Friday, September 6, 2019

"Sex Toys In Shocking Detail" Discipline Imposed In Three Iowa Cases

The Iowa Supreme Court begins its fall with decisions in three attorney discipline matters. 

Remarkably, two of the sanctioned attorneys were admitted in 2017.

In one matter, the court reduced a proposed 30-day suspension to a public reprimand.

The court rejected aggravation based on prior discipline

We disagree with the Board that Noel I is prior discipline. In order to be prior discipline, we must have found Noel’s prior conduct violated our rules and sanctioned him before he committed the conduct giving rise to the present proceeding. See State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005) (requiring each offense to be complete as to a conviction and sentencing before commission of the next offense in order to qualify for the enhancement); see also State v. Wade, 467 N.W.2d 283, 285 (Iowa 1991). Although Freeman is a criminal case, we find it and its predecessor’s reasoning is persuasive. We use prior discipline as an aggravating factor because an attorney did not learn from his or her prior misconduct. How can we use prior discipline for this purpose when we did not discipline an attorney prior to committing an act? Thus, for prior discipline to qualify as an aggravating factor, we must have disciplined an attorney before he or she commits the subsequent act.

Let off with a warning

A public reprimand is the proper sanction. However, we remind Noel that future misconduct will result in harsher sanctions.

An attorney admitted in 2017 had his license revoked

A newly admitted Iowa attorney received retainers to handle family law matters, did essentially no work on those matters, and used the funds instead for personal purposes. The Iowa Supreme Court Attorney Disciplinary Board sought revocation of the attorney’s license, and the attorney did not contest revocation or argue he had a colorable future claim to the funds when he converted them. A division of the Iowa Supreme Court Grievance Commission held a hearing and concluded that most of the alleged ethical violations had occurred and that revocation was the proper sanction. On our review, we agree with the commission and therefore revoke the attorney’s license to practice law.

He had opened up a solo practice after admission

Discussing his background, Earley explained that he had flunked out of college several times because he spent his twenties “basically partying.” When he was twenty-nine and found out that he was going to have a son, Earley enrolled in college for the last time and did well. Earley went on to complete law school, but by then he was over $250,000 in debt and feeling significant financial pressure.

He had failed to raise a possible mitigating factor

When the Board charges misappropriation or conversion of client funds by an attorney, an attorney seeking to rely on a colorable future claim defense must raise that defense in his or her answer. See Iowa Ct. R. 36.8(2). Earley did not do so. To the contrary, he acknowledged at the hearing that he had no colorable future claim to the funds. The convincing preponderance of evidence shows that as Earley needed money between March 2018 and July 2018, he depleted his client trust account with the knowledge he was not going to be able to get work done on his clients’ cases.

A sad result

This is an unfortunate case. Earley has had to deal with burdens of family dysfunction, mental illness, and six-figure student debt. Yet, as he acknowledged to the commission, he should not be practicing law. Beltz and Patterson, and apparently other clients, suffered unjustified harm when Earley took their retainers, did not do the work, and used the retainers to pay his personal debts. The legal community as a whole also suffered unjustified harm. All attorneys are required to contribute to the Clients’ Security Trust Fund, and the reputation of all attorneys takes a hit to some degree when any attorney misappropriates client funds.

An indefinite suspension of at least two years was imposed for criminal conduct.

While the attorney was on probation for operating under the influence with an alcohol and firearm prohibition

About two weeks later, on October 7, West Des Moines police received a 911 call from Jane Doe.  The 911 call revealed a panicked Doe explaining, “[M]y ex . . . is trying to break in” and “he was here and he attacked me and then I got him to leave, and then he came back.” As it turns out, Doe is Sears’s former spouse. Apparently, Doe and Sears divorced in May but remained intimate.

The facts leading to the 911 call on October 7 are not disputed. Doe and Sears spent that day at Doe’s apartment. Doe did not see Sears consume alcohol, but around 9:00 or 10:00 p.m., she could smell it on him. Doe was in her bedroom when she heard Sears, who was in a different room, pull the slide on a handgun she owned. Sears entered Doe’s bedroom with the handgun and asked how to disassemble it. Neither Doe nor Sears could figure out how to disassemble the handgun, and Sears left the bedroom with the gun. Worried about Sears, Doe walked to the living room to speak with him. Sears then asked Doe if he could use the handgun to kill himself. Doe refused.

At some point, Sears threw the handgun at Doe along with the accompanying bullets. Doe collected the bullets, picked up the handgun, proceeded to her bedroom, and hid the handgun under her mattress Sears entered the bedroom and asked for the handgun, but Doe again refused. This refusal evidently upset Sears. Sears proceeded to grab Doe’s hair and slam her to the ground. With her back against the ground, Sears positioned his body on top of Doe, pinning her arms with his legs. At this point, Sears slammed Doe’s head against the ground and screamed at her. Doe’s head was slammed four or five times and continued to such an extent that her vision began to “black out.” At this point, Doe relented and told Sears the location of the handgun.

Sears then left the bedroom with the handgun. He returned looking for the bullets, and Doe was able to grab the handgun from Sears. Eventually, Sears returned to the bedroom and apologized to Doe. Doe told Sears to leave, and after asking Sears multiple times, he left the apartment. Doe locked her apartment door and returned to her bedroom.A short time later, Doe heard Sears pounding on her apartment door, as though he was “trying to break it open.” In fact, Doe testified Sears’s pounding cracked her doorframe. At this time, Doe called 911 because she was afraid Sears “was going to break in and hurt [her].” During the 911 call, Sears left the apartment door for a moment, but returned to Doe’s door and continued to pound.

The police responded and he consented to a search of his cell phone

At 10:04:30 PM, Sears texted, “I’m drunk as fuck.”
At 10:04:38 PM, Sears texted, “7 have I gun.”
At 10:05:00 PM, Sears texted, “And I’m leaving her 7.”
At 10:05:37 PM, Sears texted, “Let this make you happy.”
At 10:06:31 PM, Sears texted, “I’ve assaulted her.”
At 10:07:34 PM, Sears texted, “I’ve threatened to kill myself. I can’t
so with her.”
At 10:08:08 PM, Sears texted, “I don’t want to kill her.”

Sears submitted to a preliminary breath test that registered a 0.222 blood alcohol concentration.

Sanction

What is also striking about this record are the numerous aggravating factors.

He had violated a no-contact order and 

we determine a significant aggravating factor to be Sears’s ongoing violations of the rules of professional conduct and his demonstrated lack of remorse.

Also

Further still, shortly after the Board filed its complaint, Sears filed a small claims petition for replevin against Doe on December 31, 2018. The filing of this replevin action, which captioned Sears and his wife against Doe, is troubling for several reasons. First, when the replevin action was filed, the no-contact order had been in effect for nearly three months (October 8, 2018). In addition, the complaint filed in this matter by the Board was initiated just two weeks prior (December 14, 2018). Also troubling is the list of items attached to the replevin action, which includes sex toys in shocking detail.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/09/the-iowa-supreme-court-begins-its-fall-with-decisions-in-three-attorney-discipline-matters.html

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