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Iowa Supreme Court Attorney Disciplinary Bd. v. Moothart

Supreme Court of Iowa

March 6, 2015

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
GERALD ANTHONY LYMAN MOOTHART, Respondent

As Amended March 6, 2015.

As Amended April 15, 2015.

Page 599

[Copyrighted Material Omitted]

Page 600

On review of the report of the Grievance Commission of the Supreme Court of Iowa. The grievance commission reports the respondent committed multiple ethical violations and recommends a thirty-month suspension of the attorney's license.

LICENSE SUSPENDED.

Charles L. Harrington, Elizabeth E. Quinlan, and Teresa A. Vens, Des Moines, for complainant.

Christopher A. Clausen of Moothart & Clausen Law Office, Ames, for respondent.

OPINION

Page 601

APPEL, Justice.

The Iowa Supreme Court Disciplinary Board charged attorney Gerald A.L. Moothart with multiple violations of our disciplinary rules in connection with interactions and relationships with five women between 2006 and 2011. These charges include allegations of sexual harassment in the practice of law with each of the five women, sexual relations with a client with two of the women, and an allegation of a concurrent conflict of interest arising as a result of his relationship with one woman.

After a hearing, a division of the Grievance Commission of the Supreme Court of Iowa concluded that Moothart committed each of the alleged violations and recommended a thirty-month suspension. Additionally, the commission recommended that prior to reinstatement, Moothart provide proof of participation in a psychological evaluation and counseling, or other form of treatment, which would provide some indication that he is fit to practice law.

Upon de novo review of the record and the commission's findings of fact, conclusions of law, and recommendations, we agree Moothart committed all the violations found by the commission. Giving particular consideration to the vulnerability of each woman with whom Moothart interacted, we also agree with the commission's recommended sanction and order Moothart's license suspended for thirty months. Additionally, before he is reinstated, we require Moothart to provide this court with an evaluation by a licensed health care professional, including proof of participation in a counseling program specific to sexual harassment, verifying his fitness to practice law.

I. Background Facts and Proceedings.

Respondent Moothart is a licensed Iowa attorney. He graduated from law school in May 1996, passed the Iowa bar examination, and was admitted to practice the following month.

After obtaining his law license, Moothart worked as an assistant county attorney for the Marshall County attorney's office for about one and one-half years. Thereafter, he began working in private practice in Ames, Iowa, where he continues to practice today. He practices primarily in criminal defense and family law. From March 2003 until December 2013, Moothart was a sole practitioner. In December 2013, an associate attorney joined the firm.

Page 602

Moothart generally has a reputation in the Ames area as a very good defense and family-law attorney. He has developed forms and methods of practice that are used by other attorneys and has been a mentor to new attorneys. He has served as president and as a member of the board of directors of the Center for Creative Justice in Ames.

On March 18, 2011, the State charged Moothart in Story County with assault with intent to commit sexual abuse on Jane Doe #1[1] in violation of section 709.11 of the Iowa Code. Three days after being charged, Moothart filed a report with the Office of Professional Regulation, which included a copy of the complaint.

Following a trial in June of 2011, Moothart was acquitted of the criminal charge. After the filing of the criminal charge against Moothart, Jane Does #2, #3, #4, and #5 filed complaints with the Ames police department and later filed complaints with the Iowa Supreme Court Attorney Disciplinary Board. All of these complaints alleged that Moothart engaged in various acts of sexual misconduct.

On December 31, 2013, the Board filed a five-count complaint against Moothart. The complaint alleged Moothart engaged in sexual harassment in the practice of law with each of the five women in violation of Iowa Rule of Professional Conduct 32:8.4(g). In addition, for Jane Doe #2 and Jane Doe #3, the Board alleged Moothart engaged in sexual relations with a client, in violation of Iowa Rule of Professional Conduct 32:1.8(j). Lastly, with respect to Jane Doe #2, the Board additionally alleged a conflict of interest in violation of Iowa Rule of Professional Conduct 32:1.7(a)(2).

The commission held a hearing on May 14 and 15, 2014. All five Jane Doe's testified, as did Moothart, Jane Doe #1's father, Jane Doe #3's caseworker, and attorney Daniel Gonnerman, a character witness for Moothart.

The commission found that Moothart had committed all the violations as charged by the Board. In making its findings and conclusions, the commission generally credited the testimony of the complaining witnesses and not that of Moothart. On legal issues, the commission noted that violation of Iowa Rule of Professional Conduct 32:8.4(g), relating to sexual harassment, did not require an attorney--client relationship, but only that the conduct occur " in the practice of law." The commission also concluded the term " sexual harassment" in the rule is broadly construed and consent is not a defense in the context of an attorney--client relationship. Based on the vulnerability of the complainants, the pervasiveness of the misconduct, and the balance of aggravating and mitigating factors, the commission recommended that Moothart's license be suspended for thirty months. The commission also recommended that prior to reinstatement, Moothart present proof that he has obtained a psychological evaluation and counseling and that he was fit to practice law.

II. Standard of Review.

We review factual findings of the commission de novo. Iowa Ct. R. 35.11(1); Iowa Supreme Ct. Att'y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 101 (Iowa 2012). We give respectful consideration to the findings of the commission, especially when considering credibility of witnesses, but are not bound by them. Van Ginkel,

Page 603

809 N.W.2d at 101; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 759 (Iowa 2010). The Board must prove charges by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). " This burden is higher than the burden in most civil cases, but lower than in a criminal prosecution." Van Ginkel, 809 N.W.2d at 102. It is also less stringent than the clear and convincing evidence which is the highest standard of civil proof. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996) (per curiam).

III. Legal Issues.

A. Introduction.

Before we review the evidence developed at the hearing and consider the appropriate sanction, if any, we first address several important legal issues that will impact our approach to our de novo review of the record. We will review the nature of the burden of proof in this case; the scope of the phrase " sexual harassment . . . in the practice of law" under Iowa Rule of Professional Conduct 32:8.4(g); the proper approach to establishing the existence of an attorney--client relationship under rule 32:1.8(j), which prohibits sexual relations with a client; the applicability of rule 32:1.7(a)(2) prohibiting concurrent conflicts of interest when a conflict arises between one client and another person who is not a client; and two rules of evidence that are applicable to this disciplinary proceeding.

B. Burden of Proof.

In this case, as in all disciplinary cases, we note the Board bears the burden of proof of showing a violation of our disciplinary rules by a convincing preponderance of the evidence. See, e.g., Evans, 537 N.W.2d at 784. We note it is one thing to make allegations or claims and another to provide evidence to meet the somewhat heightened burden of proof in an attorney disciplinary case. While we recognize that we live in an age in which there is often a rush to judgment on controversial questions, episodes such as the McMartin child abuse case and the Duke Lacrosse debacle show the fallacy of assuming guilt when sexual misconduct is alleged. On the other hand, we refuse to cast our eyes aside because of the uncomfortable nature of the allegations in cases concerning charges of sexual misconduct involving lawyers. It is our duty in this case, as it is in every case, to carefully sift through the evidence, examine it with a critical eye, and reach a fair and impartial result. We base our judgment solely on the facts of the case and the applicable law.

C. Scope of " Sexual Harassment . . . in the Practice of Law" Under Rule 32:8.4(g).

Iowa Rule of Professional Conduct 32:8.4(g) provides: " It is professional misconduct for a lawyer to . . . engage in sexual harassment . . . in the practice of law . . . ." This case presents several legal questions regarding the scope and meaning of the phrase " sexual harassment . . . in the practice of law" as used in the rule.

We first note that the rule utilizes the comparatively broad phrase " in the practice of law." We have noted that this language is " quite broad." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 124 (Iowa 1999). We think the language makes it clear that the rule may be violated even if there is no attorney--client relationship between the lawyer and the person subject to sexual harassment, as long as the attorney is engaged in the practice of law. The rule may be violated if a lawyer sexually harasses witnesses, court personnel, law partners, law-office employees, or other third parties that come into contact with a lawyer engaged in the practice of law. See id.

Page 604

Cases from other jurisdictions prior to Iowa's adoption of rule 32:8.4(g) have for some time held that sexual harassment against non-clients violated more general ethical rules. See, e.g., People v. Lowery, 894 P.2d 758, 760 (Colo. 1995) (en banc) (sexual harassment of employees); In re Discipline of Peters, 428 N.W.2d 375, 376, 381--82 (Minn. 1988) (sexual harassment of employees and law students); In re Gould, 4 A.D.2d 174, 176, 164 N.Y.S.2d 48 (N.Y.App.Div. 1957) (per curiam) (sexual harassment of job applicants). Clearly, the adoption of rule 32:8.4(g), which explicitly prohibits sexual harassment in the practice of law, was designed to strengthen, and not limit, the application of ethical rules in the sexual harassment context. See Steffes, 588 N.W.2d at 124.

Second, we consider what is meant by the term " sexual harassment." In briefing before the commission, Moothart offers a narrow definition of sexual harassment borrowed largely from employment law. Citing Equal Employment Opportunity Commission guidelines, 29 C.F.R. § 1604.11 (1980), Moothart asserts that sexual harassment must be unwelcome and must be more than an occasional stray comment. The Board counters that Moothart's definition of sexual harassment is too narrow and out of context. According to the Board, our cases indicate sexual harassment can include any physical or verbal act of a sexual nature that has no legitimate place in a legal setting. See Steffes, 588 N.W.2d at 124 (noting that rule regarding sexual harassment was adopted in response to recommendation made by the Equality in the Courts Task Force, which examined " discriminatory treatment received by women in the courtroom and from the legal system in general" (citing Equality in the Cts. Task Force, State of Iowa, Final Report 41--92 (1993))). The commission agreed with the Board's approach. So do we.

In Steffes, we emphasized the breadth of the term " sexual harassment" used in rule 32:8.4(g). Id. We stated sexual harassment as used in the rule includes " 'sexual advances, requests for sexual favors, and other verbal [or] physical conduct of a sexual nature.'" Id. (quoting Black's Law Dictionary 1375 (6th ed. 1990)). We have not required that the harassment be ongoing or pervasive as has been required in some employment contexts. See, e.g., id. at 124--25 (deeming sexually revealing photos allegedly documenting back injury conduct of a sexual nature, thereby constituting sexual harassment).

Third, we have generally rejected the notion that consent is a defense to acts of sexual harassment, at least in the context of an attorney--client relationship. For instance in Iowa Supreme Court Board of Professional Ethics & Conduct v. Hill (Hill II), we noted in the context of sexual harassment that " the professional relationship renders it impossible for the vulnerable layperson to be considered 'consenting.'" 540 N.W.2d 43, 44 (Iowa 1995) (emphasis added). In short, Iowa has adopted a per se rule regarding sexual harassment of a client. See id. at 43--44; see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 703--04 (Iowa 2006).

D. Establishing an " Attorney--Client Relationship" Under Rule 32:1.8(j) Prohibiting Sexual Relations with a Client.

Iowa Rule of Professional Conduct 32:1.8(j) provides in relevant part: " 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."

Unlike rule 32:8.4(g) related to sexual harassment, our rule prohibiting sexual relations requires the existence of

Page 605

an attorney--client relationship. Compare id. r. 32:1.8(j), with id. r. 32:8.4(g). When an attorney--client relationship is present, however, a per se rule applies to clients who are not spouses or when a sexual relationship does not predate the attorney--client relationship. As with sexual harassment, consent is not a defense. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Furlong, 625 N.W.2d 711, 714 (Iowa 2001).

In determining whether an attorney--client relationship is present, a comment to our rules notes that " principles of substantive law external to [the ethical rules] determine whether a client-lawyer relationship exists." Iowa R. Prof'l Conduct Scope [17]. In Iowa Supreme Court Attorney Disciplinary Board v. Netti, " consistent with section 14 of the Restatement (Third) of the Law Governing Lawyers," we noted a three-part test determines the existence of an attorney--client relationship. 797 N.W.2d 591, 599 (Iowa 2011). Such a relationship exists when:

(1) a person sought advice or assistance from an attorney, (2) the advice or assistance sought pertained to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agreed to give or actually gave the desired advice or assistance.

Id. (quoting Comm. on Prof'l Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 845 (Iowa 1990)); see also Restatement (Third) of the Law Governing Lawyers § 14, at 125 (2000). Therefore, determining when an attorney--client relationship begins is a question of fact. Cf. Wunschel, 461 N.W.2d at 845; Kurtenbach v. TeKippe, 260 N.W.2d 53, 57 (Iowa 1977).

For example, in determining the existence of an attorney--client relationship, we have addressed situations involving persons who might be considered former clients. For instance, in Iowa Supreme Court Board of Professional Ethics & Conduct v. Walters, we considered a case in which a lawyer borrowed money from a former client. 603 N.W.2d 772, 774--75 (Iowa 1999). The applicable disciplinary rule prohibited a business transaction with a client under certain situations. Id. at 775. We held that the rule applied " as long as the attorney has influence arising from a previous attorney-client relationship and the client is looking to the attorney to protect the client's interest." Id. at 775; see also Manoir--ElectroAlloys Corp. v. Amalloy Corp., 711 F.Supp. 188, 194 (D.N.J. 1989) (holding client reasonably viewed law firm as continuing representation in light of follow-up letters related to prior work); Disciplinary Counsel v. Bunstein, 136 Ohio St.3d 276, 2013- Ohio 3681, 995 N.E.2d 184, 187 (Ohio 2013) (per curiam) (finding lawyer--client relationship when lawyer had previously represented client involving same issue and when client reasonably sought attorney's advice); In re Conduct of Hassenstab, 325 ...


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