IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellant, vs. JESSE M. MARZEN, Appellee.
No. 08–1546
IN THE SUPREME COURT OF IOWA
Filed March 19, 2010
CADY, Justice.
Appeal and cross-appeal from grievance commission decision finding respondent disclosed privileged information, but did not engage in a sexual relationship with a client. LICENSE SUSPENDED.
Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for appellant.
Roger L. Sutton of Sutton Law Office, Charles City, for appellee.
The Iowa Supreme Court Attorney Disciplinary Board alleged Jesse M. Marzen committed numerous violations of the Iowa Rules of Professional Conduct by engaging in a sexual relationship with a client, disclosing client confidences to the public, and making a misrepresentation to a judge. The grievance commission found there was insufficient evidence of an ethical violation on the charges of a sexual relationship with a client and a misrepresentation to a judge, but found Marzen violated disciplinary rules by disclosing client confidences. Upon our de novo review, we find Marzen violated the rules of professional conduct and impose an indefinite suspension not to exceed six months.
I. General Background Facts and Proceedings.
Jesse M. Marzen is an Iowa lawyer. He was admitted to the practice of law in 2004 after graduating from St. Thomas School of Law. He practiced law in Charles City and is currently the Floyd County Attorney.
In September 2006, a complaint was filed against Marzen with the disciplinary board. It was filed by a woman named “Jane Doe.”1 She alleged Marzen engaged in a sexual relationship with her after representing her in a mental health commitment hearing. Soon after, a district court judge also filed a complaint against Marzen after hearing testimony from Doe, in the course of a hearing in an action to modify child custody, regarding a sexual relationship with Marzen.
In 2007, the board brought three disciplinary charges against Marzen. Count I alleged Marzen engaged in sexual relations with Doe when she was his client. Count II alleged Marzen made a misrepresentation to a judge during the mental health commitment proceeding concerning Doe. Count III alleged Marzen disclosed information about Doe to the local press that he obtained in confidence during an attorney-client relationship. The board further alleged Marzen revealed information to the press that he knew was false.
At the hearing on the complaint, Doe testified she had sexual intercourse with Marzen on numerous occasions while he represented her. Marzen steadfastly denied any intimate contact with Doe. Following the hearing, the commission dismissed Count I (sexual misconduct) and Count II (misrepresentation) based upon insufficient evidence. It found the board proved Marzen revealed confidential information to the media without the consent of Doe, as alleged in Count III. The commission recommended Marzen be suspended for a period of three months. One member of the commission dissented from the dismissal of Count I. The dissenting member believed the events established at least one occasion of sexual intercourse between Doe and Marzen during the course of their attorney-client relationship.
II. Standard of Review.
We review attorney disciplinary proceedings de novo.
III. Discussion.
A. Sexual Relationship.
1. Legal framework. The legal framework for considering a charge of sexual misconduct is well-established. Under our ethical rules, an attorney is prohibited from having a sexual relationship with a client when the client is not the lawyer‘s spouse or when the sexual relationship did not predate the initiation of the attorney-client relationship.
2. Background facts. The relevant facts relating to the charge of sexual misconduct first surfaced in January 2006, when Doe was involuntarily hospitalized after she overdosed on prescription drugs and alcohol and expressed suicidal thoughts. Marzen was court-appointed to represent her in the hospitalization commitment hearing. He met Doe for the first time on January 10, just prior to the hearing at the Mitchell County Courthouse in Osage, although he had seen her in town at various times in the past. Doe was released from the hospitalization commitment by the presiding judge at the conclusion of the hearing to pursue outpatient treatment.
After the hearing, Doe indicated she needed transportation to Charles City, and Marzen agreed to give her a ride. The two left together, alone, in Marzen‘s car, and two inconsistent accounts of what transpired in the following hours, days, and weeks emerged at the disciplinary hearing.
During the trip from Osage to Charles City, Doe discussed her need for additional legal services. Marzen agreed to represent her in a dispute with her mother, a child support collection action, and a modification-of-child-custody proceeding.
Doe testified Marzen took her to his house in Charles City after arriving from the hospitalization hearing in Osage, where they eventually engaged in various sex acts in the living room of the house. This
Doe testified she engaged in sexual intercourse with Marzen on four additional occasions—once more in Marzen‘s home, once in the home where she was residing, once in an automobile driven by Marzen, and once at Marzen‘s law office. She described each encounter in graphic detail. The car sex described by Doe occurred when the two drove to a storage facility in Osage under the auspices that it was necessary to examine the contents of a storage unit.
The board called several witnesses at the hearing in support of the testimony of Doe. One witness, John Steiert, testified Marzen admitted in his presence during a confrontation at Doe‘s apartment and at a later meeting with Marzen and Doe at Marzen‘s law office to a sexual relationship with Doe. Another witness, Amanda Knapp, testified she observed Marzen and Doe emerge from a bedroom in the house where Doe was living following her release from the hospitalization commitment. The house was owned by Amanda‘s mother, Connie Knapp, who was very close to Doe. Amanda had stopped by the house unannounced when she observed Doe and Marzen walking out of the bedroom. The situation was momentarily uncomfortable for Amanda, and Doe hastily offered a reason for her presence in the bedroom with Marzen. Amanda believed the clumsy explanation was fabricated. Additionally, Amanda testified she drove Doe to Marzen‘s office one evening and dropped her off at the building.
Marzen denied the existence of any sexual relationship at any time with Doe. He testified Doe was never at his house. However, he acknowledged he had been at the house where Doe was staying on multiple occasions, but only for business purposes. Marzen denied Amanda confronted them emerging from a bedroom. Instead, he testified he was in the living room of the house with Doe when Amanda arrived. He also denied making any admissions of a sexual relationship to Steiert. He further disputed the accuracy of Doe‘s description of the house, claiming her drawing was not even close to depicting the actual layout of his residence. With respect to the physical description of his body, Marzen claimed he had more than ten moles on his back, which Doe failed to mention, as well as a mole on the lower portion of his abdomen that Doe should have mentioned if her descriptions of their sex acts were truthful.
Marzen denied the presence of a flap of loose skin on the bottom portion of his buttocks. He did, however, acknowledge he weighed 325 pounds when he graduated from high school and lost between 125 and 150 pounds since that time. He also acknowledged he has loose skin around his waist and inside his arms. Marzen agreed he had a large
In addition to his testimony, Marzen offered testimony from a number of witnesses. Rod Mulcahy, a lawyer in Marzen‘s former law office, testified the attorneys and staff at the office would work on tax matters in the office in January until eight or nine o‘clock in the evening. He felt it would be difficult for Marzen to have had sex in his office during this time without being noticed.
Marzen also offered testimony from a number of witnesses designed to show Doe had a propensity to lie or exaggerate. In particular, Marzen offered the testimony of David Skilton, an attorney, who represented Doe‘s mother in an action brought by Doe to obtain an injunction against her mother. Skilton said Doe testified at the hearing on the injunction that “no one had ever hurt her or . . . done anything to her in a sexual way except one time” in an incident with her parole officer. Skilton also said Doe testified that Marzen “didn‘t do a good job” in his representation of her.
Marzen offered testimony from John Farrell, a probation officer formerly assigned to Doe. Doe had sued Farrell for sexual misconduct, intentional infliction of emotional distress, assault, and false imprisonment. Although Farrell denied any sexual harassment or other such conduct, he settled the lawsuit for $5000. Marzen argues the Farrell lawsuit establishes a motive for Doe to concoct a similar claim
The parties introduced a number of exhibits. In particular, the exhibits showed that a comforter in a bedroom of the house where Doe was residing and a coat allegedly worn by Doe during the car-sex episode were tested for DNA by the Iowa Department of Criminal Investigation. The test results were negative. The exhibits also contained a report from a doctor who examined Marzen‘s back and buttocks for purposes of this proceeding. However, the report did not indicate the doctor understood that one of the purposes of the examination was to confirm or deny the presence of visible additional layers of tissue or fat, medically referred to as panniculi, on his lower buttocks. The report documented only that Marzen‘s buttocks and perineum appeared “normal,” without a specific statement affirming or denying the presence of loose folds of skin. The medical examination indicated Marzen did have a mole in the middle of his back that was recently surgically removed.
3. Ethical violation. The critical factual issues presented in the sexual-misconduct charge are whether the evidence adduced before the commission supported a prohibited sexual relationship by a convincing preponderance of the evidence and, if so, the degree of aggravation associated with the ethical violation. We readily recognize only two people know the truth of the sexual-misconduct allegations at the center of this case, and we can only perform our role in the course of our de novo review of the record to sort through the evidence to piece together our view of the facts by using our common principles of fact-finding. In making our factual determinations, our task is complicated by the many complexities and inconsistencies in the evidence as well as
Upon our de novo review of the record, we basically agree with the assessments of the commission with respect to the credibility of Marzen and Doe. The issue, however, is not whether Doe or Marzen always tell the truth. The issue is whether one of them was truthful regarding the issues presented in this case. See McGrath, 713 N.W.2d at 701. In the end, we can only find a violation of sexual misconduct if we find by a convincing preponderance of the evidence that Marzen and Doe engaged in sexual relations during the time Marzen represented Doe. Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995) (burden of proof). We readily understand the commission had the advantage of hearing and seeing the witnesses who testified at the hearing and made a finding that the board failed to prove sexual relations occurred between Marzen and Doe. We give this finding weight, but also recognize the commission was not unanimous in its finding. We also consider the view of the dissenting member of the commission, who was convinced Marzen and Doe engaged in sexual relations.
While the testimony by Doe and Marzen over the fighting issue of sexual relations was wildly conflicting, some evidence tended to both corroborate and discredit the testimony of both persons, while other evidence surfaced to expose Marzen generally as a person who was quick to deny even testimony and evidence against him that was otherwise credible in light of the other evidence presented and common experience.
Similarly, Marzen flatly denied Doe‘s description of his buttocks. Yet, he failed to further counter the claim of panniculi on his buttocks with equally sharp and decisive evidence to verify his denial. The claim involved an unusual but distinctive condition of a private part of a person‘s body, and Marzen had the ability to disprove the existence of the condition and discredit Doe. The medical examination was such an opportunity, but the written report by the doctor who examined Marzen failed to either confirm or deny the presence of panniculi on his lower buttocks. Moreover, the claim of panniculi on Marzen‘s buttocks was consistent with the presence of panniculi he admitted was present on other areas of his body. The claim itself was unusual enough that a person accusing another of sexual impropriety would not likely conceive of and fabricate the condition as an identifying mark to falsely frame an accused, especially when the condition would appear to be easily disproven by the accused if it did not exist.
We also find Doe‘s testimony regarding the location of a mole on Marzen‘s back, which was surgically removed after the alleged incidents, was significant. While it is possible Doe could have observed the mole under circumstances other than as testified by Doe, her testimony about
Finally, we consider the issue of motivation. We credit the testimony of O‘Donohoe that Doe presented at her office on February 27, 2006, and reported the sexual relationship. At that point in time, there was no suggestion Marzen would press Doe to collect his fee, which would have given Doe motivation to make a false claim against Marzen. Further, there was no political motivation on the part of O‘Donohoe or Doe to fabricate the existence of a sexual relationship. Finally, there was no reason to think at that point in time that the disclosure would advance Doe in the custody dispute with her former husband. Indeed, as events ultimately unfolded, the district court used Doe‘s relationship with Marzen as a factor in granting a modification of child custody adverse to Doe.
It is conceivable that Doe‘s need for attention could have motivated her to make a false claim. Yet, there is no doubt Marzen suddenly started to give considerable attention to Doe following the involuntary commitment hearing, both in and out of his office. Further, while Doe conceivably could have been trying to set Marzen up for a bogus claim, she did not file a lawsuit against him contemporaneously with her original disclosure to O‘Donohoe. She filed her action only after her relationship with Marzen had been exposed publicly in the media eight months after her meeting with O‘Donohoe. Further, there was no
On the other hand, Marzen‘s denials beginning in September 2006 were suspect. He had much at stake, including his law license and his legal career. Thus, he had substantial motivation to deny the existence of a sexual relationship. His evidence in support of this denial of sexual relations was not nearly as credible as the evidence by Doe to support her testimony.
On the whole, we find Doe‘s testimony, coupled with the corroborating evidence, is sufficient for us to conclude the board demonstrated by a convincing preponderance of the evidence that Doe and Marzen engaged in a sexual relationship. We also conclude the sexual relationship occurred during the time Marzen represented Doe on several legal matters.
4. Aggravating circumstances. We next consider whether the board proved any aggravating circumstances. We begin by considering whether the board proved by a convincing preponderance of evidence that Marzen engaged in a sex-for-fees arrangement with Doe. Unlike her testimony regarding the sex acts, Doe‘s testimony on this point was vague. She contended there was no explicit discussion of sex for fees, but that it was “like, you help me, I‘ll help you.” She did not specifically attribute this statement to Marzen, and it may have simply reflected her state of mind. Further, while it is plausible her phraseology amounted to a sex-for-fees offer, it is also plausible that it was simply an expression that a consensual sexual relationship would be satisfying to both parties.
The documentary trail on the sex-for-fees issue did not present convincing evidence in support of the board‘s position. Marzen appeared to have contemporaneously recorded his time and ultimately presented
The absence of convincing proof of a sex-for-fees agreement does not end our inquiry into the presence of other aggravating circumstances. In considering the presence of other aggravating circumstances in this case, it is important to keep in mind Doe had just been discharged from an involuntary mental health commitment at the time of the sexual relationship. She had no money and no place to live. She had a difficult relationship with her mother that was reaching a boiling point. Her continued custody of her child was also in question. These circumstances presented unique challenges to the maintenance of her sobriety. Thus, even if the evidence failed to establish a sex-for-fees arrangement, the evidence did show Marzen, as an attorney, took advantage of a client who was extremely vulnerable. Such conduct constitutes an aggravating factor to support a more severe sanction. See Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 125 (Iowa 1999) (two-year suspension for egregious sexual exploitation of a very vulnerable client).
1. Background facts and legal framework. On October 27, 2006, Marzen was interviewed by KIMT News Channel 3 of Mason City. Marzen was asked to comment on Doe‘s allegations and the ongoing disciplinary investigation. Marzen responded, “[Doe] stated she had been in a situation with her probation officer. I didn‘t find out until later that it was sexual misconduct.” Marzen further told print reporters that Doe ended his representation when she could not pay her bill. The board alleged this behavior violated
In contrast to Count I, resolution of Count III presents a legal question. Factually, there is no doubt that Marzen publicly disclosed Doe‘s prior history with and litigation involving her former probation officer. Further, there is no factual question that Marzen learned this information through a confidential conversation with his client.2 Doe also testified that she never consented to Marzen‘s disclosure. The question thus presented is whether an attorney violates the rules of confidentiality by disclosing information learned through client confidences when that information is also available in the public forum.
This result is consistent with the approach taken in other jurisdictions. See Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 572–73 (2d Cir. 1973) (“[T]he client‘s privilege in confidential information disclosed to his attorney ‘is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information, or by the fact that the lawyer received the same information from other sources.’ ” (quoting Henry S. Drinker, Legal Ethics 135 (1953))); In re Rules of Prof‘l Conduct & Insurer Imposed Billing Rules & Procedures, 2 P.3d 806, 822 (Mont. 2000) (holding rule of confidentiality “extends to all communications between insureds and defense counsel and that this rule is therefore broader in both scope and protection than the attorney-client privilege and the work product doctrine“); In re Advisory Opinion No. 544, 511
This result is also consistent with the overall structure of our rules of confidentiality. For instance, our rules prohibit an attorney from profiting on information obtained through client confidences, without an explicit exception for information that is otherwise publicly available. See Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Miller, 568 N.W.2d 665, 667 (Iowa 1997). The reason for this omission is clear—the sanctity of the lawyer-client relationship is necessary to ensure free and unrestrained communication without fear of betrayal. On this issue of first impression, therefore, we hold that the rule of confidentiality is breached when an attorney discloses information learned through the attorney-client relationship even if that information is otherwise publicly available.
Marzen argues that, even if his disclosures constituted a breach of confidentiality, that breach was excused by rule 32:1.6(b)(5). That rule provides:
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer‘s representation of the client[.]
C. Sanction.
“There is no standard discipline for a particular type of attorney misconduct . . . .” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 410 (Iowa 2005). “[W]e are obliged to tailor disciplinary sanctions to the specific facts and circumstances of each individual case.” Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Erbes, 604 N.W.2d 656, 659 (Iowa 2000). Nevertheless, this court tries to achieve a certain level of consistency. Kadenge, 706 N.W.2d at 410. In determining the appropriate sanction, we consider ” ‘the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer‘s fitness to practice, and [the court‘s] duty to uphold the integrity of the profession in the eyes of the public.’ ” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Honken, 688 N.W.2d 812, 820 (Iowa 2004)). Relevant aggravating and mitigating circumstances will also be considered. Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa 2007).
“The unequal balance of power in the attorney-client relationship, rooted in the attorney‘s special skill and knowledge on the one hand and the client‘s potential vulnerability on the other, may enable the lawyer to dominate and take unfair advantage. When a lawyer uses this power to initiate a sexual relationship with a client, actual harm to the client, and the client‘s interest, may result. Such overreaching by an attorney is harmful in any legal representation but presents an even greater danger to the client seeking advice in times of personal crisis . . . .”
Furlong, 625 N.W.2d at 714 (quoting Iowa Code of Prof‘l Responsibility for Lawyers EC 5-25).3 Consequently, a violation of the governing ethical rule is a serious transgression. Clients figuratively, if not literally, can trust lawyers with their lives, and they have the right to expect, as we demand, the lawyer will treat that trust with care derived from those noble traditions of service, integrity, and commitment found at the heart of the legal profession. See Comm. on Prof‘l Ethics & Conduct v. Hill, 436 N.W.2d 57, 59 (Iowa 1989) (Hill I).
Our past cases reveal a broad range of discipline for attorneys who engage in sexual relations with a client. This range is between a public reprimand and a lengthy period of suspension from the practice of law. The wide range of discipline largely results from the presence or absence of circumstances in addition to the sexual relations that make the overall misconduct more serious. For example, in McGrath, we suspended an
Our prior case containing facts most similar to the facts of this case is Hill I. In Hill I, the attorney had sexual intercourse on one occasion with a client who had sought his representation to obtain a divorce involving custody of children. 436 N.W.2d at 59. At the time, the client was unemployed, drug-addicted, and emotionally unstable. Id. at 58. We suspended the attorney from the practice of law for a period of three months. Id. at 59. The facts of this case are also similar to
The discipline imposed for violating the confidences of a client also varies with the particular facts and circumstances. We have not had the occasion in our prior cases to impose discipline based solely on the disclosure of confidential client information, but have only imposed discipline in conjunction with other misconduct. Generally, however, discipline for the violation of client confidence would appear to warrant a modest period of suspension between sixty days and three months when combined with aggravating circumstances. Miller, 568 N.W.2d at 667 (sixty-day suspension imposed on attorney revealing confidential information of client for financial reasons and for attempting to demand withdrawal of ethics complaint); Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Sikma, 533 N.W.2d 532, 537–38 (Iowa 1995) (three-month suspension for entering into a business transaction with a client involving misuse of client‘s confidential information). A violation would likely result in something less than a suspension without any aggravating circumstances. Nevertheless, disclosure or misuse of a client‘s confidential information is an especially problematic violation since
[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client‘s informed consent, the lawyer must not reveal information relating to the representation. . . . This contributes to the trust that is the hallmark of the client-lawyer relationship.
Because one of the purposes of the rules at issue in this case is to prevent exploitation of vulnerable clients, a violation is even more egregious when the particular client is mentally or emotionally unstable.
Considering all the circumstances of this case, we conclude Marzen should be suspended from the practice of law for a period of six months. Although his sexual misconduct was not accompanied by the type of aggravating circumstances that has warranted a suspension for a lengthier period of time in other cases, he exploited the attorney-client relationship for his own sexual gratification to the detriment of his client and the profession. His egocentric attitude was also apparent in the public disclosure of confidential information. Yet, the most serious circumstance is he became sexually involved with his client at a time when she was most vulnerable and the trust of a lawyer was most needed and expected. This case goes well beyond the vulnerability that
IV. Conclusion.
We suspend Marzen‘s license to practice law with no possibility of reinstatement for a period not less than six months from the date of the filing of this opinion. This suspension applies to all facets of the practice of law pursuant to
LICENSE SUSPENDED.
All justices concur except Appel and Baker, JJ., who concur in part and dissent in part.
APPEL, Justice (concurring in part and dissenting in part).
I respectfully dissent. The majority has presented a thorough and thoughtful review of this unattractive record. My difficulty arises from the fact that this court is necessarily conducting its review on a cold record where credibility determinations are necessary to the outcome of the case.
There are numerous troubling features in the record. For instance, in a proceeding brought by Doe against her mother, Doe testified under oath that there was no sexual misconduct in her relationship with Marzen. In addition, prior to the events which give rise to these proceedings, Doe obtained a financial settlement in connection with a charge of sexual misconduct involving a probation officer. These facts raise substantial credibility issues.
The board has the burden to prove the allegations of misconduct contained in the complaint by a convincing preponderance of the evidence. While this burden is lower than in a criminal prosecution, it is higher than the burden in most civil cases. Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). A majority of the grievance commission members who heard the testimony determined that the board did not establish by a convincing preponderance of the evidence that Marzen engaged in sexual misconduct. On this record, I cannot conclude that the board met its heightened burden when the majority of the panel that actually heard the testimony came to a different conclusion.
I concur in the majority‘s analysis and conclusions regarding the disclosure of confidential information. I would find that a public reprimand is the appropriate sanction for this violation.
Baker, J., joins this concurrence in part and dissent in part.