IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Peter Sean CANNON, Respondent.
No. 12-0844.
Supreme Court of Iowa
Oct. 19, 2012.
ZAGER, Justice.
When an appellate court finds an error preservation problem on appeal in a case other than a posteonvietion relief action, the court does not address the unpreserved issue on appeal, and the appeal is final. In a postconviction relief action, our finding that error was not preserved due to a failure to file a rule 1.904(2) motion will only lead to the defendant filing another postconviction relief action, alleging postconviction relief counsel was ineffec- tive. In the second postconviction relief action, the defendant will offer substantial- ly the same evidence offered in the first action. This is a complete waste of precious judicial resources. Had the majority not contorted our error preservation rules, this is exactly what would have happened in this case.
APPEL, J., joins this special concurrence.
Cannon was admitted to the Iowa bar in 1983. He practiced at the law firm of Connolly, O’Malley,Lillis, Hansen & Olson from 1983 until 1998, when he became a sole practitioner. He has practiced as a sole practitioner in Iowa since 1998.
The Board filed a three-count complaint against Cannon on June 24, 2011. Count I alleged that on July 13, 2009, Cannon was convicted of the crime of operating a boat while intoxicated, first offense, in violation of Iowa Code section 462A.14 (2009). Count II alleged that on October 8, 2009, Cannon was convicted of possession of cocaine, a controlled substance, in violation of Iowa Code section 124.401(5). Finally, Count III alleged that on November 17, 2010, Cannon was convicted of operating a motor vehicle while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2.1
With regard to these convictions, the Board invoked issue preclu- sion under Iowa Court Rule 35.7(3).2
The Board contends these offenses violate Iowa Rule of Professional Conduct 32:8.4(b). The commission held a hearing on December 15, 2011. On May 11, 2012, the commission issued its findings of fact and conclusions of law and recommended we publicly reprimand Cannon for the pat- tern of criminal conduct demonstrated by the three convictions. The Grievance Commission of the Supreme Court of Iowa (commission) found Cannon’s convictions constituted a violation of rule 32:8.4(b) and recom- mended we publicly reprimand Cannon. Upon our de novo review, we find Cannon violated rule 32:8.4(b) and suspend his li- cense to practice law for thirty days.
II. Standard and Scope of Review.
We have described our standard of review in attorney disciplinary proceedings as follows:
Attorney disciplinary proceedings are reviewed de novo. The Board bears the burden of proving misconduct by a convincing preponderance of the evidence, which is a lesser burden than proof be- yond a reasonable doubt but a greater burden than is imposed in the usual civil case. If we determine the Board has met its burden and proven misconduct, “we may impose a greater or lesser sanction than the sanction recommended by the commission.” See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 9 (Iowa 2012) (citations omitted); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 764 (Iowa 2010). When the Board alleges that a criminal convic- tion violates rule 32:8.4(b), the Board bears the additional burden of showing a suffi- cient nexus between the criminal conduct and the respondent’s ability to function as an attorney. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Keele, 795 N.W.2d 507, 515 (Iowa 2011). The Board must prove the nexus by a convincing preponderance of the evidence. Id.
The facts in this case are not in dispute. The Board alleged that Cannon pled guilty to operating a boat while intoxi- cated, first offense; possession of cocaine; and OWI, first offense. In his answer to the Board’s complaint, Cannon admitted each of these convictions. Moreover, the Board has supplied the court files from each conviction, which include Cannon’s guilty pleas. The Board has proven each conviction by a convincing preponderance of the evidence.
IV. Ethical Violations.
The Board alleged that each of Cannon’s convictions constituted a viola- tion of Iowa Rule of Professional Conduct 32:8.4(b). Rule 32:8.4(b) states, “It is pro- fessional misconduct for a lawyer to ... commit a criminal act that reflects ad- versely on the lawyer’s honesty, trustwor- thiness, or fitness as a lawyer in other respects.” Iowa R. Prof’l Conduct 32:8.4(b). “[N]ot all criminal acts reflect on an attorney’s fitness to practice law.” Weaver, 812 N.W.2d at 12. Rather, we focus on the “link between the conduct and the actor’s ability to function as a lawyer.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 40 (Iowa 2011) (citation omitted). The crux of the question centers on whether Cannon’s conduct dem- onstrates he has character defects that would detract from his ability to be trusted with “important controversies and confi- dential information.” See id. (citation and internal quotation marks omitted).
With these considerations in mind, we have adopted the following test to de- termine whether a criminal act violates rule 32:8.4(b): There must be some rational connection other than the criminality of the act between the conduct and the actor’s fit- ness to practice law. Pertinent consid- erations include the lawyer’s mental state; the extent to which the act dem- onstrates disrespect for the law or law enforcement; the presence or absence of a victim; the extent of actual or poten- tial injury to a victim; and the presence or absence of a pattern of criminal con- duct. Id. (citation and internal quotation marks omitted); see also Weaver, 812 N.W.2d at 11.
We next examine the factor relating to the presence or absence of a victim. Many violations of rule 32:8.4(b) involve victims of criminal conduct. See, e.g., Schmidt, 796 N.W.2d at 41 (attorney’s se- vere physical attack on his wife in the presence of his children caused physical and psychological damage to his wife and psychological trauma to his children); Templeton, 784 N.W.2d at 770 (attorney’s criminal acts of invasion of privacy had serious consequences for his victims). While Cannon’s crimes did not result in any direct physical or psychological harm to a person, his OWI incident did result in property damage to the parking lot of a grocery store, thereby making the store a victim of his criminal action. We also consider potential injury to persons or property in determining whether a viola- tion of rule 32:8.4(b) occurred. As we stated in Weaver, operating a motor vehi- cle while intoxicated “create[s] ... grave risk of potential injury” to others. See Weaver, 812 N.W.2d at 11. As described below, each of Cannon’s criminal convic- tions shows a reckless disregard for the public.
Cannon’s boating-while-intoxicated con- viction arose out of a stop by a water patrol officer with the Iowa Department of Natural Resources. The officer observed Cannon accelerating “rather quickly” in the five mile per hour speed-limit zone at 10:30 p.m. on Friday, July 11, 2008. The officer noted Cannon had slurred speech, slow reaction times, and smelled of alcohol. A subsequent breath test revealed Can- non’s blood alcohol content was .186. By driving a boat at night while intoxicated, Cannon could have seriously injured other people on the water, himself, or the pas- senger on his boat.
Cannon’s conviction for possession of co- caine also arose out of an incident involv- ing alcohol. Responding to a report of a possible intoxicated driver, police found a vehicle stopped in the middle of a roadway. Cannon was observed walking away from the stopped vehicle. A woman in the driver’s seat and Cannon both appeared to be intoxicated. Cannon was arrested for pub- lic intoxication, and during a search con- ducted incident to that arrest, an officer found a baggy containing about one gram of cocaine in his suit coat pocket. Cannon denies he ever used cocaine, and the police officer reported that the woman he was with appeared to have cocaine on her upper lip. Though Cannon had not been driving during that incident, he knew his companion had been drinking, and he had reason to believe she was also using co- caine. The incident took place in a resi- dential neighborhood in the early morning hours and could have resulted in serious or even fatal injury to other drivers or pedes- trians.
Driving while intoxicated through a grocery store parking lot could have caused serious inju- ries to pedestrians, other drivers, or pas- sengers in other vehicles. Based upon the incidents described above, there was sig- nificant potential for injury to a multitude of people and damage to property.
Another factor we consider in de- termining whether an attorney has violat- ed rule 32:8.4(b) is the presence of a pat- tern of criminal conduct. Weaver, 812 N.W.2d at 10-11 (citing Templeton, 784 N.W.2d at 767). Patterns of criminal con- duct have sometimes involved repeated convictions for the same crime. E.g., id. at 11 (finding a pattern of criminal conduct existed when the attorney had been con- victed of three OWIs); Templeton, 784 N.W.2d at 767-68 (finding a pattern of criminal conduct was shown by an attorney convicted of six counts of invasion of priva- cy). Here, even though Cannon has a variety of convictions, they all involve sub- stance abuse and the possession of illegal substances.
Cannon was also convicted of OWI, first offense, in September 2007, for which he received a private admonition. Even though the 2007 OWI conviction is not at issue in this proceeding, a prior conviction is relevant to determining whether an at- torney has displayed a pattern of criminal conduct. See Weaver, 812 N.W.2d at 11 (taking into account the attorney’s prior OWI convictions and determining there was a pattern of criminal conduct). Based on these criminal convictions spanning a relatively short period of time, a clear pattern of criminal conduct is demonstrat- ed.
Identifying this pattern of crimi- nal conduct is also important to the analy- sis of the final Templeton factor—whether Cannon demonstrated a disrespect for the law and law enforcement. We have previ- ously held that repeated “convictions for the same offense ... indicate a pattern of criminal conduct and demonstrate a disre- gard for laws.” Id.; see also Iowa Su- preme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 101-02 (Iowa 2010) (noting attorney’s second conviction for domestic abuse and repeated violations of a court order banning contact with the victim demonstrated disrespect for the law); cf. Keele, 795 N.W.2d at 514 (holding that an isolated incident did not indicate disrespect for the law). Cannon’s repeated convic- tions for substance abuse-related offenses demonstrate disrespect for the law and law enforcement. In addition, police reports in two of Cannon’s convictions indicate that he refused to cooperate with the offi- cers during their initial investigations, fur- ther suggesting disrespect for law enforce- ment. See Schmidt, 796 N.W.2d at 41 (finding disrespect for law enforcement when an attorney prevented his victim from calling 911, lied to a neighbor in order to prevent the neighbor from calling 911, then broke the steel cage in the police car in order to use the police officer’s cell phone without permission).
V. Sanctions.
There is no standard sanction warranted by any particular type of mis- conduct. Weaver, 812 N.W.2d at 13. Though prior cases can be instructive, the sanction warranted in a particular case must be based on the circumstances of that case. Id.
We have also had the opportunity to review an attorney’s fitness to practice law as a result of drug-related criminal convic- tions. We have held that under our code of professional responsibility, attorneys have special responsibilities to refrain from drug possession and possession of drug paraphernalia. Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Sloan, 692 N.W.2d 831, 832-33 (Iowa 2005). In Sloan, a three-month suspension was an appropriate sanction for an attorney’s con- duct which resulted in convictions for seri- ous misdemeanor possession of crack co- caine and simple misdemeanor possession of drug paraphernalia. Id.; see also Comm. on Prof‘l Ethics & Conduct v. Shu- minsky, 359 N.W.2d 442, 445-46 (Iowa 1984) (two misdemeanor convictions for drug possession resulted in a suspension of not less than three months). After con- cluding that such conduct reflected on an attorney’s fitness to practice law, we also concluded that a suspension was necessary to deter others from similar conduct and assure the public that courts will uphold the ethics of the legal profession. Sloan, 692 N.W.2d at 833; Shuminsky, 359 N.W.2d at 445. Here, Cannon has like- wise been convicted of possession of co- caine which, along with his other convic- tions, would warrant a suspension of his license to practice law.
Cannon claims that his physical and mental conditions, including alcoholism and depression, were factors in his criminal conduct. According to Cannon, he became depressed and started drinking more after major abdominal surgery in 2006. His problematic use of alcohol continued una- bated for a number of years, ultimately resulting in his arrests and subsequent criminal convictions. The record, howev- er, is devoid of any evidence beyond Can- non’s own testimony to support his claim that his medical problems were the reason for his alcohol abuse.
Regardless of the cause of his alcoholism and depression, both were undoubtedly factors in Cannon’s criminal conduct. In Weaver, we considered Weaver’s untreated depression and alcoholism as aggravating factors. Id. at 13-14. Weaver had at least a ten-year history of alcoholism and depression that reflected adversely on his ability to practice law. Id. at 7-8. Addi- tionally, Weaver had a history of noncom- pliance with treatment. Id. at 14 (quoting a letter from an intensive drug court offi- cer with the Seventh Judicial District that stated, among other things, that Weaver was “intent on doing things his own way”); see also Weaver, 750 N.W.2d at 76-77 (de- tailing Weaver’s resistance to an OWI sen- tence which included treatment at an alco- hol treatment correctional facility).
In contrast, Cannon has sought and complied with treatment. Through addic- tion counseling spanning the course of two years, he has been able to recognize the genesis of his problem and has received treatment for both substance abuse and depression. He has received additional assistance from Alcoholics Anonymous, a lawyer’s assistance program, and a holistic Catholic-based substance abuse program called St. Gregory’s Retreat. He has fur- ther committed to continuing treatment and staying sober.
However, there are also significant ag- gravating factors which we must consider in fashioning an appropriate sanction. Cannon has been the subject of several prior disciplinary actions, including three public reprimands and a private admonish- ment between 1998 and 2010. In 1998, he received a public reprimand for, among other things, violating the terms of a court order and attempting to interfere with the disciplinary process. In 2002, Cannon re- ceived a second public reprimand for vio- lating our advertising rules, for neglecting a client matter, and for failing to respond to the Board’s inquiries. In 2008, Cannon received a private admonishment for his September 2007 OWI conviction, first of- fense. Finally, on October 15, 2010, we issued another public reprimand to Cannon, this time for a violation of Iowa Rule of Profes- sional Conduct 32:8.4(c). We found Can- non had engaged in misrepresentation when he submitted a plagiarized brief to a bankruptcy court. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 759 (Iowa 2010).
We do not discipline an attor- ney twice for the same conduct, so Can- non’s previous violations of our ethical rules will not result in cumulative sanc- tions for those violations. See Keele, 795 N.W.2d at 512-13. Nevertheless, we do consider previous disciplinary action as an aggravating factor in determining sanc- tions. Axt, 791 N.W.2d at 103. Further, we have determined that while private ad- monishments are not discipline, they do put an attorney on notice of ethical re- quirements. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 110 (Iowa 2012). As such, a private admonishment is also an aggravating fac- tor. Id.
Additionally, we have found that a pat- tern of repeated offenses warranted in- creased sanctions. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 683 (Iowa 2010) (finding that an attorney’s established pattern of ne- glecting client matters, among other ethi- cal infractions, warranted severe sanc- tions); see also Templeton, 784 N.W.2d at 771 (attorney received a three-month sus- pension after being convicted of six counts of invasion of privacy). Cannon’s four criminal convictions in a relatively short period of time establishes a clear pattern of repeated offenses warranting an in- creased sanction.
We also consider experience to be an aggravating factor. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 381 (Iowa 2005). Cannon has practiced law in Iowa since 1983. As an experienced attorney, he “should have known better.” See id.
The commission recommended that we publicly reprimand Cannon for his ethical violation. We respectfully dis- agree. The nature of the criminal acts, involving operating vehicles while intoxi- cated and possession of drugs, are serious violations of our laws. Additionally, these are not isolated instances of criminal con- duct. Rather, there was a pattern of crim- inal conduct by Cannon involving alcohol and drugs. His interactions with law en- forcement also show a disrespect for our laws and law enforcement. Such conduct undermines the reputation of the bar as a whole and reflects negatively on Cannon’s fitness to practice law. Considering all of the aggravating and mitigating factors, Cannon’s violation of our ethical rule war- rants more than a public reprimand. We conclude that the appropriate sanction in this case is a suspension of Cannon’s li- cense to practice law for thirty days.
For the above reasons, we suspend the license of Peter Sean Cannon to practice law in this state for thirty days. The suspension applies to all facets of the prac- tice of law. Iowa Ct. R. 35.13(3). Cannon must comply with the notification require- ments of rule 35.23, and costs are taxed against him pursuant to rule 35.27(1). Un- less the Board objects, Cannon’s license will be automatically reinstated on the day after the thirty-day suspension period ex- pires if all costs have been paid. Iowa Ct. R. 35.13(2).
LICENSE SUSPENDED.
ZAGER
JUSTICE