Iowa Supreme Court Attorney Disciplinary Board v. Don Richard John Bauermeister ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–2219
Filed May 3, 2019
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
DON RICHARD JOHN BAUERMEISTER,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
Grievance commission recommends the revocation of an attorney’s
license to practice law for violation of a disciplinary rule. LICENSE
REVOKED.
Tara van Brederode and Amanda K. Robinson, for complainant.
Clarence B. Meldrum Jr., Council Bluffs, for respondent.
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WATERMAN, Justice.
Attorney Don Richard John Bauermeister pleaded guilty to federal
felony drug charges. He sent a coconspirator on multiple trips to Oregon
to acquire bulk quantities of marijuana for Bauermeister to sell for profit
in Omaha. His mule was arrested in Utah returning with thirteen
pounds of marijuana. 1 When federal agents served a search warrant on
Bauermeister, he self-reported to the Iowa Supreme Court Attorney
Disciplinary Board (Board), and his license was placed under temporary
suspension. The Board charged Bauermeister with violating Iowa Rule of
Professional Conduct 32:8(4)(b) (committing a criminal act reflecting
adversely on the lawyer’s honesty, trustworthiness, or fitness). A division
of the Iowa Supreme Court Grievance Commission found Bauermeister
violated the rule and recommended revocation of his law license. The
Board seeks revocation. For the reasons explained below, we revoke his
license to practice law.
I. Background Facts and Proceedings.
We find the following facts on our de novo review of the record.
Bauermeister, a resident of Omaha, Nebraska, was admitted to practice
law in Iowa in 2002. He worked as a full-time assistant city attorney for
the City of Council Bluffs. He also maintained a small, part-time private
practice in Council Bluffs. His private practice consisted primarily of
defending criminal cases. Bauermeister closed his private practice and
resigned from the city attorney’s office after his arrest.
From November 18, 2016, until January 9, 2017, Bauermeister
conspired with other individuals to buy marijuana in Oregon to sell in
Omaha. Bauermeister engaged in drug dealing to make money. He does
1See United States v. Molina, 174 F. App’x 812, 815 (5th Cir. 2006) (noting that
“mule” is slang for “transporter of drugs”).
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not claim any addiction or medicinal need for marijuana. Bauermeister
paid a coconspirator to travel from Omaha to Medford, Oregon, pick up
the marijuana, and bring it to Omaha. Bauermeister’s coconspirator
made three trips to bring marijuana from Oregon to Nebraska for resale.
For the first two trips, Bauermeister paid the mule $1500 upon delivery
of the marijuana to Bauermeister in Omaha. The coconspirator brought
back six pounds of marijuana on the first trip and eight pounds on the
second trip.
For the third trip, Bauermeister agreed to pay Gerald Wyzenski
$2000 upon delivery of the marijuana. On January 9, 2017, during the
drive back from Oregon, Wyzenski was stopped by a Utah state trooper
for having an expired motor vehicle registration. The trooper smelled
marijuana in the vehicle and conducted a search. This search revealed
twelve, one-pound packages of marijuana and one package of THC wax,
together weighing thirteen pounds.
Law enforcement obtained a search warrant for Wyzenski’s cell
phone, which held text messages with Bauermeister about the drug
deals. In these text messages, Bauermeister gave specific directions to
meet the source of the marijuana.
On May 31, federal agents personally served Bauermeister with a
search warrant for his cell phone. He turned his phone over to the
agents and cooperated with the investigation. On June 9, Bauermeister
self-reported his conduct to the Board.
On August 24, Bauermeister was indicted on one count of
conspiring to possess and distribute a controlled substance in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846 (2012). This offense is a
felony under federal law and carries a maximum five-year prison term, a
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maximum fine of $250,000, and a term of supervised release of at least
two, and not more than three, years.
On October 30, Bauermeister pleaded guilty as charged in the
indictment in exchange for the federal government’s nonbinding
sentencing recommendation of probation. Bauermeister was sentenced
on January 29, 2018, to five years of probation and a $5000 fine.
Bauermeister’s license to practice law has been temporarily suspended
since February 21 of that year. Bauermeister filed an affidavit
consenting to revocation of his license. Our court elected to refer his
case to the Board for investigation.
On July 19, the Board filed a complaint against Bauermeister,
alleging he violated Iowa Rule of Professional Conduct 32:8.4(b) by
“commit[ting] a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects.” The
Board gave him notice that his criminal conviction was conclusive
evidence warranting revocation or suspension of his license under Iowa
Code section 602.10122 (2016). The Board also notified him that it
intended to invoke the doctrine of issue preclusion under Iowa Court
Rule 36.17(4)(c).
The parties stipulated to the facts and to Bauermeister’s violation
of Iowa Rule of Professional Conduct 32:8.4(b). On December 26, after a
hearing, the commission issued its findings of fact, conclusions of law,
and recommended sanction. The commission adopted the stipulation of
facts and rule violation and recommended revocation until February 21,
2023.
The parties disagree as to the appropriate sanction. Bauermeister
now requests a suspension of his license to practice law until
5
January 31, 2023, to track with his federal probation. The Board
recommends revocation.
II. Standard of Review.
“We review attorney disciplinary proceedings de novo.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 764
(Iowa 2010). “The Board has the burden of proving a violation of an
ethical rule ‘by a convincing preponderance of the evidence.’ ” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Moran, 919 N.W.2d 754, 758 (Iowa
2018) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809
N.W.2d 96, 102 (Iowa 2012)). “A convincing preponderance of the
evidence is more than a preponderance of the evidence, but less than
proof beyond a reasonable doubt.” Id. (quoting Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Thomas, 844 N.W.2d 111, 113 (Iowa 2014)). “It is also
a less stringent burden than clear and convincing evidence which is ‘the
highest civil law standard of proof.’ ” Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Roush, 827 N.W.2d 711, 716 (Iowa 2013) (quoting Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa
1996)).
The parties have submitted a stipulation of facts and violation.
“Stipulations of fact are controlling, but stipulations as to violations and
appropriate sanctions do not bind us.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Lubinus, 869 N.W.2d 546, 549 (Iowa 2015). “Upon
proof of misconduct, we may impose a greater or lesser sanction than the
sanction recommended by the commission.” Templeton, 784 N.W.2d at
764.
III. Ethical Violations.
The Board alleged, and Bauermeister admits, that Bauermeister’s
conviction of conspiring to possess and distribute a controlled substance
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in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846 is a felony
criminal act that reflects on his fitness to practice law and, therefore,
establishes a violation of Iowa Rule of Professional Conduct 32:8.4(b).
Rule 32:8.4(b) provides, “It is professional misconduct for a lawyer
to . . . commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects.” Iowa
R. Prof’l Conduct 32:8.4(b). Nevertheless, “[t]he mere commission of a
criminal act does not necessarily reflect adversely on the fitness of an
attorney to practice law.” Templeton, 784 N.W.2d at 767.
In Templeton, we adopted Oregon’s approach to analyzing when an
attorney’s criminal act reflects on his fitness to practice law.
Each case must be decided on its own facts. There must be
some rational connection other than the criminality of the
act between the conduct and the actor’s fitness to practice
law. Pertinent considerations include 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.
Id. (quoting In re Conduct of White, 815 P.2d 1257, 1265 (Or. 1991)
(en banc)).
Bauermeister engaged in a pattern of criminal conduct through his
involvement in illegal drug trafficking from Oregon to Nebraska. He used
a coconspirator to pick up the marijuana in Oregon and drive back with
it, exposing that individual to felony criminal liability. Bauermeister’s
motivation was greed. His actions showed a disrespect for the law and
law enforcement that is particularly troubling given his employment as a
Council Bluffs city attorney and his criminal defense private practice
representing persons charged with drug crimes. We conclude
Bauermeister’s criminal conduct reflects on his fitness to practice law,
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establishing a violation of rule 32:8.4(b). We must next determine the
proper sanction.
IV. Sanction.
As noted, Bauermeister initially consented to revocation of his law
license. Our rules now permit a revoked attorney to seek reinstatement
after five years. Iowa Ct. R. 34.25(7). The commission recommended
revocation of Bauermeister’s license to practice law. The Board also
recommends revocation. The Board notes that revoking Bauermeister’s
license now would prevent him from applying for reinstatement until one
year after his probation ends but that revocation is still the appropriate
sanction given our precedent and the commission’s recommendations.
Bauermeister presently recommends a period of suspension to run until
he completes his federal probation in 2023.
There is no uniform sanction for a particular ethical violation.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 153
(Iowa 2018). “We craft appropriate sanctions based upon each case’s
unique circumstances, although prior cases are instructive.” Roush, 827
N.W.2d at 718 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Kallsen, 814 N.W.2d 233, 239 (Iowa 2012)). “Nevertheless, we try to
achieve consistency with our prior cases when determining the proper
sanction.” Templeton, 784 N.W.2d at 769.
In determining the appropriate discipline, we consider the
nature of the alleged violations, the need for deterrence,
protection of the public, maintenance of the reputation of the
bar as a whole, and the respondent’s fitness to continue in
the practice of law, as well as any aggravating and mitigating
circumstances. The form and extent of the sanctions must
be tailored to the specific facts and circumstances of each
individual case. Significant distinguishing factors in the
imposition of punishment center on the existence of multiple
instances of neglect, past disciplinary problems, and other
companion violations.
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cannon, 821 N.W.2d 873, 880
(Iowa 2012) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver,
812 N.W.2d 4, 13 (Iowa 2012)).
“A felony conviction is grounds for revocation or suspension of an
attorney’s license to practice law.” Roush, 827 N.W.2d at 718 (quoting
Weaver, 812 N.W.2d at 13); see also Iowa Code § 602.10122(1) (stating
that when an attorney is convicted of a felony, “[t]he record of conviction
is conclusive evidence”). In Roush, we suspended the attorney’s license
to practice law for sixty days after he pleaded guilty to possession of
cocaine base, a federal felony. 827 N.W.2d at 714, 720. Roush, however,
is distinguishable. Stanley Roush was a drug user and alcoholic with a
substance abuse problem, not a drug dealer motivated by greed. Roush,
827 N.W.2d at 716–17. After his arrest, Roush addressed his substance
abuse issues through participation in counseling and Alcoholics
Anonymous. Id. Bauermeister claims no substance abuse addiction or
mental health issues. He knowingly violated the controlled substances
law for personal profit, not personal consumption.
By contrast, we have consistently revoked the licenses of attorneys
who engaged in drug trafficking. Comm. on Prof’l Ethics & Conduct v.
Kaufman, 515 N.W.2d 28, 29, 31 (Iowa 1994) (“Any fair comparison with
sanctions in similar cases will show that revocation is demanded.”);
Comm. on Prof’l Ethics & Conduct v. Owens, 427 N.W.2d 463, 465 (Iowa
1988) (“We do not think a lawyer who had a part in a conspiracy
concerning illegal drug traffic possesses the qualities of good character
essential in a member of the Iowa bar.”); Comm. on Prof’l Ethics &
Conduct v. Green, 285 N.W.2d 17, 18 (Iowa 1979) (revoking license of
attorney who took part in delivery of drugs, even though he
“characterized himself as a ‘dupe’ in the transaction”); Comm. on Prof’l
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Ethics & Conduct v. Hanson, 244 N.W.2d 822, 824 (Iowa 1976) (revoking
license of attorney “who attempted to engage in illegal drug traffic and
who converted partnership funds”); see also In re Disciplinary Action
Against Huff, 872 N.W.2d 750, 755 (Minn. 2015) (imposing reciprocal
disbarment of attorney disbarred in Illinois following guilty plea to federal
charge of conspiracy to distribute marijuana); Model Standards for
Imposing Lawyer Sanctions Standard 5.11(a) (Am. Bar Ass’n 1992)
(“Disbarment is generally appropriate when . . . a lawyer engages in
serious criminal conduct [including] . . . the sale, distribution or
importation of controlled substances . . . or an attempt or conspiracy or
solicitation of another to commit [such an offense].”).
We have imposed lesser sanctions for criminal conduct involving
personal drug use or impaired driving. See Roush, 827 N.W.2d at 719–
21 (surveying cases). But we have never imposed a sanction less than
revocation for lawyers engaged in felony drug dealing for profit. And,
without exception, we revoked their law licenses even before our rule
change permitted applications for reinstatement after five years.
This case presents aggravating circumstances. Bauermeister was
the orchestrator of the illegal drug dealing. He paid a coconspirator to
assume the risk of transporting marijuana across state lines, resulting in
federal felony criminal charges against that individual. Bauermeister
participated in at least two earlier drug deals over several months before
his mule was stopped by police and arrested. Bauermeister’s pattern of
criminal conduct shows disrespect for the rule of law and for law
enforcement officials. Id. at 717 (noting that “disrespect for the law
would ‘lessen . . . public confidence in the legal profession’ ” (alteration in
original) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barry, 762
N.W.2d 129, 138 (Iowa 2009)); Owens, 427 N.W.2d at 465 (“In other
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disciplinary decisions involving controlled substances, attorneys have not
been treated charitably.”).
Another aggravating factor is that Bauermeister engaged in for-
profit drug dealing while serving as an assistant city attorney. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Stansberry, 922 N.W.2d 591, 600
(Iowa 2019) (noting that an attorney’s position as an assistant county
attorney at the time of his criminal conduct was an aggravating factor).
Illegal conduct by a public official is “particularly egregious.” Comm. on
Prof’l Ethics & Conduct v. Tompkins, 415 N.W.2d 620, 623 (Iowa 1987).
Further, in Bauermeister’s private practice, he primarily handled
criminal cases, such that he “was violating the category of laws that he
regularly encountered in his daily work.” Roush, 827 N.W.2d at 717.
Finally, the fact Bauermeister committed a felony for his own financial
gain supports revocation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Engelmann, 840 N.W.2d 156, 166 (Iowa 2013) (collecting cases revoking
licenses of attorneys convicted of financial fraud crimes for personal
gain). We distinguished other financial fraud cases imposing
suspensions when the attorney helped client-wrongdoers obtain loans
under false pretenses without personally profiting and while believing the
loans would be repaid. Id. at 164–66 (distinguishing Iowa Supreme Court
Attorney Disciplinary Board v. Bieber, 824 N.W.2d 514 (Iowa 2012), and
Iowa Supreme Court Attorney Disciplinary Board v. Wheeler, 824 N.W.2d
505 (Iowa 2012)).
We find mitigating factors in this case insufficient to forestall
revocation. Bauermeister has no prior discipline. Lubinus, 869 N.W.2d
at 552 (noting that lack of disciplinary record is a mitigating factor).
Bauermeister has also been actively involved in his children’s activities,
including serving as an athletic coach for more than ten years. Cf. Iowa
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Supreme Ct. Att’y Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 221 (Iowa
2016) (considering community service in mitigation). Further,
Bauermeister’s illegal conduct did not harm any client of his private
practice. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 831 N.W.2d
194, 202 (Iowa 2013) (noting that lack of harm is a mitigating factor).
Bauermeister cooperated with law enforcement and with the Board and
has accepted responsibility for his actions. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Eslick, 859 N.W.2d 198, 202 (Iowa 2015) (“[R]emorse
and cooperation generally mitigate our sanction.”). Another mitigating
factor is that Bauermeister self-reported his offense to the Board.
However, this mitigation is lessened somewhat because Bauermeister did
not self-report his conduct until after he was served with a search
warrant by federal agents. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Johnson, 884 N.W.2d 772, 781 (Iowa 2016).
After reviewing the recommendations from the commission, the
Board, and Bauermeister; the aggravating and mitigating factors; and
our precedent, we conclude the appropriate sanction is revocation of
Bauermeister’s license to practice law.
V. Disposition.
We revoke Bauermeister’s license to practice law in the State of
Iowa. All costs of this proceeding are assessed against him. Iowa Ct. R.
36.24(1).
LICENSE REVOKED.
All justices concur except Wiggins, J., who concurs in part and
dissents in part, and Christensen, J., who takes no part.
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#18–2219, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bauermeister
WIGGINS, Justice (concurring in part and dissenting in part).
I respectfully dissent. I agree with the majority that
Bauermeister’s conduct violated Iowa Rule of Professional Conduct
32:8.4(b). However, I disagree on the appropriate sanction.
In determining the proper sanction, “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.’ ” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 408 (Iowa 2007)
(alteration in original) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Iversen, 723 N.W.2d 806, 810 (Iowa 2006)). We also consider any
aggravating or mitigating circumstances. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769–70 (Iowa 2010).
Most importantly, we try to achieve consistency with prior cases
involving similar misconduct. Id. at 769.
A conviction of a felony may be grounds for revocation or
suspension of an attorney’s license to practice law. Iowa Code §
602.10122(1) (2019). Prior to 1990, we revoked attorneys’ licenses for
illegal drug trafficking. Comm. on Prof’l Ethics & Conduct v. Owens, 427
N.W.2d 463, 465 (Iowa 1988) (“We do not think a lawyer who had a part
in a conspiracy concerning illegal drug traffic possesses the qualities of
good character essential in a member of the Iowa bar.”); Comm. on Prof’l
Ethics & Conduct v. Green, 285 N.W.2d 17, 18 (Iowa 1979) (en banc)
(revoking license of attorney who took part in delivery of drugs even
though he “characterized himself as a ‘dupe’ in the transaction”); Comm.
on Prof’l Ethics & Conduct v. Hanson, 244 N.W.2d 822, 824 (Iowa 1976)
(en banc) (revoking license of attorney “who attempted to engage in illegal
13
drug traffic and who converted partnership funds”). In recent years, we
have taken a different approach to attorneys who commit felonies.
In Iowa Supreme Court Board of Professional Ethics & Conduct v.
Marcucci, the attorney pled guilty to operating while intoxicated (OWI),
third offense, a class “D” felony. 543 N.W.2d 879, 880 (Iowa 1996)
(en banc). We suspended the attorney’s license for six months. Id. at
883.
In Iowa Supreme Court Board of Professional Ethics & Conduct v.
Palmer, the attorney pled guilty to “fraudulent use of an unauthorized
access device to obtain monies from a federally insured bank,” a felony
under federal law. 563 N.W.2d 634, 634–35 (Iowa 1997) (per curiam).
This crime involves dishonesty. Id. at 635. The attorney was not
imprisoned for his crime, but he failed to answer the disciplinary
complaint, respond to the disciplinary board’s requests for admissions,
and appear for his disciplinary hearing. Id. We revoked the attorney’s
license. Id.In Iowa Supreme Court Board of Professional Ethics & Conduct v.
Vinyard, a federal jury found the attorney guilty of twelve counts of
money laundering and fourteen counts of mail fraud. 656 N.W.2d 127,
128 (Iowa 2003). These crimes involve dishonesty. Id. at 130, 131–32.
The court sentenced him to “imprisonment of seventy months and
ordered [him] to pay a special assessment of $2600 plus restitution of
over $1,418,000.” Id. at 129. We revoked the attorney’s license. Id. at
132.
In Iowa Supreme Court Attorney Disciplinary Board v. Dull, the
attorney was convicted of OWI, third offense, a class “D” felony. 713
N.W.2d 199, 202 (Iowa 2006), overruled in part on other grounds by
Templeton, 784 N.W.2d at 768–69. The attorney had other rule violations
14
in addition to the rule violations arising from the felony conviction. Id. at
203–05. We suspended the attorney’s license for two years. Id. at 207.
In Iowa Supreme Court Attorney Disciplinary Board v. Carroll, the
attorney pled guilty to second-degree theft, a class “D” felony under Iowa
law. 721 N.W.2d 788, 790 (Iowa 2006). This crime involves dishonesty.
See id. at 791. The court “placed [the attorney] on probation for twenty-
four months and ordered [him] to complete 100 hours of approved
community service.” Id. at 790. We revoked the attorney’s license. Id. at
792.
In Iowa Supreme Court Attorney Disciplinary Board v. Weaver, the
attorney pled guilty to OWI, third offense, a class “D” felony. 812 N.W.2d
4, 7 (Iowa 2012). The court sentenced the attorney to five years in prison
and a fine of $3125. Id. at 7–8. We suspended the attorney’s license for
two years. Id. at 15.
In Iowa Supreme Court Attorney Disciplinary Board v. Wheeler, the
attorney pled guilty to the felony of knowingly making a false statement
to a financial institution. 824 N.W.2d 505, 509 (Iowa 2012). There, the
attorney had executed mortgage application documents that were
prepared by a client and contained misstatements. Id. at 508–09. The
federal court “sentenced [him] to time served, placed him on supervised
release for five years, ordered him to perform 200 hours of community
service, and required him to pay $821,134 in restitution.” Id. at 509.
We suspended the attorney’s license for six months. Id. at 513.
In Iowa Supreme Court Attorney Disciplinary Board v. Bieber, the
attorney pled guilty to misprision of a felony, a felony under federal law.
824 N.W.2d 514, 516 (Iowa 2012). The attorney provided information in
a real estate closing process that falsely stated the inflated sale price was
the agreed sale price and “failed to reveal the lower actual price and cash
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back payment.” Id. at 517. The federal court sentenced the attorney to
three years of probation and ordered him to pay $37,969.99 as
restitution to the lender. Id. at 516. We suspended the attorney’s
license for six months. Id. at 528.
In Iowa Supreme Court Attorney Disciplinary Board v. Roush, the
attorney pled guilty to possession of cocaine base, a felony under federal
law. 827 N.W.2d 711, 714 (Iowa 2013). The attorney was sentenced to
“a fifteen-day prison term and a $2500 fine.” Id. We suspended the
attorney’s license for sixty days. Id. at 720.
In Iowa Supreme Court Attorney Disciplinary Board v. Stowe, the
attorney was convicted of two counts of felony forgery in violation of Iowa
Code section 715A.2. 830 N.W.2d 737, 741 (Iowa 2013). The convictions
stemmed from the attorney forging a client’s signature “on two checks
[the attorney] had stolen and used to transfer funds into his personal
bank account.” Id. Forgery is a crime involving dishonesty. See id. at
741, 743. The attorney also had a nonfelony conviction for possession of
methamphetamine. Id. at 741. We revoked the attorney’s license
because he converted funds to which he did not have a colorable future
claim. 2 Id. at 742–43.
In Iowa Supreme Court Attorney Disciplinary Board v. Engelmann, a
federal jury convicted the attorney of one count of conspiracy to commit
bank fraud or wire fraud, two counts of bank fraud, and six counts of
wire fraud. 840 N.W.2d 156, 158–59 (Iowa 2013). These crimes deal
with dishonesty. See id. at 159–60. The court sentenced the attorney to
thirty-six months’ imprisonment and ordered him to pay a total of
2We declined to address the ethics violations arising from the attorney’s other
misconduct, including the possession conviction, because we decided to revoke his
license for the conversion-related misconduct. Stowe, 830 N.W.2d at 741.
16
$392,937.73 in restitution to the defrauded financial institutions. Id. at
164. We revoked the attorney’s license. Id. at 167.
In examining these cases where felony convictions were the basis
of discipline, a pattern arises. Where the felony involves dishonesty, we
consider whether the dishonesty was intended to result in the
misappropriation or conversion of funds. If it was so intended, as in
Palmer, Vinyard, Carroll, Stowe, and Engelmann, we have not hesitated to
revoke the attorney’s license. See Engelmann, 840 N.W.2d at 167; Stowe,
830 N.W.2d at 742–43; Carroll, 721 N.W.2d at 792; Vinyard, 656 N.W.2d
at 132; Palmer, 563 N.W.2d at 635. If the dishonesty was not so
intended, as in Wheeler and Bieber, we have merely suspended the
attorney’s license. Bieber, 824 N.W.2d at 528; Wheeler, 824 N.W.2d at
513. And when the felony involves drugs or alcohol, as in Marcucci, Dull,
Weaver, and Roush, we have not revoked the attorney’s license. See
Roush, 827 N.W.2d at 714, 720; Weaver, 812 N.W.2d at 7, 15; Dull, 713
N.W.2d at 202, 207; Marcucci, 543 N.W.2d at 880, 883.
Because Bauermeister’s conduct does not involve dishonesty, his
conviction for conspiracy to possess and distribute marijuana should not
lead to the revocation of his license to practice law. Instead, we must
look at the aggravating and mitigating factors to determine the proper
discipline. This disposition is consistent with other jurisdictions. See,
e.g., Fink v. Ky. Bar Ass’n, 568 S.W.3d 354, 355, 356–57 (Ky. 2019) (after
considering aggravating and mitigating factors, suspending Kentucky
attorney’s license for five years following Indiana conviction of felonious
methamphetamine dealing); Notice of Suspension & Restitution with
Conditions re Waters, Nos. 12-101-AI, 12-140-JC, 13-47-GA, at 1 (Mich.
Att’y Discipline Bd. July 18, 2013), http://
www.adbmich.org/coveo/notices/2013-07-18-12n-101a.pdf [https://
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perma.cc/4C23-M5RP] (suspending Michigan attorney’s license for three
years after conviction of two counts of felonious delivery of a controlled
substance); In re Disciplinary Proceedings Against Waters, 876 N.W.2d
145, 146–47 (Wis. 2016) (per curiam) (suspending, on reciprocal
discipline, Michigan attorney’s license to practice in Wisconsin for three
years).
Bauermeister was a public official when he committed this act.
This is an aggravating factor. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Stansberry, 922 N.W.2d 591, 600 (Iowa 2019) (treating attorney’s
position as an assistant county attorney at the time of the criminal
conduct as an aggravating factor).
On the other side of the scale, many mitigating factors are in
Bauermeister’s favor. First, he has no prior record of discipline. See
Bieber, 824 N.W.2d at 527; Wheeler, 824 N.W.2d at 513; Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d 295, 301–02 (Iowa
2010) (considering prior ethical practices in fashioning sanction).
Second, he self-reported his conduct. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Thompson, 732 N.W.2d 865, 868–69 (Iowa 2007)
(noting an attorney’s recognition of wrongdoing is a mitigating factor).
However, the mitigating force of his self-reporting is lessened by the fact
that it happened only after his coconspirator was caught in January
2017 and federal agents served Bauermeister with a search warrant for
his phone in May 2017. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Johnson, 884 N.W.2d 772, 781 (Iowa 2016). Third, Bauermeister has
taken responsibility for his actions and is remorseful. See Roush, 827
N.W.2d at 719; Bieber, 824 N.W.2d at 527; Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Fields, 790 N.W.2d 791, 799 (Iowa 2010). Fourth, his
conduct did not affect his behavior toward his clients, fellow lawyers, or
18
judges. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Keele, 795 N.W.2d
507, 514 (Iowa 2011) (finding the board failed to demonstrate the
attorney’s felony conviction related to his fitness to practice law because,
in part, the attorney’s illegal conduct “ha[d] not affected the professional
relationships he ha[d] with his clients, fellow lawyers, or judges”). Fifth,
nothing in the record suggests the conduct at issue in this case harmed
any of his clients. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cross,
861 N.W.2d 211, 230 (Iowa 2015); Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Axt, 791 N.W.2d 98, 103 (Iowa 2010); Marcucci, 543 N.W.2d at
881. Sixth, he was cooperative throughout the disciplinary process. See
Roush, 827 N.W.2d at 719; Bieber, 824 N.W.2d at 528; Wheeler, 824
N.W.2d at 513; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Schall, 814
N.W.2d 210, 215 (Iowa 2012); cf. Palmer, 563 N.W.2d at 635 (explaining
the attorney’s failure to answer the disciplinary complaint, respond to
requests for admissions, and appear at his disciplinary hearing overbore
“[a]ny inclination on our part to temper the sanction imposed”). Seventh,
he has provided numerous hours of community service in his capacity as
a youth sports coach. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
McGinness, 844 N.W.2d 456, 467 (Iowa 2014) (acknowledging history of
community service is a mitigating factor); Wheeler, 824 N.W.2d at 513.
Lastly, the assistant United States attorney who prosecuted
Bauermeister and the federal judge who sentenced him did make a
determination: Bauermeister did not need to be imprisoned for
rehabilitation, punishment, or public-protection reasons. See, e.g.,
Powell, 726 N.W.2d at 408 (noting protection of the public is a factor in
determining the appropriate sanction for attorney discipline). In the
past, we have only suspended attorneys who committed felonies but
received probation or a similar sentence in federal criminal proceedings.
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See Bieber, 824 N.W.2d at 516, 528; Wheeler, 824 N.W.2d at 509, 513
(acknowledging that the federal court found supervised release was
appropriate because “there was no need to protect the public from
further harm or increase the sentence to defer future conduct”). But see
Palmer, 563 N.W.2d at 634–35 (revoking the attorney’s license following
his felony conviction because his fraudulent conduct was intended to
result in conversion of funds and he completely failed to participate in or
acknowledge the disciplinary process or proceedings).
Having considered all the factors mentioned above, I would
conclude Bauermeister’s conduct requires us to suspend his license to
practice law indefinitely without possibility of reinstatement for three
years rather than revoke his license.