Amended March 6, 2015 Iowa Supreme Court Attorney Disciplinary Board v. Gerald Anthony Lyman Moothart
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Opinion
IN THE SUPREME COURT OF IOWA No. 14–1708
Filed March 6, 2015
Amended March 6, 2015
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
GERALD ANTHONY LYMAN MOOTHART,
Respondent.
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. 2
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. 3
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.
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 #11 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
1Due to the nature of the complaints and the accompanying factual backgrounds involved in this case, we use the pseudonym “Jane Doe” to identify each woman involved in the proceedings against Moothart. 4
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 5
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, 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.
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IN THE SUPREME COURT OF IOWA No. 14–1708
Filed March 6, 2015
Amended March 6, 2015
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
GERALD ANTHONY LYMAN MOOTHART,
Respondent.
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. 2
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. 3
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.
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 #11 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
1Due to the nature of the complaints and the accompanying factual backgrounds involved in this case, we use the pseudonym “Jane Doe” to identify each woman involved in the proceedings against Moothart. 4
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 5
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, 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 6
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 7
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. 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 (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 8
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 9
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 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). 10
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, 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, 934 P.2d 1110,
1114 (Or. 1997) (noting “[a] lawyer need not be on retainer or engaged for
a specific purpose to be considered an attorney for a client who, from
time to time, calls that lawyer seeking legal advice” (alteration in original)
(internal quotation marks omitted)).
E. Conflict of Interest Involving Nonparties. Rule 32:1.7
provides in relevant part:
(a) . . . [A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
....
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s 11 responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
Iowa R. Prof’l Conduct 32:1.7(a)(2). For purposes of this case, it is important to observe that a
concurrent conflict of interest may arise even though there is only one
attorney–client relationship. When representing a client, the ABA long
ago emphasized that “[p]rotecting a client’s emotional and physical well-
being is surely as important as protecting the client’s financial well-
being.” ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 92-364
(1992). We agree.
A number of courts have found violations under conflict rules
similar to rule 32:1.7(a)(2) when a lawyer engaged in sexual misconduct
toward a client. For instance, in In re Disciplinary Proceedings Against
Ridgeway, the Wisconsin Supreme Court found a lawyer violated its
concurrent-conflicts rule when he provided beer to his client contrary to
the conditions of the client’s probation and had sexual contact with her
at the same time he was representing her on a possible probation
revocation matter. 462 N.W.2d 671, 671–73 (Wis. 1990). Similarly, in
People v. Bauder, the Colorado Supreme Court considered a case in
which an attorney sexually solicited the wife of a dissolution client. 941
P.2d 282, 282–83 (Colo. 1997) (en banc) (per curiam). The Colorado
court concluded that “while the women involved were not themselves
clients of the respondent, the respondent’s comments and proposals
violated the fiduciary duty that the respondent owed his client because of
the victims’ relationships to the client.” Id. at 283. Other jurisdictions
have found similar violations. See, e.g., In re Piatt, 951 P.2d 889, 891
(Ariz. 1997) (en banc) (holding sexual harassment of client by lawyer
violated rule prohibiting lawyer from representing client when that 12
representation was materially limited by lawyer’s own interests); Attorney
Grievance Comm. of Md. v. Culver, 849 A.2d 423, 435 (Md. 2004) (holding
attorney who had sex with client placed his personal interest above those
of client who was in unstable emotional state due to pending divorce); In
re Application for Disciplinary Action Against Chinquist, 714 N.W.2d 469,
473–75 (N.D. 2006) (finding conflict of interest when lawyer engaged in
sexual relationship with client while working on visitation and child-
support issues); Chesley Payne, An Overview of Sexual Harassment in the
Attorney-Client Relationship as Interpreted Under the ABA Rules of
Professional Conduct, 26 J. Legal Prof. 249, 251 (2002) (noting
concurrent-conflict rule is an often cited rule “that squarely fits the
situation of sexual harassment in the attorney-client relationship”).
F. Evidentiary Issues Implicated in this Case. The Iowa Rules
of Evidence apply in disciplinary proceedings. See Iowa Ct. R. 36.14(3).
Our review of the record in this case reveals two evidentiary issues,
namely, the use of prior acts of the respondent as evidence of subsequent
acts, and the use of prior consistent statements to buttress the
credibility of the complainants’ testimony.
We begin with a discussion of the issue of use of prior acts as
evidence of subsequent acts. Iowa Rule of Evidence 5.404(b) generally
limits admissibility of proof “of other crimes, wrongs, or acts” in order “to
prove the character of a person in order to show that the person acted in
conformity” with that character at another time. The rule, however,
explicitly allows admission of such evidence “for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id. Under the rule as
interpreted by our caselaw, prior bad acts are not admissible to show
general propensity of wrongdoing but may be admissible to show 13
signature crimes, relationship of the parties, or other nonpropensity
facts. See State v. Putman, 848 N.W.2d 1, 10–13 (Iowa 2014) (canvassing
authorities and distinguishing between cases merely with common
threads and cases with striking similarities and admitting evidence as
relevant to identity of perpetrator); State v. Cox, 781 N.W.2d 757, 760–61
(Iowa 2010) (holding prior acts of sexual abuse not admissible when not
relevant to any nonpropensity purpose such as opportunity, common
scheme or plan, or modus operandi).
In this case, five separate charges were brought against Moothart.
Moothart did not seek to sever the charges, however, and did not seek to
limit the use of prior-bad-acts testimony. In any event, the evidence
related to each complainant was plainly admissible to show alleged
violations against them.
In at least one prior case, we declined to consider the application of
rule 5.404(b) in the context of multiple charges of sexual misconduct.
See, e.g., McGrath, 713 N.W.2d at 687 n.1; In re J.A.L., 694 N.W.2d 748,
753 (Iowa 2005) (declining to decide whether admission of prior-acts
evidence was harmless error and refraining from considering prior-acts
evidence in de novo review). In our de novo review, we recognize the
general proposition embraced by the rule, namely, that absent some
relevance other than propensity, evidence related to sexual harassment
of one person should be given no weight in determining the merits of a
different sexual harassment claim involving another person.
A second issue relates to the use of prior consistent statements.
Under Iowa Rule of Evidence 5.801(d)(1)(B), a prior consistent statement
is admissible if the declarant is available for cross-examination at the
hearing and if the prior consistent statement is offered to rebut the
opposing party’s express or implied charge of recent fabrication or 14
improper influence or motive. Thus, to the extent Moothart challenged
the credibility of witness testimony, prior consistent statements of the
same witness are admissible to rebut the opposing party’s charge of
improper motive.
IV. Discussion of Merits.
A. Jane Doe #1 (Sexual Harassment). The Board charged
Moothart with sexual harassment of Jane Doe #1 in violation of rule
32:8.4(g). Based on our de novo review of the entire record, and giving
due consideration to the credibility determinations of the commission, we
find the following facts.
Jane Doe #1 was a twenty-two-year-old college student who was
arrested and charged with operating while intoxicated (OWI), first offense
in August 2010. With Moothart as her lawyer, Jane Doe #1 pled guilty,
received a deferred judgment, and was put on probation. During
attorney–client meetings with Jane Doe #1 in Moothart’s office, Moothart
made explicit and crude sexual comments about her body that made
Jane Doe #1 feel “really uncomfortable.”
Ultimately, Jane Doe #1 left school for a period of time, but when
she returned to school several months later, she contacted Moothart.
Although Moothart had sent Jane Doe #1 a letter after her sentencing
advising Jane Doe #1 that his representation had terminated, Moothart
instructed her to contact him upon her return to school so that he could
write a letter advocating her early discharge from probation. In addition,
Moothart later sent Jane Doe #1 a letter in early December with a copy of
her probation contract signed the previous month in which Jane Doe #1
declared that Moothart was her attorney. This letter told Jane Doe #1
that she should contact Moothart if she had any questions. 15
Upon her return to college, Jane Doe #1 telephoned Moothart as
instructed and a meeting was scheduled for January 20, 2011. At the
subsequent meeting, Jane Doe #1 and Moothart sat in a conference room
at his office after hours and discussed matters related to her successful
completion of the terms of her probation for about forty-five minutes.
After this part of the evening concluded, Moothart mixed and served her
three or four vodka lemonade drinks and she became intoxicated.
Moothart did not consume alcohol, but drank soda.
As the evening progressed, the discussion changed to topics of a
sexual nature. At some point, Moothart asked Jane Doe #1 to come
around to his side of the table and show him her breasts. Although
exactly how this occurred is somewhat disputed, it is undisputed that
following Moothart’s request, Jane Doe #1’s breasts were fully exposed to
Moothart. Jane Doe #1 was “extremely uncomfortable” when Moothart
looked at her breasts. Shortly thereafter Moothart and Jane Doe #1
moved to a dark room where there was a couch. They sat on the couch
in a sexually provocative manner. Moothart then made sexual
suggestions to Jane Doe #1. At that point, Jane Doe #1 asked to be
driven home and Moothart drove Jane Doe #1 back to her apartment,
dropping her off at approximately 9:30 p.m.
Jane Doe #1’s father became aware something unusual had
happened that night after Jane Doe #1 called home after meeting with
Moothart in an intoxicated state, talked mostly to her mother, and
provided the outlines of the sexual encounter. Concerned about his
daughter’s welfare, Jane Doe #1’s father called Moothart’s law office that
evening at about 10:30 p.m. and left a message with Moothart. When
Jane Doe #1’s father eventually spoke with Moothart after a few days, 16
Moothart told him that the purpose of the meeting with his daughter was
to discuss her probation.
Moothart admitted to many, though not all, of the facts recited by
Jane Doe #1, including that he provided alcohol to her that night, that
she exposed her breasts, that they sat together on the couch in sexually
suggestive positions, and that he took Jane Doe #1 home at that point.
He recognized that serving alcohol to someone on probation for an
alcohol offense was “the dumbest thing anybody could do, especially an
attorney.” He further testified the evening was not appropriate for a
married man with a daughter, stating, “There was nothing right about
that night.”
Moothart disputed, however, that he and Jane Doe #1 had an
attorney–client relationship during the encounter. Therefore, the fighting
issue was whether Jane Doe #1 was a client at the time the above events
transpired. On the question of Moothart’s relationship with Jane Doe #1
on January 20, we recognize that Moothart sent her a letter in October
2010 indicating his representation had concluded. However, we note
that his December letter to Jane Doe #1 included a probation contract
signed by Jane Doe #1 in November listing Moothart as her attorney.
Moothart was aware of this document as he forwarded it to Jane Doe #1.
Further, Jane Doe #1 called Moothart at his professional office while still
on probation to schedule an appointment which ultimately occurred at
the office, although after hours. Finally, when Jane Doe #1’s father
talked to Moothart on January 24, 2011, Moothart claimed the meeting
was professional in nature.
Under the facts as we view them, we think the Board established
by a convincing preponderance of the evidence that an attorney–client
relationship existed on January 20 under the standards of Netti, 797 17
N.W.2d at 599. Further, we think the facts fit comfortably within the
approach recognized in Walters, in which we noted an attorney–client
relationship existed with a former client “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.” 603
N.W.2d at 775.
We also conclude the acts described above are sufficient to
establish sexual harassment under our broad construction of the term.
See Steffes, 588 N.W.2d at 124. Moothart does not escape culpability
under our reading of sexual harassment under rule 32:8.4(g) simply
because (he claims) Jane Doe #1 was intoxicated and did not expressly
object to the activities or the sexual nature of their conversation. See
Steffes, 588 N.W.2d at 125 (noting client’s failure to actively resist
attorney’s inappropriate requests does not change ethical violation); Hill
II, 540 N.W.2d at 44 (noting a vulnerable layperson cannot consent to
sexual advances made by her attorney).
Based on our de novo review, we conclude the Board has
established by a convincing preponderance of the evidence that Moothart
violated rule 32:8.4(g) by engaging in sexual harassment in his office on
January 20.
B. Jane Doe #2 (Sexual Harassment, Sexual Relations with a
Client, and Conflict of Interest). The Board charged Moothart with
sexual harassment, sexual relations with a client, and conflict of interest
contrary to rules 32:8.4(g), 32:1.8(j), and 32:1.7(a)(2) regarding his
interactions with Jane Doe #2. Based on our de novo review of the entire
record, we find the following facts.
In the spring of 2010, Moothart was appointed to represent D.A.
for a probation violation as a result of D.A. being charged with domestic 18
assault. Jane Doe #2 was the victim and primary witness of the
domestic assault.
Prior to D.A.’s probation revocation hearing, Jane Doe #2 met twice
with Moothart. During the first meeting in Moothart’s office, Moothart
complemented Jane Doe #2 on her physical appearance, with a specific
comment about her breasts, which he asked to see. Jane Doe #2 also
discussed her relationship with D.A. with Moothart, telling him D.A. was
abusive towards her.
Also during the first meeting, Jane Doe #2 told Moothart she did
not have a driver’s license. Moothart responded that he could help her
with that. Additionally, Moothart advised her to stay in a hotel to avoid
receiving a subpoena. Jane Doe #2 did so based on his request.
On the day of D.A.’s probation revocation hearing, Moothart met
with Jane Doe #2 alone in a conference room at the courthouse. At this
second meeting, Moothart started kissing her “and stuff” while they were
alone together. Jane Doe #2 did not object because she “was going to do
anything to help [D.A.].” She stated, “I really didn’t want to do it but I
did it so [Moothart] would do his best to get my boyfriend out.”
About a month later, Jane Doe #2 received a letter from Moothart,
stating in pertinent part:
Thank you for speaking with me earlier today, Ref: (a) I am writing to confirm I will take no further action regarding the status of your motor vehicle operator’s license pending your formal request and agreement regarding the same.
In anticipation of you making such request, however, attached please find a copy of the documents you will be executing when you come to my office, Enc (1) and (2). To expedite our meeting, please fill out Part B of the attached Request prior to our meeting. Kindly note you will also need to bring the following items with you to our meeting: • Check in the amount of $5.50 payable to Treasurer, State of Iowa (to include with the application) 19 • Driver’s license or more likely, non-driver identification card The letter also included an “Affidavit of Consent,” which identified Moothart as Jane Doe #2’s attorney. Following receipt of this letter, Jane
Doe #2 provided Moothart with the $5.50 and a copy of her nondriver
identification card.
A few weeks after Jane Doe #2 received the letter, Moothart picked
her up and they traveled together to a hotel outside of Ames. The same
day, Jane Doe #2 had her signature notarized on the Affidavit of Consent
and gave it to Moothart when they met. Prior to picking Jane Doe #2 up,
he had called and asked her what she preferred to drink, to which she
responded wine. At the hotel, Jane Doe #2 drank an entire bottle of
wine. Moothart drank no alcohol. Thereafter, Moothart and Jane Doe #2
had sex. Moothart paid for the hotel room. Following this night,
Moothart and Jane Doe #2 had several phone conversations, which
included conversations about her driver’s license.
Two months after the first hotel tryst, Jane Doe #2 and Moothart
met at another hotel outside of Ames. They discussed her driver’s license
and the steps Moothart was taking in resolving the matter. Moothart
brought beer for Jane Doe #2 to drink and they had sex. Moothart again
paid for the hotel room.
Following that night, Moothart wrote to Jane Doe #2 on office
letterhead requesting that she sign the Affidavit of Consent in front of a
notary. This letter also confirmed receipt of the $5.50 requested by
Moothart. The following week, a document in Moothart’s file, entitled
“Privacy Act Agreement for Request of Motor Vehicle Records,” identified
him as Jane Doe #2’s attorney.
Moothart admits he and Jane Doe #2 had sex on the two occasions
described above. Moothart insists, however, that Jane Doe #2 was not 20
his client. Moothart testified he and Jane Doe #2 spoke only about
matters related to D.A.’s probation revocation hearing during his
meetings with Jane Doe #2 prior to the hearing. He claimed the later
sexual liaisons were consensual in nature.
With respect to the documents in his file on Jane Doe #2, Moothart
claims the letters were fake and designed to assuage D.A., a person with
a propensity toward violence. Moothart testified the letters and
discussions about Jane Doe #2’s driver’s license were designed as a ruse
to keep them safe from D.A. In support of his ruse claim, Moothart
noted that the document requesting a copy of Jane Doe #2’s driver’s
license record did not have a number for her nondriver identification, but
instead used an entry of 000XX0000. He further noted that the check
number for payment of the $5.50 was listed as 0000. Moothart argues
these incomplete entries indicate there was never any intention to submit
the documentation to the IDOT and that, in fact, he did not do so.
Further, Moothart testified there was, in fact, nothing he could do for
Jane Doe #2 regarding her request for a driver’s license, as her license
was suspended for nonpayment of fines.
On our de novo review, we conclude the Board proved its sexual
harassment claim by a convincing preponderance of the evidence. We
note the commission made two credibility determinations: it found Jane
Doe #2 credible, while it found Moothart’s testimony incredible. Aside
from the commission’s credibility determinations, which we consider
important, we are persuaded Moothart had unwanted sexual contact
with Jane Doe #2 before he admittedly took her to a motel to engage in
sexual intercourse. We therefore conclude the Board proved by a
convincing preponderance of the evidence that Moothart engaged in
sexual harassment in violation of rule 32:8.4(g). 21
Like the commission, we also find that Moothart violated rule
32:1.8(j) by having sex with a client. Moothart offers an unusual theory,
claiming that oddities in the documents and the futility of the
representation demonstrate the lack of an attorney–client relationship. It
may well have been that Moothart regarded the documents as a ruse to
provide a buffer against the current and prospective rage of a jealous
client. The creation of false files, of course, would hardly generate
confidence in Moothart as a lawyer, but we concede for the purpose of
argument that it is possible that Moothart was devious enough to engage
in such behavior.
In determining whether there was an attorney–client relationship,
however, we have adopted a three-part test. The test generally requires
that “(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.” State v.
Parker, 747 N.W.2d 196, 203 (Iowa 2008) (internal quotation marks
omitted); see also Netti, 797 N.W.2d at 599; Kurtenbach, 260 N.W.2d at
56 (stating that an attorney can give express or implied legal assistance
“when [a] person seeking legal services reasonably relies on the attorney
to provide them [services] and the attorney, aware of such reliance, does
nothing to negate it”); see generally Restatement (Third) of the Law
Governing Lawyers § 14, at 125 (detailing the formation of an attorney–
client relationship, including when a client reasonably relies on the
services of an attorney). Jane Doe #2 testified she believed Moothart was
assisting her in connection with her driver’s license. She had a
document notarized, at Moothart’s request, expressly stating that he was
her lawyer in connection with her driver’s license matter. Under these 22
circumstances, we conclude that an attorney–client relationship was
established between Moothart and Jane Doe #2.
There is no persuasive reason to believe that Jane Doe #2 knew
she was executing a false consent at Moothart’s request. There is no
evidence that Jane Doe #2 was sophisticated about driver’s license
matters, including those involving her own license. That is why we have
lawyers. We think the documentary trail drives the balance well away
from equipoise and establishes by a convincing preponderance of the
evidence the existence of an attorney–client relationship at the time of
the sexual intercourse. We therefore conclude that Moothart violated
rule 32:1.8(j).
Finally, on the question of conflict of interest, we also agree with
the commission that Moothart violated rule 32:1.7(a)(2). Moothart
represented D.A. in a domestic abuse charge while at the same time he
sought to establish or engaged in a personal relationship with the
purported victim of the domestic abuse. An attorney cannot zealously
represent the interest of a person accused of domestic abuse while
seeking sexual favors from the alleged victim. Further, we note that by
engaging in sexual relations with Jane Doe #2, Moothart increased Jane
Doe #2’s risk of exposure to angry outbursts from D.A. We conclude the
Board established by a preponderance of the evidence that Moothart
violated rule 32:1.7(a)(2) by engaging in a personal relationship that gave
rise to a concurrent conflict of interest with an existing client.
C. Jane Doe #3 (Sexual Harassment, Sexual Relations with a
Client). The Board charged Moothart with sexual harassment and
sexual relations with a client in violation of rule 32:8.4(g) and rule
32:1.8(j), regarding his interactions with Jane Doe #3. Based on our
de novo review of the entire record, we find the following facts. 23
At the time of the alleged transgressions, Jane Doe #3 was a
woman in her early thirties who was a single mother of two young
children. Moothart was court appointed to represent Jane Doe #3 in
three misdemeanor matters and two child-in-need-of-assistance matters
from September 2010 through December 2011. During this time, Jane
Doe #3’s children were in foster care.
Jane Doe #3 had an extensive history of mental-health and
substance-abuse problems and was being treated for PTSD, anxiety, and
depression. Moothart was well aware that her life was in turmoil.
During her first meeting with Moothart, Moothart questioned Jane
Doe #3 extensively about her past work in the escort business and work
as a prostitute. Jane Doe #3 felt uncomfortable with the questions and
did not understand why Moothart was asking about these things as they
had nothing to do with her case or with her children.
At this time, Jane Doe #3 was residing at a transitional living
facility in an attempt to address the problems in her life. After being
discharged early, she was placed at a residential treatment center. While
a resident at the center, Jane Doe #3 was able to leave and meet with
Moothart at his office several times.
During a subsequent meeting, Moothart complimented her
appearance and asked her to “flash him.” In response, Jane Doe #3
showed Moothart her breasts, which generated a crude sexual
compliment from Moothart. Jane Doe #3 was uncomfortable with his
requests; however, she complied because, as she stated, “Well, he was
my lawyer. I mean, and I was in a pretty tough situation. Going to lose
my kids.”
In later attorney–client sessions, Moothart made additional crude
sexual comments to Jane Doe #3. Eventually, Moothart scheduled a 24
meeting at his office with Jane Doe #3 after business hours. At
Moothart’s request, Jane Doe #3 performed oral sex on Moothart. He
paid her $100 for doing so. After this incident, Moothart attempted to
arrange further meetings with Jane Doe #3 to engage in sex acts for
money, but she refused.
The sexual encounter bothered Jane Doe #3. She recognized she
faced adverse consequences, including loss of reputation, possible jail
time for prostitution, and negative consequences on her effort to be
united with her children if she disclosed the events that had transpired.
After some delay, she eventually told one of her caseworkers, R.S., and
obtained assistance in requesting that Moothart withdraw from pending
matters. Eventually Jane Doe #3 left residential treatment and had her
children returned to her and the juvenile court cases involving her
children closed.
R.S., an in-home caseworker for Children and Families of Iowa,
corroborated Jane Doe #3’s testimony about reporting the incident.
While R.S. offered testimony about a prior consistent statement by Jane
Doe #3 over Moothart’s objection, we note such evidence was admissible
because Moothart had attempted to impeach the testimony of Jane Doe
#3. See Iowa R. Evid. 5.801(d)(1)(B).
Based upon our de novo review of the facts, we conclude that
Moothart violated rule 32:8.4(g) when he made several crude sexual
comments to Jane Doe #3, including asking her to flash him. Like the
commission, we conclude these statements were “ ‘sexual advances,
request for sexual favors, and other verbal [or] physical conduct of a
sexual nature.’ ” See Steffes, 588 N.W.2d at 124 (quoting Black’s Law
Dictionary 1375). Further, Jane Doe #3 did not consent or welcome the
sexual advances made by Moothart and was clearly not in a position to 25
do so, as she testified she was in a tough situation and was depending
on Moothart so she could regain custody of her children.
We also conclude that Moothart violated rule 32:1.8(j) by giving
Jane Doe #3 $100 in exchange for oral sex. There is no dispute that
Moothart was Jane Doe #3’s court-appointed attorney during this time.
D. Jane Doe #4 (Sexual Harassment). The Board charged
Moothart with sexual harassment of Jane Doe #4 in violation of rule
32:8.4(g). Based on our de novo review of the entire record, we find the
following facts.
In October 2010, Moothart was court appointed to represent
eighteen-year-old Jane Doe #4 on a probation violation matter stemming
from an OWI, first offense charge. During the course of his
representation, Moothart met with Jane Doe #4 three times. During the
first meeting in Moothart’s office, Moothart made comments about her
cleavage and asked her to pull her shirt down. Further, when Jane Doe
#4 asked how much Moothart would charge for his legal services, his
response was “it depends on how much cleavage you show me.” Jane
Doe #4 stated that as a result of Moothart’s behavior, she “felt kind of
embarrassed.” She stated, “I didn’t know really what to do. I didn’t want
to, I guess, risk having any issues with my case, so I just was compliant.”
At the second meeting, Jane Doe #4 and Moothart met at the
courthouse shortly before her hearing. Based on her last interaction
with Moothart, Jane Doe #4 brought her mother and sister with her, as
she “really didn’t want to be in another situation like the [last] meeting.”
Jane Doe #4 asked that they be able to go into the meeting room with her
and Moothart. Moothart refused to allow them to accompany her into
the meeting. At the meeting, Moothart made more comments about her
cleavage and again asked her to pull down her shirt. 26
The last meeting occurred immediately after the hearing, when
Moothart again met privately with Jane Doe #4 in a courthouse
conference room where he asked Jane Doe #4 if they could get drinks
together and hang out in a hot tub. Because her case was over, Jane
Doe #4 felt comfortable telling Moothart his actions and comments were
inappropriate.
Based upon our de novo review, we conclude the Board proved by
a convincing preponderance of the evidence that Moothart’s behavior
with respect to Jane Doe #4 violated rule 32:8.4(g). Under the facts we
have found, Moothart’s behavior clearly constitutes sexual harassment
under this rule. 2
E. Jane Doe #5 (Sexual Harassment). The Board charged
Moothart with sexual harassment of Jane Doe #5 in violation of rule
32:8.4(g). Based on our review of the entire record, we make the
following findings of fact.
Jane Doe #5 testified that she had known Moothart since she was
ten or twelve. She began working at Moothart’s law office in April of
2006 as a legal secretary and receptionist.
In 2006, while Jane Doe #5 was working for Moothart, he represented her in her dissolution-of-marriage case. In the office,
Moothart had often made sexual comments which made her feel
uncomfortable. These types of comments increased in frequency when
he began representing her in her dissolution case. She testified Moothart
would comment about her weight and how her body looked in different
2There is a question whether we should consider the similarity between Jane
Doe #4’s allegations and the allegations of other Jane Doe’s. We need not decide this question, as even if we conclude that the acts only have a common thread and are not strikingly similar, see Putman, 848 N.W.2d at 12, it does not affect the result in this case. Even if we decline to view the claims as strikingly similar, the Board has met its burden to prove each of the charges by a convincing preponderance of the evidence. 27
outfits, about her breasts, and about other aspects of her body. He also
asked her to perform lap dances and taped a $20 bill to the back of a
cabinet door and said she was free to take it if she danced naked on the
conference room table.
At the beginning of her employment, Moothart’s driving privileges
had been revoked as the result of his second conviction for OWI and
Jane Doe #5 drove him to his appointments. On one occasion, while
Jane Doe #5 was driving him to court, Moothart reached over and
grabbed one of her breasts.
On another occasion while at work, Moothart asked Jane Doe #5 if
she knew what a particular sex toy was. After responding she did not,
Jane Doe #5 testified that he pulled up a picture on his computer and
asked if he should order one so they could use it while having sex. She
testified this made her “extremely uncomfortable.”
During a Saturday spent putting together new office furniture,
Jane Doe #5 was sitting at her desk and Moothart was on the ground
connecting wires. He looked up her skirt and commented on her
underwear.
Throughout Jane Doe #5’s employment, Moothart would regularly
make comments about female clients’ breasts. She also testified that
Moothart kept alcohol in the office and would offer it to certain clients.
On December 30, 2006, Jane Doe #5 met a client after hours to
celebrate the client’s case being over. While out together, Jane Doe #5
recalled being informed by the client of a highly inappropriate proposal of
a sexual nature from Moothart. Jane Doe #5 claimed that this was the
final straw and quit her job a few days later, in early January 2007.
In April 2009, Moothart was court appointed to represent Jane Doe
#5 in a juvenile case involving her son with special needs. Although 28
Moothart testified that Jane Doe #5 wanted him to represent her in the
matter, Jane Doe #5 denies that was her desire. During his
representation from approximately May 2009 until the summer of 2011,
Moothart continued to make comments about her breasts.
Based on our de novo review, we conclude that the Board
established by a convincing preponderance of the evidence that Moothart
violated rule 32:8.4(g) by injecting sexual commentary into the workplace
and during the period of time when Jane Doe #5 was his client.
V. Sanction.
In order to determine the appropriate sanction in this case, we
must consider:
“[T]he nature of the violations, the attorney’s fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances.”
Van Ginkel, 809 N.W.2d at 108 (alteration in original) (quoting Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502 (Iowa
2008)). “The primary goal of attorney discipline is to protect the public,
not to punish the attorney.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Barnhill, 847 N.W.2d 466, 487 (Iowa 2014). We are mindful there is no
“standard sanction for a particular type of misconduct, and though prior
cases can be instructive, we ultimately determine an appropriate
sanction based on the particular circumstances of each case.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa
2007); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morrison, 727
N.W.2d 115, 119 (Iowa 2007) (“We give the discipline recommended by
the Grievance Commission its due respect although the matter of
sanction is solely within the authority of this court.” (Internal quotation 29
marks omitted.)). Further, the form and extent of the sanction must
necessarily be “ ‘tailored to the specific facts and circumstances of each
individual case.’ ” Van Ginkel, 809 N.W.2d at 108 (quoting Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009)).
With these principles in mind, we now consider the question of the
appropriate sanction in this case. Moothart acknowledges some level of
discipline is warranted, but contends anything more than a thirty-day
suspension will be devastating to his family and coworkers, including an
office assistant and a newly-hired associate. We conclude a more severe
sanction is appropriate. Moothart’s conduct indicates a pattern of
inappropriate behavior over many years that clearly harmed the women
with whom he interacted as well as the profession he represented.
We have considered instances of an Iowa attorney’s inappropriate
sexual misconduct on a number of occasions and imposed sanctions
ranging from a public reprimand to a three-year suspension. See, e.g.,
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761,
767–68, 771 (Iowa 2010) (imposing three-month suspension for attorney
on inactive status convicted of serious misdemeanor for window peeping);
Marzen, 779 N.W.2d at 764, 769 (suspending attorney for six months
when attorney engaged in consensual sexual relationship and accused
of entering into sex-for-fees relationship); McGrath, 713 N.W.2d at 703–
04 (imposing three-year suspension for attorney who sexually harassed
at least two female clients, including exchanging legal services for sex);
Furlong, 625 N.W.2d at 712–14 (suspending attorney for eighteen months
for engaging in a sexual relationship with one client and encouraging her
to withdraw her complaint with the Board and sexually harassing
another client); Steffes, 588 N.W.2d at 124–25 (imposing two-year
suspension for taking photographs of partially-clothed client under 30
pretext photos needed to document back injury); Hill II, 540 N.W.2d at
43, 45 (suspending attorney for twelve months for making inappropriate
sexual advances toward client); Comm. on Prof’l Ethics & Conduct v.
Barrer, 495 N.W.2d 756, 757 (Iowa 1993) (imposing two-year suspension
for making obscene phone calls to teenage boys); Comm. on Prof’l Ethics
& Conduct v. Hill (Hill I), 436 N.W.2d 57, 58–59 (Iowa 1989) (suspending
attorney for three months for accepting vulnerable client’s offer to have
sex in exchange for money); Comm. on Prof’l Ethics & Conduct v. Vesole,
400 N.W.2d 591, 591–93 (Iowa 1987) (imposing three-year suspension
for repeated instances of indecent exposure to women); Comm. on Prof’l
Ethics & Conduct v. Durham, 279 N.W.2d 280, 281, 285–86 (Iowa 1979)
(reprimanding attorney for kissing and embracing inmate client).
Other jurisdictions have also dealt with similar attorney
misconduct and have imposed sanctions ranging from a public
reprimand to disbarment depending on the number of victims and
interactions, as well as the severity of the alleged misconduct. See, e.g.,
People v. Good, 893 P.2d 101, 102, 105 (Colo. 1995) (en banc) (per
curiam) (suspending attorney for one year and one day after engaging in
a consensual sexual relationship with a client); In re Tenenbaum, 880
A.2d 1025, 1026 (Del. 2005) (per curiam) (imposing suspension of three
years after attorney sexually harassed clients and employees over a
period of five to ten years); In re Hammond, 56 So. 3d 199, 201–05, 214
(La. 2011) (disbarring attorney who was found to have engaged in
repeated unwanted and coercive sexual contact with a number of clients,
most of whom were incarcerated inmates); Attorney Grievance Comm’n of
Md. v. Goldsborough, 624 A.2d 503, 514 (Md. 1993) (imposing a
minimum two-year indefinite suspension after attorney was accused of
sexual harassment of three women and requiring the attorney to 31
“persuade [the court] that the conduct which necessitated his
suspension will never be repeated”); In re Discipline Action Against
Griffith, 838 N.W.2d 792, 792–93 (Minn. 2013) (suspending attorney
associated with a law school for ninety days for engaging in unwelcome
sexual conduct and contact with law student); State ex rel. Okla. Bar
Ass’n v. Miskovsky, 938 P.2d 744, 746–47, 751 (Okla. 1997) (imposing
sixty-day suspension after attorney made repeated sexual comments and
advances with two separate prospective divorce clients); In re White, 611
S.E.2d 917, 918–19 (S.C. 2005) (per curiam) (suspending attorney for
eighteen months after admitting to a pattern and practice of making
sexual comments and suggestions to clients); In re Yarborough, 524
S.E.2d 100, 103–05 (S.C. 1999) (per curiam) (reprimanding attorney for
making sexual advances and sexual comments to a client); In re
Discipline Proceedings Against Voss, 795 N.W.2d 415, 422–23 (Wis. 2011)
(per curiam) (suspending attorney for four years and eight months after
finding the attorney engaged in an ongoing sexual relationship with a
particularly vulnerable client and then attempted to intimidate her and
her family to avoid punishment).
This case is different from those resulting in reprimands and short
suspensions. Here, unlike in both Monroe and Morrison when the
attorneys were suspended for thirty days after each had sex with one
client, see Iowa Supreme Ct. Att’y Disciplinary Bd. v. Monroe, 784 N.W.2d
784, 787, 791 (Iowa 2010) (suspending attorney for thirty days for having
a sexual relationship with a dissolution client when at the disciplinary
hearing, the client testified she harbored no ill will toward the attorney
and continued to regard him as a friend); Morrison, 727 N.W.2d at 117,
120 (imposing thirty-day suspension for attorney who admitted having
sex with one client and acknowledged his conduct was unethical), 32
Moothart admitted to having sex twice with one client, and we have
found he paid another client for sex and sexually harassed five women.
The pattern and extent of Moothart’s conduct is an unprecedented set of
facts in Iowa and therefore warrants a suspension far beyond thirty-
days.
This case presents numerous aggravating factors, most notably the
vulnerability of the women with whom Moothart interacted and the
pattern of such conduct. See Templeton, 784 N.W.2d at 770 (noting “we
cannot overlook the serious, egregious, and persistent nature of
Templeton’s misconduct and the effect it had on his victims”); Comm. on
Prof'l Ethics & Conduct v. Tompkins, 415 N.W.2d 620, 623 (Iowa 1987)
(stating “the more egregious and persistent the conduct, the more
debased the character of the offender”). Each woman believed she
needed Moothart’s professional help and all were in difficult, stressful
situations. This is especially true with regards to Jane Doe #3, who was
at risk of losing her children and had mental health concerns. See
Marzen, 779 N.W.2d at 769 (“While many, if not most, people seek out
lawyers for help in matters of personal importance and may,
consequently, be vulnerable, the mental health condition of [the victim]
at the time the sexual relationship began is an aggravating circumstance
to consider in the imposition of discipline.”). Further, there was an
obvious power imbalance between Moothart and each woman, which he
acknowledged and took full advantage of. See generally State v. Johnson,
149 Iowa 462, 468, 128 N.W. 837, 839 (1910) (“[A]n attorney who
knowingly abuses the trust and confidence placed in him by his client is
unfit for the profession and unworthy of a place therein.”). Additionally,
this was not an isolated incident. Moothart’s actions show a specific
pattern of conduct with respect to a number of victims, which we 33
consider an aggravating factor. See Iowa Supreme Court Bd. of Prof’l
Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 132 (Iowa 2003) (noting
pattern of misconduct is an aggravating factor).
This case is more analogous to those cases in which a lengthy
suspension was imposed. See McGrath, 713 N.W.2d at 703–04; Steffes,
588 N.W.2d at 125; Hill II, 540 N.W.2d at 45; Barrer, 495 N.W.2d at 757;
Vesole, 400 N.W.2d at 593.
The nature and extent of these ethical violations is very disturbing.
Although we credit Moothart for his lack of prior disciplinary record, his
voluntary work in connection with his daughter’s school and
extracurricular activities, his contributions to the local bar and legal
organizations, and his general reputation in the Ames legal community,
we are alarmed by the nature and pattern of his ethical violations. All
five women sought Moothart’s help with matters of personal importance.
Preying upon their vulnerability, Moothart manipulated each woman for
his own sexual gratification. We therefore think a lengthy suspension is
warranted to provide adequate deterrence and to protect future potential
clients and the reputation of the bar, particularly in light of the
seriousness of the offenses.
Therefore, we find the appropriate sanction for Moothart’s conduct
is suspension of his license to practice law indefinitely with no possibility
of reinstatement for thirty months. Prior to any application for
reinstatement, Moothart must 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. See Steffes, 588 N.W.2d at 125 (noting “as a condition of
license reinstatement, Steffes [was] required to demonstrate that he . . .
completed formal training in sensitivity to sexual harassment issues to 34
prevent a reoccurrence of the conduct that resulted in his suspension”);
see also Templeton, 784 N.W.2d at 771.
VI. Conclusion.
For the above reasons, we suspend Moothart’s license to practice
law in this state for an indefinite period of time with no possibility of
reinstatement for thirty months. Additionally, Moothart must 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.
This suspension shall apply to all facets of law. Iowa Ct. R.
35.13(3). Moothart shall provide all of the notifications required by Iowa
Court Rule 35.23. The costs of this proceeding are taxed against
Moothart pursuant to Iowa Court Rule 35.27(1).
LICENSE SUSPENDED.
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Cite This Page — Counsel Stack
Amended March 6, 2015 Iowa Supreme Court Attorney Disciplinary Board v. Gerald Anthony Lyman Moothart, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amended-march-6-2015-iowa-supreme-court-attorney-d-iowa-2015.