from other sources.’ ” (quoting
Henry S. Drinker, Legal Ethics 135 (1953))); In re Rules of Prof’l Conduct
& Insurer Imposed Billing Rules & Procedures, 2 P.3d 806, 822 (Mont.
2000) (holding rule of confidentiality “extends to all communications
between insureds and defense counsel and that this rule is therefore
broader in both scope and protection than the attorney-client privilege
and the work product doctrine”); In re Advisory Opinion No. 544, 511
17
A.2d 609, 612 (N.J. 1986) (concluding “this Rule [of Confidentiality]
expands the scope of protected information to include all information
relating to the representation, regardless of the source or whether the
client has requested it be kept confidential or whether disclosure of the
information would be embarrassing or detrimental to the client”).
This result is also consistent with the overall structure of our rules
of confidentiality. For instance, our rules prohibit an attorney from
profiting on information obtained through client confidences, without an
explicit exception for information that is otherwise publicly available.
See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Miller, 568 N.W.2d
665, 667 (Iowa 1997). The reason for this omission is clear—the sanctity
of the lawyer-client relationship is necessary to ensure free and
unrestrained communication without fear of betrayal. On this issue of
first impression, therefore, we hold that the rule of confidentiality is
breached when an attorney discloses information learned through the
attorney-client relationship even if that information is otherwise publicly
available.
Marzen argues that, even if his disclosures constituted a breach of
confidentiality, that breach was excused by rule 32:1.6(b)(5). That rule
provides:
A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably
believes necessary: . . . to establish a claim or defense on
behalf of the lawyer in a controversy between the lawyer and
the client, to establish a defense to a criminal charge or civil
claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any
proceeding concerning the lawyer’s representation of the
client[.]
Iowa R. Prof’l Conduct 32:1.6(b)(5). Comment ten to the rule makes clear
that the ability to defend arises in criminal and civil proceedings,
18
including disciplinary actions. Id. 32:1.6 cmt. 10. However, it is not
clear from Marzen’s statements to the media that he was attempting to
mount a defense; rather, it would appear that he was attempting to
defame Doe. See Bryan, 61 P.3d at 658 (concluding disclosure had a
negative purpose). The ability to defend, moreover, is not absolute. A
lawyer can reveal confidential client information only in the appropriate
forum and only to the extent necessary to offer protection. While
certainly the revelation of Doe’s confidential information to the local
media was necessary to defend Marzen’s bid for county attorney, it was
not necessary to defend him against the allegations of this disciplinary
proceeding. We have considered all of Marzen’s claims and find his
conduct violated rule 32:1.6(a).
C. Sanction. “There is no standard discipline for a particular type
of attorney misconduct . . . .” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Kadenge, 706 N.W.2d 403, 410 (Iowa 2005). “[W]e are obliged to tailor
disciplinary sanctions to the specific facts and circumstances of each
individual case.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Erbes, 604 N.W.2d 656, 659 (Iowa 2000). Nevertheless, this court tries
to achieve a certain level of consistency. Kadenge, 706 N.W.2d at 410.
In determining the appropriate sanction, we consider “ ‘the nature of the
violations, protection of the public, deterrence of similar misconduct by
others, the lawyer’s fitness to practice, and [the court’s] duty to uphold
the integrity of the profession in the eyes of the public.’ ” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006)
(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Honken, 688
N.W.2d 812, 820 (Iowa 2004)). Relevant aggravating and mitigating
circumstances will also be considered. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa 2007).
19
Although the facts and circumstances of this case are unique, the
ethical violation is not unprecedented. Our ethics rules are clear, and
our cases have consistently and explicitly condemned sexual
relationships between an attorney and a client. The rationale is equally
clear:
“The unequal balance of power in the attorney-client
relationship, rooted in the attorney’s special skill and
knowledge on the one hand and the client’s potential
vulnerability on the other, may enable the lawyer to
dominate and take unfair advantage. When a lawyer uses
this power to initiate a sexual relationship with a client,
actual harm to the client, and the client’s interest, may
result. Such overreaching by an attorney is harmful in any
legal representation but presents an even greater danger to
the client seeking advice in times of personal crisis . . . .”
Furlong, 625 N.W.2d at 714 (quoting Iowa Code of Prof’l Responsibility for
Lawyers EC 5-25). 3 Consequently, a violation of the governing ethical
rule is a serious transgression. Clients figuratively, if not literally, can
trust lawyers with their lives, and they have the right to expect, as we
demand, the lawyer will treat that trust with care derived from those
noble traditions of service, integrity, and commitment found at the heart
of the legal profession. See Comm. on Prof’l Ethics & Conduct v. Hill, 436
N.W.2d 57, 59 (Iowa 1989) (Hill I).
Our past cases reveal a broad range of discipline for attorneys who
engage in sexual relations with a client. This range is between a public
reprimand and a lengthy period of suspension from the practice of law.
The wide range of discipline largely results from the presence or absence
of circumstances in addition to the sexual relations that make the overall
misconduct more serious. For example, in McGrath, we suspended an
3The
same explanation for the rule prohibiting sexual conduct between attorneys
and clients can now be found in the Iowa Rules of Professional Conduct. See Iowa R.
Prof’l Conduct 32:1.8(j) & cmt. 17.
20
attorney for three years when the sexual relations involved a client in a
case concerning matters of paramount personal importance to the client,
included a sex-for-fees arrangement, and the attorney had solicited sex
from another client. 713 N.W.2d at 703. On the other hand, we publicly
reprimanded a lawyer who had sexual contact with a client during visits
with the client in the penitentiary. Comm. on Prof’l Ethics & Conduct v.
Durham, 279 N.W.2d 280, 285–86 (Iowa 1979). See generally Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Morrison, 727 N.W.2d 115, 120 (Iowa
2007) (suspension from practice for three months where attorney had
sexual relationship with dissolution client and had been previously
admonished for the same conduct with a different client); Furlong, 625
N.W.2d at 713–14 (eighteen-month suspension for carrying on a sexual
relationship with one client, attempting to dissuade her from
complaining to disciplinary authorities, and sexually harassing another
client); Hill II, 540 N.W.2d at 44–45 (self-described “hands-on” counselor
suspended and reprimanded in two previous disciplinary proceedings
was suspended for twelve months for making unwelcome sexual
advances toward client in child-custody case); Hill I, 436 N.W.2d at 58–
59 (three-month suspension for sexual relationship with client in divorce
and custody case).
Our prior case containing facts most similar to the facts of this
case is Hill I. In Hill I, the attorney had sexual intercourse on one
occasion with a client who had sought his representation to obtain a
divorce involving custody of children. 436 N.W.2d at 59. At the time, the
client was unemployed, drug-addicted, and emotionally unstable. Id. at
58. We suspended the attorney from the practice of law for a period of
three months. Id. at 59. The facts of this case are also similar to
21
Morrison, in which we also imposed a three-month suspension. 727
N.W.2d at 120.
The discipline imposed for violating the confidences of a client also
varies with the particular facts and circumstances. We have not had the
occasion in our prior cases to impose discipline based solely on the
disclosure of confidential client information, but have only imposed
discipline in conjunction with other misconduct. Generally, however,
discipline for the violation of client confidence would appear to warrant a
modest period of suspension between sixty days and three months when
combined with aggravating circumstances. Miller, 568 N.W.2d at 667
(sixty-day suspension imposed on attorney revealing confidential
information of client for financial reasons and for attempting to demand
withdrawal of ethics complaint); Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Sikma, 533 N.W.2d 532, 537–38 (Iowa 1995) (three-month
suspension for entering into a business transaction with a client
involving misuse of client’s confidential information). A violation would
likely result in something less than a suspension without any
aggravating circumstances. Nevertheless, disclosure or misuse of a
client’s confidential information is an especially problematic violation
since
[a] fundamental principle in the client-lawyer relationship is
that, in the absence of the client's informed consent, the
lawyer must not reveal information relating to the
representation. . . . This contributes to the trust that is the
hallmark of the client-lawyer relationship.
Iowa R. Prof’l Conduct 32:1.6 cmt. 2.
Because one of the purposes of the rules at issue in this case is to
prevent exploitation of vulnerable clients, a violation is even more
egregious when the particular client is mentally or emotionally unstable.
22
See McGrath, 713 N.W.2d at 703 (“Preying upon this vulnerability
[involving custody of and visitation with the clients’ children], the
respondent manipulated these women ... for his own sexual
gratification.”). In this case, Marzen’s sexual relationship with Doe was
particularly offensive to the notions of trustworthiness and
professionalism built into the foundation of the rule because Marzen met
Doe as a court-appointed attorney for her involuntary mental health
commitment proceeding. In addition to her mental instability, Marzen
knew Doe was involved in family conflict, including a child-custody
dispute. In such circumstances of “paramount personal importance,”
the professional and confidential relationship between attorney and
client is critical and a betrayal of the relationship must be sanctioned
with that betrayal in mind. Id. While many, if not most, people seek out
lawyers for help in matters of personal importance and may,
consequently, be vulnerable, the mental health condition of Doe at the
time the sexual relationship began is an aggravating circumstance to
consider in the imposition of discipline.
Considering all the circumstances of this case, we conclude
Marzen should be suspended from the practice of law for a period of six
months. Although his sexual misconduct was not accompanied by the
type of aggravating circumstances that has warranted a suspension for a
lengthier period of time in other cases, he exploited the attorney-client
relationship for his own sexual gratification to the detriment of his client
and the profession. His egocentric attitude was also apparent in the
public disclosure of confidential information. Yet, the most serious
circumstance is he became sexually involved with his client at a time
when she was most vulnerable and the trust of a lawyer was most
needed and expected. This case goes well beyond the vulnerability that
23
is inherent in all attorney-client relationships. We conclude Marzen
should be suspended from the practice of law in this state for a period of
time not less than six months.
IV. Conclusion.
We suspend Marzen’s license to practice law with no possibility of
reinstatement for a period not less than six months from the date of the
filing of this opinion. This suspension applies to all facets of the practice
of law pursuant to Iowa Court Rule 35.12(3). Upon application for
reinstatement, Marzen shall have the burden to prove he has not
practiced during the period of suspension and that he meets all the
requirements of reinstatement provided in Iowa Court Rule 35.13. Costs
of the action are taxed against Marzen in accordance with Iowa Court
Rule 35.26(1).
LICENSE SUSPENDED.
All justices concur except Appel and Baker, JJ., who concur in
part and dissent in part.
24
#08–1546, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen
APPEL, Justice (concurring in part and dissenting in part).
I respectfully dissent. The majority has presented a thorough and
thoughtful review of this unattractive record. My difficulty arises from
the fact that this court is necessarily conducting its review on a cold
record where credibility determinations are necessary to the outcome of
the case.
There are numerous troubling features in the record. For instance,
in a proceeding brought by Doe against her mother, Doe testified under
oath that there was no sexual misconduct in her relationship with
Marzen. In addition, prior to the events which give rise to these
proceedings, Doe obtained a financial settlement in connection with a
charge of sexual misconduct involving a probation officer. These facts
raise substantial credibility issues.
The board has the burden to prove the allegations of misconduct
contained in the complaint by a convincing preponderance of the
evidence. While this burden is lower than in a criminal prosecution, it is
higher than the burden in most civil cases. Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). A
majority of the grievance commission members who heard the testimony
determined that the board did not establish by a convincing
preponderance of the evidence that Marzen engaged in sexual
misconduct. On this record, I cannot conclude that the board met its
heightened burden when the majority of the panel that actually heard
the testimony came to a different conclusion.
I concur in the majority’s analysis and conclusions regarding the
disclosure of confidential information. I would find that a public
reprimand is the appropriate sanction for this violation.
Baker, J., joins this concurrence in part and dissent in part.