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Iowa Supreme Court Attorney Disciplinary Board v. Bauermeister

Supreme Court of Iowa

May 3, 2019

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
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.

          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 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 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 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 ...


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