Iowa Supreme Court Attorney Disciplinary Board Vs. James P. Barry ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 08–1214
Filed February 20, 2009
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
JAMES P. BARRY,
Respondent.
On review of the report of the Grievance Commission.
A majority of the Iowa Supreme Court Grievance Commission
recommends an eighteen-month suspension of respondent’s license to
practice law in this state. LICENSE SUSPENDED.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
complainant.
James P. Barry, Muscatine, pro se.
2
WIGGINS, Justice.
This case involves a disciplinary action against attorney James
Barry for his conduct as the Cass County attorney. The Iowa Supreme
Court Attorney Disciplinary Board filed a complaint against Barry with
the Grievance Commission of the Iowa Supreme Court alleging Barry
committed various violations of the Iowa Code of Professional
Responsibility for Lawyers.1 The Commission found Barry’s conduct
violated numerous provisions of the Iowa Code of Professional
Responsibility for Lawyers. A majority of the Commission members
recommended we suspend Barry’s license to practice law indefinitely
with no possibility of reinstatement for a period of eighteen months.2
Because we find Barry’s conduct violated numerous provisions of
the Iowa Code of Professional Responsibility for Lawyers, we suspend
Barry’s license to practice law indefinitely with no possibility of
reinstatement for a period of one year.
I. Scope of Review.
Our review of a report filed by the Commission is de novo. See
Iowa Ct. R. 35.10(1). “Under this standard of review, we give weight to
the factual findings of the Commission, especially with respect to witness
credibility, but we find the facts anew.” Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Beckman, 674 N.W.2d 129, 131 (Iowa 2004). The
Board must prove ethical violations by a convincing preponderance of the
evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d
683, 684 (Iowa 2006). “ ‘This burden of proof is greater than that in a
1The Iowa Rules of Professional Conduct replaced the Iowa Code of Professional
Responsibility for Lawyers on July 1, 2005. All of Barry’s alleged violations occurred
prior to July 1, 2005.
2One member of the Commission recommended Barry receive a public
reprimand.
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civil case but less than that in a criminal case.’ ” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 178 (Iowa 2005) (citation
omitted). Although we consider the Commission’s recommended
sanction, we make the final decision regarding the appropriate discipline.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 697
(Iowa 2008).
II. De Novo Fact Finding.
We make the following findings of fact on our de novo review of the
record. Barry graduated from Washington University Law School in
1986. He was licensed to practice law in Missouri and has maintained
that license. Barry received his Iowa law license in January 1987. Barry
moved to Cass County to take a position as assistant county attorney in
fall 1986, but did not start until he received his Iowa license. In 1990,
Barry ran for, and was elected, Cass County Attorney.
In January 2003, Barry’s position as county attorney became full-
time, which meant he could no longer continue the private practice of
law. He remained the full-time county attorney until the Iowa District
Court for Cass County removed Barry from office after finding he
breached his duties knowingly and with a purpose to do wrong.
After his removal from office, Barry worked for Signature
Management Company based in the Quad Cities. He left that position in
March 2007. Now, he works for Hoffman, Inc. out of Muscatine. Since
the district court’s ruling, Barry has not engaged in the private practice
of law in an office, but has done some work on legal matters with both
companies. His current position does not require a law license, but it
has been useful in some instances.
Barry has been involved in two previous disciplinary actions. In
the most recent disciplinary action, Barry appeared in court to prosecute
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a client of one of his law partners. Because Barry was unaware of the
conflict, the Board issued him a private admonition. In the other
disciplinary action, Barry received a public reprimand for reducing
speeding charges to permit pleas to offenses that had no factual bases.
As to each count of the complaint, we find the facts as follows.
A. Count I—Cathy A. Prosecution. In November 2002, Barry
prosecuted Cathy for possession of marijuana. She pled guilty. The
court gave her a deferred judgment, placed her on unsupervised
probation, and ordered her to do forty hours of community service.
During the time Cathy was required to complete her community service,
she became pregnant and felt she could not complete her community
service.
In a letter dated December 23, 2003, Barry stated in lieu of
community service Cathy could pay a $400 donation to the Cass County
sheriff’s office. That letter also stated if she did not make the donation,
Barry would file a probation violation. Cathy made the donation to the
sheriff’s office. Barry then had a judge sign an order eliminating
community service from her sentence.
At the time Barry negotiated this deal, the Iowa Code allowed a
donation of property to a charitable organization in satisfaction of part or
all of a defendant’s community service obligation. Iowa Code § 907.13(2)
(2001). The Code specifically prohibited a donation to a governmental
subdivision, such as the sheriff’s office. Id.
B. Count II—Ronnie E. Prosecution. In November 2003, Barry
charged Ronnie with drug-related felonies and misdemeanors. At
Ronnie’s arrest, law enforcement took his truck, CB radios, and other
items. The Cass County sheriff filed a notice of forfeiture of the seized
items pursuant to Iowa Code section 809A.6(5). Forfeited property is
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deemed to be in the custody of the district court subject to orders and
decrees of the court and to the acts of the seizing agency or prosecuting
attorney as authorized by chapter 809A. Id. § 809A.7(4) (2003). The
prosecuting attorney may authorize the release of the property if
forfeiture is unnecessary. Id. § 809A.7(2).
In December, Ronnie applied for the return of his property. Barry
told Ronnie that if he donated $500 to the Cass County sheriff’s office, he
would receive his truck back. Ronnie paid the donation, and his truck
was returned.
The court eventually issued an order forfeiting the $500 rather
than the truck. The $500 was retained by the sheriff’s office. Under
Iowa law all forfeited property not needed as evidence must be turned
over to the attorney general or the attorney general’s designee, unless the
attorney general or the attorney general’s designee orders the property
destroyed, sold, or delivered to another agency. Id. § 809A.17(2). The
attorney general never authorized the $500 to be retained by the sheriff’s
office.
C. Count III—Hans K. Prosecution. In June 2003, Barry
charged Hans with an OWI in Cass County. Hans pled guilty to OWI,
was given a deferred judgment, and placed on probation under the
supervision of the Cass County attorney’s office for six months. Hans
was also required to pay a $200 probationary fee to the clerk of court. In
the county’s records, the county recorded this fee as income generated by
the county attorney’s office, with the revenue going to the general fund of
the county. The Iowa Code authorized a $250 probation fee if the person
placed on probation was under the supervision of a judicial district
department of correctional services established under Code section
905.2. Id. § 905.14(1). There is no provision for a person to pay a fee to
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the county attorney for providing probationary services. See also
Kragnes v. City of Des Moines, 714 N.W.2d 632, 642 (Iowa 2006) (holding
any fees charged by a city must be reasonably related to the city’s
administrative expenses in the exercise of its police power).
Hans later received a minor-in-possession-of-alcohol charge in
Cedar Falls in October 2003. As the probation officer, Barry was
required to bring the defendant before the court if he had probable cause
to believe that Hans violated the terms of his probation. Iowa Code
§ 908.11(1). It would then be up to the court to determine if a violation
occurred and the appropriate sanction for the violation. Id. § 908.11(4).
Instead of bringing the violation to the attention of the court, Barry
agreed to disregard the violation if Hans donated $250 to the Cass
County sheriff’s office. Barry admitted and we agree that if he had
brought the probation violation to the court as provided by law, he would
have been a potential witness for the State in the probation matter. Even
with this conflict he failed to withdraw from the case and proceeded to
negotiate a deal so Hans could avoid a probation revocation proceeding.
D. Count IV—Charles M. Prosecution. Barry charged Charles
with domestic abuse assault in July 2003. Charles pled guilty to the
charge, and the court placed him on unsupervised probation. Under
federal law, a person convicted of domestic assault cannot possess
firearms. 18 U.S.C. § 922(g)(9). The Cass County sheriff’s office seized
thirty-four guns and ammunition from Charles. The seizure reports did
not mention the ammunition.
Originally, the seized items were in the sheriff’s office area, but
were then moved to storage. The deputy sheriff, Darby McLaren, said
there was ammunition in the evidence room at the time, but it was not
tagged, so no one was aware that the ammunition was part of the list of
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items seized from Charles’ house. McLaren further added that because
the ammunition was not evidence and was not tagged, it was considered
sheriff’s property. Barry saw the untagged ammunition and asked
McLaren about it. McLaren later delivered the ammunition to Barry for
his use.
Charles sold all of his weapons to his father, Larry, so his father
could claim the firearms. Larry asked for the ammunition and the
firearms. When Larry received the seized firearms, he claimed someone
had fired three of the guns. Larry also claimed the sheriff’s office did not
return all the ammunition.
Barry stated that although he had the ammunition, he did not use
it, and returned it once he realized his possession of weapons and
ammunition would be a source of contention in the upcoming sheriff’s
election. Barry further admitted he knew at the time that under Iowa
law all firearms and ammunition should have gone to the state division
of criminal investigation to be disposed of as provided by law. Iowa Code
§ 809A.17(5)(b); Iowa Admin. Code r. 661—4.52 (2003). In spite of his
knowledge of the law that required firearms and ammunition to be sent
to the state division of criminal investigation, Barry believed the division
of criminal investigation allowed the sheriff’s office to keep the weapons
and ammunition and destroy them unless the State needed them as
evidence for some reason.
E. Count V—Craig B. Prosecution. On August 11, 2003, Craig
was charged with three counts of supplying alcohol to minors, a serious
misdemeanor. He decided to plead guilty to one count of supplying
alcohol in return for a deferred judgment and unsupervised probation,
with Barry as his probation officer. Craig was assessed a $200
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probationary fee payable to the clerk of court. Craig also donated $500
to the Cass County sheriff’s office as part of his plea agreement.
F. Count VI—Meagan M. Prosecution. Barry charged Meagan
with driving with a suspended license on October 22, 2003. Her attorney
told her she could either lose her license, which she needed for her job,
and pay $1000, or under a plea agreement he made with Barry, she
could pay $147, keep her license, and make a $200 contribution to the
sheriff’s office. She agreed to pay the fine and the contribution to the
Cass County sheriff’s office. To facilitate the plea, Barry amended
Meagan’s driving-under-suspension charge to driving without a license.
G. Count VII—David J. Prosecution. Barry charged David with
domestic assault in August 1999. At that time, the sheriff seized David’s
firearms. David pled guilty to a simple assault, and his weapons were
returned. In December 2003, after Deputy McLaren had seen David
hunting, the sheriff’s office executed a search warrant and took the guns
and ammunition David had in his house. Barry asserted that David’s
prior conviction for assault precluded him from possessing firearms.
David made a claim on behalf of his wife and kids for the property
seized. Barry offered to return the guns in exchange for a $500 donation
to the Cass County sheriff’s office, an offer David accepted. David
received the guns in February 2003, and later the court issued an order
saying there was no probable cause for forfeiture of the property. The
court subsequently issued an order nunc pro tunc adding the $500
donation to the order.
H. Count VIII—Timothy S. Prosecution. Barry charged Timothy
with driving with a suspended license in December 2003. Timothy’s
father called Barry about the citation. Barry agreed to amend Timothy’s
citation to driving without a driver’s license as long as Timothy paid a
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$100 fine and donated $250 to the Cass County sheriff’s office. The
court order finding Timothy guilty of the lesser charge did not reflect the
donation.
I. Count IX—Sheriff’s Drug Fund. The sheriff’s drug fund
existed long before Barry became county attorney. Prior to Barry
allowing contributions to the sheriff’s office, the sheriff’s office had a line-
item budget expense in the county’s budget for the drug fund. The
purpose of the fund was to have cash readily available to the sheriff’s
office twenty-four hours a day, seven days a week if they needed to make
a drug buy or pay an informant. The supervisors authorized the cash
fund to contain $500. As the sheriff depleted the fund, the sheriff would
go to the board of supervisors to replenish the fund.
The sheriff discontinued asking the board of supervisors to finance
the fund when Barry began making plea bargains with defendants to
donate to the fund as part of plea agreements. The sheriff used the
donations to finance the fund.
Barry stated he knew of the drug fund throughout his tenure.
Barry first saw the drug fund ledger in December 2003. When Barry saw
the drug fund ledger, he told the sheriff the ledger should be monitored
and independently verified. At that point, he placed Stephanie Witzman,
a civil process server in the sheriff’s department, in charge of the fund.
In January 2004, Witzman completed her first accounting, which showed
a balance of $13,000. Barry signed off on this accounting.
Around February 10, 2004, Larry Jones, the Cass County sheriff,
and Barry asked Witzman to update the drug fund records from
November 2003 to present because a reporter from the Des Moines
Register was asking to see the ledger. Witzman ran into problems when
updating the ledger because the fund was short approximately $3000.
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Deputy McLaren later helped Witzman with the accounting and resolved
several of the discrepancies. One discrepancy was that the money for the
purchase of a Sako rifle came out of the drug fund, and Deputy McLaren
forgot to report it.
In late February 2004, Barry claims he first learned the county
auditor was not auditing or managing the fund. On February 25, Barry
called for a state audit of the fund. The sheriff then turned the drug
fund over to the county treasurer. Barry admitted he did not tell the
sheriff’s office to send this money to the county treasurer until late
February when the story broke in the Des Moines Register.
In addition to making drug buys, paying informants, and
purchasing weapons, the sheriff used the drug fund to pay Barry’s cell
phone. Moreover, money from the drug fund was going to be used to
purchase a vehicle for Barry.
The money going into the fund was coming from donations by
defendants as well as forfeitures. Barry admitted he knew at the time
the court forfeited property, including cash, that he should have sent the
property to the attorney general or the attorney general’s designee,
unless the attorney general or the attorney general’s designee ordered the
property destroyed, sold, or delivered to another agency. This admission
confirms Barry knew he was violating the law by not complying with
Code section 809A.17(2). As an excuse for his violation of the law, Barry
stated:
I’m aware of where the funds are supposed to go. I’m aware
of what’s supposed to happen with probation violations. I’m
aware of a lot of laws that whether we like it or not aren’t
enforced by the letter. Does that make them right or wrong?
Just you need to understand that we can talk about it in
finite terms, but it didn’t exist in finite terms.
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J. Count X—Unsupervised Probation. Beginning in 2003, Barry
started the unsupervised probation process in which the county attorney
acted as the supervising officer. He obtained approval from the board of
supervisors and discussed the plan with the chief judge and the district
court judges. In these cases, Barry acted as probation officer, but did
not remove himself as the county attorney.
Barry estimated he had acted as probation officer in around one
hundred cases by court order, and another fifty informally. In about fifty
of those cases, there would have been applications to revoke probation.
As probation officer, he had the duty to bring probation violations to the
attention of the court. Iowa Code § 908.11(1). In all the cases where
revocation hearings were scheduled, he could have been a witness, yet he
never withdrew as counsel for the State or county.
K. Count XI—Sako Rifle. The Board alleged that Barry had the
sheriff’s office purchase a Sako rifle for his personal use from the drug
fund. Although the Board established the rifle was purchased from the
drug fund, it failed to prove by a convincing preponderance of the
evidence that the rifle was purchased for Barry’s personal use.
L. Counts XII and XIII—Possession and Return of the Sheriff’s
Firearm and Ammunition. Barry first received authorization to possess
firearms and ammunition from the sheriff’s office in 1991. Barry shot
pistols and machine guns. Some weapons he had were forfeited, others
were seized. Barry admitted his use of the guns and ammunition was
not appropriate, and was illegal under the laws that dictate the disposal
of forfeited and seized firearms. See Iowa Code § 809A.17(5)(b); Iowa
Admin. Code r. 661—4.52. Under the law, the forfeited weapons and
ammunition were supposed to be sent to the department of criminal
investigation for disposal. Barry never removed the weapons from the
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sheriff’s office himself, but he had them delivered to him by sheriff’s
office personnel. Barry was the only civilian that was given access to the
weapons.
In February 2004 after the media began investigating his office,
Barry returned ten weapons to the sheriff’s office. Barry stated he did
not want the deputy to come to his house to pick up the weapons
because he was afraid the media would be there and he did not want his
family involved. Barry met Deputy McLaren at a location other than his
house to return the firearms and ammunition that he had in his
possession.
M. Count XIV—1998 Tahoe Vehicle. When Barry became the
full-time county attorney, the board agreed it would provide him with a
vehicle for his use. First, Barry drove an old squad car, then a forfeited
Grand Am. These vehicles were old and unreliable. In December 2003,
Barry asked the board of supervisors about obtaining another vehicle,
but there was not another squad car or forfeited car available. The
supervisors expressed reluctance about buying a vehicle for him;
however, the supervisors realized Sheriff Jones and Barry were looking
for a vehicle. Jones and Barry went online, found a 1998 Chevy Tahoe in
Texas, and purchased the vehicle for $12,726.
Barry filled out a claim form to obtain $3000 from his office for the
vehicle. The remaining $9,726 was to come from the drug fund. Barry’s
claim for $3000 was initially granted, but later voided when the
chairman of the board of supervisors reviewed the claim. The sheriff,
however, did buy the truck, without the board’s permission and without
Barry’s knowledge. Barry never actually used the Tahoe.
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III. Violations.
The Board charged Barry with multiple violations of the Iowa Code
of Professional Responsibility for Lawyers. Although the Commission
found the Board proved all of the violations as charged, we find Barry
only violated the following provisions of the Iowa Code of Professional
Responsibility for Lawyers.
A. DR 1–102(5). This rule prohibits an attorney from engaging in
conduct that is prejudicial to the administration of justice. Iowa Code of
Prof’l Responsibility DR 1–102(5). The Board is not required to prove
intent, knowledge, or motive to establish a violation of this rule. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Borth, 728 N.W.2d 205, 210 (Iowa
2007). There is no typical conduct that prejudices the administration of
justice. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Steffes, 588
N.W.2d 121, 123 (Iowa 1999).
The common thread running through our decisions finding a
violation of DR 1–102(5) is that “the attorney’s act hampered the efficient
and proper operation of the courts or of ancillary systems upon which
the courts rely.” Id. This rule “focuses attention on the impact of such
behavior upon the parties and the public in terms of their confidence in
the justice system.” 16 Gregory C. Sisk & Mark S. Cady, Iowa Practice
Series Lawyer & Judicial Ethics § 12:4(d)(1), at 1087 (2007 ed.).
Barry’s conduct in making illegal plea agreements gave the
appearance to the public that justice was for sale in Cass County. All of
his illegal plea agreements involved donations to a fund in the sheriff’s
office. The sheriff used the fund to purchase weapons for the
department, to pay Barry’s cell phone bills, and to purchase a vehicle for
Barry’s use. Barry and the sheriff also used firearms seized by the court,
14
instead of turning the seized firearms over to the proper authorities for
disposal.
Barry admitted he knew at the time he forfeited or seized firearms
and ammunition the law required forfeited or seized firearms and
ammunition to be sent to the department of criminal investigation for
disposal. He also admitted he knew at the time he forfeited property
other than ammunition or firearms, the law required the forfeited
property to be sent to the attorney general for disposition. Items forfeited
were sent to the sheriff’s office rather than being disposed of properly
under the law.
Finally, Barry acted as prosecutor and probation officer. In his
capacity as probation officer, he had a duty to report violations to the
court so the court could determine whether to revoke a defendant’s
probation. Instead of reporting known violations to the court, Barry
allowed violators to contribute to the sheriff’s office to avoid a revocation
of probation.
In his defense, Barry contends that judges approved his actions in
giving the donations to the sheriff’s fund, defense attorneys allowed their
clients to make those donations, and other counties had the same type of
system for donations and unsupervised probation. However, under
similar circumstances, we have said that despite the agreement and
cooperation of other prosecutors, judges, and the clerk’s office, that
respondent could not “avoid the prejudice to the administration of justice
inherent in [his] action.” Borth, 728 N.W.2d at 210–11.
The business of the courts is to administer justice fairly,
impartially, and in a manner consistent with the statutes enacted by our
legislature. The legislature only allowed donations to charitable
organizations under limited circumstances, set up a system to dispose of
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forfeited and seized property, and set up a probation system requiring
probation officers to report violations to the court. Our system of justice
is not set up to finance the operation of the county attorney or the
sheriff’s office.
Barry prejudiced the administration of justice by disregarding the
laws regarding charitable contributions, forfeiture, and probation to fund
expenditures made for the county attorney and sheriff’s office. Barry’s
actions hampered the efficient and proper operation of the courts and the
probation systems upon which the courts rely. His conduct lessened the
public’s confidence in our system of justice. Accordingly, we find Barry
violated DR 1–102(5).
B. DR 1–102(6). This rule prohibits an attorney from engaging in
conduct that adversely reflects on the fitness to practice law. Iowa Code
of Prof’l Responsibility DR 1–102(6). This rule has no intent requirement,
but instead focuses on the attorney’s conduct. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Kress, 747 N.W.2d 530, 539 (Iowa 2008). The term
fitness not only includes an attorney’s legal competency, but also an
attorney’s “ ‘character’ ” and “ ‘suitability to act as an officer of the
court.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d
71, 79 (Iowa 2008) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Mulford, 625 N.W.2d 672, 683 (Iowa 2001)).
To find a violation of DR 1–102(6) we look to the attorney’s conduct
and the surrounding circumstances. Id. Conduct that adversely reflects
on the fitness to practice law “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 Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci, 543 N.W.2d 879,
882 (Iowa 1996)).
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Barry’s conduct as a full-time county attorney resulted in a
diminishment of public confidence. Even persons who were receiving
favorable treatment questioned Barry’s sense of justice. Ultimately, this
conduct led to Barry’s removal from office for knowingly breaching his
duties as county attorney with a purpose to do wrong. Instead of serving
the people honorably, he chose to engage in conduct involving
questionable practices. This conduct was not isolated but permeated all
aspects of his tenure as full-time county attorney. For these reasons, we
find Barry’s conduct reflects adversely on his fitness to practice law.
C. DR 7–102(A)(8). This rule states that in the representation of
a client a lawyer shall not “[k]nowingly engage in other illegal conduct or
conduct contrary to a disciplinary rule.” Iowa Code of Prof’l
Responsibility DR 7–102(A)(8). The Iowa Code of Professional
Responsibility did not provide a definition of “knowingly.” The newly
enacted Iowa Rules of Professional Conduct, however, do define
“knowingly,” but not in the context of this rule. The Iowa Rules of
Professional Conduct state that knowingly “denotes actual knowledge of
the fact in question. A person’s knowledge may be inferred from the
circumstances.” Iowa R. of Prof’l Conduct 1.0(f). Proving a person’s state
of mind is difficult. Most often, the trier of fact must infer a person’s
knowledge from the evidence presented. In regards to inferring a
lawyer’s knowledge it has been said,
As noted earlier in this section, the law of lawyering as set
forth in Model Rule 1.0 permits a disciplinary authority to
“infer from circumstances” that a lawyer knows what a
reasonable person would know. More than this, the law
takes account of a lawyer’s legal training and experience in
assessing his or her state of mind. A lawyer is an adult, a
man or woman of the world, not a child. He or she is also
better educated than most people, more sophisticated and
more sharply sensitized to the legal implications of a
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situation. The law will make inferences as to a lawyer’s
knowledge with those considerations in mind.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering
§ 1.23, at 1-46 (3d ed. 2005-2 Supp.).
The definition of “knowingly” contained in the Iowa Rules of
Professional Conduct is consistent with prior pronouncements of this
court dealing with the liability of a lawyer under Iowa’s consumer
protection law. See State ex rel. Miller v. Rahmani, 472 N.W.2d 254, 258–
59 (Iowa 1991) (holding a lawyer could not be held liable under
consumer-protection laws where lawyer was unaware of client’s fraud or
of use to which client would put brochures impounded by postal
authorities after release obtained through lawyer’s efforts). This
definition is also consistent with another state’s interpretation of DR 7–
102(A)(8). See In re Harrington, 718 P.2d 725, 734 (Or. 1986) (holding a
lawyer cannot be disciplined under DR 7–102(A)(8) where lawyer who
distributed funds without first securing an order of the probate court
was not shown to have known that his conduct was illegal). Accordingly,
“knowingly” under DR 7–102(A)(8) requires actual knowledge of the fact
in question and that an attorney’s knowledge may be inferred from the
circumstances.
Barry admitted he knew at the time he forfeited or seized firearms
and ammunition the law required the forfeited or seized firearms and
ammunition to be sent to the department of criminal investigation for
disposal. He also admitted he knew at the time he forfeited property
other than ammunition or firearms, the law required the forfeited
property to be sent to the attorney general for disposition. These
admissions indicate Barry knowingly violated Iowa statutes as to forfeited
property.
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Barry further admitted that during his tenure as county attorney,
he knew the law required the county auditor to audit the sheriff’s drug
fund. He claims that he was unaware the fund was not being audited by
the auditor until February 2004. We find Barry’s testimony not to be
credible.
In December 2003 and January 2004, Barry reviewed the ledger of
the drug fund. On both occasions he saw that the records of the fund
were in disarray and incomplete. By his examination of the ledger, he
had to know the county auditor was not auditing the fund. In fact,
instead of getting the auditor involved to reconcile the fund, he had a
person in the sheriff’s office attempt to do so. Barry then signed off on
the reconciliation. Therefore, we find Barry knew the county auditor
should have audited the fund as early as December 2003, and yet Barry
participated with the sheriff’s office in its failure to disclose the fund to
the county auditor until late February 2004. For these reasons, we find
Barry knowingly engaged in other illegal conduct.
We do not find such a violation regarding the illegal plea
agreements made by Barry that required contributions to the sheriff’s
drug fund. Barry testified he did not know that the plea agreements he
made violated the Code provision that only allowed charitable
contributions in lieu of community service and specifically prohibited
contributions to political subdivisions. A violation of DR 7–102(A)(8)
requires that an attorney have actual knowledge. Although we may infer
an attorney’s actual knowledge from the circumstances, the actual
knowledge requirement of DR 7–102(A)(8) is not satisfied solely by the
maxim, everyone is presumed to know the law. See Diehl v. Diehl, 421
N.W.2d 884, 888 (Iowa 1988) (indicating actual knowledge of violating
19
the law requires more than just showing the law prohibited the conduct
and that the person should have been aware of the law).
It is true as a county attorney Barry should have known it was
illegal to make plea agreements with donations to the sheriff’s office.
This alone will not satisfy the knowledge requirement of DR 7–102(A)(8).
The Board did not introduce evidence showing Barry had actual
knowledge of the illegality of his plea agreements, other than the fact that
he made those agreements. The court participated in each agreement by
entering orders when requested to do so to confirm such contributions.
No judicial officer ever indicated to Barry that his conduct was illegal.
Accordingly, the Board did not prove by a convincing preponderance of
the evidence that Barry had actual knowledge his actions in this regard
were illegal. Consequently, under this record, we cannot find the Board
proved Barry’s knowledge of his violation of the law regarding charitable
contributions by a convincing preponderance of the evidence.
IV. Sanction.
We consider many factors when we determine the appropriate
sanction a lawyer must face as a result of his or her misconduct. In this
regard we have said:
The goal of the Code of Professional Responsibility is “to
maintain public confidence in the legal profession as well as
to provide a policing mechanism for poor lawyering.” When
deciding on an appropriate sanction for an attorney’s
misconduct, 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.” We also consider aggravating and mitigating
circumstances present in the disciplinary action.
Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d
812, 820 (Iowa 2004) (alteration in original) (citations omitted).
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Barry’s prior disciplinary history is one aggravating factor we must
consider. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Tompkins, 733
N.W.2d 661, 670 (Iowa 2007).
Barry maintains a mitigating factor is that his conduct was
commonplace and done in the open with no one objecting to that
conduct. During his testimony Barry addressed the Board’s concern
about his actions by saying:
You may not like it, and it may not be the way you would do
it, and it may not be the letter of the law, but it was what
was happening. No excuses from me against judges or
defense attorneys or board members or anybody else
because I’m responsible for my actions. I understand that.
But to sit here and act like I was some wild cowboy ignoring
the law and just doing whatever it was I wanted to do isn’t a
fair characterization of the situation, I don’t think.
Even if Barry’s conduct was commonplace, we have said that is not a
mitigating circumstance. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Howe, 706 N.W.2d 360, 380 (Iowa 2005).
The dissenting commissioner argued that Barry’s removal from
office and likelihood he is finished as a prosecutor is punishment
enough. However, we have stated punishment by a criminal court does
not mitigate the need for professional sanctions. Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 131 (Iowa 2003).
Likewise, Barry’s removal as Cass County Attorney does not provide a
basis to reduce the disciplinary sanction that is otherwise warranted.
Finally, in fashioning a sanction, we must protect the public, deter
similar misconduct by others, and uphold the integrity of the profession
in the eyes of the public. Barry’s actions not only violated the rules, but
brought the entire system of justice into disrepute. When dealing with
Barry, the public’s perception was that Barry operated the county
attorney’s office as though justice was for sale. As one person who made
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a plea agreement with Barry stated: “I thought this was a pretty sweet
way to do justice. I mean, it was quick and efficient and more in my
world of business than what I think of as, you know, the court system.”
The public should not view its dealing with our court system as a
mere business deal, where those with money and power obtain “sweeter”
justice than the powerless or the poor. Justice requires that all persons
who appear before our courts be treated fairly under the law. This
means a prosecutor should enforce the law as enacted by the legislature,
rather than pervert the law for expediency or his or her own purposes.
One of our goals in determining the appropriate sanction is to protect our
system of justice. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell,
650 N.W.2d 648, 652 (Iowa 2002). Our judges and lawyers should work
together to apply the statutes as intended by the legislature and ensure
justice is administered impartially with integrity. Anything less is
unacceptable.
Considering the nature of Barry’s violations, deterrence of similar
misconduct by others, Barry’s fitness to practice, our duty to uphold the
integrity of the profession in the eyes of the public, and aggravating
circumstances, we conclude the appropriate sanction for Barry’s conduct
is indefinite suspension with no possibility of reinstatement for one year.
V. Disposition.
We suspend Barry’s license to practice law in this state indefinitely
with no possibility of reinstatement for one year. This suspension
applies to all facets of the practice of law. See Iowa Ct. R. 35.12. Upon
any application for reinstatement, Barry must establish that he has not
practiced law during the suspension period and has complied in all ways
with the requirements of Iowa Court Rule 35.13. Barry shall also comply
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with the notification requirements of Iowa Court Rule 35.22. We tax the
costs of this action to Barry pursuant to Iowa Court Rule 35.26.
LICENSE SUSPENDED.