Friday, February 19, 2021

Seeing Red

An opinion of the Iowa Supreme Court sanctions an attorney who was acquitted of related criminal charges for sexual harassment of two clients

This attorney disciplinary case requires us to perform a de novo review of critical facts that divided the grievance commission three-to-two. An attorney was charged with violating Iowa Rule of Professional Conduct 32:8.4(g) for sexually harassing two clients. He was also charged with committing indecent exposure and sexual assault against one of those clients in violation of rule 32:8.4(b). A criminal trial occurred, in which a jury acquitted the attorney of both of those offenses; nonetheless, the grievance commission found three-to-two that the attorney had committed both crimes. All five of the commission members found the attorney had engaged in sexual harassment.

After a careful review of the evidence, we find the sexual harassment proved but the criminal conduct not proved by a convincing preponderance of the evidence. In other words, as to the violations, we agree with the two commission members in dissent rather than the three in the majority. For the sanction, we suspend the attorney’s license indefinitely with no possibility of reinstatement for one year based upon the acts of sexual harassment.

One matter involved a personal injury plaintiff client

Doe #1 recalls that at some point Newport got up to use the restroom. When he returned, he closed the door to the office and sat down in the chair next to Doe #1. Newport showed Doe #1 family pictures of grandchildren that were on his cellphone and then talked about his “pancreatic cancer.” He said that “the doctor put this weird device in me, and it causes me to have erection issues.” He said that “his abdomen was really bizarre.” He asked Doe #1 if she wanted to see it, got up and pulled up his shirt, and showed Doe #1 a device that was protruding in the area of his abdomen.

In Doe #1’s account, she turned back to her phone for a moment, and when she looked again, Newport had undone his pants and dropped his pants and underwear. Newport stated he has a hard time getting an erection. Doe #1 saw him massaging his penis. Newport told Doe #1 she needed to feel “this tubing that goes from the scrotum,” which is “really weird.” She declined the offer, but Newport then grabbed her hand and placed it on his scrotum area and guided her so she could feel the tubing. Newport told Doe #1 that the device was “like a pump that was to help him get an erection.” Doe #1 grabbed her hand away. She later testified, “I’m in shock, I’m in fear, and I feel invaded.” She told Newport he needed to pull his pants up or someone was going to come in and catch him. Newport laughed and said, “It’s just us, and  the door’s locked.”

According to Doe #1, Newport (who has gray hair on his head) “had mentioned about how his pubic hairs were red, and that’s where his granddaughter had gotten her red hair from.” Newport then said, “Look,” and tried to show her the red pubic hair he had previously told her about. Doe #1 turned away.

After a settlement offer

Doe #1 also recalls that over the phone that afternoon Newport said, “Deal’s done, drop your clothes off, and you can give me a blow job.

She went to the police and recorded conversations and as a result

A search warrant was served, and Newport’s genital area was photographed. The photographs confirmed that he had red pubic hair. However, it was clear that Newport had no device protruding out of his abdomen.

Doe #2 was a client in a custody case

Doe #2 recalled several incidents of improper conduct by Newport. On one occasion, she owed Newport around $300 and asked if it was okay if she gave him a check. Newport responded, “Would you like me to just shut the door?” and chuckled. Doe #2 interpreted this as a proposal to pay him with something other than money; she gave him the check.

On a second occasion, Newport and Doe #2 were walking together in a parking lot. Newport mentioned while walking that he had a hernia in his groin. He asked Doe #2 if she wanted to check out the hernia, noting she was in nursing school. Newport was laughing as he said this, but Doe #2 felt that this was “gross and degrading.”

Third, Doe #2 recalls that as they were winding up the custody matter, they were together in Newport’s office about to speak to Doe #2’s ex-husband on the phone. Newport came around his desk, half sat on the desk, and said, “[S]hould I ask him if you can pay for this with sex?” Doe #2 related that she “was lost,” looked down, and “was just so embarrassed.”

Sexual harassment was established

like the two dissenters on the commission, we do not find the indecent exposure and sexual assault allegations established by a convincing preponderance of the evidence. Our view of the record largely tracks that of the dissenters below. Although we have concerns about Newport’s testimony, we also have a number of concerns about Doe #1’s testimony...

In sum, on our de novo review of the record, we are unable to by a convincing preponderance of the evidence that Newport exposed himself to Doe #1 and forced her hand to his scrotum. Yet even if Newport only discussed a series of highly inappropriate topics, including his implanted device, his sex drive, and the color of his pubic hair, those discussions violated rule 32:8.4(g). Newport repeatedly subjected female clients to sexual harassment.

His retirement was treated as a mitigating factor

Weighing the attorney misconduct in this case, our precedents, the aggravating and mitigating factors, and other relevant considerations, we conclude that a suspension of not less than one year is warranted. As between the two dissenters, this was the more severe sanction recommended.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/02/a-criminal-acquittal-did-not-bar-professional-discipline-according-to-an-opinion-of-the-iowa-supreme-court-this-attorney-dis.html

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