Iowa Supreme Court Attorney Disciplinary Board Vs. James Andrew Weaver ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 121/ 07-0671
Filed March 28, 2008
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JAMES ANDREW WEAVER,
Respondent.
On review of the report of the Grievance Commission.
Iowa Supreme Court Grievance Commission recommends
suspension of respondent’s license to practice law. LICENSE
SUSPENDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
complainant.
James A. Weaver, Muscatine, respondent, pro se.
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TERNUS, Chief Justice.
The complainant, Iowa Supreme Court Attorney Disciplinary
Board, filed a two-count complaint against the respondent, James
Weaver. Weaver, an Iowa attorney, was charged with ethical violations
based on (1) his commission of second-offense operating while
intoxicated (OWI), and (2) his statements to a newspaper reporter
challenging the honesty of the judge presiding over Weaver’s criminal
OWI prosecution. The matter was heard before a panel of the Iowa
Supreme Court Grievance Commission, which determined Weaver had
violated the Iowa Code of Professional Responsibility for Lawyers and
recommended that Weaver’s license to practice law be suspended for
three months. After reviewing the record and considering the arguments
of the parties, we agree that Weaver has committed ethical infractions,
and we suspend his license to practice law with no possibility of
reinstatement for three months.
I. Scope of Review.
This matter is before the court for review of the Grievance
Commission’s report and for final disposition of the charges lodged
against the respondent by the Board. See Iowa Ct. Rs. 35.9, .10(1). The
Board has the burden to prove the alleged ethical violations by a
convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 130–31 (Iowa
2004). “A convincing preponderance of the evidence is a greater
quantum of evidence than that required in a civil trial, but less than that
required to sustain a criminal conviction.” Comm. on Prof’l Ethics &
Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985).
We review the factual findings of the Grievance Commission
de novo. Iowa Ct. R. 35.11(3). Although we give weight to the
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Commission's findings, especially when considering the credibility of
witnesses, we find the facts anew. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). “We also respectfully
consider the discipline recommended by the Commission, but we are not
bound by such recommendations.” Iowa Supreme Ct. Bd. of Prof’l Ethics
& Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001).
II. Factual Findings.
A. Weaver’s Alcoholism and OWI Violations. Weaver, who was
fifty-one at the time of the conduct giving rise to this case, has practiced
law in Iowa since his admission to the bar in 1979. From 1982 until
December 2004, he served as an associate district court judge. In
December 2004, this court granted Weaver’s request for a disability
retirement from his judicial position. Since that time, he has engaged in
the private practice of law in Muscatine.
On November 15, 2002, Weaver was convicted of the crime of
operating while intoxicated, first offense. As part of his sentence, he was
ordered to complete inpatient treatment for alcoholism. So, in late 2002,
Weaver spent twenty-eight days in an inpatient treatment program called
New Beginnings. He thereafter remained alcohol free until July 2003.
Meanwhile, the Commission on Judicial Qualifications determined
that Weaver’s conduct of driving while intoxicated violated the Iowa Code
of Judicial Conduct. As part of its investigation of this incident, the
Commission on Judicial Qualifications required Weaver to undergo a
substance abuse evaluation at Rush Behavioral Health Center. This
evaluation, conducted in September 2003 after Weaver’s relapse, led to
Weaver’s inpatient treatment in a Florida program designed for
professionals. After his second treatment was completed in November
2003, Weaver remained abstinent until August 2004.
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In late 2004, the Commission on Judicial Qualifications
recommended to this court that Weaver receive a public reprimand for
the conduct that had resulted in Weaver’s first OWI conviction. Acting
on this recommendation, we entered an order on December 10, 2004,
finding Weaver had violated Canons 1 and 2A of the Iowa Code of
Judicial Conduct and publicly reprimanding him for these violations.1
That same month, the court granted Weaver’s application for disability
retirement based on his alcoholism.
On November 8, 2004, approximately one month before Weaver
was publicly reprimanded for his first OWI offense, he was arrested for
second-offense OWI after a citizen called police with a reckless-driving
report. Weaver was subsequently charged with OWI, second offense,
after testing revealed he had a .185 blood alcohol content.
After his second arrest, Weaver was admitted to the Multiple
Addictions Recovery Center (MARC) in Davenport on November 10, 2004,
where he underwent his third inpatient treatment for alcoholism.
Weaver was successfully discharged from that program on December 7,
2004, and reported at the hearing on the current disciplinary charges
that he has remained alcohol free since that date. Weaver resumed the
practice of law in January 2005.
Judge Denver Dillard was assigned to preside over Weaver’s second
OWI prosecution, and on April 18, 2005, he accepted Weaver’s guilty plea
to OWI, second offense. Because Weaver had waived any delay in
sentencing, he was sentenced on the same day. Pursuant to a plea
1Iowa Code of Judicial Conduct Canon 1 provides: “A judge . . . should observe
. . . high standards of conduct so that the integrity and independence of the judiciary
may be preserved.” Canon 2A states: “A judge should respect and comply with the law
and should act at all times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary.”
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agreement between Weaver and the State, the State recommended a
$1500 fine, payment of costs, and 180 days in the county jail with all but
seven days suspended. Weaver asked the court that he be given credit
against any jail time for the period he spent in inpatient treatment in
MARC after his second arrest.
Following a nearly two-hour hearing, Judge Dillard rejected the
State’s recommendation and, invoking Iowa Code section 904.513,2
sentenced Weaver to the Iowa Department of Corrections for an
indeterminate term not to exceed two years. The court ordered that
Weaver, upon mittimus, be immediately placed at an appropriate alcohol
treatment correctional facility, and upon achievement of the maximum
benefits from the treatment program, be released on parole. He also
fined Weaver $1500 plus surcharges. Because Weaver had spent no time
in jail following his arrest, the court allowed no credit for time previously
served.
Weaver immediately asked the court to keep the record open so he
could submit his MARC records to show that he had already completed
the same program that would be available through the Department of
Corrections. The judge responded that he would entertain a motion to
reconsider the sentence and would schedule a hearing for that purpose,
but he was not going to change his mind about the sentence at the
sentencing hearing. He set the date of May 6, 2005, for Weaver to report
to the department for commencement of his sentence.
2Section 904.513 provides for the assignment of OWI violators to treatment
facilities based on a continuum of programming developed by the district departments
of correctional services. Iowa Code § 904.513(1)(a). The continuum includes a range of
treatment options from community residential facilities to prison. Id. Offenders are
assigned to a particular treatment option based initially on standardized assessment
criteria and ultimately on their treatment program performance, compliance with the
conditions of an assignment, and other factors. Id. § 904.513(1)(b)(1), (1)(b)(4), (2).
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The day after sentencing, April 19, Weaver filed a motion to
reconsider sentence, arguing that he would not benefit from the sentence
imposed, as he had already undergone the inpatient treatment program
that would be available through the Department of Corrections. He also
filed several other motions, attaching reports from his MARC treatment
to a motion to reopen the record. On May 6, Judge Dillard denied
Weaver’s motions, stating in pertinent part:
The Defendant [Weaver] has filed Motion for Reconsideration
of Sentence, Motion to Delay Mittimus, Motion to Reopen the
Record and Motion for a Presentence Addendum. All of said
motions are directed at the request of the Defendant that the
court reconsider its sentence before the Defendant begins
serving any portion thereof. Based upon the conclusions
reached by the court that the defendant has a serious
alcohol and substance abuse addiction problem and the past
failures of treatment, the court believes that the Defendant’s
sentence should commence and that any reconsideration of
sentence would be based, in part, upon the progress of the
Defendant in the treatment program pursuant to Iowa Code
section 904.513.
The judge scheduled a hearing for June 3, 2005, for purposes of
reconsidering Weaver’s sentence.
The same day that Judge Dillard’s order denying Weaver’s motions
was filed, Weaver filed a notice of appeal of his conviction and sentence.
Due to his appeal, Weaver did not report to the department to begin his
sentence as scheduled on May 6.
On May 31, when Judge Dillard became aware that Weaver had
appealed, Judge Dillard signed an order canceling the June 3 hearing
“[f]or the reason that the Defendant has filed a Notice of Appeal in this
matter.” Weaver immediately filed a motion to reconsider the
cancellation of the hearing, which the judge denied on June 1, 2005,
stating:
The Defendant’s appeal of the judgment and sentence of the
court and his posting of the appeal bond has stayed the
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execution of the sentence. The Defendant’s rejection of the
court’s judgment makes it impossible for the court to
evaluate the rehabilitative effect of the sentence.
On the same day this order was filed, Weaver spoke with a
newspaper reporter from the Muscatine Journal. An article published the
following day was headlined: “Bias on the bench. Ongoing court battle
pits judge against retired judge as Weaver makes allegations of personal
bias, dishonesty against presiding judge.” The reporter included quotes
from Weaver in the body of the article, which stated in pertinent part:
“When Judge Dillard sentenced me in April, he felt
that I was in need of substance abuse treatment,” Weaver
said. “I pointed out to him that I had completed the same
treatment program in November 2004.”
Although Weaver was supposed to report to the
Davenport facility on May 6, Davenport attorney, James D.
Hoffman, filed four motions before Dillard on May 3, asking
that Weaver’s alcohol treatment program records be added
into the court’s records and contending that Weaver would
not gain any benefit from the Davenport substance abuse
program because he received similar treatment at a local
private hospital program.
Dillard overruled three of Weaver’s motions on May 6,
but scheduled a hearing for reconsideration of sentence for
1:30 p.m. Friday, June 3, at the Muscatine County
Courthouse.
However, on May 31, Dillard canceled the hearing,
noting that Weaver had filed an appeal of his sentence. A
motion filed the next day by Weaver’s attorney, asking
Dillard to reconsider the decision to cancel, was rejected.
“Those [treatment] records were provided to the court
during the last two weeks of May,” Weaver said. “In
response, Dillard canceled the hearing.”
Weaver didn’t know why Dillard would show personal
bias against him by imposing a two-year prison sentence and
canceling Friday’s hearing. The usual sentence for second-
[offense] operating while intoxicated is a seven-day jail
sentence with a 60-day suspended jail term.
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“I can’t speculate about the reasons why he did this,”
he said. “But he’s not being honest about the reasons why he
committed me to the Department of Corrections.”
(Emphasis added.)
On October 25, 2006, the Iowa Court of Appeals affirmed Weaver’s
sentence, concluding Judge Dillard did not abuse his discretion when
imposing sentence. This court denied Weaver’s request for further
review.
B. Disciplinary Proceedings. Based upon the above incidents,
on December 13, 2006, the Iowa Supreme Court Attorney Disciplinary
Board filed a two-count complaint against Weaver, charging him with
ethical violations based on his second-offense OWI conviction and the
statements he made to the newspaper reporter that are italicized above.
In response to the complaint, Weaver admitted his OWI conviction and
that he made the statements at issue, but denied he had violated any
ethical rules.
After a hearing before a panel of the Grievance Commission at
which both parties presented evidence, the Commission issued its report,
thoroughly reviewing the evidence, considering both parties’ arguments,
and explaining its recommended findings of fact, conclusions of law, and
sanctions. With respect to count 1, regarding the OWI-second offense,
the Commission concluded Weaver violated DR 1–102(A)(6), prohibiting a
lawyer from engaging in conduct that adversely reflects on the fitness to
practice law. The Commission also determined that Weaver’s statements
to the reporter were ethical violations, as alleged in count 2 of the
Board’s complaint. Specifically, the Commission concluded Weaver’s
statement about why Judge Dillard canceled the reconsideration hearing
(1) was a false accusation in violation of DR 8–102(B), which prohibits an
attorney from “knowingly mak[ing] false accusations against a judge”; (2)
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was prejudicial to the administration of justice in violation of DR 1–
102(A)(5), which prohibits an attorney from “engag[ing] in conduct that is
prejudicial to the administration of justice”; and (3) was a
misrepresentation of fact in violation of DR 1–102(A)(4), which prohibits
an attorney from “engag[ing] in conduct involving dishonesty, fraud,
deceit or misrepresentation.” Finally, the Commission concluded
Weaver’s statement that the judge was being dishonest about the
reasons for Weaver’s sentence also constituted unethical conduct.
With respect to an appropriate sanction, the Commission, after
reviewing mitigating and aggravating circumstances, concluded the
ethical violations detailed in each count independently warranted a
three-month suspension. Nonetheless, the Commission recommended
that Weaver’s license be suspended for a total of three months for all
violations.
III. Count I—Commission of Second-Offense OWI.
As noted above, the Commission concluded Weaver’s second
commission of drunk driving was an ethical infraction in violation of
DR 1–102(A)(6) (conduct adversely reflecting on fitness to practice law).
Pointing out his OWI offense was only an aggravated misdemeanor,
Weaver contends operating while intoxicated is an ethical infraction only
when the crime is classified as a felony. He relies on our decision in
Iowa Supreme Court Board of Professional Ethics & Conduct v. Marcucci,
543 N.W.2d 879 (Iowa 1996).
In Marcucci, the respondent had been convicted of third-offense
OWI, a class “D” felony. 543 N.W.2d at 880. In concluding the
respondent had violated DR 1–102(A)(6), we agreed with the reasoning of
the Grievance Commission, quoting with approval from its report:
“ ‘[T]he [Commission] is concerned with the public perception of an
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attorney with serious alcohol abuse problems and feels that such abuse
“adversely reflected” on his fitness to practice law.’ ” Id. at 881. Noting
that the offense of which the respondent was convicted was a felony, we
stated “[w]e need not decide the gravity of a first-offense conviction for
OWI for purposes of applying DR 1–102(A)(6).” Id. at 882. Contrary to
Weaver’s arguments, this court clearly did not hold that an OWI offense
is an ethical violation only when it constitutes a felony.
Whether an attorney’s criminal behavior reflects adversely on his
fitness to practice law is not determined by a mechanical process of
classifying conduct as a felony or a misdemeanor. The term “fitness” as
used in DR 1–102(A)(6) embraces not only one’s legal competency, but
also “one’s 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). This disciplinary rule “focuses on matters
that ‘lessen[] public confidence in the legal profession.’ ” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Johnston, 732 N.W.2d 448, 454 (Iowa 2007)
(quoting Marcucci, 543 N.W.2d at 882). Therefore, we examine the
attorney’s conduct and the surrounding circumstances in determining
whether there is an ethical violation.
We found a violation of DR 1–102(A)(6) for misdemeanor conduct in
Iowa Supreme Court Board of Professional Ethics & Conduct v. Thompson,
595 N.W.2d 132 (Iowa 1999). In that case, the attorney was convicted of
two simple misdemeanors, assault and trespass, arising out of the
attorney’s threatening of his daughter’s boyfriend with a loaded shotgun.
Thompson, 595 N.W.2d at 132, 133. Holding this conduct reflected
adversely on the attorney’s fitness to practice law, we observed:
“[W]hen those licensed to operate the law’s machinery
knowingly violate essential criminal statutes, there
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inexorably follows an intensified loss of lay persons’ respect
for the law.”
As lawyers we take an oath to uphold the law. When,
as lawyers, we violate criminal statutes, we violate that oath.
Id. at 134 (quoting Comm. on Prof’l Ethics & Conduct v. Patterson, 369
N.W.2d 798, 801 (Iowa 1985)).
Turning to the present case, we agree with the Commission that
Weaver’s commission of second-offense drunk driving reflected adversely
on his fitness to practice law. Weaver was arrested shortly after noon on
a Saturday after a motorist reported that he had nearly caused a
collision. Weaver tested .185, more than twice the legal limit of .08.
Notwithstanding the wide margin by which he exceeded the legal limit, he
repeatedly denied to the arresting officer that he had been drinking.
Moreover, Weaver again and again asked the officer to just let him go,
and at one point asked, “Come on, isn’t there anything we can do to
forget about this?” In summary, Weaver drove a vehicle after a morning
of clearly excessive drinking, nearly caused an accident, disputed any
responsibility for the near collision, repeatedly denied any drinking, and
tried to wheedle his way out of an arrest.
We think Weaver’s conduct was a negative reflection on his
character and his suitability to serve as an officer of the court. His
actions would also tend to lessen public confidence in the legal
profession. Consequently, we do not hesitate to agree with the
Commission that Weaver’s actions constituted a violation of DR 1–
102(A)(6).
IV. Count II—Statements Concerning Judge Dillard.
A. Controlling constitutional principles. Because sanctioning
an attorney for statements he has made implicates the First Amendment,
we begin with a discussion of the constitutional limitations that impact
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our consideration of this charge. Initially, we note that “attorneys may
be sanctioned for impugning the integrity of a judge or the court only if
their statements are false; truth is an absolute defense.” Standing
Comm. on Discipline v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995)
(citing Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 215, 13
L. Ed. 2d 125, 132–33 (1964)). In general, even a false statement is
protected by the First Amendment unless made with actual malice,
which requires “knowledge that [the statement] was false or . . . reckless
disregard of whether it was false or not.” New York Times Co. v. Sullivan,
376 U.S. 254, 279–80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964)
(holding First Amendment protects speech regarding a public official
unless made with actual malice). The “reckless disregard” prong of the
New York Times test “requires more than a departure from reasonably
prudent conduct.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491
U.S. 657, 688, 109 S. Ct. 2678, 2696, 105 L. Ed. 2d 562, 589 (1989).
“There must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to
the truth of his publication” [or] . . . that the defendant
actually had a “high degree of awareness of . . . probable
falsity.”
Id. (quoting St. Amant v. Thompson, 390 U.S. 727, 730–31, 88 S. Ct.
1323, 1325, 20 L. Ed. 2d 262, 266–67 (1968)).
The Supreme Court has not applied the New York Times test to
attorney disciplinary proceedings based on an attorney’s criticism of a
judge. It appears a majority of jurisdictions addressing this issue has
concluded the interests protected by the disciplinary system call for a
test less stringent than the New York Times standard. See Yagman, 55
F.3d at 1437 n.12; In re Cobb, 838 N.E.2d 1197, 1212-13 (Mass. 2005);
Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 431 (Ohio
13
2003). Courts in these jurisdictions have held that in disciplining an
attorney for criticizing a judge, “the standard is whether the attorney had
an objectively reasonable basis for making the statements.” Cobb, 838
N.E.2d at 1212.
Interestingly, the Massachusetts Supreme Judicial Court has cited
Iowa as one of the jurisdictions that apply an objective standard for
malice rather than the subjective New York Times test. Id. (citing In re
Citation of Frerichs, 238 N.W.2d 764, 767 (Iowa 1976)). This court did
not discuss the New York Times test in Frerichs, but we did consider the
attorney respondent’s argument that he did not intend by his statements
“to allege the commission of any illegal actions on the part of the court.”
Frerichs, 238 N.W.2d at 767. This court rejected any relevancy of the
attorney’s subjective intent, stating:
We do not believe respondent can avoid the impact of his
assertions on the basis of his subjective intent. The [Iowa
Code of Professional Responsibility for Lawyers] was not
promulgated for the private intentions or feelings of judges or
lawyers but to protect the integrity of, and public confidence
in, our system of justice. Respondent’s assertions should be
judged with a view to their likely effect on the public’s belief
in the integrity of the court as an institution. The effect of
the respondent’s remarks on the public’s belief is in no way
related to his subjective intent.
Neither does respondent’s subjective intent relate to
the question of whether his remarks were knowingly made.
Respondent, as we have seen, expressly acknowledged his
charges were “not made in haste or without appropriate
consideration.”
Id. It appears the present case is the first in which we have expressly
considered the appropriate standard to apply in determining whether
statements and accusations made by an attorney regarding a judicial
officer enjoy constitutional protection. See, e.g., Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 380–81 (Iowa 2001)
(considering impact of First Amendment on attorney’s out-of-court
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statements regarding matters in litigation); Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Wherry, 569 N.W.2d 822, 825 (Iowa 1997)
(discussing limitations placed on regulation of attorney advertising by
First Amendment). But see Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Ronwin, 557 N.W.2d 515, 517–18 (Iowa 1996) (noting First
Amendment test in case involving criticism of judge, but without any
discussion of its applicability).
In reviewing cases from other jurisdictions, we find the rationale
for using an objective standard in lieu of the New York Times test was
convincingly expressed by the Minnesota Supreme Court in In re
Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn. 1990), a case
frequently cited for the proposition that an objective test should be used
in attorney disciplinary proceedings. The Minnesota court said in that
case:
This court certifies attorneys for practice to protect the
public and the administration of justice. That certification
implies that the individual admitted to practice law exhibits
a sound capacity for judgment. Where an attorney criticizes
the bench and bar, the issue is not simply whether the
criticized individual has been harmed, but rather whether
the criticism impugning the integrity of judge or legal officer
adversely affects the administration of justice and adversely
reflects on the accuser’s capacity for sound judgment. An
attorney who makes critical statements regarding judges and
legal officers with reckless disregard as to their truth or
falsity and who brings frivolous actions against members of
the bench and bar exhibits a lack of judgment that conflicts
with his or her position as “an officer of the legal system and
a public citizen having special responsibility for the quality of
justice.”
....
Because of the interest in protecting the public, the
administration of justice and the profession, a purely
subjective standard is inappropriate. The standard applied
must reflect that level of competence, of sense of
responsibility to the legal system, of understanding of legal
rights and of legal procedures to be used only for legitimate
purposes and not to harass or intimidate others, that is
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essential to the character of an attorney practicing in
Minnesota. Thus, we hold that the standard must be an
objective one dependent on what the reasonable attorney,
considered in light of all his professional functions, would do
in the same or similar circumstances.
Graham, 453 N.W.2d at 322 (quoting Minn. R. Prof’l Conduct, Preamble).
As another court has noted,
an objective malice standard strikes a constitutionally
permissible balance between an attorney’s right to criticize
the judiciary and the public’s interest in preserving
confidence in the judicial system: Lawyers may freely voice
criticisms supported by a reasonable factual basis even if
they turn out to be mistaken.
Yagman, 55 F.3d at 1438. We are persuaded by the rationale given in
support of applying an objective standard in cases involving criticism of
judicial officers. Therefore, we will employ that standard in considering
whether Weaver’s statements concerning Judge Dillard are sanctionable.
In deciding whether Weaver’s statements are protected by the First
Amendment, we must also be aware of the “constitutional limits on the
type of speech” that may be the subject of discipline. Milkovich v. Lorain
Journal Co., 497 U.S. 1, 16, 110 S. Ct. 2695, 2704, 111 L. Ed. 2d 1, 16
(1990) (considering this issue in the context of a defamation action
brought against a newspaper and its reporter). Although statements of
opinion are not automatically protected by the First Amendment, “a
statement of opinion relating to matters of public concern which does not
contain a provably false factual connotation will receive full
constitutional protection.” Id. at 18, 20, 110 S. Ct. at 2705, 2706, 111
L. Ed. 2d at 17–18. In addition, “statements that cannot ‘reasonably [be]
interpreted as stating actual facts’ about an individual,” such as
“rhetorical hyperbole,” will also be protected by the First Amendment. Id.
at 20, 110 S. Ct. at 2706, 111 L. Ed. 2d at 19 (quoting Hustler Magazine
v. Falwell, 485 U.S. 46, 50, 108 S. Ct. 876, 879, 99 L. Ed. 2d 41, 48
16
(1988)). But if the statement, even when couched as opinion, implies the
assertion “of an objectively verifiable event,” “susceptible of being proved
true or false,” only the limited protection provided by the malice
requirement is demanded by the First Amendment. Id. at 21-22, 110
S. Ct. at 2707, 111 L. Ed. 2d at 19-20.
As applied to the case before us, these authorities require that we
first decide whether Weaver’s statements are “sufficiently factual to be
susceptible of being proved true or false.” Id. at 21, 110 S. Ct. at 2707,
111 L. Ed. 2d at 19. If so, the next step is to determine the truth or
falsity of these statements. If we find Weaver’s statements were false, we
must then decide whether Weaver had “an objectively reasonable basis
for making the statements.” Cobb, 838 N.E.2d at 1212. If we conclude
Weaver’s statements are not entitled to First Amendment protection, we
may proceed to a determination of whether his statements violated our
Code of Professional Responsibility. We will discuss each statement
separately.
B. Statement Regarding Cancellation of the Hearing to
Reconsider Sentence.
1. Type of statement. As noted above, Weaver stated to a
newspaper reporter that Judge Dillard canceled the hearing scheduled
on Weaver’s motion to reconsider sentence in response to receiving
Weaver’s treatment records. We think this assertion—the judge
cancelled the hearing in response to receiving Weaver’s medical records—
is capable of being proved true or false. Therefore, it is the type of
statement that does not enjoy full constitutional protection.
2. Falsity of statement. In his order of May 31, Judge Dillard
expressly stated he was canceling the hearing “[f]or the reason that the
Defendant [Weaver] has filed a Notice of Appeal in this matter,” which, in
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fact, Weaver had done. Judge Dillard’s subsequent order of June 1
amplified this reason:
The Defendant’s appeal of the judgment and sentence of the
court and his posting of the appeal bond has stayed the
execution of the sentence. The Defendant’s rejection of the
court’s judgment makes it impossible for the court to
evaluate the rehabilitative effect of the sentence.
The judge’s announced reason for canceling the hearing was entirely
consistent with the court’s May 6 order scheduling the hearing, in which
the judge stated: “[T]he court believes that the Defendant’s sentence
should commence and that any reconsideration of sentence would be
based, in part, upon the progress of the Defendant in the treatment
program pursuant to Iowa Code section 904.513.”
At the hearing on the Board’s complaint, Weaver was specifically
asked why he believed “Judge Dillard canceled the hearing in response to
the treatment records.” He answered, “I don’t know. I know that he did.
I don’t know why.” Weaver then acknowledged that the only evidence he
had to support his assertion was timing: the treatment records had been
provided to the court in the last half of May, and on May 31, Judge
Dillard canceled the hearing to reconsider Weaver’s sentence. Weaver
suggested that the records “disrupt[ed] the reasoning that [Judge Dillard]
gave on April 18th for the sentence pronounced.” Weaver also admitted,
however, that the timing of these events could be a mere coincidence
rather than a cause-effect sequence.
Based on our review of the record, we are convinced the Board has
met its burden to prove Weaver’s statement that the judge canceled the
June 3 hearing because the judge had received Weaver’s treatment
records was false. The reason given in the judge’s orders with respect to
the cancellation of the hearing was entirely consistent with the judge’s
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earlier statement that he wanted Weaver to commence his sentence
before any reconsideration of that sentence.
In addition, we find unpersuasive Weaver’s argument that the
judge was motivated to cancel the hearing because the records in some
way undermined the reasons the judge had given for the selected
sentence. Judge Dillard was aware at the time of sentencing that Weaver
had successfully completed treatment through MARC. By the time
Judge Dillard scheduled the June 3 hearing, which he did on May 6,
2005, Weaver’s successful treatment at MARC had already been
documented in the court file.3 The records the judge subsequently
received later in May merely confirmed what the judge already knew and
what was already contained in the record. Consequently, if in fact the
MARC records undermined the judge’s sentencing decision, that “fact”
existed at the time the judge set the hearing. The only circumstance that
changed between May 6, when the hearing was set, and May 31, when it
was cancelled, was the judge’s awareness that Weaver had filed a notice
of appeal. The sequence of events simply does not support Weaver’s
contention that the filing of the MARC records prompted the cancellation
of the hearing.
3. Existence of objectively reasonable basis for making the
statement. Weaver admitted that prior to his interview by the newspaper
reporter he had seen the court’s May 31 order canceling the hearing, as
well as the court’s June 1 order denying Weaver’s motion to reconsider
the cancellation of the hearing. If there had been any question in
3When Weaver filed his motion to reopen the record on May 4, 2005, he attached
four letters and reports, including his MARC discharge summary. These letters,
reports, and records documented Weaver’s participation in and successful completion of
the MARC program, as well as his ongoing recovery efforts. These attachments also
included a letter from the department of correctional services stating that, if Weaver
“had satisfied the need for primary treatment[,] he would be placed in Phase II [of the
OWI program].”
19
Weaver’s mind after the May 31 order as to why the notice of appeal
would cause the judge to cancel the hearing, that question was answered
by the judge’s second order. Consequently, it should have been apparent
to a reasonable attorney having the information known to Weaver at the
time Weaver spoke to the reporter that Judge Dillard did not cancel the
hearing on Weaver’s motion to reconsider because the judge had received
Weaver’s treatment records. To the contrary, the judge was clear in his
May 6 order that he set the hearing far enough in the future to allow
implementation of sentence—commencement of the treatment program—
and an evaluation of Weaver’s progress in the program prior to the
court’s reconsideration of the sentence. The judge’s June 1 order was
similarly clear: Because Weaver had appealed, sentence had been
stayed, Weaver had not begun the treatment program, there was no way
the judge could consider the rehabilitative effect of the program, and
hence, there was no purpose in having the hearing.
As we have discussed, Weaver has not suggested a credible basis
for his view that the judge cancelled the hearing for a reason other than
that stated in the judge’s orders. We conclude Weaver did not have an
objectively reasonable basis for his statement that Judge Dillard
cancelled the hearing as a result of receiving Weaver’s treatment records.
Consequently, Weaver acted in reckless disregard for the truth or falsity
of his statement and thereby forfeited the protection of the First
Amendment.
4. Ethical violation. Among other violations, the Commission
concluded Weaver’s statement with respect to cancellation of the hearing
was a misrepresentation of fact in violation of DR 1–102(A)(4) (a lawyer
shall not “[e]ngage in conduct involving dishonesty, fraud, deceit or
misrepresentation”). We have held that a “[n]egligent misrepresentation
20
does not violate DR 1–102(A)(4).” Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004); accord Comm. on
Prof’l Ethics & Conduct v. Bitter, 279 N.W.2d 521, 526 (Iowa 1979)
(stating the rule is not “violated by acts resulting from ‘haste’ or
‘oversight’ ”). Proof of “an intent to deceive” is required. Moorman, 683
N.W.2d at 553. Intent to deceive can be shown by an attorney’s reckless
disregard for the truth, as well as by actual knowledge of falsity. Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288,
293 (Iowa 2002). Thus, to prove a violation of DR 1–102(A)(4), the Board
must establish (1) that Weaver’s statement was not true, and (2) that he
made the statement with actual knowledge of falsity or in reckless
disregard for whether the statement was true or not.
We have already determined that Weaver’s statement was false.
Based on our review of the record, we are also convinced Weaver either
knowingly or recklessly misrepresented the judge’s reason for canceling
the hearing. At the time Weaver commented on the judge’s decision to
cancel the hearing, Weaver was upset that the judge would not
reconsider his sentence unless he had served some portion of it. In an
attempt to characterize himself as the victim of unfair treatment by the
court, he publicly claimed the judge had cancelled the hearing upon
receipt of Weaver’s records, implying the judge wanted to avoid a hearing
on Weaver’s sentence because the records would have shown the
sentence was not justified. In addition, Weaver did not make this
statement in haste. To the contrary, he testified that he carefully
thought about what he wanted to say to the reporter, as “[i]t was very
important” for him—Weaver—“to communicate to the public.” We believe
the Board has proved by a convincing preponderance of the evidence that
Weaver intended to deceive the reporter and the public in making this
21
statement, or at the least acted in reckless disregard for whether his
statement was true or not. We hold, therefore, that Weaver violated
DR 1–102(A)(4).
C. Statement Regarding Judge Dillard’s Reason for Sentencing
Weaver to the Department of Corrections.
1. Type of statement. As noted above, when Weaver was
interviewed by the Muscatine Journal reporter, Weaver stated Judge
Dillard was “not being honest about the reasons why he committed me to
the Department of Corrections,” a statement repeated in the newspaper
article. We think this statement “ ‘is an articulation of an objectively
verifiable event.’ ” Milkovich, 497 U.S. at 21, 110 S. Ct. at 2707, 111
L. Ed. 2d at 20 (quoting Scott v. News-Herald, 496 N.E.2d 699, 707 (Ohio
1986)).
In Milkovich, the court considered a newspaper article, entitled
“Maple beat the law with the ‘big lie.’ ” Id. at 4, 110 S. Ct. at 2698, 111
L. Ed. 2d at 8. The article discussed a court decision overturning the
disqualification of the Maple Heights High School wrestling team from
the state tournament. Id. In the article, the reporter stated, among
other things, “ ‘Anyone who attended the meet . . . knows in his heart
that [wrestling coach] Milkovich and [superintendent] Scott lied at the
hearing after each having given his solemn oath to tell the truth. But
they got away with it.’ ” Id. at 5, 110 S. Ct. at 2698, 111 L. Ed. 2d at 9
(quoting Milkovich v. News-Herald, 545 N.E.2d 1320, 1321–22 (Ohio
1989)). In the subsequent defamation suit brought by Milkovich, an
Ohio trial court granted the defendants a summary judgment “in part on
the grounds that the article constituted an ‘opinion’ protected from the
reach of state defamation law by the First Amendment.” Id. at 3, 110
22
S. Ct. at 2698, 111 L. Ed. 2d at 8. The Supreme Court reversed with the
following analysis:
The dispositive question in the present case then becomes
whether a reasonable factfinder could conclude that the
statements in the [newspaper article] imply an assertion that
petitioner Milkovich perjured himself in a judicial
proceeding. We think this question must be answered in the
affirmative. As the Ohio Supreme Court itself observed:
“[T]he clear impact in some nine sentences and a caption is
that [Milkovich] ‘lied at the hearing after . . . having given
his solemn oath to tell the truth.’ ” This is not the sort of
loose, figurative, or hyperbolic language which would negate
the impression that the writer was seriously maintaining
that petitioner committed the crime of perjury. Nor does the
general tenor of the article negate this impression.
Id. at 21, 110 S. Ct. at 2707, 111 L. Ed. 2d at 19 (quoting Scott, 496
N.E.2d at 707).
The facts in Milkovich can be helpfully contrasted to the facts in
Yagman. In the latter case, Yagman, an attorney, wrote a letter critical of
one Judge Keller in which he stated, in part:
It is an understatement to characterize the Judge as “the
worst judge in the central district.” It would be fairer to say
that he is ignorant, dishonest, ill-tempered, and a bully, and
probably is one of the worst judges in the United States.
55 F.3d at 1434 n.4. Yagman was subsequently disciplined by a federal
district court for alleging that the judge was “dishonest.” Id. at 1440.
On appeal, the circuit court reversed, concluding that when considered
in context, Yagman’s statement “cannot reasonably be interpreted as
accusing Judge Keller of criminal misconduct”:
The term “dishonest” was one in a string of colorful
adjectives Yagman used to convey the low esteem in which
he held Judge Keller. The other terms he used—“ignorant,”
“ill-tempered,” “buffoon,” “sub-standard human,” “right-wing
fanatic,” “a bully,” “one of the worst judges in the United
States”—all speak to competence and temperament rather
than corruption; together they convey nothing more
substantive than Yagman’s contempt for Judge Keller.
Viewed in context of these “lusty and imaginative
23
expression[s],” the word “dishonest” cannot reasonably be
construed as suggesting that Judge Keller had committed
specific illegal acts. Yagman’s remarks are thus statements
of rhetorical hyperbole, incapable of being proved true or
false.
Id. (citations omitted) (emphasis added).
We think the facts of the present case more closely line up with
those in Milkovich than with those in Yagman. Weaver was reported as
having said “I can’t speculate about the reasons why he did this, . . .
[b]ut he’s not being honest about the reasons why he committed me to
the Department of Corrections.” “[T]he clear impact” of this statement is
that Judge Dillard gave false reasons for the sentence he imposed.
Milkovich, 497 U.S. at 21, 110 S. Ct. at 2707, 111 L. Ed. 2d at 19.
Paraphrasing the Supreme Court, Weaver’s statement “is not the sort of
loose, figurative, or hyperbolic language which would negate the
impression that [Weaver] was seriously maintaining that [the judge had
not been honest].” Id. Moreover, it was not an expression of opinion; it
was a specific statement about specific wrongdoing by the judge, capable
of being proved true or false.
Nor do we think Weaver’s statement is protected simply because he
prefaced it with the remark that he couldn’t speculate on “the reasons
why [the judge] did this.” This remark did not transform Weaver’s
statement that the judge had not been honest into a protected opinion; it
simply left the reader at liberty to assume that Weaver knew more than
he was saying. Cf. Veilleux v. Nat’l Broad. Co., 206 F.3d 92, 115 (1st Cir.
2000) (“Whether an opinion is protected hyperbole depends primarily
upon whether a reasonable person would not interpret it as providing
actual facts about the described individual.”); Yagman, 55 F.3d at 1439
(discussing distinction between opinion statements “based on assumed
or expressly stated facts, and those based on implied, undisclosed facts”
24
and stating that when “[r]eaders of [the] statement will reasonably
understand the author to be implying that he knows facts supporting his
view,” the statement can be the subject of discipline). We conclude,
therefore, that Weaver’s statement does not enjoy full constitutional
protection and can properly be the subject of discipline.
2. Falsity of statement. To determine the truth or falsity of
Weaver’s statement, it is necessary to more closely examine the
circumstances leading up to it. When Judge Dillard scheduled the
sentencing hearing, he ordered Weaver to complete an alcohol
evaluation. At the sentencing hearing, Weaver offered his 2003
evaluation at Rush as compliance with the court’s order. This evaluation
was attached to the presentence report prepared by the Department of
Correctional Services. Although the presentence report included no
other medical records, Weaver stated to the court that he had no
additions or corrections to make to the presentence report other than
some minor corrections to some financial information.
Pursuant to the parties’ plea agreement, the State recommended a
sentence of 180 days in jail, with all but seven days suspended; a fine of
$1500, plus costs and surcharge; and evaluation and treatment for
substance abuse, if deemed appropriate by the court. Weaver’s attorney
asked the court to approve the plea agreement and requested that the
court give Weaver credit against his jail time for his inpatient treatment
after his arrest for second-offense OWI. Neither party presented any
evidence, although given the opportunity to do so. Weaver was offered
his right of allocution, which he exercised to detail the treatment he had
received for his alcoholism and depression, as well as the efforts that he
had taken to remain abstinent after the completion of his most recent
inpatient treatment. He suggested to the court that jail would not be “a
25
significant consequence” to him and that he had already undertaken
sufficient rehabilitative measures.
The court then questioned Weaver extensively concerning the
various treatment programs he had completed and also inquired about
his relapses. Weaver acknowledged that he had been in denial of his
problem for a long time, and that he had not always agreed that he
needed treatment. Judge Dillard asked Weaver whether his current
abstinence might not be just another chapter in a book of treatment
followed by relapse. Weaver assured the judge that this time he had “a
very different sense of well-being.”
Judge Dillard then discussed his sentencing considerations,
stating his two primary concerns were “protection of the community and
[Weaver’s] rehabilitation.” The judge expressly rejected the need for
punishment and stated that the notion that Weaver should be held
especially accountable because he was a judge at the time of his offense
was not a legitimate consideration for sentencing. Judge Dillard noted,
however, that Weaver’s judicial position did have some relevance in that
it provided Weaver with information that should have alerted him to the
seriousness of his condition and the options available to him to address
that condition. The judge observed that, notwithstanding Weaver’s
knowledge about the danger of drinking and driving and the fact that he
was jeopardizing his career by such conduct, Weaver was unable to
overcome his addiction. Judge Dillard expressed doubt that Weaver
really had his addiction under control:
I think that alcohol is a tremendously debilitating addiction
and that because of the length of time that you’ve been
drinking as much as you have over the years as reported in
the [presentence] report, that it’s beyond your will power to
deal with this subject, at least I’m not convinced that you
can control it.
26
The judge then announced his decision. He expressly rejected the
option of prison or the county jail, noting incarceration is “merely
punitive” and “accomplishes nothing other than abstinence.” Invoking
section 904.513 (the OWI continuum-of-treatment sentencing option),
the judge sentenced Weaver to the Department of Corrections for an
indeterminate term not to exceed two years and ordered that he be
placed at an appropriate alcohol treatment correctional facility. Judge
Dillard noted that, upon Weaver’s “achievement of the maximum benefits
from the program, [Weaver] would be released on parole,” which in the
judge’s view would occur in a significantly shorter period of time than for
the “standard person” given the number of treatment programs in which
Weaver had already participated. Judge Dillard summarized his
thinking, stating: “But I think that another go around of intensive
treatment is appropriate, and that’s the setting that I think is the best
available that we can monitor and control.”
Weaver immediately requested that the court leave the record open
so he could provide the judge with his records from MARC. Weaver
stated his belief that the facility providing treatment for the Department
of Corrections is the same facility that conducts the MARC program. He
further asserted that he would have produced witnesses had he
anticipated the court would have any concerns and that he considered
the sentence punitive.
In response, Judge Dillard stated that he was “open to
reconsideration,” noting “this is a sentence that can be reconsidered.”
Nonetheless, he refused to do so at that time, stating, “I’m not going to
change my mind today on the sentence.” Judge Dillard further noted
that Weaver would have to file a motion to reconsider. The parties then
agreed on a mittimus date of May 6.
27
As previously noted, Weaver subsequently filed a motion to
reconsider, but the hearing on that motion was cancelled after Weaver’s
sentence was stayed upon his filing of a notice of appeal. Weaver was
then interviewed by a journalist who reported that Weaver stated Judge
Dillard was “not being honest about the reasons why he committed me to
the Department of Corrections.”
At the hearing before the Grievance Commission, Weaver was
asked by the Board’s counsel to explain in what way Judge Dillard was
not honest about the reasons for the sentence that was imposed.
Weaver’s answer was far from concise, rambling for five pages of the
transcript. Omitting repetitive and nonresponsive material, we quote
Weaver’s answer:
The primary objective that the Court identifies for the term of
sentencing is to provide for my rehabilitation and to protect
members of the public. I took that to be a consideration that
the judge was concerned about my long-term recovery.
Unfortunately, the judge, as do many persons, equate[s]
treatment with recovery. . . . [T]reatment and recovery are
not identical concepts.
Therefore, my view was that his primary objective was
recovery. There’s also a part of the transcript . . . in which
the judge and I specifically discuss the various components
of the OWI treatment facility. And those two components . . .
[were] the treatment component and the vocational antisocial
component.
. . . I asked the judge if he felt it was necessary that I
be involved in [the vocational antisocial] component, and he
indicated that he did not.
So at that time on April 18th I considered that there
were—the two primary objectives were recovery, protection of
the public, with the caveat that I did not, in view of the
Court, need those rehabilitative services.
We fail to find in this testimony any clue of an alleged falsity in Judge
Dillard’s announced reasons for sentencing Weaver to the Department of
Corrections.
28
After Weaver’s testimony, Judge Dillard testified that he—the
judge—sensed at the sentencing hearing that Weaver was attempting to
manipulate the sentencing process. Weaver now seizes on this
testimony, claiming it reveals a “significant” reason for the sentence that
Judge Dillard did not disclose at the sentencing hearing. The judge’s
perception of Weaver as manipulative cannot be divorced, however, from
one of the announced reasons for the sentence—the need for treatment.
Judge Dillard testified:
But the strongest impression that I had that has stuck with
me throughout and without reading that transcript again
was that Mr. Weaver was trying to control the sentencing.
He was trying, in my view, to manipulate the entire process
to avoid any incarceration, to avoid being put under control
of someone else. And to me that is a classic alcoholic
characteristic.
(Emphasis added.) The judge also testified that Weaver’s controlling
personality led the judge to believe that court-ordered treatment,
supervised by the Department of Corrections, as opposed to voluntary
treatment controlled by Weaver, would be advisable. Thus, Judge
Dillard’s testimony that he viewed Weaver as manipulative was not an
independent reason for the sentence. It merely supported the judge’s
belief that another round of treatment—under state supervision—would
be prudent to determine, as Judge Dillard stated at sentencing, “whether
in fact [the treatment] has taken.”
After a careful review of the record, we are persuaded by a
convincing preponderance of the evidence that Weaver’s statement that
Judge Dillard was not being honest about why he sentenced Weaver to
the Department of Corrections was false. Judge Dillard had serious
doubts that Weaver was sufficiently rehabilitated such that he would not
once again drink and drive. As the judge stated when explaining his
29
sentence, “I’m concerned about this being the last time James Weaver is
before a court for any reason, but certainly for operating while
intoxicated.” We conclude Judge Dillard honestly stated his reasons for
sentencing Weaver to the Department of Corrections. Weaver’s contrary
accusation was false.
3. Existence of objectively reasonable basis for making the
statement. We have failed to discover in the record any objectively
reasonable basis for Weaver’s assertion that Judge Dillard was not
honest in stating his reasons for the sentence. Weaver’s own testimony
belies a factual basis for his statement. When asked at the disciplinary
hearing to explain his decision to speak with a reporter, Weaver testified
“[i]t was very important” for him “to communicate to the public”
regarding “the general impression left by the judge from his sentence that
[Weaver] was not fully participating in a treatment program.” He
explained:
The [newspaper] reporting was that the judge concluded that
I continued to be in need of substance abuse treatment. I
felt that the comments that appeared in the paper suggested
that my prior representations in a public setting were not
truthful in the sense that I continued to need further
treatment. Therefore, I felt inclined, when the judge issued
this ruling and it became public, to make a comment that it
was my feeling that treatment was not the primary focus of
his sentence, which I was convinced of then and I remain
convinced of today.4
We agree with the finding of the Commission as to Weaver’s true
motivation in talking to the press:
As clearly reflected in his testimony, [Weaver] was concerned
about how previous newspaper articles had characterized
4This testimony is an example of Weaver’s self-serving characterization of the
facts. When Weaver spoke with the reporter, he did not merely state his belief “that
treatment was not the primary focus of [the judge’s] sentence.” Weaver impugned the
judge’s integrity by stating the judge was not honest.
30
Judge Dillard’s sentencing order. Quite simply, [Weaver] felt
that he was the recipient of some bad press, and he went on
a public relations offensive. In order to counter an article
that questioned his honesty, [Weaver] questioned Judge
Dillard’s honesty.
Weaver acted on the basis of his anger when he said Judge Dillard was
dishonest, not because there was any basis to believe that the judge had
not stated the true reasons for Weaver’s sentence. See In re Pyle, 156
P.3d 1231, 1247 (Kan. 2007) (holding attorney’s criticism of members of
disciplinary board was not protected by the First Amendment: “There is
a line between just and unjust criticism. Respondent crossed it. This is
evident from his plainly selfish motive. He displayed no desire to improve
the disciplinary system, only to excuse its focus on him.”).
We conclude Weaver did not have an objectively reasonable basis
for his statement that Judge Dillard was not honest when he stated his
reasons for sentencing Weaver to the Department of Corrections.
Therefore, Weaver’s conduct reflects a reckless disregard for the truth or
falsity of his statement. Accordingly, this statement is not protected
speech.
Our decision in this matter should not be construed as implying
that a lawyer may be sanctioned merely for challenging or criticizing
judicial acts. Judicial outcomes may be controversial and are often
subject to robust public comment. Although it is well established that
the speech of lawyers may be curtailed in order to avoid improper
influence on pending cases, particularly when a jury is involved, or to
otherwise prevent obstruction of justice, we recognize that the First
Amendment generally protects lawyers who engage in fair commentary
and expression of opinion regarding the state of the law. In re Sawyer,
360 U.S. 622, 627–28, 79 S. Ct. 1376, 1378–79, 3 L. Ed. 2d 1473, 1478–
79 (1959) (Brennan, J., plurality opinion). Further, the mere assertion
31
by a dissenting judge or by academics that a court commits an honest
error is not the basis for ethical sanctions. W. Bradley Wendel, Free
Speech for Lawyers, 28 Hastings Const. L.Q. 305, 331–32 (2001).
In this case, however, Weaver did not simply disagree with Judge
Dillard’s reasoning or factual premises or argue that Judge Dillard’s
decision was inconsistent with precedent, improperly balanced the
interests involved, or was contrary to history, tradition, and common
sense. Moreover, unlike in Yagman, Weaver did not claim he was
expressing an opinion that Judge Dillard was “intellectually dishonest,”
in the sense that Judge Dillard’s sentencing decision might have been
based upon an unstated premise or hidden bias. See Yagman, 55 F.3d
at 1441. Instead, Weaver accused a judge of a specific act of dishonesty
which he characterized at the hearing before the Commission as a
“knowing concealment” of the judge’s reasons for sentencing him. He
was utterly unable to provide a reasonable basis for this charge at the
hearing. Under these facts, we conclude that the First Amendment does
not protect Weaver from being sanctioned for professional misconduct.
4. Ethical violation. Having determined Weaver falsely accused
Judge Dillard of being dishonest in stating his reasons for the sentence
imposed, we now consider whether this conduct violated the Iowa Code
of Professional Responsibility for Lawyers. We conclude Weaver’s
conduct violated DR 1–102(A)(5), which prohibits an attorney from
“engag[ing] in conduct that is prejudicial to the administration of
justice.”5
5Although the Board asserts Weaver violated additional disciplinary rules in
stating Judge Dillard was not being honest, we do not discuss them, as they would be
merely cumulative, would not change our decision with respect to an appropriate
sanction, and would unnecessarily lengthen this opinion.
32
As we have observed in the past, “[f]alse accusations against
judges harm the courts as institutions.” Comm. on Prof’l Ethics &
Conduct v. Hurd, 360 N.W.2d 96, 104 (Iowa 1984). By falsely accusing
Judge Dillard of not being honest concerning his sentencing decision,
Weaver implied there was some improper or sinister motivation
underlying the judge’s decision. See Frerichs, 238 N.W.2d at 767 (noting
attorney’s statements attributed to the court “sinister, deceitful and
unlawful motives and purposes”). That Weaver’s statement could be so
interpreted is clearly illustrated by the reporter’s headline: “Bias on the
bench. Ongoing court battle pits judge against retired judge as Weaver
makes allegations of personal bias, dishonesty against presiding judge.”
Clearly, Weaver’s statement left the impression that courts do not do
justice, but rather make decisions for undisclosed and improper reasons.
When the public loses confidence in the integrity of the courts, the
administration of justice is prejudiced. See Notopoulos v. Statewide
Grievance Comm., 890 A.2d 509, 521 (Conn. 2006) (holding attorney’s
disparaging statements regarding judge violated rule prohibiting conduct
prejudicial to the administration of justice); Pyle, 156 P.3d at 1247
(stating the “administration of justice” rule seeks to protect the justice
system in general from prejudice, not only a single trial or adjudicatory
proceeding); Graham, 453 N.W.2d at 324 (holding statements impugning
integrity of judge prejudiced the administration of justice). Thus, Weaver
engaged in conduct prejudicial to the administration of justice in
violation of DR 1–102(A)(5).
V. Discipline.
The principles guiding our decision as to the proper discipline are
well established:
33
The appropriate sanction in a particular case depends upon
several factors that reflect the broad purpose of our
disciplinary system. The disciplinary process is intended to
protect not only the public, but also our system of justice.
Therefore, we consider the nature and extent of the
respondent’s ethical violations not only to determine the
respondent’s fitness to practice law, but also to assess the
need to deter other lawyers from similar misconduct. Only
by ensuring that such conduct does not become
commonplace or acceptable can we maintain the reputation
of the bar and safeguard the integrity of our system of justice
and the public’s confidence in it. Because “sanctions must
be tailored to the facts of each case,” we also consider any
mitigating and aggravating circumstances.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648,
652 (Iowa 2002) (citations omitted) (quoting Mulford, 625 N.W.2d at 684).
In light of these considerations, the Grievance Commission recommended
a three-month suspension.
We agree with the Commission’s assessment that Weaver’s ethical
infractions warrant a period of suspension. Weaver’s misconduct
brought shame upon attorneys, judges, and the court system in general.
His violation of the criminal laws is sufficient standing alone to warrant a
short suspension. See, e.g., Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Sloan, 692 N.W.2d 831, 831 (Iowa 2005) (three-month
suspension for two misdemeanor drug convictions); Comm. on Prof’l
Ethics & Conduct v. Shuminsky, 359 N.W.2d 442, 443 (Iowa 1984) (three-
month suspension for two misdemeanor drug convictions). His
intemperate statements to the press further support the propriety of a
suspension. Our system of justice cannot maintain the respect of its
citizens if disappointed attorneys are permitted to make false and
reckless accusations against judges. Such conduct must be
discouraged. Moreover, Weaver’s misconduct is aggravated by the fact
he has considerable professional experience as an attorney and as a
judge. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Vinyard,
34
656 N.W.2d 127, 131 (Iowa 2003) (stating substantial experience is an
aggravating circumstance).
Weaver contends there are mitigating circumstances that justify a
less onerous sanction. He accurately notes he has no history of making
disrespectful or false statements regarding other attorneys or judicial
officers. Although he also points out that this proceeding presents his
first ethical violation “as an attorney,” that factor has little mitigating
effect in view of the fact he has previously been reprimanded for a
violation of the Code of Judicial Conduct. Weaver also relies on the lack
of harm to any client. Even though his conduct did not harm a client, it
brought the courts into disrepute, and therefore we do not consider the
lack of harm to clients as an important mitigating factor.
Finally, Weaver argues any sanction should be mitigated by the
fact he made the unethical statements as a litigant, not in his capacity as
an advocate. He acknowledges the principle that the ethics rules apply
to attorneys even when they are not acting in their professional capacity.
See Thompson, 595 N.W.2d at 133–34. Nonetheless, he implies the
adverse consequences of statements made by an attorney/litigant are
minimal because “the readers of written comments understand the
relationship between the court and the speaker.” We are not persuaded
readers of Weaver’s statements simply chalked them up to an unhappy
litigant. To the contrary, readers would be more likely to believe that
Weaver, as an attorney and former judge, spoke with more knowledge
and credibility than the average litigant unknowledgeable about the legal
system. Consequently, we do not find Weaver’s litigant status to be a
mitigating circumstance under the facts of this case. See Notopoulos,
890 A.2d at 518 (holding disciplinary rules applied to attorney who
disparaged judge handling case in which attorney was a pro se litigant:
35
disciplinary rules “apply to attorneys whether they are representing
clients or acting as pro se litigants unless the language of the rule or its
relevant commentary clearly suggests otherwise”).
In summary, we do not think there are sufficiently mitigating
circumstances to justify the issuance of a public reprimand in lieu of a
suspension. We agree with the Commission’s recommendation that
Weaver’s misconduct warrants a three-month suspension.
VI. Disposition.
We suspend James Weaver’s license to practice law indefinitely
with no possibility of reinstatement for three months. This suspension
shall apply to all aspects of the practice of law. See Iowa Ct. R. 35.12(3).
Upon application for reinstatement, Weaver must establish that he has
not practiced law during the period of his suspension and that he has in
all other ways complied with Iowa Court Rule 35.21. Costs are taxed to
Weaver. See Iowa Ct. R. 35.25(1).
LICENSE SUSPENDED.
All justices concur except Wiggins, J., who takes no part.