Iowa Supreme Court Attorney Disciplinary Board v. Clovis Bowles ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–1288
Filed February 11, 2011
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
CLOVIS BOWLES,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends suspension of attorney‘s
license. LICENSE SUSPENDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for
complainant.
Clovis Bowles, Lisbon, pro se.
2
HECHT, Justice.
The Iowa Supreme Court Attorney Disciplinary Board filed a
complaint against the respondent, Clovis Bowles, alleging he engaged in
a sexual relationship with a client in violation of the Iowa Rules of
Professional Conduct. After a hearing, the grievance commission found
Bowles‘ conduct violated several provisions of the Iowa Rules of
Professional Conduct and recommended Bowles‘ license be suspended.
I. Prior Proceedings.
On August 6, 2010, the board filed a complaint against Bowles
alleging he violated Iowa Rules of Professional Conduct 32:1.8(j)
(prohibiting sexual relations between a lawyer and client except in
circumstances not relevant here), 32:1.14(a) (requiring a lawyer to
properly maintain a normal client-lawyer relationship with a client whose
capacity to make adequately considered decisions was diminished),
32:8.4(d) (prohibiting conduct that is prejudicial to the administration of
justice), and 32:8.4(a) (defining professional misconduct to include any
violation of the Iowa Rules of Professional Conduct).1 After a hearing, a
division of the Grievance Commission of the Supreme Court of Iowa
found Bowles had committed multiple violations of his ethical duties as
an Iowa lawyer. A majority of the commission recommended Bowles‘
license to practice law be suspended for three years.2
1The board withdrew the charge that the respondent violated rule 32:8.4(a) in
view of our decision in Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d
761 (Iowa 2010). Accordingly, we give no further consideration to this aspect of the
charge.
2One commission member recommended the revocation of Bowles‘ license to
practice law.
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II. Scope of Review.
We review disciplinary proceedings de novo. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 759 (Iowa 2010). We
give respectful consideration to the findings and recommendations of the
commission, but we are not bound by them. Id. This court gives special
weight to the commission‘s findings concerning the credibility of
witnesses. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713
N.W.2d 682, 695 (Iowa 2006). It is the board‘s burden to prove attorney
misconduct by a convincing preponderance of the evidence. Id. ―This
burden is less than proof beyond a reasonable doubt, but more than the
preponderance standard required in the usual civil case.‖ Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa
2004). If this court finds the board has proven misconduct, we may
impose a lesser or greater sanction than that recommended by the
commission. Id.
III. Factual Findings.
Upon our review of the record in this case, we make the following
findings of fact. In August of 2007, Bowles met with a woman (―the
client‖) and her male friend in his law office. The client revealed she had
been discharged that day from a mental health facility where she had
been treated after a recent suicide attempt. Her three children had been
removed from her custody following an investigation by the Iowa
Department of Human Services, and she sought Bowles‘ professional
services in the related juvenile court proceedings.
Bowles agreed to represent the client and scheduled a second
meeting a few days later in his office. On this occasion, the client came
alone. While discussing the removal of her children, the client became
emotional. During the conversation about the client‘s fitness as a
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parent, they discussed her history as a prostitute and her abuse of crack
cocaine and alcohol. Bowles asked if he could kiss her. They embraced
and had sexual relations in Bowles‘ office on that occasion.
Bowles had sex with the client on subsequent occasions while he
represented her. However, both the lawyer-client and the personal
relationship between Bowles and the client soon broke down. The client
filed a complaint with the Iowa Supreme Court Disciplinary Board on
September 10, 2007, alleging Bowles had engaged in ethical misconduct
when he engaged in sex acts with her in his law office and at her home.
She retained new counsel.
When the board requested him to respond to the complaint,
Bowles denied the allegation of a sexual relationship with the client. In
his defense, he relied in part on an affidavit executed by the client falsely
denying she had engaged in sexual relations with him. The affidavit,
which Bowles knew to be false, was prepared with his assistance and
signed by the client before a notary public.
Bowles and the client renewed their personal relationship after the
ethical complaint was filed. Believing her chances of regaining the
custody of her children would be improved if she were married to an
attorney, the client married Bowles on October 1, 2007. The détente was
short-lived though, as the marriage was dissolved on November 14,
2007.
The client‘s legal problems continued, however, and she contacted
Bowles requesting his professional assistance in defending against a
pending contempt charge. Bowles agreed to meet with the client at the
Black Hawk County courthouse on January 24, 2008, to discuss the
matter. The two went to the courthouse library. Bowles admits he
grabbed the client‘s buttocks as she entered the library. Believing it
5
would induce Bowles to represent her the next day at a hearing on the
contempt charge, the client began to perform oral sex on him. An
unidentified third party entered the room and interrupted the sex act.
Later the same day, Bowles approached a district court judge and
requested to speak to him. He appeared to be emotionally upset at the
time and admitted he had engaged in a sex act with a client in the
courthouse earlier that day. The judge told Bowles to report his ethical
misconduct to the board, advised him to seek legal counsel and mental
health treatment, and cautioned him against further representation of
the client under the circumstances. Ignoring the judge‘s admonitions,
Bowles appeared in court the next day with the client and made legal
arguments on her behalf.
Although he persisted in his denial of the sexual relationship prior
to the hearing before the commission, Bowles admitted at the hearing
that he had sex with the client during the existence of the lawyer-client
relationship.
IV. Ethical Violations.
A. Rule 32:1.8(j)—Sexual Relationship with Client. Rule
32:1.8(j) provides: ―A lawyer shall not have sexual relations with a client
. . . unless the person is the spouse of the lawyer or the sexual
relationship predates the initiation of the client-lawyer relationship.‖
Bowles violated this rule when he had sex with the client at his law office
and on at least one other occasion when he had sex with the client at her
home. After the client filed an ethical complaint and consulted other
counsel, Bowles again participated in a sex act in the courthouse library
with the client who sought to induce him to represent her in a hearing
scheduled for the following day. Bowles appeared in court the next day
with the client and made legal arguments on her behalf. We conclude
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the clear and convincing evidence establishes Bowles violated this rule by
engaging in sexual relations with the client on at least three occasions.
B. Rule 32:1.14(a)—Representing Client with Diminished
Capacity. Rule 32:1.14 requires lawyers, ―as far as reasonably possible,
[to] maintain a normal client-lawyer relationship‖ with a client whose
capacity to make adequately considered decisions is diminished. Iowa R.
Prof‘l Conduct 32:1.14(a). The plain language of this rule addresses the
obligation of lawyers to be attentive and responsive to circumstances in
which a client‘s mental or legal capacity is impaired and to take
―reasonably necessary protective action, including consulting with
individuals or entities that have the ability to take action to protect the
client, and, in appropriate cases, seeking the appointment of a guardian
ad litem, conservator, or guardian.‖ Id. r. 32:1.14(b). Noting the client
was in a hospital for mental health treatment following a suicide attempt
when she initially called Bowles to schedule a consultation, and noting
further that the client had a history of drug and alcohol abuse, was in a
depressed state, and was vulnerable when she first engaged in a sex act
with Bowles, the commission found the client ―suffered from diminished
capacity at least at times during the relationship.‖ Although the record
amply demonstrates the client had recent mental health difficulties, had
a history of drug and alcohol abuse, and was vulnerable and under
considerable stress as a consequence of the removal of her children
during the time Bowles represented her, we do not believe a clear
preponderance of the evidence supports a finding that her ability to make
considered decisions was sufficiently impaired to support a conclusion
that Bowles violated rule 32:1.14(a).
The record reveals the client‘s mental health had improved
sufficiently to justify her discharge from the hospital prior to the
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initiation of the lawyer-client relationship. Although the client was
emotionally distressed and vulnerable during the attorney-client
relationship, and notwithstanding her history of drug and alcohol abuse
that had caused her financial hardship, the record does not support a
finding that these stressors and chemical dependencies were so severe as
to impair her capacity ―to make adequately considered decisions‖ in
connection with the matters about which she sought legal
representation. Indeed, the client‘s testimony did not suggest her mental
state—or medications, if any, taken to treat it—caused her difficulty in
making decisions during the time she was represented by Bowles. The
board offered no evidence tending to prove the client‘s use of crack
cocaine or alcohol substantially diminished her capacity to make
adequately considered decisions during the time she was represented by
Bowles. Upon our review of the record, we conclude a convincing
preponderance of the evidence does not support a conclusion that
Bowles violated this rule.
C. Rule 32:8.4(d)—Conduct Prejudicial to the Administration
of Justice. The commission concluded Bowles engaged in conduct
prejudicial to the administration of justice when he (1) engaged in sexual
conduct at the courthouse with the client who believed he would
represent her if she engaged him in oral sex, (2) represented the client in
a court hearing the day after a district court judge advised him not to do
so, and (3) knowingly relied on the client‘s false affidavit to defend
against the charge that he had violated the ethical rules. We have
previously concluded that an attorney‘s sexual conduct with a client does
not constitute a per se violation of rule 32:8.4(d). Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Monroe, 784 N.W.2d 784, 789 (Iowa 2010). In other
words, rule 32:8.4(d) ―does not prohibit a particular act or conduct in
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isolation.‖ Id. The rule instead prohibits conduct that produces ―an
undesirable effect: . . . some interference with the efficient and proper
operation of the courts through a deviation ‗from the well-understood
norms and conventions of practice.‘ ‖ Id. (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010)).
Although, as we have already noted, Bowles did commit an ethical
violation when he had sexual relations with the client on multiple
occasions, we conclude the sexual misconduct did not violate rule
32:8.4(d). The board failed to prove that the sexual misconduct
interfered with the efficient and proper operation of the courts.
Additionally, while Bowles exhibited extremely poor judgment in
appearing in court with the client the day after he was advised by a judge
not to do so, we conclude the board has not established that the conduct
disrupted the efficient operation of the courts. Accordingly, Bowles‘
appearance at the contempt hearing did not constitute a violation of rule
32:8.4(d).
Bowles knowingly facilitated the client‘s preparation of a false
affidavit and then relied on the document in defending against the charge
of ethical misconduct prior to the hearing before the commission. His
attempt to obstruct the investigation of, and prosecution for, his
misconduct interfered with the efficient and proper operation of this
court‘s regulatory function. Accordingly, we conclude the board did meet
its burden to prove Bowles violated rule 32:8.4(d).
V. Sanction.
We determine an appropriate sanction based on the particular
circumstances of each case. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Marks, 759 N.W.2d 328, 332 (Iowa 2009). In selecting the appropriate
sanction for an ethical violation,
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we consider the nature and extent of the respondent‘s ethical
infractions, his fitness to continue practicing law, our
obligation to protect the public from further harm by the
respondent, the need to deter other attorneys from engaging
in similar misconduct, our desire to maintain the reputation
of the bar as a whole, and any aggravating or mitigating
circumstances.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kallsen, 670 N.W.2d
161, 164 (Iowa 2003).
We have previously detailed the rationale for suspending the
license of lawyers who engage in improper sexual conduct with clients.
Monroe, 784 N.W.2d at 790 (noting the nature of the ethical infraction
and the need to deter other attorneys from engaging in similar
misconduct are considerations mandating suspensions for sexual
misconduct). In McGrath, our opinion surveyed sanctions imposed in
other cases involving sexual misconduct by attorneys. McGrath, 713
N.W.2d at 703. The sanctions imposed for such misconduct have ranged
from a public reprimand, Comm. on Prof’l Ethics & Conduct v. Durham,
279 N.W.2d 280, 285–86 (Iowa 1979) (attorney engaged in kissing and
caressing with a prisoner-client on three occasions), to a suspension of
three years, McGrath, 713 N.W.2d at 703 (attorney solicited sex from one
client and engaged in intercourse with another client on two occasions in
exchange for legal services).
We conclude a suspension of Bowles‘ license is appropriate in this
case. He breached the trust bestowed on members of the bar when he
engaged in sex acts with a vulnerable client who sought his professional
assistance in a matter of profound personal significance—custody of
children. The sanction of suspension is justified in this case to protect
members of the public and to discourage similar misconduct by other
lawyers. McGrath, 713 N.W.2d at 703. In determining the appropriate
length of the suspension, we have viewed sexual misconduct by lawyers
10
with clients who are mentally or emotionally challenged as deserving of a
greater sanction. Marzen, 779 N.W.2d at 769 (noting the client‘s mental
health challenges were an aggravating circumstance in the determination
of the imposition of attorney‘s discipline).
Bowles urges the court to consider as mitigating circumstances his
anxiety, depression, and attention deficit disorder that affected him
during the period in which his misconduct occurred.3 Mitigating
circumstances, while not excusing the disciplinary violations, may have a
bearing on severity of sanction. Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Grotewold, 642 N.W.2d 288, 292–96 (Iowa 2002) (major
depression). ―While depression does not minimize the seriousness of
unethical conduct, it can impact our approach to discipline.‖ Id. at 295.
For purposes of our adjudication of this matter, we credit Bowles‘
testimony that he was experiencing some mental health challenges
during the period in which he engaged in the misconduct described
above. We have previously noted, however, that the determination that
mental health difficulties are a mitigating circumstance in the imposition
of discipline is dependent upon the relationship between the unethical
conduct and the mental health difficulties. Id. We are not persuaded on
this record that such a relationship existed between Bowles‘ misconduct
and his mental health difficulties. Accordingly, we conclude Bowles‘
misconduct is not mitigated by any mental health condition extant at the
time of his misconduct.
3Bowles submitted two documents to the commission after the date of the
hearing in this matter. The board has filed a motion to exclude the documents referred
to by Bowles as ―exhibits‖ one and two. Because Bowles laid no foundation in the
record for the admission of the documents and the board had no opportunity during the
hearing to challenge their authenticity, relevance, or probative value, this court will not
consider them.
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We conclude a suspension of eighteen months is appropriate in
this case. Although lesser sanctions have been imposed in other recent
cases in which an attorney engaged in multiple acts of sexual
misconduct with a single client, see Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Morrison, 727 N.W.2d 115, 119–20 (Iowa 2007), this case presents
aggravating circumstances justifying a longer suspension. As in Marzen,
the client in this case had only recently been discharged from a mental
health facility. Marzen, 779 N.W.2d at 765. The respondent committed a
separate violation of our disciplinary rules when he facilitated the client‘s
preparation of a false affidavit and then relied on the document to
obstruct the investigation and prosecution of this matter. A further
aggravating factor affecting our determination of the sanction in this case
is the fact that the respondent was publicly reprimanded on a previous
occasion for his neglect of an appeal resulting in its dismissal. Case law
establishes that ―prior disciplinary action is properly considered as an
aggravating circumstance.‖ Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Gallner, 621 N.W.2d 183, 188 (Iowa 2001).
VI. Conclusion.
We suspend Bowles‘ license to practice law with no possibility of
reinstatement for a period of not less than eighteen months from the date
of this opinion. This suspension applies to all facets of the practice of
law. See Iowa Ct. R. 35.12(3). Bowles shall have the burden upon
application for reinstatement to prove he has not practiced during the
period of suspension and he meets all the requirements set forth in Iowa
Court Rule 35.13. The costs of the action are taxed against Bowles as
provided in Iowa Court Rule 35.26(1).
LICENSE SUSPENDED.