Iowa Supreme Court Board of Professional Ethics and Conduct v. Marcucci

543 N.W.2d 879, 1996 Iowa Sup. LEXIS 34, 1996 WL 67969
CourtSupreme Court of Iowa
DecidedFebruary 14, 1996
Docket95-1578
StatusPublished
Cited by33 cases

This text of 543 N.W.2d 879 (Iowa Supreme Court Board of Professional Ethics and Conduct v. Marcucci) 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 Board of Professional Ethics and Conduct v. Marcucci, 543 N.W.2d 879, 1996 Iowa Sup. LEXIS 34, 1996 WL 67969 (iowa 1996).

Opinions

CARTER, Justice.

This matter comes to us as an appeal by respondent, Lawrence Marcucci, from the findings and recommendations of the grievance commission as allowed by Iowa Supreme Court Rule 118.11. That commission found that conduct of respondent resulting in a criminal conviction for operating a motor vehicle while under the influence (third offense), a felony, was a violation of Disciplinary Rule 1-102(A)(6) of the Iowa Code of Professional Responsibility for Lawyers. Irrespective of the fact that respondent is the appellant and the Board of Professional Ethics and Conduct (the board) is a nonappeal-ing appellee, we review the report of the grievance commission de novo and, as provided in rule 118.10, “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.”

Lawrence Marcucci has been licensed to practice law in this state since 1975 and has, with a short interruption, practiced law in this state since that time. He is currently a shareholder of a Des Moines law firm, which practices as a professional corporation. His practice is primarily in the area of civil litigation.

On November 10, 1992, respondent was arrested and charged with operating a motor vehicle while intoxicated — third offense. Following his arrest, he voluntarily entered a twenty-eight-day inpatient treatment program for alcoholism at St. Mary’s Hospital in Minneapolis, Minnesota.

On March 1, Í993, respondent pleaded guilty to the offense charged, which is a Class “D” felony. The respondent was sentenced to confinement at the Fort Des Moines Correctional Facility that required participation in a program for offenders who have committed alcohol-related crimes. He was confined at that facility for seventy-seven days and then released on parole under supervision. The conditions of parole included abstinence from all mood-altering chemicals, monitored antiabuse therapy, counseling, and regular attendance at Alcoholics Anonymous meetings. As a result of meeting those conditions, respondent was discharged from parole on May 18,1994.

Upon our receipt of a certified copy of respondent’s criminal conviction, this court, in November 1993, considered whether a temporary suspension of his license should be ordered. No temporary suspension was imposed. The complaint against respondent was filed in March 1995. It alleged that he had violated subsections 1 through 6 of Disciplinary Rule 1-102(A) and, in addition, that his felony conviction was cause for discipline under Iowa Code section 602.10122(1) (1993).1

The board, in prosecuting the case before the grievance commission, relied only on violations embodied in subsections 3, 5, and 6 of [881]*881DR 1-102(A) and the provisions of Iowa Code section 602.10122(1). The grievance commission found that respondent was at all times material suffering from alcoholism. It further found, however, that his legal practice had not suffered as a result of that circumstance or respondent’s resulting criminal convictions for operating a motor vehicle while under the influence. The commission’s report concluded, however:

Although the record is replete with evidence that the Respondent continued to be an effective advocate during his problems with alcohol abuse, the Division is concerned with the public perception of an attorney with serious alcohol abuse problems and feels that such abuse “adversely reflected” on his fitness to practice law.

The finding of the commission, which we have quoted above, was the basis for its conclusion that respondent violated DR 1-102(A)(6).2 We agree with that conclusion.

Respondent’s case differs from other situations we have considered in which alcoholism has impacted on professional responsibility. It is not like Committee on Professional Ethics & Conduct v. Sloan, 262 N.W.2d 262-63 (Iowa 1978), in which an attorney’s physical and mental ability to carry on his practice was impaired by alcoholism. The respondent in that case was suspended until such time as a satisfactory showing could be made that he was able to resume the responsibilities of a law practice. The present case also differs from the several cases in which alcoholism was alleged to play a role in an ethical violation committed in the handling of clients’ affairs. Generally, we have not excused the ethical violation in those proceedings. See, e.g., Committee on Professional Ethics & Conduct v. Sylvester, 221 N.W.2d 803, 804 (Iowa 1974) (alcoholism should not affect the sanction imposed either in aggravation or mitigation).

Unlike the cases last described, respondent’s ability to practice in the future has not been questioned nor have any past ethical violations been identified with respect to his handling of his clients’ affairs. This case raises the issue of the extent to which an attorney may be subject to disciplinary action for criminal conduct involving activities outside the lawyer’s professional role that have not been shown to have adversely affected the lawyer’s clients. While we have never faced this issue within the context of an OWI offense, it has been before us in the context of other criminal activities.

In Committee on Professional Ethics & Conduct v. Shuminsky, 359 N.W.2d 442 (Iowa 1984), we imposed a minimum suspension of three months based on a misdemean- or conviction for possession of a controlled substance. In Committee on Professional Ethics & Conduct v. Patterson, 369 N.W.2d 798 (Iowa 1985), we imposed a minimum suspension of three months for a misdemean- or conviction of simple assault arising from a domestic dispute. In Committee on Professional Ethics & Conduct v. Ramey, 424 N.W.2d 435 (Iowa 1988), and Committee on Professional Ethics & Conduct v. Klein, 394 N.W.2d 358 (Iowa 1986), we imposed minimum suspensions of six and nine months, respectively, for failure to file income tax returns in situations in which no tax was owing. In Committee on Professional Ethics & Conduct v. Barrer, 495 N.W.2d 756 (Iowa 1993), and Committee on Professional Ethics & Conduct v. Floy, 334 N.W.2d 739 (Iowa 1983), we imposed minimum suspensions of twenty-four months and eighteen months, respectively, based on misdemeanor convictions for making obscene phone calls. In Committee on Professional Ethics & Conduct v. Tompkins, 415 N.W.2d 620

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543 N.W.2d 879, 1996 Iowa Sup. LEXIS 34, 1996 WL 67969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iowa-supreme-court-board-of-professional-ethics-and-conduct-v-marcucci-iowa-1996.