Iowa Supreme Court Attorney Disciplinary Board v. Tarek A. Khowassah , 2017 Iowa Sup. LEXIS 13 ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 16–1266
Filed February 17, 2017
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
TAREK A. KHOWASSAH,
Appellant.
Appeal from the report of the Grievance Commission of the
Supreme Court of Iowa.
The grievance commission reports the appellant committed an
ethical violation and recommends a one-year suspension of the attorney’s
license. LICENSE SUSPENDED.
David L. Brown and Tyler R. Smith of Hansen, McClintock & Riley,
Des Moines, for appellant.
Susan A. Wendel, Des Moines, for appellee.
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CADY, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board charged
attorney Tarek A. Khowassah with violating the rule of professional
conduct pertaining to criminal acts. The Grievance Commission of the
Supreme Court of Iowa found Khowassah violated the rule and
recommended a one-year suspension. Upon our review, we find
Khowassah violated the Iowa Rules of Professional Conduct and suspend
his license to practice law in this state indefinitely with no possibility of
reinstatement for a period of six months from the date of the filing of this
opinion.
I. Background Facts and Proceedings.
Tarek A. Khowassah is an Iowa attorney. He was admitted to
practice law in Iowa in 2005. He has worked in private practice and for
the state public defender. He has received one private admonition. His
license was suspended on one occasion in the past and is currently
inactive. Khowassah is presently enrolled in an LLM tax program in
Colorado. He intends to resume the practice of law in Iowa in the future.
This disciplinary proceeding against Khowassah relates to his
conduct in June of 2014. It resulted in a plea of guilty to public
intoxication and operating a motor vehicle while intoxicated (OWI),
second offense. The facts were presented by stipulation and explored in
a disciplinary hearing before the grievance commission. They involved
two separate incidents.
The first incident occurred in the early morning hours of June 14,
2014. Khowassah was intoxicated while in downtown Iowa City. He
intervened with police officers who were engaged in an encounter with
another individual, and Khowassah was arrested and charged with
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interference with official acts. He pled guilty to public intoxication, a
simple misdemeanor.
One week later, Iowa City police found Khowassah sleeping in the
driver’s seat of his vehicle while it was parked in a parking ramp with the
engine running. He was intoxicated. He was arrested and charged with
OWI, third offense. Khowassah pled guilty to OWI, second offense, an
aggravated misdemeanor.
The Board thereafter charged Khowassah with violating Iowa Rule
of Professional Conduct 32:8.4(b) for “commit[ting] a criminal act that
reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as
a lawyer in other respects.” Khowassah stipulated to the violation. The
commission recommended the court suspend Khowassah’s license to
practice law for one year. It also recommended Khowassah provide
medical documentation of his maintenance of sobriety and his fitness to
practice law prior to reinstatement of his license.
II. Scope of Review.
“We review attorney disciplinary matters de novo.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Pederson, 887 N.W.2d 387, 391 (Iowa 2016);
Iowa Ct. R. 36.21(1). The parties are bound by their stipulations of fact.
Pederson, 887 N.W.2d at 391. We are not bound by their stipulations to
violations. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bartley, 860
N.W.2d 331, 335 (Iowa 2015). We will review the record and stipulated
facts to determine whether a violation occurred. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Khowassah, 837 N.W.2d 649, 652 (Iowa 2013). The
Board must prove attorney misconduct by a convincing preponderance of
the evidence. Pederson, 887 N.W.2d at 391. If we find the Board has
proven misconduct, “we may impose a greater or lesser sanction than
recommended by the commission.” Iowa Supreme Ct. Att’y Disciplinary
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Bd. v. Said, 869 N.W.2d 185, 190 (Iowa 2015); see also Pederson, 887
N.W.2d at 391 (“We respectfully consider the commission’s findings and
recommendations, but they do not bind us.” (quoting Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Wheeler, 824 N.W.2d 505, 509 (Iowa 2012))).
III. Violations.
A lawyer engages in professional misconduct by committing a
criminal act that reflects adversely on the lawyer’s fitness to practice law.
Iowa R. Prof’l Conduct 32:8.4(b).
A lawyer’s fitness to practice law includes “his or her moral
character, suitability to act as an officer of the court, ability
to maintain a professional relationship, competency in legal
matters, and whether he or she can be trusted to vigorously
represent clients, without overreaching.”
Wheeler, 824 N.W.2d at 510 (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Keele, 795 N.W.2d 507, 512 (Iowa 2011)). Thus, the commission
of a crime does not alone establish a violation of rule 32:8.4(b). Id.
Instead, “[t]he nature and circumstances of the act are relevant . . . .”
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761,
767 (Iowa 2010). “There must be some rational connection other than
the criminality of the act between the conduct and the actor’s fitness to
practice law.” Id. (quoting In re Conduct of White, 815 P.2d 1257, 1265
(Or. 1991) (en banc)). We consider a number of factors, including
the lawyer’s mental state; the extent to which the act
demonstrates disrespect for the law or law enforcement; the
presence or absence of a victim; the extent of actual or
potential injury to a victim; and the presence or absence of a
pattern of criminal conduct.
Wheeler, 824 N.W.2d at 510 (quoting Templeton, 784 N.W.2d at 767).
“[C]onduct that diminishes ‘public confidence in the legal profession’ ”
reflects adversely on a lawyer’s fitness to practice law. Id. (quoting Keele,
795 N.W.2d at 512).
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Prior convictions are relevant to determining whether an attorney
has engaged in a pattern of criminal conduct. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Cannon, 821 N.W.2d 873, 879 (Iowa 2012). In this
case, Khowassah was privately admonished for his first OWI conviction
in 2011. He received a deferred judgment in the underlying criminal
proceedings. However, in 2012, he was convicted of OWI again. This
time, his license to practice law was suspended for three months.
Khowassah, 837 N.W.2d at 658. Now, less than four months after we
reinstated his license, Khowassah has violated the law on two more
occasions, including his third conviction of OWI. The stipulated facts
and record establish a pattern of criminal conduct that reflects adversely
on Khowassah’s fitness to practice law. See Cannon, 821 N.W.2d at 879.
While his conduct has not inflicted personal injury, it demonstrates
disrespect of the law, which further reflects adversely on his fitness to
practice. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 812
N.W.2d 4, 11–12 (Iowa 2012). Accordingly, we find Khowassah’s criminal
acts of public intoxication and OWI, second offense, were part of a
pattern of criminal conduct related to a greater problem of alcohol abuse.
His conduct constitutes a violation of rule 32:8.4(b).
IV. Sanctions.
There is no standard sanction for Khowassah’s misconduct. See
Said, 869 N.W.2d at 193. Instead, we must look to the particular
circumstances of his case. See Bartley, 860 N.W.2d at 337.
In determining what sanctions should be imposed, we
consider the nature of the violations, the need for deterrence,
protection of the public, maintenance of the reputation of the
bar as a whole, and the attorney’s fitness to continue
practicing law, as well as any aggravating or mitigating
circumstances.
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Id. The commission recommended we suspend Khowassah’s license to
practice law for one year. Khowassah believes a thirty-day suspension
would satisfy the purposes of imposing sanctions.
Khowassah’s misconduct was nonviolent and occurred outside of
his practice of law. However, an attorney whose alcohol abuse leads to
criminal conduct, particularly repeated criminal conduct, can diminish
public confidence in the legal profession even if the conduct occurs
outside the attorney’s professional role. See Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 881 (Iowa 1996).
The appropriate sanction must be sufficient to maintain the reputation of
the bar. The appropriate sanction must also be sufficient to deter others
from ignoring needed treatment for substance abuse problems and to
deter Khowassah from further misconduct.
Because “we strive to achieve consistency in the discipline of Iowa
lawyers who violate our rules of professional conduct,” our prior cases
are relevant in our determination of the appropriate sanction. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Powell, 830 N.W.2d 355, 358 (Iowa
2013). Criminal convictions for conduct similar to the conduct engaged
in by Khowassah have resulted in suspensions ranging from thirty days
to two years. Cannon, 821 N.W.2d at 876, 883 (suspending license for
thirty days following convictions of operating a boat while intoxicated,
first offense; possession of cocaine; and OWI, first offense); Weaver, 812
N.W.2d at 15 (suspending license for two years following convictions of
OWI, third offense, and criminal harassment); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Johnson, 774 N.W.2d 496, 500 (Iowa 2009)
(per curiam) (suspending license for six months following conviction of
OWI, third offense), overruled on other grounds in Templeton, 784 N.W.2d
at 768–69; Marcucci, 543 N.W.2d at 880, 883 (same). With these cases
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as guidance, Khowassah’s “individual case must rest on its individual
circumstances.” Powell, 830 N.W.2d at 358.
Here, there are a number of mitigating circumstances. Khowassah
testified at his hearing that he was engaged in rehabilitative efforts and is
attempting to live a healthy and sober lifestyle. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 661 (Iowa 2013) (noting
an attorney’s alcoholism can be considered in mitigation if it “contributed
to the ethical misconduct” and the lawyer “undertake[s] rehabilitative
efforts to control [the] addiction”). He meets individually with a therapist
once a week to discuss alcohol and his personal life. He also attends
group sessions twice a week at a treatment center. These efforts show he
is now willing to acknowledge the problems that led to his misconduct
and address his misuse of alcohol. He accepted full responsibility for his
actions. He cooperated with the Board during its investigation. He has
also paid his court-ordered obligations and is in compliance with the
terms of his probation. He has not reoffended.
However, there are also a number of aggravating circumstances.
This is not the first time Khowassah has been before this court because
of alcohol-related misconduct. As we stated at that time, “Though we ‘do
not discipline an attorney twice for the same conduct, . . . we do consider
previous disciplinary action as an aggravating factor in determining
sanctions.’ ” Khowassah, 837 N.W.2d at 658 (quoting Cannon, 821
N.W.2d at 882 (citation omitted)). Khowassah has been put on notice
twice that his conduct is not only illegal, but also unethical.
Nevertheless, he continued to abuse alcohol and to disregard the laws of
this state. While Khowassah has finally sought treatment, he did not
initially do so. He underwent a substance abuse evaluation that
recommended intensive outpatient treatment to deal with his alcohol
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abuse. Instead of seeking this treatment, Khowassah chose to travel
overseas for the summer. Once he returned, he started school in
Colorado and waited until a month before his hearing to begin outpatient
services. This was not only inadvisable from a treatment perspective, but
was in violation of a court order, which required him to follow the
treatment recommendations of his evaluation and timely complete a
drinking-and-driving course.
Considering all relevant factors, we conclude Khowassah’s conduct
in this matter warrants an indefinite suspension from the practice of law
with no possibility of reinstatement for a period of six months. His
criminal conduct was serious, but most concerning was the overall
pattern of conduct. Khowassah’s repeated violations of the law reflect
poorly on his judgment and could prompt disrespect and distrust of the
legal profession as a whole. Thus, we agree with the commission’s
recommendation that he should provide medical documentation of his
maintenance of sobriety and fitness to practice law as part of any future
request to reinstate his license to practice. See Weaver, 812 N.W.2d at
16 (“When an attorney’s disciplinary problems arise out of alcoholism
and depression, ‘[w]e have a well-established history of imposing such
conditions.’ ” (alteration in original) (quoting Johnson, 774 N.W.2d at
501)). Such a condition is appropriate in this case to ensure Khowassah
has taken the necessary personal steps to reduce the risk of further
professional misconduct.
V. Conclusion.
We suspend Tarek A. Khowassah’s license to practice law in this
state indefinitely with no possibility of reinstatement for a period of six
months from the date of the filing of this opinion. This suspension shall
apply to all facets of the practice of law. See Iowa Ct. R. 34.23(3).
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Khowassah shall comply with all requirements of the court rules
associated with a suspension. See id. rs. 34.23(1)–(4), .24(1). Upon any
application for reinstatement, Khowassah shall have the burden to show
he has not practiced law during the period of suspension and that he
meets the requirements of Iowa Court Rule 34.25. He shall also provide
medical documentation from a licensed healthcare professional regarding
the maintenance of his sobriety and his fitness to practice law. The costs
of this proceeding are assessed against Khowassah. See id. r. 36.24(1).
LICENSE SUSPENDED.