IN THE SUPREME COURT OF IOWA No. 129 / 06-1062
Filed February 16, 2007
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
MARTHA JOHNSON,
Appellant.
On review of the report of the Grievance Commission.
The Iowa Supreme Court Grievance Commission recommends a
suspension of Johnson’s license for a period of six months. A public
reprimand is imposed. RESPONDENT REPRIMANDED.
Robert C. Oberbillig, Des Moines, for appellant.
Charles L. Harrington and Wendell J. Harms, Des Moines, for
appellee. 2
Hecht, Justice.
The Grievance Commission has recommended attorney Martha
Johnson’s license to practice law in Iowa be suspended for six months for
violations of DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule),
DR 9-101(B) (a lawyer shall not accept private employment in a matter in
which she had “substantial responsibility” while serving as a public
employee), and DR 1-102(A)(5) (a lawyer shall not engage in conduct that is
prejudicial to the administration of justice). Although we agree with the
Commission’s finding that Johnson violated these provisions of the Iowa
Code of Professional Responsibility for Lawyers, we conclude the
appropriate sanction in this case is a public reprimand.
I. Factual and Procedural Background.
Johnson was first licensed to practice law in 1994. She engaged in
private practice in Des Moines until January of 1999, when she was hired
as an assistant county attorney in the juvenile division of the Polk County
Attorney’s office. In August of 2001, she was assigned to work as the
attorney in the intake unit within that office. In that capacity, she reviewed
and signed petitions in emergency removal and child-in-need-of-assistance
cases, appeared as counsel for the State in contested removal hearings, and
advised the Department of Human Services in such cases. In the summer
of 2002, she applied and was interviewed for the position of executive
director of the Youth Law Center (YLC), a non-profit organization that
employs attorneys who are available for appointment as guardians ad litem
in Polk County juvenile cases.
Before offering the job to Johnson, the YLC’s board of directors,
including three seasoned attorneys, assessed the potential for a conflict of
interest arising from the interface between Johnson’s past work as an 3
assistant county attorney and the duties of the YLC’s executive director.
The directors contemplated, but did not make, a request of the Iowa State
Bar Association’s Committee on Professional Ethics and Standards for an
ethics opinion on the question of whether Johnson’s past employment
would disqualify her from representing the YLC’s clients. The board
concluded Johnson would be able to avoid conflicts of interest for herself
and the YLC if she and other YLC lawyers prospectively avoided involvement
in cases in which she had been substantially involved previously as an
assistant county attorney and offered the position to her. 1
Johnson made inquiries in an effort to determine whether acceptance
of employment with the YLC would create substantial conflict of interest
problems. She first consulted Ray Blase, her supervisor in the juvenile
division of the county attorney’s office. Blase suggested Johnson should
request a waiver of any conflicts of interest from the Department of Human
Services, the agency Johnson frequently advised during her service as
assistant county attorney. Johnson also requested a meeting with the four
judges who presided in Polk County juvenile court cases to discuss how
potential conflicts of interest might be dealt with if she should be hired as
the YLC’s director. 2 Although such a joint meeting with judges was never held, Johnson did discuss with at least two other juvenile court judges her
1We have approved the deployment of so-called “Chinese Walls” as a means of overcoming imputed disqualification of associates of attorneys affected by a conflict of interest in certain circumstances. See Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 601 (Iowa 2002).
2In a conversation with a district associate judge, Johnson requested a meeting with juvenile court judges to discuss how potential conflicts of interest might be managed if she were to accept employment with the Center. The judge declined to participate in such a meeting on the ground that the court might be required to rule on conflict of interest issues that could arise if Johnson accepted employment with the Center. The judge also recommended that Johnson seek an opinion from the Bar Association’s Committee on Professional Ethics and Standards. 4
intention to apply for the position. Those judges were very supportive of the
idea and encouraged Johnson to pursue it. Johnson also spoke to an
attorney employed by the Board of Professional Ethics and Conduct, who
noted conflict of interest issues are evaluated on a case-by-case basis and
observed generally that a conflict of interest could arise if Johnson were to
perform legal services as an employee of the YLC in cases in which she had
substantial responsibility as an assistant county attorney.
Johnson accepted the YLC’s offer of employment. Before she began
work for the YLC in January of 2003, Johnson reviewed certain ethics
opinions issued by the Bar Association’s Committee on Professional Ethics
and Standards and read opinions of this court addressing conflicts of
interest. She also took other measures intended to shield her from cases
that might present a conflict of interest. Johnson prepared and delivered to
the YLC a list of cases in which she believed she had assumed substantial
responsibility as an assistant county attorney. She also prepared a form for
use by other YLC attorneys to prompt their vigilance for and identification of
any cases handled by Johnson in her former employment. Consistent with
Mr. Blase’s suggestion, Johnson requested and received a letter in which
DHS purportedly waived any conflict of interest arising as a consequence of
her former employment and her new position with the YLC. 3 Johnson quickly immersed herself in the management of the YLC and
its substantial caseload. Unfortunately, her pre-employment attentiveness
to the potential for conflicts of interest waned. Johnson and the YLC failed
3We subsequently decided that a conflict of interest of the type alleged against Johnson in this case “may not be waived.” See Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 494 (Iowa 2003). We nonetheless make reference to the letter because it provides background information evidencing Johnson’s pre-employment concerns about potential conflicts of interest and her intention to address them before they arose. We acknowledge that under the Iowa Rules of Professional Conduct, which became effective July 1, 2005, consent to a conflict may be obtained. 5
to implement an effective Chinese Wall to shield her from juvenile cases
with which she had been substantially involved as an assistant county
attorney. She appeared at hearings in March and May of 2003 as guardian
ad litem in two separate juvenile cases in which she previously had
substantial involvement as an assistant county attorney. 4
Although the State did not object to Johnson’s involvement as
guardian ad litem in those two cases, counsel for parents eventually did
claim Johnson and her lawyer-colleagues at the YLC should be disqualified
from involvement in cases in which Johnson had been substantially
involved as an assistant county attorney. After hearings on the issue were
held in Polk County District Court, Johnson and the YLC’s other lawyers
were disqualified in numerous cases. 5 The district court found
disqualification was required in those cases because case-by-case litigation
of the conflict of interest issue would “threaten[] the timely disposition and
finality of hundreds of [juvenile] cases in Polk County.” Johnson
subsequently resigned her employment with the YLC.
The district court reported Johnson’s disqualification based on
conflict of interest to the Board of Professional Ethics and Conduct. An
investigation was undertaken, and the Board notified Johnson on
March 18, 2004 that she would be
publicly reprimanded for undertaking employment with the Youth Law Center, a private non-profit organization representing juveniles in Child in Need of Assistance matters, notwithstanding [her] “substantial responsibility” for such matters on behalf of the State while a member of the [Polk]
4In each case, Johnson had signed a petition as an assistant county attorney alleging one or more children were in need of assistance.
5An account of the history of the controversy and litigation surrounding Johnson’s conflict of interest and the several orders disqualifying Johnson and the YLC’s other employee-lawyers in certain juvenile cases may be found in our decision in Sorci, 671 N.W.2d at 485-88, and will not be repeated here. 6 County Attorney’s Office, contrary to DR 9-101(B) of the Iowa Code of Professional Responsibility for Lawyers.
On April 15, 2004, Johnson took written exception to the public reprimand
and asserted she had accepted the position with the YLC in good faith after
undertaking the measures recounted above. After reviewing Johnson’s
exception to the public reprimand, the Board notified her by letter dated
June 10, 2004 of its intent to file a complaint with the Grievance
Commission. The Commission held a hearing and found Johnson violated
DR 9-101(B) (accepting private employment in a matter in which she had
substantial responsibility as an attorney for a governmental entity), DR 1-
102(A)(5) (engaging in conduct prejudicial to the administration of justice),
and DR 1-102(A)(1) (violating a disciplinary rule), and recommended
suspension of Johnson’s license to practice law for a period of six months.
II. Scope and Standards of Review.
Our review of attorney disciplinary proceedings is de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa
2006) (citation omitted). We give respectful consideration to the
Commission’s factual findings and discipline recommendations, but we are
not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v.
Winkel, 599 N.W.2d 456, 460 (Iowa 1999) (citation omitted). The Board
must prove attorney misconduct by a convincing preponderance of the evidence. Walker, 712 N.W.2d at 684 (citation omitted). This burden is less
than proof beyond a reasonable doubt, but more than the preponderance
standard generally applied in civil cases. Iowa Supreme Ct. Bd. of Prof'l
Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004) (citation
omitted). If misconduct is proved, we “may impose a lesser or greater
sanction than the discipline recommended by the grievance commission.”
Id. (citations omitted). 7
III. Discussion.
The professional conduct at issue in this case occurred in 2003. We
must therefore determine whether Johnson violated provisions of the Iowa
Code of Professional Responsibility for Lawyers which were then extant. 6
In Sorci, we concluded a lawyer assumes substantial responsibility as
an attorney when in the course of representing a client, she gives legal
advice, signs a pleading, or appears at a hearing. Sorci v. Iowa Dist. Ct., 671
N.W.2d 482, 486 (Iowa 2003). We find, by a convincing preponderance of
the evidence, that Johnson signed CINA petitions as an assistant county
attorney in two juvenile cases, and she later appeared as guardian ad litem
for the children whose interests were at stake in those cases. We conclude
Johnson’s conduct did violate DR 9-101(B) and DR 1-102(A)(1). Because
her conduct provoked significant disruption of the administration of
numerous juvenile cases in Polk County, see Sorci, 671 N.W.2d at 487-89,
we also find Johnson engaged in conduct prejudicial to the administration
of justice in violation of DR 1-102(A)(5).
Johnson does not seriously take issue with the proposition that she
had substantial responsibility as an assistant county attorney in CINA
cases in which she signed pleadings. She urges us to conclude nonetheless
that she did not violate DR 9-101(B) because (1) her acceptance of
employment with the YLC was not unethical; (2) as an assistant county
attorney and as a guardian ad litem, her consistent objective was to
promote the best interests of the children who were the subjects of juvenile
cases, (3) consistent with court rules and customary practice, all
information gained in juvenile cases as an attorney for the State was
routinely shared with all parties and therefore not confidential, (4) DHS
6The Iowa Rules of Professional Conduct became effective July 1, 2005. 8
waived in writing any conflict of interest, and (5) she acted in good faith by
exploring the potential for conflicts of interest before accepting employment
with the Center and by taking reasonable measures during that
employment to avoid conflicts of interest. We conclude, however, that these
facts do not preclude our determination that a violation of our ethical rules
occurred.
1. Accepting employment with YLC. We agree with Johnson’s
assertion that her acceptance of her employment with YLC did not
constitute a violation of our Rules of Professional Responsibility. But her
employment as the executive director of the YLC is not the ground of the
alleged ethical violation in this case. It is Johnson’s failure to avoid
involvement as a guardian ad litem in cases in which she had substantial
responsibility as an assistant county attorney which forms the basis for the
sanction urged by the Board and recommended by the Commission in this
case.
2. Best interests of clients. It is undisputed that the best interests of
children must be a primary concern to both attorneys representing the
State and those who serve as guardians ad litem. In this broad sense, the
objectives of counsel for the State and guardians ad litem are consistent in
juvenile court proceedings. But we are not persuaded that the apparent
consistency of the parties’ objectives precludes a sanction for violation of
DR 9-101(B) and DR 1-102(A)(1) here, for in a narrower sense the State’s
conception of a child’s best interests may diverge from that of the child who
may reasonably urge his guardian ad litem to advance an outcome not
preferred by the State. The potential for divergent understandings of the
best interests of the parties in juvenile cases persuades us to reject
Johnson’s contention that, as a matter of law, the commonality of the 9
former and latter clients’ interests precludes the finding of an ethical
violation under the circumstances of this case. Indeed, DR 9-101(B)
categorically prohibits the acceptance of private employment in matters in
which Johnson previously had substantial responsibility as an attorney for
a governmental entity. The rule makes no exceptions for juvenile cases or
other proceedings in which a lawyer’s former and current clients may have
some broadly stated common objectives or interests. We are not inclined to
dilute the important purposes of the categorical prohibition by recognizing
the “clients’ best interests exception” advanced by Johnson.
3. Confidences of clients. Johnson urges us to conclude she did not
violate ethical rules in this case because any information to which she
became privy as an assistant county attorney in juvenile cases was
routinely shared with other attorneys and their clients. She notes that the
new Iowa Rules of Professional Conduct restrict a lawyer who has
information that she knows is “confidential government information about a
person” from representing “a private client whose interests are adverse to
that person in a matter in which the information could be used to the
material disadvantage of that person.” Iowa R. of Prof’l Conduct 32:1.11(c)
(2005). Although we have no occasion in this case to interpret or apply this
new rule, which was adopted after Johnson provided legal services as a
guardian ad litem in the two juvenile cases referred to above, we note that
the rule’s plain language does not confine the prohibition against
representation to matters in which a former government lawyer gained
confidential information about a person. See Iowa R. of Prof’l Conduct
32:1.11(a)(2). Similarly, the plain language of DR 9-101(B) that we apply in
this case makes no exception allowing a former public employee-lawyer to
accept private employment in a case in which she had substantial 10
responsibility as a government lawyer so long as she gained no confidential
information in the former representation.
4. Consent of the former client. Johnson contends we should find no
violation of DR 9-101(B) and DR 1-102(A)(1) because she obtained DHS’s
consent in writing to her representation of juveniles in the cases that form
the basis for the ethical complaint against her. She urges us to consider
that new rule 32:1.11 expressly authorizes a lawyer who was formerly
employed by the government to represent a client in a matter
notwithstanding the lawyer’s prior substantial participation on behalf of the
government in connection with the same matter if the appropriate
government agency gives its informed written consent to the representation.
See Iowa R. of Prof’l Conduct 32:1.11(a)(2). As we have already noted, the
new rule is not controlling in this case. Furthermore, we have previously
decided consistent with a formal opinion of the Iowa Supreme Court Board
of Professional Ethics and Conduct that under the rules prevailing at the
time of Johnson’s conduct, the conflict of interest was not subject to waiver.
Sorci, 671 N.W.2d at 494 (citing Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct, Formal Op. 98-09 (1998)).
5. Johnson’s good faith. Johnson posits that we should find no
ethical infraction in this case because she believed in good faith that her
conduct did not violate the rules in question. To her credit, she considered
the potential conflicts of interest that could arise if she accepted
employment with the YLC. However, Johnson cites no authority for the
proposition that a violation of DR 9-101(B) and DR 1-102(A)(1) cannot be
found in the absence of a lawyer-actor’s bad faith, and we find no merit in
it. We do, however, consider Johnson’s good faith as a circumstance in our
determination of the appropriate sanction in this case. 11
IV. Sanction Imposed.
Having found that Johnson’s conduct violated certain ethical rules,
we next consider the appropriate sanction. “Any violation of the Code of
Professional Responsibility necessarily reflects adversely on the fitness of an
attorney to practice law.” Comm. on Prof‘l Ethics & Conduct v. Durham, 279
N.W.2d 280, 285 (Iowa 1979). In determining the sanction, “we consider
the respondent’s fitness to continue in the practice of law, deterrence of
others from similar conduct, and the assurance to the public that the
courts will maintain the ethics of the profession.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 185 (Iowa 2005) (citation omitted)
(internal quotation marks omitted). We also consider any aggravating and
mitigating circumstances. Id.
We find that Johnson is fit to continue in the practice of law. The
record discloses that she is well-regarded by judicial officers and fellow
members of the bar as a competent lawyer who was willing and able to
competently undertake difficult juvenile cases. We do not believe under the
circumstances of this case that a license suspension is necessary to deter
similar future conduct. Indeed, we conclude a public reprimand will amply
assure the public that the courts will maintain the ethical standard for
lawyers who leave government service and undertake private representation
of parties in matters for which the lawyers had substantial responsibility in
their former government service. Our decision to impose a public
reprimand rather than the suspension recommended by the Commission is
also strongly influenced by the fact that Johnson has no prior disciplinary
record, and by the fact that she considered and took some steps to avoid 12
potential conflicts before she began her employment with the YLC. Costs
shall be taxed to Johnson.
RESPONDENT REPRIMANDED.
All justices concur except Appel, J., who takes no part.