Iowa Supreme Court Attorney Disciplinary Board v. James Robert Keele

IN THE SUPREME COURT OF IOWA
No. 10–0832
Filed March 25, 2011
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
JAMES ROBERT KEELE,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission reports respondent has committed ethical
infractions and recommends a nine-month suspension of respondent’s
license to practice law. COMPLAINT DISMISSED.
Charles L. Harrington and Amanda K. Robinson, Des Moines, for
complainant.
J.E. Tobey, III, Davenport, for respondent.
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WIGGINS, Justice.
The Iowa Supreme Court Attorney Disciplinary Board brought a
complaint against the respondent, James R. Keele, alleging violations of
the Iowa Rules of Professional Conduct. A division of the Grievance
Commission of the Supreme Court of Iowa found the respondent’s
conduct violated three provisions of the rules and recommended we
suspend his license to practice law with no possibility of reinstatement
for a period of nine months. On our de novo review, we find the board
has failed to establish by a convincing preponderance of the evidence
that the respondent has committed a new violation of our ethical rules.
Accordingly, we dismiss the board’s complaint.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803 (Iowa
2010). The board has the burden of proving an attorney’s ethical
misconduct by a convincing preponderance of the evidence. Id. A
convincing preponderance of the evidence is more than the
preponderance standard required in a typical civil case, but less than
proof beyond a reasonable doubt. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Templeton, 784 N.W.2d 761, 764 (Iowa 2010). Although the
commission’s findings and recommendations are not binding on us, we
give them respectful consideration. Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Hoglan, 781 N.W.2d 279, 281 (Iowa 2010) (per curiam). “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.
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II. Findings of Fact.
On our de novo review, we find the following facts. James Robert
Keele is a sixty-two-year-old attorney who has lived in West Liberty,
Muscatine County his entire life. Keele received his undergraduate
degree from Cornell College and then attended the University of Iowa,
College of Law. In 1972 Keele graduated from law school and received
his Iowa license to practice law. Keele joined his father’s general practice
in West Liberty, where he continues to work as a solo practitioner to this
day. In 1971 Keele married and subsequently had two children who are
now fully grown.
In 2006 or 2007, a court finalized Keele’s dissolution of marriage.
After the dissolution, Keele lived alone in his West Liberty home and
became lonely and depressed. He began to frequent bars and nightclubs,
associate with new people, and use illegal drugs. Keele rented an
apartment in Davenport where he partied with other drug addicts, who
supplied him with drugs. Eventually, he became addicted to crack
cocaine. From January 2007 through July, he was using crack cocaine
on a regular basis. During this period, Keele continued to represent
clients without complaint. However, he spent less time at the office and
quit going to work on a regular basis.
On the evening of July 18, 2007, Keele was up all night partying
and using crack cocaine at his Davenport apartment. The next day he
had a routine order signed at the courthouse in Muscatine. After
appearing in court, he got into his vehicle and headed northbound on
Highway 61, back to Davenport. At some point while driving, Keele fell
asleep, swerved off the road, and crashed into a steep ditch. Another
driver witnessed the crash, pulled over, and called 911. While waiting for
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the authorities to arrive, the witness observed Keele get out of his vehicle,
pull a black bag out of his car, and throw the bag over a fence.
When officers arrived on the scene, the witness informed them
about the black bag. The officers retrieved the bag and inside found drug
paraphernalia, including a black pipe, spoons with white residue and
burn marks, a plastic bag containing baking soda, and a digital scale
that tested positive for the presence of cocaine. The officers took Keele
into custody. When he arrived at the jail, his urine tested positive for the
presence of cocaine. The State charged Keele with operating while
intoxicated (OWI), first offense, and possession of drug paraphernalia in
relation to this incident.
Based on the drug paraphernalia found in the black bag, the
authorities obtained a search warrant for Keele’s West Liberty home. In
an empty upstairs bedroom closet, officers found a Chinese SKS 7.62
mm rifle with two detached magazine clips in a cloth gun case. The rifle
was not loaded and there was no ammunition found inside the magazine
clips or anywhere else in the house. Keele was present while the officers
were conducting the search and explained that he was holding onto the
rifle for one of his clients. Approximately a year earlier, in the summer of
2006, one of Keele’s clients planned to plead guilty to a domestic-abuse
charge and asked Keele to hold onto the rifle for him because it would be
illegal for him to possess the firearm upon his conviction. Keele agreed
and placed the firearm in a vacant upstairs closet where it remained
until the officers discovered it.
Following this incident, Keele voluntarily entered into a three-
month drug and alcohol treatment program at Rogers Memorial Hospital
in Oconomowoc, Wisconsin. He successfully completed the treatment
program, returned to West Liberty, and began to rebuild his law practice.
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Once home, he sought aftercare treatment by attending almost daily
Alcoholics Anonymous (AA) meetings and weekly counseling sessions
with a psychiatrist. Keele also entered guilty pleas to the State’s charges
and received a deferred judgment. On September 25, 2008, we accepted
a public reprimand handed down by the board finding Keele’s conduct
surrounding his convictions for OWI, first offense, and possession of
drug paraphernalia violated the Iowa Rules of Professional Conduct. See
Iowa Ct. R. 35.3 (allowing the supreme court to accept a public
reprimand issued by the board as the appropriate sanction for a violation
of the Iowa Rules of Professional Conduct).
On November 15, 2007, Keele was indicted in federal court for
knowingly possessing a firearm while being an unlawful user of, or
addicted to, a controlled substance in violation of 18 U.S.C. §§ 922(g)(3)
and 924(a)(2) (2006), a felony. A jury trial was held and the jury
returned a verdict finding Keele guilty. The court sentenced Keele on
September 30, 2008. He appealed his conviction to the Eighth Circuit
Court of Appeals. The circuit court affirmed his conviction on
December 21, 2009. 1
In sentencing Keele, the United States District Court for the
Southern District of Iowa determined Keele’s conviction represented the
most innocuous and basic form of the offense charged. Accordingly, the
court departed from the sentencing guidelines and sentenced Keele to a
term of probation for three years. As conditions of probation, Keele was
1On appeal, Keele argued that probable cause did not support the issuance of a
search warrant for his West Liberty home. The district court upheld the search under
the good-faith exception, even though it found there was not sufficient probable cause
for the issuance of the search warrant. The Eighth Circuit Court of Appeals affirmed
the district court by finding the magistrate judge who issued the search warrant had a
“ ‘substantial basis for concluding that probable cause existed.’ ” United States v. Keele,
589 F.3d 940, 944 (8th Cir. 2009) (quoting United States v. Montes-Medina, 570 F.3d
1052, 1059 (8th Cir. 2009)).
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required to serve six months in a residential reentry center, followed by
another six months of home confinement with an electronic monitoring
device. The court, however, granted Keele work release privileges for the
duration of both these conditions. In addition, Keele was required to pay
a $4100 fine.
Beginning in late October 2008, Keele lived in a work release
center in Davenport for six months. While there, he fully participated in
one-on-one counseling sessions, attended almost daily Narcotics
Anonymous and AA meetings, and got involved in a program entitled,
“Celebrate Recovery” at a local church. After successfully completing his
stay at the work release center, in April 2009 Keele returned to his West
Liberty home, where he was placed on house arrest with an electronic
monitoring device for another six-month period. During his time at the
work release center and on house arrest, he continued to practice law
out of his West Liberty office during the day. In October Keele’s house-
arrest monitoring ended. However, he continues to be on supervised
release until December 29, 2011.
Throughout his probationary period, Keele has been regularly and
randomly drug tested and has never tested positive for drugs or alcohol.
Currently, Keele attends AA meetings approximately two times a month.
His probation officer believes this is sufficient. Although his counselors
have recommended he obtain a sponsor, at present, he does not have a
sponsor. Nevertheless, Keele continues to remain sober and engaged in
his recovery.
Based solely on his federal felony conviction, the board filed the
present complaint against Keele, claiming he violated Iowa Rules of
Professional Conduct 32:8.4(a) (violating or attempting to violate the Iowa
Rules of Professional Conduct), 32:8.4(b) (committing a criminal act that
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reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as
a lawyer in other respects), and 32:8.4(d) (engaging in conduct that is
prejudicial to the administration of justice). The board invoked issue
preclusion as to Keele’s conviction and stated the record of conviction
was conclusive evidence “warranting revocation or suspension of his
license to practice law, pursuant to Iowa Code § 602.10122.”
The commission concluded Keele violated rules 32:8.4(a), (b), and
(d). After considering the aggravating and mitigating circumstances, the
commission recommended we suspend Keele’s license to practice law
with no possibility of reinstatement for nine months. Keele appeals from
the commission’s recommendation.
III. Analysis.
Based upon our recent holding in Templeton, on appeal, the board
has abandoned its other claims and now only seeks to impose sanctions
for Keele’s violation of rule 32:8.4(b). See Templeton, 784 N.W.2d at 768–
69. 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) (emphasis added).
We derived rule 32:8.4(b) of the Iowa Rules of Professional Conduct
from two of our prior disciplinary rules, DR 1–102(A)(3) and (6),
contained in the Iowa Code of Professional Responsibility for Lawyers. 2
See Iowa Code of Prof’l Responsibility DR 1–102(A)(3) (a lawyer shall not
engage in illegal conduct involving moral turpitude), DR 1–102(A)(6) (a
lawyer shall not engage in any other conduct that adversely reflects on
2On July 1, 2005, the Iowa Rules of Professional Conduct replaced the Iowa
Code of Professional Responsibility for Lawyers. See Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Barry, 762 N.W.2d 129, 131 n.1 (Iowa 2009).
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the fitness to practice law). Rule 32:8.4(b) is both broader and narrower
than these prior disciplinary rules. 2 Geoffrey C. Hazard, Jr., et al., The
Law of Lawyering § 65.4, at 65-9 (3d ed. 2009 Supp.) [hereinafter The
Law of Lawyering]. As one commentator has explained:
[A]lthough DR 1-102(A)(3) was limited to criminal conduct, it
included the [notoriously ambiguous] language about moral
turpitude. DR 1-102(A)(6), on the other hand, applied to
conduct adversely reflecting on a person’s fitness to practice
law, but applied to any conduct, whether or not criminal.
Id. Rule 32:8.4(b) improved upon DR 1–102(A)(3) and (6) by combining
their key elements while removing the vague language of “moral
turpitude.” Id.
An attorney’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. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford,
625 N.W.2d 672, 683 (Iowa 2001); The Law of Lawyering § 65.4, at 65-9.
Conduct that reflects adversely on an attorney’s fitness to practice law
includes conduct that reveals character defects, which affects the
lawyer’s ability to deal with important controversies and confidential
information and that “ ‘lessen[ ] public confidence in the legal
profession.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barry, 762
N.W.2d 129, 138 (Iowa 2009) (quoting Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Johnston, 732 N.W.2d 448, 454 (Iowa 2007)); The Law of
Lawyering § 65.4, at 65-9 to 65-10; see also Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 124 (Iowa 1999)
(recognizing intemperate and undignified conduct reflects adversely on
an attorney’s fitness to practice law). In determining whether an
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attorney’s criminal conduct reflects adversely on his or her fitness to
practice law, we consider the following factors:
“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.”
Templeton, 784 N.W.2d at 767 (quoting In re Conduct of White, 815 P.2d
1257, 1265 (Or. 1991)).
Sections 922(g)(3) and 924(a)(2) of title 18 contained in the United
States Code make it illegal for a person who is an unlawful user of, or
addicted to, any controlled substance to knowingly possess a firearm.
To be guilty of this crime, the person must be an unlawful user of, or
addicted to, a controlled substance. See 18 U.S.C. § 922(g)(3). Keele’s
federal criminal conviction conclusively established the fact that he was
an unlawful user of, or addicted to, a controlled substance. Iowa Ct. R.
35.7(3). We have previously found Keele violated the Iowa Rules of
Professional Conduct for his illegal use of crack cocaine, which resulted
in his convictions for OWI, first offense, and possession of drug
paraphernalia and disciplined him with a public reprimand. We cannot
discipline an attorney twice for the same conduct. Therefore, we will not
consider his unlawful use of, or addiction to, a controlled substance as a
new violation of the Iowa Rules of Professional Conduct.
The only conduct we have not already considered or sanctioned
Keele for is his illegal possession of a firearm. Accordingly, we will focus
only on whether Keele’s illegal possession of a firearm reflects adversely
on his fitness to practice law in violation of Iowa Rule of Professional
Conduct 32:8.4(b).
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Iowa Code section 602.10122 provides that an attorney’s
conviction of a felony is a “sufficient cause[ ] for revocation or
suspension” of the attorney’s license to practice law. Iowa Code
§ 602.10122(1) (2007). However, we have also stated that “[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. While many crimes, such as forgery and perjury, by their very
nature reflect adversely on an attorney’s fitness to practice law, other
crimes do not. The Law of Lawyering § 65.4, at 65-8; accord State ex rel.
Okla. Bar Ass’n v. Armstrong, 791 P.2d 815, 818 (Okla. 1990) (“A
lawyer’s conviction of some crimes will, by itself, demonstrate such
lawyer’s unfitness to practice law. On the other hand, a lawyer’s
conviction for some kinds of illegal conduct will not facially demonstrate
the lawyer’s unfitness to practice law.”). Therefore, for a criminal act,
whether felonious or otherwise, to reflect adversely on an attorney’s
fitness to practice law, the board must establish a sufficient link
between the criminal activity and the attorney’s ability to function as a
lawyer. The Law of Lawyering § 65.4, at 65-8; accord State ex rel. Okla.
Bar Ass’n v. Armstrong, 848 P.2d 538, 539–40 (Okla. 1992) (refusing to
impose discipline for attorney’s felonious conviction of driving under the
influence, second offense, where bar failed to introduce any evidence
linking the conviction to the attorney’s unfitness to practice law).
In past cases, in this jurisdiction and elsewhere, where an
attorney’s illegal possession and/or use of a firearm was found to reflect
adversely on his fitness to practice law, a sufficient nexus between the
illegal conduct and the attorney’s ability to function as a lawyer was
present. Barry, 762 N.W.2d at 136, 138 (linking attorney’s illegal use of
confiscated firearms to his pattern of abuses while serving the public as
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full-time county attorney); see also In re Pleva, 525 A.2d 1104, 1107–08
(N.J. 1987) (linking attorney’s illegal possession of firearms to his
dishonesty in filling out a certificate before purchasing the firearms);
State ex rel. Okla. Bar Ass’n v. Badger, 912 P.2d 312, 314–15 (Okla.
1995) (linking attorney’s illegal purchase and possession of firearms to
his lack of judgment and reliance on “facially questionable advice”); In re
Disciplinary Proceedings Against Schuh, 730 N.W.2d 152, 154 (Wis.
2007) (linking attorney’s conviction for knowingly possessing a firearm
in furtherance of a drug trafficking crime to “violations of his obligations
as an attorney”). Some of these cases involved the use of a firearm
during incidents of domestic abuse. See, e.g., In re Runyon, 491 N.E.2d
189, 190 (Ind. 1986) (linking attorney’s three felony convictions for
possessing unregistered firearms to his “heinous” acts of forcing his way
into ex-wife’s apartment, hitting her with a club, and holding her at
gunpoint). Other cases involved displaying the weapon in a threatening
manner or discharging it, thereby showing disrespect for the law, a lack
of judgment, and placing the public at great risk. See, e.g., People v.
Hook, 91 P.3d 1070, 1073–74 (Colo. 2004) (recognizing attorney’s
discharge of a firearm in a public place risked serious injury or death to
two people); People v. Senn, 824 P.2d 822, 825 (Colo. 1992) (linking
attorney’s discharge of a firearm directly over his wife’s head during an
argument to a “critical failure of judgment” and “a contempt for the law
which was at odds with [his] duty to uphold the law”); In re Martin, 888
So. 2d 178, 181–82 (La. 2004) (linking attorney’s felony conviction for
having a stand-off with police and discharging his pistol in the air to the
great risk of harm stemming from such crimes); Disciplinary Counsel v.
Howard, 914 N.E.2d 377, 381 (Ohio 2009) (linking attorney’s felony
convictions resulting from a stand-off with the police and discharging
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his firearm twice at an officer to the risk of harm posed to police officers,
his neighbors, and himself from these crimes); In re Ervin, 694 S.E.2d 6,
9 (S.C. 2010) (linking attorney’s conduct of presenting and pointing a
firearm at another driver during a road rage incident to the exercise of
“extremely poor judgment”). The common factor in all of these cases is
that the attorney’s possession and/or use of the firearm related in some
way to his fitness to practice law.
The board has established that Keele was convicted of a felony for
knowingly possessing a firearm while being an unlawful user of, or
addicted to, a controlled substance. However, the board has not
demonstrated how this conviction relates to Keele’s fitness to practice
law. Keele’s illegal possession of a firearm has not affected the
professional relationships he has with his clients, fellow lawyers, or
judges. This criminal conduct has not called into question his ability to
competently and vigorously represent clients in important controversies
and guard confidential information. Keele legally gained possession of
the firearm on behalf of a client prior to his struggles with addiction;
therefore, the nexus linking his criminal conduct to his fitness to
practice law is tenuous. See The Law of Lawyering § 65.4, at 65-9
(“[E]ven among serious crimes the degree of immorality involved may
differ and so may implications about the offender’s character and
capacity to cause more harm in the future.”). His legal receipt of the
firearm for a client does not reflect poor judgment or disrespect for the
law.
In considering the factors we announced in Templeton, we note
Keele’s illegal possession of the firearm is an isolated incident and does
not demonstrate a pattern of criminal conduct or disrespect for the law.
Cf. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci, 543
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N.W.2d 879, 882–83 (Iowa 1996) (disciplining attorney for pattern of
criminal conduct resulting in felony conviction for OWI, third offense).
He did not display or threaten any person with the weapon, fire the
weapon, use the weapon during an act of domestic violence, or otherwise
victimize any person with the weapon. While we agree with the board
that a drug addict’s possession of a firearm poses a serious threat of
injury to potential victims, we also agree with the federal district court’s
conclusion that Keele’s possession of the firearm was innocuous and
posed no real risk of actual or potential injury to a victim. This
conclusion is supported by the facts that the firearm was unloaded,
discovered in an empty upstairs closet, packed away in a cloth case, and
no ammunition was found in the house. Finally, Keele’s mental state
did not cause him to obtain the firearm. He legally took possession of
the firearm for the benefit of a client prior to becoming depressed or
using crack cocaine.
Thus, the board has failed to establish by a convincing
preponderance of the evidence that a sufficient nexus exists between
Keele’s illegal possession of the firearm and his ability to function as a
lawyer. Accordingly, while we do not condone or excuse Keele’s conduct,
we find Keele’s illegal possession of the firearm does not adversely reflect
on his fitness to practice law in violation of rule 32:8.4(b).
IV. Conclusion and Disposition.
We have previously found Keele’s unlawful use of, or addiction to,
a controlled substance violated the Iowa Rules of Professional Conduct
and warranted discipline in the form of a public reprimand. Therefore, in
considering the present complaint, we only consider Keele’s conduct in
illegally possessing a weapon for purposes of determining whether Keele
has committed a new violation of the Iowa Rules of Professional Conduct.
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Because we find the board has failed to establish by a convincing
preponderance of the evidence that Keele’s illegal possession of a weapon
violates rule 32:8.4(b), we dismiss the board’s complaint.
COMPLAINT DISMISSED.
All justices concur except Waterman, Mansfield, and Zager, JJ.,
who take no part.