Iowa Supreme Court Attorney Disciplinary Board v. Melissa Nine ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 18–1582
Filed December 7, 2018
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
MELISSA NINE,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends the suspension of an attorney’s
license for thirty days for a violation of ethical rules. LICENSE
SUSPENDED.
Tara van Brederode and Elizabeth E. Quinlan, for complainant.
David L. Brown of Hansen, McClintock & Riley, Des Moines, for
respondent.
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CHRISTENSEN, Justice.
An Iowa attorney engaged in an intimate relationship with one of her
clients whom she was representing in a marriage dissolution matter. The
Iowa Supreme Court Attorney Disciplinary Board charged the attorney
with a violation of Iowa Rule of Professional Conduct 32:1.8(j) (sexual
relationship with a client). Though the attorney initially expressed her
disbelief at the charge when the Board sent her a notice letter requiring
her to respond to the alleged misconduct, she admitted her wrongdoing
soon thereafter and fully cooperated with the Board.
The parties reached a factual stipulation, agreeing that the charged
violation occurred. The grievance commission considered the matter
without a hearing and concluded the attorney violated rule 32:1.8(j). The
commission recommended the attorney’s license be suspended for thirty
days. Upon our de novo review, we conclude that the attorney violated
rule 32:1.8(j). We agree with the commission’s recommended sanction and
suspend the attorney’s license to practice law for thirty days.
I. Background Facts and Proceedings.
Melissa Nine is a solo practitioner in Marshalltown who was
admitted to the Iowa bar in 2001. In April 2011, John Doe retained Nine
to represent him in a marriage dissolution matter, which continued until
August 22, 2012. While the dissolution matter was still pending in August
2011, Nine and Doe began an intimate relationship. Doe and Nine were
not married to each other at the time of the intimate relationship.
It is unclear when exactly the intimate relationship between Doe and
Nine ended. However, on March 1, 2016, the Board sent Nine a notice
letter requiring her response to the allegation of sexual misconduct
regarding her intimate relationship with Doe. On April 4, Nine requested
a complete copy of the Board’s file and noted, “I am appalled at these
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allegations, to say the least.” On April 19, Nine provided her initial
response to the Board. She admitted engaging in an intimate relationship
with Doe but claimed the relationship occurred “at the appropriate time.”
After the Board commenced an investigation into the matter, Nine
admitted that she had an intimate relationship with Doe in August 2011
that she later ended. Nine subsequently cooperated fully with the Board
and commission. The investigation revealed that Doe did not suffer any
financial harm because of the intimate relationship, nor did he claim any
emotional or mental harm.
On April 11, 2018, the Board filed a complaint against Nine alleging
that she had engaged in sexual relations with a client in violation of Iowa
Rule of Professional Conduct 32:1.8(j) and made a false statement of
material fact in connection with a disciplinary matter in violation of rule
32:8.1. Nine filed her answer on May 9, admitting all of the allegations
except the alleged violation of rule 32:8.1. On June 8, the Board filed an
amended complaint, which removed the alleged violation of rule 32:8.1.
Nine filed a written consent to the amended complaint on June 8.
On June 28, the Board and Nine submitted a joint stipulation
pursuant to Iowa Court Rule 36.16, waiving the formal hearing. The
parties agreed that Nine violated rule 32:1.8(j). The matter was submitted
to the commission for its consideration on July 17. The commission
issued its findings and recommendation on September 10, in which it
found the violation of rule 32:1.8(j) was factually supported. The
commission recommended that we suspend Nine’s license for thirty days.
II. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d 772, 776 (Iowa 2016).
We are not bound by the findings and recommendations of the
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commission, though we give them respectful consideration. Id. at 777.
The Board bears the burden of proving the alleged attorney misconduct by
a convincing preponderance of the evidence. Id. “This standard is more
demanding than proof by [a] preponderance of the evidence, but less
demanding than proof beyond a reasonable doubt.” Id. (quoting Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Ouderkirk, 845 N.W.2d 31, 33 (Iowa
2014)). Finally, the parties are bound by the stipulated facts, “which we
interpret with reference to their subject matter and in light of the
surrounding circumstances and the whole record.” Id. Nevertheless, we
are not bound by the attorney’s stipulation to an ethical violation or the
commission’s recommended sanction. Id.III. Ethical Violation.
Iowa Rule of Professional Conduct 32:1.8(j) states, “A lawyer shall
not have sexual relations with a client, or a representative of a client,
unless the person is the spouse of the lawyer or the sexual relationship
predates the initiation of the client-lawyer relationship.” Iowa R. Prof’l
Conduct 32:1.8(j). This prohibition includes consensual relationships. Id.r. 32:1.8 cmt. [17]. Intimate relationships between an attorney and a client
pose a number of issues given “[t]he relationship between lawyer and client
is a fiduciary one in which the lawyer occupies the highest position of trust
and confidence” and the unequal nature of the relationship. Id.Additionally, “such a relationship presents a significant danger that,
because of the lawyer’s emotional involvement, the lawyer will be unable
to represent the client without impairment of the exercise of independent
professional judgment.” Id. Though there are “many gray areas” in the
professional responsibility realm, “sexual relationships between attorney
and client is not one of these. Such conduct is clearly improper.” Johnson,
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884 N.W.2d at 778 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Morrison, 727 N.W.2d 115, 118 (Iowa 2007)).
Nine admits she violated rule 32:1.8(j). The Board and Nine
stipulated to the fact that Nine had an intimate relationship with Doe in
August 2011, months after Nine commenced her representation of Doe in
his marriage dissolution matter. This relationship did not predate the
initiation of the attorney–client relationship, and Doe is not Nine’s spouse.
Thus, it does not meet either exception to rule 32:1.8(j). See Iowa R. Prof’l
Conduct 32:1.8(j). Consequently, Nine violated rule 32:1.8(j).
IV. Sanction.
Our range of applicable sanctions for an attorney who engages in
sexual relations with a client spans from a public reprimand all the way to
“a lengthy period of suspension from the practice of law.” Johnson, 884
N.W.2d at 780 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen,
779 N.W.2d 757, 767 (Iowa 2010)). “There is no standard sanction for a
particular type of misconduct, and though prior cases can be instructive,
we ultimately determine an appropriate sanction based on the particular
circumstances of each case.” Id. at 779 (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Blessum, 861 N.W.2d 575, 591 (Iowa 2015)). In
determining an appropriate sanction, we consider
[t]he nature of the violations, the attorney’s fitness to continue
in the practice of law, the protection of society from those unfit
to practice law, the need to uphold public confidence in the
justice system, deterrence, maintenance of the reputation of
the bar as a whole, and any aggravating or mitigating
circumstances.
Id. (alteration in original) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Moothart, 860 N.W.2d 598, 615 (Iowa 2015)). We have imposed relatively
harsher sanctions in cases involving multiple violations or especially
vulnerable clients. See, e.g., Moothart, 860 N.W.2d at 617 (suspending an
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attorney’s license for at least thirty months because his “actions show[ed]
a specific pattern of conduct with respect to a number of victims”) Yet,
when the misconduct appears to be an isolated occurrence, we tend to
impose suspensions of three months or less. See Johnson, 884 N.W.2d at
780–81.
For example, in Johnson, we suspended an attorney’s license for
thirty days due to similar misconduct. 884 N.W.2d at 781–82. In that
case, Johnson engaged in an intimate relationship with a client she
represented in family and criminal matters. Id. at 781. In reaching her
sanction, we noted a number of mitigating circumstances. Importantly,
Johnson’s misconduct appeared to be an isolated occurrence given the
absence of any evidence showing similar misconduct in the past. Id. We
noted that nobody appeared to suffer harm from the relationship. Id. at
782. We also acknowledged that Johnson self-reported, though she only
did so after the FBI confronted her with evidence of the relationship. Id.
at 781. Further, we noted Johnson’s counseling to address mental health
issues that may have played a role in her misconduct and her admirable
pro bono work. Id. at 781–82. Nevertheless, we also considered “[t]he fact
that Johnson represented Doe in family and criminal matters” as an
aggravating circumstance given the vulnerable nature of clients in these
circumstances. Id. at 781.
The facts of this case are similar to those of Johnson. As in Johnson,
Nine’s misconduct appears to be an isolated incident, for there is no
evidence of similar transgressions or other prior discipline. Likewise, the
Board’s investigation revealed that Nine’s client did not suffer financial,
emotional, or psychological harm due to the relationship. Moreover, Nine
has a significant history of involvement in the community and within the
legal profession. She has served as a mock trial coach and an officer on
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the Marshall County Human Civil Rights Commission, participated in the
Meskwaki Tribal Court, contributed to the local parent teacher
association, and volunteered time in the Iowa Organization of Women
Attorneys Advocacy mission at the local domestic shelter.
Though this was an isolated incident, we must note that Nine, like
Johnson, represented Doe in a family matter, which is an aggravating
circumstance. Additionally, it is an aggravating circumstance that Nine
was initially evasive about her misconduct and did not admit regret. Yet,
Nine did admit her wrongdoing soon after the Board filed its initial
complaint and fully cooperated with the Board from that point on in the
process.
Finally, though we are sanctioning Nine’s misconduct now, we
consider that it took place in 2011. At that time, our most recent attorney
disciplinary case regarding a similar violation of rule 32:1.8(j) sanctioned
an attorney to a thirty-day suspension of his license. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Monroe, 784 N.W.2d 784, 790–92 (Iowa 2010). “We
seek to ‘achieve consistency with prior cases when determining the proper
sanction.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Crotty, 891 N.W.2d
455, 466 (Iowa 2017) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Templeton, 784 N.W.2d 761, 769 (Iowa 2010)). Thus, we agree with the
commission that the appropriate sanction is the suspension of Nine’s
license to practice law for thirty days because it is consistent with our
caselaw on this issue at the time Nine committed her misconduct.
Since Monroe, we have continued to suspend attorney’s licenses for
thirty days for violating rule 32:1.8(j) in situations similar to Nine’s. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Jacobsma, ___ N.W.2d ___, ___
(Iowa 2018); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Waterman, 890
N.W.2d 327, 329–30 (Iowa 2017); Johnson, 884 N.W.2d at 775–76.
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Nevertheless, we must note that our decision today is filed alongside
another opinion that also sanctions an attorney for sexual relations with
a client by suspending his license for thirty days. See Jacobsma, ___
N.W.2d ___, ___ (Iowa 2018). Nine is the fourth attorney in the last few
years to violate rule 32:1.8(j). See id. at ___; Waterman, 890 N.W.2d at
329–30; Johnson, 884 N.W.2d at 775–76. Attorneys engaging in sexual
relationships with clients is becoming a recurring problem, and it is
becoming clear from our disciplinary cases involving violations of rule
32:1.8(j) that “our thirty-day suspension is not deterring attorneys from
engaging in sexual relationships with clients.” Jacobsma, ___ N.W.2d at
___ (Wiggins, J., dissenting). Sanctions in disciplinary cases serve many
purposes, including deterrence. See Monroe, 784 N.W.2d at 790 (“It is
important to deter other attorneys in similar circumstances from putting
their own self-interest ahead of those of the client, the very antithesis of a
lawyer’s professional duty.”). In the future, we may need to implement
harsher sanctions to deter attorneys from engaging in sexual relationships
with clients.
V. Conclusion.
We suspend Nine from the practice of law without the possibility of
reinstatement for thirty days. This suspension applies to all facets of the
practice of law as provided in Iowa Court Rule 34.23(3), and Nine must
notify all clients as outlined in Iowa Court Rule 34.24. Costs are taxed to
Nine pursuant to Iowa Court Rule 36.24(1). Nine shall be automatically
reinstated at the conclusion of the thirty-day suspension period if she has
paid all costs unless the Board objects. See Iowa Ct. R. 34.23(2).
LICENSE SUSPENDED.
All justices concur except Wiggins, J., who concurs specially, and
Hecht, J., who takes no part.
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#18–1582, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nine
WIGGINS, Justice (concurring specially).
In Iowa Supreme Court Attorney Disciplinary Board v. Jacobsma, ____
N.W.2d ____, ____ (Iowa 2018), I dissented and thought we should suspend
Jacobsma’s license indefinitely with no possibility of reinstatement for
three months. 1 Id. at ____ (Wiggins, J., dissenting). Additionally, before
reinstatement, I would have required him to obtain counseling and provide
this court with a report showing he is no longer at risk to engage in sexual
relationships with clients. Id.I stated the reason for my dissent as follows:
Jacobsma is the third attorney in the last few years to
violate rule 32:1.8(j). See Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Waterman, 890 N.W.2d 327, 329–30 (Iowa 2017); Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d
772, 775–76 (Iowa 2016). In Waterman, Johnson, and Monroe,
and we suspended the attorney’s licenses for thirty days.
A sanction in a disciplinary case serves many purposes.
Three of those purposes are deterrence, protection of the
public, and maintaining the reputation of the bar as a whole.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Mathahs, 918
N.W.2d 487, 494 (Iowa 2018). We decided the Waterman and
Johnson cases over seven months before Jacobsma had
sexual relations with his client. Obviously, our thirty-day
suspension is not deterring attorneys from engaging in sexual
relationships with clients.
Id. (citations omitted).
Here, Melissa Nine’s conduct occurred after we decided Monroe, but
before we decided Waterman and Johnson. Thus, the deterrent rationale
1If we suspend an attorney’s license for a period not exceeding sixty days, we may
reinstate an attorney’s license without the need for the attorney to file an application for
reinstatement. Iowa Ct. R. 34.23(2). If the suspension exceeds sixty days, the attorney
must file an application for reinstatement. Id. r. 34.25.
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is inapplicable to her situation. However, Nine’s conduct shows an
attorney engaging in sexual relationships with his or her clients is a
growing problem that must stop. The only way to stop it is with stricter
sanctions.