Iowa Supreme Court Attorney Disciplinary Board v. Zenor

707 N.W.2d 176, 2005 Iowa Sup. LEXIS 164, 2005 WL 3452325
CourtSupreme Court of Iowa
DecidedDecember 16, 2005
Docket05-0737
StatusPublished
Cited by28 cases

This text of 707 N.W.2d 176 (Iowa Supreme Court Attorney Disciplinary Board v. Zenor) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Iowa Supreme Court Attorney Disciplinary Board v. Zenor, 707 N.W.2d 176, 2005 Iowa Sup. LEXIS 164, 2005 WL 3452325 (iowa 2005).

Opinions

LAVORATO, Chief Justice.

This attorney disciplinary proceeding involves the conduct of Michael L. Zenor in his role as county attorney of Clay County. The allegations of misconduct fall into three main categories: causing charges to be instituted without probable cause, engaging in the defense of persons in criminal matters, and prosecuting persons who were his clients. Thé Iowa Supreme Court Board of Professional Ethics and Conduct, now the Iowa Supreme Court Attorney Disciplinary Board, filed the complaint alleging these matters in four counts. Later, by amendment, the Board added an additional matter to the fourth count.

[178]*178Following a hearing, the Grievance Commission of the Iowa Supreme Court dismissed the count alleging that Zenor caused charges to be instituted without probable cause. However, the Commission found that the Board had sustained its burden of proof regarding its allegations that Zenor engaged in the defense of persons in criminal matters and that he had prosecuted persons who were his clients. The Commission recommended that Zenor receive a public reprimand.

On our de novo review, we find that the Board has proved all four counts of its. amended complaint. Contrary to the Commission’s recommendation, we think the misconduct as proven warrants suspension of Zenor’s license to practice law in this state for four months.

I. Scope of Review.

Although neither party appealed, we ordered the parties to file briefs addressing all counts. Zenor contends we are without authority to review the one count that the Commission dismissed. We rejected a similar contention in Iowa Supreme Court Attorney Disciplinary Board v. Howe, 706 N.W.2d 360, 367 (Iowa 2005). We therefore conclude we do have such authority.

Our review is de novo. See Iowa Ct. R. 35.10(1). Under this review, we give respectful consideration to the Commission’s recommendation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Shinkle, 698 N.W.2d 316, 318 (Iowa 2005). However, “we ultimately decide what discipline is appropriate under the unique facts of each case.” Id. Accordingly, we may impose a lesser or greater sanction than the discipline the Commission recommends. Id.

“The Board has the burden to prove its allegations of lawyer misconduct by a convincing preponderance of the evidence.” Id. “‘This burden of proof is greater than that in a civil case but less than that in a criminal case.’ ” Id. (citation omitted).

II. Background Facts.

Zenor was admitted to the practice of law in the State of Iowa in 1975. He was a sole practitioner in Spencer, Iowa from 1975 to 1978. In 1978, he was elected Clay County Attorney. Following Zenor’s election, Pat Carr served as Zenor’s assistant county attorney and joined Zenor as a law partner in Zenor & Carr.

Zenor has been Clay County Attorney since 1978 and was still serving in that capacity at the time of the hearing on the complaint. Carr continued as both law firm partner and assistant county attorney from 1978 until his appointment to the bench in 1995.

Mike Houchins and Chuck Borth presently serve as Zenor’s assistant county attorneys. Houchins and Borth are .also partners in the firm of Zenor, Houchins & Borth.

The positions of Clay County Attorney and assistants have always been salaried and part-time. They are allowed under the law to engage in the private practice of law. See Iowa Code §§ 331.751(1) (“A full-time county attorney shall refrain from the private practice of law.” (Emphasis added.)), 331.757 (“A. full-time prosecutor shall refrain from the private practice of law.” (Emphasis added.)) (2005).

Since his election in 1978, Zenor has handled cases ranging from simple misdemeanor traffic tickets to trials of class “A” felonies. In addition to his duties as criminal prosecutor, Zenor has advised and represented Clay County on civil matters. Since Houchins and Borth became Zenor’s assistant county attorneys, Zenor has concentrated on the county’s civil work. During that time, Houchins and Borth have done most of the work in magistrate court. [179]*179Presently, Zenor spends approximately thirty percent of his time on Clay County matters and the rest of his time he spends on private practice matters.

III. Instituting Charges Without Probable Cause.

In count I, the Board alleged, among other things, the following. While acting as Clay County Attorney, Zenor had the authority to enter into plea agreements and amend traffic citations. On numerous occasions, in connection with plea agreements, Zenor amended traffic citations to cowl-lamp violations pursuant to Iowa Code section 321.406. It was obvious to Zenor that the cowl-lamp violations were not supported by probable cause.

The Board alleged this conduct violated several provisions of the Iowa Code of Professional Responsibility for Lawyers. These provisions included DR 7-102(A)(2) (lawyer shall not “[k]nowingly advance a claim or defense that is unwarranted under existing law”), (5) (lawyer shall not “[k]nowingly make a false statement of law or fact”), (6) (lawyer shall not “[p]artici-pate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false”), (7) (lawyer shall not “[c]ounsel or assist a client in conduct that the lawyer knows to be illegal or fraudulent”); DR 7-103(A) (“A public prosecutor ... shall not institute or cause to be instituted criminal charges when the lawyer knows or it is obvious that the charges are not supported by probable cause.”); and DR 1-102(A)(1) (lawyer shall not “[vjiolate a disciplinary rule”), (4) (lawyer shall not “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation”), (5) (lawyer shall not “[e]ngage in conduct that is prejudicial to the administration of justice”).

Between January 1998 and February 10, 2004, the Clay County Attorney’s office participated in the process of amending 168 charges to cowl-lamp violations. Zenor himself participated in the process of amending at least ten of these charges to cowl-lamp violations. During all this time, Zenor was aware that motor vehicles were no longer equipped with cowl lamps. Zenor admitted he had no probable cause to believe the cowl-lamp-violation had occurred. “Probable cause for a criminal charge means that the circumstances would support a belief by a reasonable person that the defendant committed the crime with which [the defendant] is charged.” Howe, 706 N.W.2d at 368. Zenor also admitted that he knew his assistants were participating in the practice of amending charges to cowl-lamp violations but he did nothing to stop the practice.

In his brief to this court, Zenor attempts to explain away the probable cause violation on a number of grounds. For example, when he became county attorney he was aware of a common practice in Clay County for prosecutors to use the cowl-lamp statute as a basis for reducing a simple misdemeanor moving traffic violation to a non-moving violation pursuant to a plea agreement.

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Bluebook (online)
707 N.W.2d 176, 2005 Iowa Sup. LEXIS 164, 2005 WL 3452325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iowa-supreme-court-attorney-disciplinary-board-v-zenor-iowa-2005.