In the Matter of Honorable Mary E. HOWES, District Court Judge of the Seventh Judicial District

IN THE SUPREME COURT OF IOWA

No. 16–0005

Filed May 20, 2016

IN THE MATTER OF HONORABLE MARY E. HOWES,

District Court Judge of the Seventh Judicial District.

On application of the Iowa Commission on Judicial Qualifications.

The Iowa Commission on Judicial Qualifications filed an

application for judicial discipline recommending this court discipline a

district court judge for various violations of the Iowa Code of Judicial

Conduct. APPLICATION GRANTED AND JUDGE PUBLICLY

ADMONISHED.

Thomas J. Miller, Attorney General, Kevin Cmelik and Grant K.

Dugdale, Assistant Attorneys General, for complainant.

Gregory M. Lederer of Lederer Weston Craig PLC, Cedar Rapids, for

respondent.

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WIGGINS, Justice.

The Iowa Commission on Judicial Qualifications filed an

application for discipline of a judicial officer recommending this court

publicly reprimand a district court judge. See Iowa Code § 602.2106

(2015). Because we conclude the judge violated the Iowa Code of

Judicial Conduct, we grant the application for judicial discipline. Rather

than publicly reprimand the judge, however, we publicly admonish the

judge.

I. Scope of Review.

When the Iowa Commission on Judicial Qualifications files an

application with our court to discipline a judicial officer, we conduct an

equitable proceeding to review the application. See In re Inquiry

Concerning Stigler, 607 N.W.2d 699, 701 (Iowa 2000); see also Iowa Code

§ 602.2106(1). We review findings and recommendations by the

Commission concerning the discipline of a judicial officer de novo. In re

Krull, 860 N.W.2d 38, 43 (Iowa 2015); see Iowa R. App. P. 6.907.

Accordingly, we give respectful consideration to but are not bound by its

recommendations and findings. Krull, 860 N.W.2d at 43. An ethical

violation must be established by a convincing preponderance of the

evidence. In re Block, 816 N.W.2d 362, 364 (Iowa 2012); Stigler, 607

N.W.2d at 705 (Iowa 2000).

II. Factual Findings.

On our de novo review, we find the facts as follows. The Honorable

Mary E. Howes is a district court judge in the Seventh Judicial District of

Iowa. Judge Howes has not been disciplined in the past and has

dedicated most of her professional career to public service. Prior to

1993, she served for seven years as an assistant county attorney in Scott

County. From 1993 to 2000, she served as a magistrate in Scott County.

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From 2000 to 2006, she served as a district associate judge in the

seventh judicial district. She has served as a district court judge in the

seventh judicial district since September 2006.

Judge Howes petitioned for dissolution of her marriage to her

husband, Jack Henderkott, in June 2011. Maria Pauly represented

Judge Howes in the dissolution action, and Chad Kepros of Bray &

Klockau, P.L.C. represented Mr. Henderkott. The district court approved

the parties’ settlement agreement and entered a dissolution decree

incorporating that agreement in May 2012.

On April 16, 2013, Mr. Henderkott sent Judge Howes an email

indicating the Internal Revenue Service had deducted $3192 from his

2012 income tax return because she did not claim income she received

from liquidating an individual retirement account on the couple’s 2010

joint income tax return. Mr. Henderkott claimed he was entitled to

reimbursement in the full amount of the deduction per the terms of the

settlement agreement.

On May 2, Judge Howes responded by letter to Mr. Henderkott and

offered to reimburse half the amount deducted from his 2012 tax return

because she and Mr. Henderkott had filed a joint income tax return in

2010. Judge Howes’s letter stated she had discussed the issue with her

attorney, whom she identified as Ms. Pauly. It also indicated she was

mailing a copy of the letter to “Attorney Maria Pauly.” Judge Howes

enclosed two postdated checks for $798 each along with the letter.

On May 17, Mr. Kepros sent a letter regarding the tax issue to

Ms. Pauly. The letter advised Ms. Pauly that the settlement agreement

incorporated into the dissolution decree obligated Judge Howes to

reimburse the entire deduction. It also acknowledged the letter Judge

Howes had sent to Mr. Henderkott.

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Ms. Pauly delivered a copy of the letter she received from

Mr. Kepros to Judge Howes, and the two spoke in person about it at the

courthouse. Judge Howes advised Ms. Pauly she believed her payment

of half the amount deducted from Mr. Henderkott’s tax return satisfied

her obligations under the dissolution decree.

Ms. Pauly responded to the letter from Mr. Kepros on behalf of

Judge Howes on May 22. In the letter, Ms. Pauly indicated she had

spoken to Judge Howes, whom she referred to as her client. She also

reiterated Judge Howes’s position that her payment of half the amount

deducted from Mr. Henderkott’s 2012 tax return satisfied her obligations

under the decree because she and Mr. Henderkott had filed a joint

income tax return in 2010. In closing, the letter stated, “If you need

anything further, please contact me.”

Mr. Henderkott eventually cashed the two checks Judge Howes

had enclosed along with her response to his letter. After Ms. Pauly sent

the May 22 letter, Judge Howes never attempted to contact

Mr. Henderkott to confirm the tax dispute had been resolved. Rather,

during the two months that followed, neither Judge Howes nor Ms. Pauly

heard from either Mr. Henderkott or Mr. Kepros. On July 31, however,

Mr. Kepros sent another letter to Ms. Pauly indicating Mr. Henderkott

was prepared to file a contempt action if Judge Howes did not reimburse

the remaining amount deducted from his 2012 tax return.

On September 26, Daniel Bray, another attorney at Bray &

Klockau, sent Ms. Pauly a letter informing her that he had taken over

representation of Mr. Henderkott. Thereafter, Ms. Pauly began

corresponding with Mr. Bray about the tax dispute. However, Ms. Pauly

did not immediately inform Judge Howes she had received the letter from

Mr. Bray.

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On October 15, Mr. Henderkott filed an application for a finding of

contempt alleging Judge Howes’s failure to reimburse the full amount

deducted from his 2012 tax return constituted a willful violation of the

dissolution decree incorporating the settlement agreement. On

October 22, before the hearing to show cause had been set on the

application, Ms. Pauly sent Mr. Bray a letter stating Judge Howes would

reimburse Mr. Henderkott the remaining amount withheld from his 2012

tax return. Consequently, Mr. Henderkott dismissed the contempt

action. Ms. Pauly provided her legal services to Judge Howes free of

charge.

During the lull in correspondence concerning the postdissolution

tax dispute with her ex-husband, Judge Howes was involved in another

dissolution dispute in her official capacity as a judge. In that case,

Ms. Pauly represented petitioner Farrakh Khawaja in seeking dissolution

of his marriage to his wife, Shafaq Jadoon. The petition for dissolution of

marriage Ms. Pauly filed on behalf of Mr. Khawaja indicated the couple

had one child and requested the district court to grant joint legal custody

to both parties and primary physical care to Ms. Jadoon with liberal

visitation for Mr. Khawaja. With the consent of Mr. Khawaja, Ms. Jadoon

resided in Pakistan, though the petition inaccurately stated that she

resided in Oak Brook, Illinois.

The child, who had been residing in Pakistan with Ms. Jadoon,

stayed in the Quad Cities with Mr. Khawaja during the summer of 2013.

During the visit, Mr. Khawaja came to believe that Ms. Jadoon was

abusing the child and confronted her with his concerns. Eventually,

Mr. Khawaja asked Ms. Pauly to file an amended petition requesting the

district court to award him primary physical care of the child, which she

did on July 24.

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On the same day Ms. Pauly filed the amended petition, Ms. Jadoon

informed Mr. Khawaja that she was in the area and intended to retrieve

the child and return to Pakistan. Mr. Khawaja learned from the

employees at the summer program the child was attending that they

were obligated to release the child to Ms. Jadoon if she arrived there to

pick him up. Consequently, Ms. Pauly prepared an application for a

temporary injunction and a supporting affidavit on behalf of Mr. Khawaja

seeking to restrain Ms. Jadoon from removing the child to Pakistan. The

application alleged Ms. Jadoon had assaulted the child and threatened to

remove the child to Pakistan without Mr. Khawaja’s consent.

The following morning, the Honorable Mark Cleve, another district

court judge in the seventh judicial district, was the designated

assignment judge. As the designated assignment judge, Judge Cleve was

scheduled to hear unscheduled matters during two “order hours” from

8:30 a.m. to 9:00 a.m. and 1:30 p.m. to 2:00 p.m. Between the order

hours, Judge Cleve was scheduled to hear motions from 10:00 a.m. to

noon in fifteen-minute intervals.

By the time Ms. Pauly arrived at the courthouse on July 25 to

present the application for a temporary injunction to a judge, the

morning order hour was over and Judge Cleve was busy hearing

scheduled motions. Because the judges at the Scott County Courthouse

adhere to an open-door policy, Ms. Pauly proceeded to look for a different

judge to grant the temporary injunction. She soon discovered that every

judge in the courthouse that day had a full schedule, except for Judge

Howes, who had unexpectedly become available when the case she was

to hear that day had fallen off her schedule.

Ms. Pauly told Judge Howes her client had an emergency and

asked if she would be willing to consider the application for a temporary

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injunction. Judge Howes then reviewed the application and signed an

order temporarily enjoining both Ms. Jadoon and Mr. Khawaja from

removing their child from the area for thirty days and temporarily

enjoining Ms. Jadoon from removing the child from Mr. Khawaja.

After Judge Howes granted the temporary injunction, Ms. Jadoon

retained Lori Klockau and Daniel Bray of Bray & Klockau to represent

her. Shortly after Ms. Klockau learned that Judge Howes had signed the

order granting the temporary injunction against Ms. Jadoon, she learned

from her secretary that another attorney at Bray & Klockau had recently

written a letter to Ms. Pauly regarding the tax dispute between Judge

Howes and Mr. Henderkott. Because Ms. Klockau knew the tax dispute

was ongoing, she became concerned and shared her concerns with

Ms. Jadoon, who became distraught upon hearing that the same lawyer

who was representing her husband was representing the very judge who

had signed the order granting the temporary injunction.

On October 7, Ms. Klockau and Mr. Bray filed a complaint

regarding Judge Howes with the Iowa Commission on Judicial

Qualifications. On December 13, the Commission sent Judge Howes a

letter notifying her it had received the complaint and asking her to

provide it with a written explanation of her conduct and the

circumstances that led her to sign the order granting the temporary

injunction on July 25. The letter noted the Commission was especially

interested to learn whether Ms. Pauly was in fact representing Judge

Howes in her postdissolution tax dispute on the date Judge Howes

signed the order.

On January 6, 2014, Judge Howes responded by letter to the

Commission. In the letter, Judge Howes acknowledged Ms. Pauly had

represented her in her dissolution action and noted she had advised

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court administrative staff that Ms. Pauly could not appear before her

while her dissolution was ongoing. She also informed the Commission

she had not decided any matter in which Ms. Pauly represented a party

for approximately one year following entry of the dissolution decree.

With respect to the question of whether Ms. Pauly represented her

on July 25, Judge Howes advised the Commission she had not contacted

or hired Ms. Pauly upon being asked to reimburse the funds withheld

from Mr. Henderkott’s tax return in April 2013. Rather, she indicated

Ms. Pauly had called her in May 2013 upon receiving the letter from

Mr. Kepros and she had informed Ms. Pauly the matter was resolved

because she had already reimbursed half the withheld funds. Judge

Howes asserted that after Ms. Pauly had informed Mr. Kepros to this

effect, both she and Ms. Pauly had considered the matter to be resolved,

as neither heard anything more about it.

Judge Howes asserted she had reasonably believed Ms. Pauly was

not representing her in any dispute when she signed the order granting

the temporary injunction on July 25, as she had not believed she had an

unresolved dispute with Mr. Henderkott on that date. Moreover, Judge

Howes assured the Commission she would not have signed the order if

she had believed Ms. Pauly represented her at that time. Though she

forthrightly acknowledged another attorney, Dennis Jasper, had

appeared before her in the past despite having previously represented

her in another matter, she indicated she now realized that out of an

abundance of caution, Ms. Pauly should not appear before her in the

future. In closing, Judge Howes acknowledged the importance of

impartiality and stated she would never intentionally violate any ethical

rule or create an appearance of impropriety.

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On January 15, Judge Howes sent a second letter to the

Commission to correct a typographical error appearing in her January 6

letter. 1 In that letter, Judge Howes did not address the substance of the

complaint against her or the circumstances that led her to sign the order

granting the temporary injunction.

On September 25, the Commission issued a notice informing

Judge Howes it had charged her with violating rules 51:1.2 and

51:2.11(A) of the Iowa Code of Judicial Conduct because she failed to

disqualify herself from a judicial proceeding involving Ms. Pauly.

On March 30, 2015, the Commission issued a second notice

informing Judge Howes it had charged her with additional violations of

the Iowa Code of Judicial Conduct. The notice stated the Commission

had charged Judge Howes with violations of rules 51:1.1, 51:1.2, and

51:2.16(A) because statements in her letter to the Commission

contradicted statements in her correspondence with Mr. Henderkott.

The notice further stated the Commission had charged Judge Howes with

violations of rules 51:1.1, 51:1.2, and 51:3.13(A) because she accepted

free legal services from Ms. Pauly and Mr. Jasper.

During a hearing before the Commission, Judge Howes and

Ms. Pauly acknowledged they had an attorney–client relationship when

Ms. Pauly sent the May 22 letter. But Judge Howes and Ms. Pauly

testified they had not believed the tax dispute was ongoing on July 25

when Judge Howes signed the order granting the temporary injunction.

In addition, Judge Howes testified that both Ms. Pauly and Mr. Jasper

refused her offers for payment for their legal services, but she

1Judge Howes’s first letter to the Commission mistakenly indicated she had

served as an associate district judge from 1994 to 2000. She actually served as an

associate district judge from 1993 to 2000.

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acknowledged she accepted their services without entering into fee

agreements in advance. Ms. Pauly confirmed she refused to accept

payment for her services from Judge Howes, but she noted that Judge

Howes paid the filing fee associated with filing her dissolution petition.

Following the hearing, the Commission filed an application for

discipline of Judge Howes with this court. See Iowa Code § 602.2106. In

the application, the Commission concluded Judge Howes violated rules

51:1.1, 51:1.2, and 51:2.11(A) as well as canons 1 and 2 of the Iowa

Code of Judicial Conduct when she failed to disqualify herself from

deciding whether to grant the temporary injunction. The Commission

also concluded Judge Howes violated rules 51:1.1, 51:1.2, and 51:3.13(A)

as well as canons 1 and 3 of the Iowa Code of Judicial Conduct when she

accepted gifts of free legal services from Ms. Pauly and Mr. Jasper.

However, the Commission concluded Judge Howes did not violate rules

51:1.1, 51:1.2, or 51:2.16(A) by failing to be candid and honest in her

letter of explanation regarding the circumstances that led her to sign the

order granting the temporary injunction. The Commission recommended

this court publicly reprimand Judge Howes for her conduct.

III. Discussion and Analysis.

The Iowa Code of Judicial Conduct contains four canons, each of

which states “overarching principles of judicial ethics that all judges

must observe.” Iowa Code of Judicial Conduct, Scope [2]. Following

each canon is a series of rules that more specifically defines the conduct

the canon prohibits. Block, 816 N.W.2d at 364. Comments

accompanying those rules serve two important purposes. Iowa Code of

Judicial Conduct, Scope [3]. “First, they provide guidance regarding the

purpose, meaning, and proper application of the rules,” including

explanatory examples of permitted and prohibited conduct. Id. Second,

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they “identify aspirational goals for judges.” Id. at [4]. “Comments

neither add to nor subtract from the binding obligations set forth in the

rules.” Id. at [3].

The Commission charged Judge Howes with violating rules

contained in canons 1, 2, and 3 of the Iowa Code of Judicial Conduct,

including rules 51:1.1, 51:1.2, 51:2.11(A), 51:2.16(A), and 51:3.13(A).

We will consider each charged violation separately.

A. Rule 51:2.11(A) and Canon 2. We first consider whether

Judge Howes violated rule 51:2.11(A) and canon 2 of the Iowa Code of

Judicial Conduct by failing to disqualify herself from deciding a matter in

which Ms. Pauly represented a party.

1. Governing legal principles. Canon 2 of the Iowa Code of Judicial

Conduct provides that “a judge shall perform the duties of judicial office

impartially, competently, and diligently.” Id., Canon 2. Rule 51:2.11

governs circumstances under which canon 2 requires a judge to recuse

himself or herself from a judicial proceeding. In relevant part, it

provides,

(A) A judge shall disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably

be questioned, including but not limited to the following

circumstances:

(1) The judge has a personal bias or prejudice

concerning a party or a party’s lawyer . . . .

....

(C) A judge subject to disqualification under this rule,

other than for bias or prejudice under paragraph (A)(1), may

disclose on the record the basis of the judge’s

disqualification and may ask the parties and their lawyers to

consider, outside the presence of the judge and court

personnel, whether to waive disqualification. If, following the

disclosure, the parties and lawyers agree, without

participation by the judge or court personnel, that the judge

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should not be disqualified, the judge may participate in the

proceeding . . . .

Id. r. 51:2.11 (emphasis added). The Iowa Code of Judicial Conduct

defines “impartiality” as the “absence of bias or prejudice in favor of, or

against, particular parties . . . as well as maintenance of an open mind in

considering issues.” Id., Terminology.

Under rule 51:2.11(A), judicial disqualification is ordinarily

mandatory, rather than discretionary, when the impartiality of a judge

might reasonably be questioned if he or she were to decide a particular

matter. The rule’s mandatory nature is clear from its language, which

provides a judge “shall disqualify himself or herself” from deciding a

matter whenever his or her impartiality might reasonably be questioned.

Id. r. 51:2.11(A); see, e.g., State v. Luckett, 387 N.W.2d 298, 301 (Iowa

1986). The mandatory nature of the rule is also evident from its

structure, as the rule includes an expressly nonexclusive list of

circumstances in which a judge’s impartiality might reasonably be

questioned. See Iowa Code of Judicial Conduct R. 51:2.11(A). A

comment clarifies that the “obligation not to hear or decide matters in

which disqualification is required applies regardless of whether a motion

to disqualify is filed.” Id. r. 51:2.11 cmt. 2.

However, a comment to rule 51:2.11 encourages a judge

contemplating whether the rule mandates recusal because his or her

impartiality might reasonably be questioned to “disclose on the record

information that the judge believes the parties or their lawyers might

reasonably consider relevant to a possible motion for disqualification,

even if the judge believes there is no basis for disqualification.” Id. r.

51:2.11 cmt. 5. When a judge makes such disclosures and the parties

waive disqualification, the judge may proceed to hear the matter

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regardless of whether a basis for disqualification actually existed, unless

the basis for disqualification was “personal bias or prejudice concerning

a party or a party’s lawyer, or personal knowledge of facts that are in

dispute in the proceeding.” Id. r. 51:2.11(A)(1), (C). Accordingly, in

practice rule 51:2.11 does not require a judge to determine whether

disqualification is actually required because his or her impartiality might

reasonably be questioned so long as the judge discloses any possible

basis for disqualification to the parties before hearing a matter and

obtains their consent to proceed. 2

Another comment to rule 51:2.11 provides that necessity may

override the disqualification requirement under limited circumstances.

Id. r. 51:2.11 cmt. 3. More specifically, it provides,

The rule of necessity may override the rule of

disqualification. For example, a judge might be required to

participate in judicial review of a judicial salary statute, or

might be the only judge available in a matter requiring

immediate judicial action, such as a hearing on probable

cause or a temporary restraining order. In matters that

require immediate action, the judge must disclose on the

record the basis for possible disqualification and make

reasonable efforts to transfer the matter to another judge as

soon as practicable.

Id. As contemplated in this comment, the “rule of necessity” eliminates

the disqualification requirement if no judge lacking the same basis for

disqualification exists or if a matter requires immediate action and no

judge lacking some basis for disqualification is available.

Although disqualification is generally mandatory under rule

51:2.11(A)(1) when a judge has a personal bias or prejudice in favor of, or

against, a party or a party’s lawyer, rule 51:2.11 does not presume actual

2When a party does not agree to waive disqualification and moves for

disqualification, however, the judge must decide whether disqualification is required.

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personal bias or prejudice on the part of a judge merely because a party’s

lawyer currently represents or previously represented the judge in an

unrelated matter. Rather, disqualification is required based on an

existing or former attorney–client relationship between the judge and a

party’s lawyer only when “the judge’s impartiality might reasonably be

questioned” due to that relationship. See id. r. 51:2.11(A).

The standard for determining whether judicial recusal is required

under rule 51:2.11(A) because “the judge’s impartiality might reasonably

be questioned” is objective, not subjective. State v. Mann, 512 N.W.2d

528, 532 (Iowa 1994) (addressing nearly identical language in the prior

version of rule 51:2.11). In other words, the test is not whether the judge

actually questions his or her own impartiality, “but whether a reasonable

person would question it.” Krull, 860 N.W.2d at 44 (quoting Mann, 512

N.W.2d at 532). Proving scienter is not necessary to establish a violation

of the rule. Mann, 512 N.W.2d at 532. Rather, the appropriate inquiry is

whether a reasonable person with knowledge of all the facts might have a

reasonable basis for questioning the judge’s impartiality such that the

judge deciding a matter would create an appearance of impropriety. See

id.

In considering whether a judge has violated rule 51:2.11(A),

“drawing all inferences favorable to the honesty and care of the judge

whose conduct has been questioned could collapse the appearance of

impropriety standard . . . into a demand for proof of actual impropriety.”

Rosado v. Bridgeport Roman Catholic Diocesan Corp., 970 A.2d 656, 669

(Conn. 2009) (quoting United States v. Jordan, 49 F.3d 152, 157 (5th Cir.

1995)) (describing the appropriate standard under a nearly identical

rule). Recusal is required under rule 51:2.11(A) when a reasonable

person might reasonably doubt the judge’s impartiality because the rule

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anticipates “that people who have not served on the bench are often all

too willing to indulge suspicions and doubts concerning the integrity of

judges.” Mann, 512 N.W.2d at 532 (quoting Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 864–65, 108 S. Ct. 2194, 2205, 100

L. Ed. 2d 855, 875 (1988)). Thus, rule 51:2.11(A) operates “to promote

public confidence in the integrity of the judicial process.” Id. at 533.

There can be no serious doubt a reasonable person who knows an

attorney appearing before a judge currently represents the judge in a

personal matter would have a reasonable basis for questioning the

judge’s impartiality. 3 See, e.g., Berry v. Berry, 765 So. 2d 855, 858 (Fla.

Dist. Ct. App. 2000). “If the attorney in this instance represents the

judge in a pending action, the other party may question the judge’s

impartiality, even if the resolution of the case appears fair to the public

in general.” Charles Gardener Geyh, et al., Judicial Conduct and Ethics

§ 4.14[3], at 4-60 (5th ed. 2013).

Nonetheless, “if an attorney appearing before the judge represented

the judge only in the past, the concerns about partiality are not so

acute.” Id. at 4-61. Thus, the question of whether a reasonable person

might perceive a reasonable basis for questioning a judge’s impartiality

becomes a closer one when an attorney appearing before the judge

represented the judge only in the past.

Like the Model Code of Judicial Conduct, the Iowa Code of Judicial

Conduct prescribes no specific time period during which a judge must

disqualify himself or herself from deciding a matter based solely on his or

3In this case, Judge Howes decided a matter in which a party was represented

by an attorney who currently or previously represented her in a personal matter. We

need not decide whether or under what circumstances disqualification is required

under rule 51:2.11(A) based on an attorney’s representation of a judge in a matter

concerning the judge’s official acts.

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her former attorney–client relationship with an attorney who presently

represents a party appearing before the judge in an unrelated matter.

Compare Model Code of Judicial Conduct R. 2.11(A) (Am. Bar Ass’n

2011), with Iowa Code of Judicial Conduct R. 51:2.11(A). Nor do existing

authorities discussing the circumstances in which a judge must

disqualify himself or herself based on the judge’s former representation

by a party’s attorney reveal a clear consensus. See Powell v. Anderson,

660 N.W.2d 107, 117 & n.8 (Minn. 2003). Courts generally agree that

once significant time has passed since the conclusion of a former

attorney–client relationship between a judge and a party’s attorney, any

appearance of bias or impropriety arising therefrom is insufficient to

warrant disqualification. See, e.g., Noland v. Noland, 932 S.W.2d 341,

342–43 (Ark. 1996) (three years); In re Disqualification of Park, 28 N.E.3d

56, 58 (Ohio 2014) (sixteen years); Young v. Young, 971 S.W.2d 386, 390

(Tenn. Ct. App. 1997) (ten years). In contrast, most courts and judicial

ethics commissions to consider the disqualification issue in the context

of a judge’s recent representation by a party’s attorney appear to have

adopted one of two approaches to determining whether a reasonable

person would conclude the prior representation might constitute a

reasonable basis for questioning the judge’s impartiality.

Under the first approach, the question of whether judicial

disqualification is required based on a former attorney–client relationship

between a judge and an attorney representing a party in an unrelated

matter turns primarily on how much time has passed since the

relationship ended. Among commissions adopting this approach,

however, disagreement exists as to how much time must pass before a

former attorney–client relationship no longer constitutes a reasonable

basis for questioning the judge’s impartiality. See, e.g., N.Y. Advisory

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Comm. on Judicial Ethics, Joint Op. 08-171/08-174 (2009),

www.nycourts.gov/ip/judicialethics/opinions/08-171and%2008-

174.htm (two years); Utah Judicial Conduct Comm., Joint Op. 00-4

(2000), www.utcourts.gov/resources/ethadv/ethics_opinions/2000/00-

4.htm (six months). Moreover, some commissions endorse a variant of

this approach whereby a judge must consider whether the circumstances

make continued disqualification appropriate after the requisite time

during which disqualification is required has passed. See, e.g., Colo.

Judicial Ethics Advisory Bd., Advisory Op. 2006-05 (2006),

www.courts.state.co.us/userfiles/File/Court_Probation/Supreme_Court/

Committees/Judicial_Ethics_Advisory_Board/opinion2006-05_1.pdf (one

year unless circumstances such as the length, nature, extent, cost, and

recency of the representation make continued disqualification

appropriate); N.C. Judicial Standards Comm’n, Formal Op. 2011-02

(2011), www.aoc.state.nc.us/www/public/coa/jsc/formaladvisoryopini

ons/11-02.pdf (six months unless circumstances such as the length,

nature, extent, cost, and recency of the representation make continued

disqualification appropriate).

Under a second approach recently adopted by the supreme courts

of Minnesota and Mississippi, a reviewing court should generally weigh

four factors to determine whether a former attorney–client relationship

between a judge and an attorney requires the judge to disqualify himself

or herself. Powell, 660 N.W.2d at 118; Washington Mut. Fin. Grp., LLC v.

Blackmon, 925 So. 2d 780, 791 (Miss. 2004). Under this approach, a

reviewing court should determine whether recusal was required by

considering (1) the extent of the attorney–client relationship; (2) the

nature of the representation; (3) the frequency, volume, and quality of

the contacts between the judge and the attorney; and (4) special

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circumstances that might enhance or diminish the likelihood that the

judge deciding a matter in which a party is represented by the attorney

might reasonably create an appearance of impropriety from the

perspective of the public. Powell, 660 N.W.2d at 118; Blackmon, 925 So.

2d at 791.

Similarly, the American Bar Association Standing Committee on

Ethics and Professional Responsibility advises that several factors

influence whether judicial disqualification is required based on an

attorney’s former representation of a judge because “a reasonable person

would believe, in light of the time that had elapsed, that the judge’s

fairness and impartiality could still be questioned.” ABA Comm. on

Ethics & Prof’l Responsibility, Formal Op. 07-449 (2007). According to

the committee, these factors include (1) whether the matter was

consequential or relatively inconsequential; (2) the size of the fee the

judge paid to the attorney; (3) whether the representation concerned an

isolated matter or several matters over time; and (4) whether the

representation concerned a matter that was highly confidential or highly

publicized. Id.

In 1989, the Iowa Supreme Court Board of Professional Ethics and

Conduct addressed this issue in an advisory opinion intended for the

benefit of practicing attorneys within the state. See Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct, Op. 90-47 (1991). The opinion advised an

attorney may not properly appear before a judge for a period of one year

following the performance of “actual legal activities” on the judge’s behalf

by the attorney or the attorney’s firm. Id.

Nevertheless, this court has never determined the precise

circumstances under which rule 51:2.11(A) requires a judge to disqualify

himself or herself in a matter in which an attorney with whom the judge

19

once had an attorney–client relationship represents a party. We

conclude that we need not do so today. Under our existing precedents

interpreting the language in rule 51:2.11(A), it is clear that a judge who

fails to disqualify himself or herself from a proceeding in which an

attorney who recently represented the judge in a personal matter

represents a party violates rule 51:2.11(A) unless the judge complies with

rule 51:2.11(C) by disclosing the relevant facts to and obtaining a

disqualification waiver from both parties in advance. 4 See Bride v.

Heckart, 556 N.W.2d 449, 455 (Iowa 1996) (relying on a prior

interpretation of the language in the prior version of rule 51:2.11(A));

Forsmark v. State, 349 N.W.2d 763, 767–69 (Iowa 1984) (interpreting

language in the prior version of rule 51:2.11(A)). Indeed, we have long

expected trial judges to follow the procedures contained in rule

51:2.11(C) and comment 5 before deciding a matter when a possible

basis for recusal exists in order to permit the parties to determine

whether to request disqualification.

In Forsmark, we considered an appeal from a district court

judgment denying a motion to vacate a judgment in a medical-negligence

action. 5 349 N.W.2d at 765. The plaintiffs had filed the motion to vacate

the judgment upon discovering the estate of the trial judge’s brother had

a pending wrongful-death action against the plaintiffs’ chief medical

witness. Id. The trial judge found in the defendant’s favor without ever

4Of course, trial judges frequently recuse themselves from proceedings without

notifying the parties of their basis for doing so upon being designated by court

administration to hear a case.

5Although not relevant for purposes of our analysis, we note the trial judge who

failed to disclose the possible basis for his disqualification during the trial recused

himself from deciding the motion to vacate the judgment. Forsmark, 349 N.W.2d at

765.

20

disclosing this fact to the plaintiffs. Id. The plaintiffs asserted the trial

judge’s failure to recuse himself constituted an irregularity in the

obtaining of the judgment that amounted to a basis for vacating it under

our rules of civil procedure. Id.

We determined it was neither practical nor necessary to determine

whether the trial judge was required to recuse himself in order to decide

the appeal. Id. at 768. In doing so, we reasoned,

No meaningful way existed after trial to reconstruct how the

issue would have been resolved before trial. The judge failed

before trial to disclose facts creating a substantial and

serious issue concerning his duty to disqualify himself. As a

result plaintiffs were denied an opportunity to raise the issue

or be heard on it.

Id. Accordingly, the precise question before us was not whether recusal

was in fact required, though we acknowledged the judge “should have

known that a party in plaintiffs’ position might question his impartiality.”

Id.

Ultimately, we concluded the trial judge’s failure to disclose the

possible basis for disqualification constituted an irregularity in obtaining

the judgment within the meaning of our rules of civil procedure because

it denied plaintiffs the opportunity to raise or be heard on the potential

basis for disqualification. Id. at 767–68. Accordingly, because we

determined the plaintiffs presented sufficient evidence to generate an

issue for the trier of fact, we vacated the district court order denying their

motion to vacate the judgment. Id. at 768–69.

Years later, in Bride, we considered another appeal based on a trial

judge’s failure to disclose a basis for disqualification to the parties

appearing before him. 556 N.W.2d at 455. Specifically, the trial judge

had failed to disclose that less than two years prior to the start of the

21

trial he was represented by the same law firm that represented a party

appearing before him. Id. Relying on language in the prior version of

rule 51:2.11(A) nearly identical to that appearing in the current version

of the rule, we concluded the trial judge’s failure to disclose the basis for

disqualification was error. Id. In doing so, we reasoned the trial judge’s

mere nondisclosure constituted error because it deprived the party before

him an opportunity to make a timely request for disqualification. Id.

Thus, based in part on the trial judge’s failure to disclose his former

attorney–client relationship with a party’s attorney, we reversed a district

court decision denying a motion to vacate the judgment. Id.

Neither of these cases required us to decide whether judicial

discipline was appropriate. See Bride, 556 N.W.2d at 455 (appeal based

on a trial judge’s failure to disclose a possible basis for disqualification);

Forsmark, 349 N.W.2d at 767–69 (appeal based on a trial judge’s failure

to disqualify himself). Yet, in Bride, we implicitly acknowledged a

reasonable person might question the impartiality of a judge who

presides over a proceeding in which an attorney who recently represented

the judge in a personal matter appears without disclosing that fact to the

parties. See Bride, 556 N.W.2d at 455 (“The judge should have known

that, based on his recent, prior representation by defense counsel’s law

firm, a party in plaintiff's position might question his impartiality.”).

When a basis for disqualification exists because a reasonable

person knowing all the facts might reasonably question a trial judge’s

impartiality, the judge must either disqualify himself or herself pursuant

to rule 51:2.11(A) or disclose the relevant facts and obtain a waiver of the

22

disqualification requirement from the parties under rule 51:2.11(C). 6 If

the judge wishes to hear a matter despite the existence of a possible

basis for disqualification, the judge should “disclose on the record

information that the judge believes the parties or their lawyers might

reasonably consider relevant to a possible motion for disqualification” in

order to assure the parties have an opportunity to raise and be heard on

the potential basis for disqualification. Iowa Code of Judicial Conduct R.

51:2.11(C) & cmt. 5; see Bride, 556 N.W.2d at 455; Forsmark, 349

N.W.2d at 767–68. When it is debatable whether a basis for

disqualification actually exists, the best practice is for the judge to

disclose all the relevant facts to the parties “even if the judge believes

there is no basis for disqualification.” Iowa Code of Judicial Conduct R.

51:2.11 cmt. 5. If the parties thereafter waive disqualification, the judge

may then decide the matter. Id. r. 51:2.11(C).

6We note the section of the Iowa Code addressing the circumstances under

which a judicial officer is disqualified also emphasizes the importance of disclosure in

this context. In relevant part, the Code provides,

1. A judicial officer is disqualified from acting in a proceeding,

except upon the consent of all of the parties, if any of the following

circumstances exists:

a. The judicial officer has a personal bias or prejudice concerning

a party, or personal knowledge of disputed evidentiary facts concerning

the proceeding.

....

2. A judicial officer shall disclose to all parties in a proceeding

any existing circumstances in subsection 1, paragraphs “a” through “d”,

before the parties consent to the judicial officer’s presiding in the

proceeding.

Iowa Code § 602.1606(1)(a), (2). Unlike rule 51:2.11(A) of the Iowa Code of Judicial

Conduct, Iowa Code section 602.1606(1) does not mandate judicial disqualification

merely because a judge’s impartiality might reasonably be questioned. Rather, section

602.1606(1) provides an exclusive list of circumstances under which disqualification or

disclosure and waiver is required. See Iowa Code § 602.1606(1).

23

2. Application of legal principles. Notably, Judge Howes recognized

she could not preside over any matter in which an attorney who was

currently representing her represented a party. Judge Howes and

Ms. Pauly testified that no attorney–client relationship existed between

them on July 25 when Judge Howes signed the order granting the

temporary injunction Ms. Pauly sought on behalf of Mr. Khawaja.

Despite this testimony, the Commission concluded Judge Howes

was obligated to disqualify herself from any case in which Ms. Pauly was

representing a party when she signed the order even if Ms. Pauly was not

currently representing her. More precisely, the Commission determined

that under either approach described above, Judge Howes was obligated

to disqualify herself from deciding whether to grant the temporary

injunction because Judge Howes and Ms. Pauly admitted they had an

attorney–client relationship in May 2013.

“Generally, in a civil action, once the period for motions and

appeals expires, the lawyer’s representation of his or her client ends.”

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 814 N.W.2d 532, 538

(Iowa 2012); see 16 Gregory C. Sisk & Mark S. Cady, Iowa Practice

Series: Lawyer and Judicial Ethics § 5:3(e), at 181 (2015) (“If the lawyer

has been retained to represent the client with respect to a specific

matter, the attorney–client relationship ends with the completion of legal

services for that matter, and the lawyer has no ongoing responsibility to

address other legal concerns of the client.”). Accordingly, we recognize

Judge Howes and Ms. Pauly did not have an ongoing attorney–client

relationship extending from the entry of the dissolution decree in May

2012 to the date in May 2013 on which Ms. Pauly sent the letter to

Mr. Kepros.

24

Nonetheless, Judge Howes does not dispute that Ms. Pauly

represented her in two highly confidential personal matters within the

two years preceding the date on which she signed the ex parte order

granting the temporary injunction that Ms. Pauly sought on behalf of her

client. Nor does Judge Howes dispute that she and Ms. Pauly shared an

attorney–client relationship when Ms. Pauly sent the letter to Mr. Kepros

on her behalf just two months before she signed that order.

Furthermore, Judge Howes does not deny that she did not pay for the

legal services Ms. Pauly provided.

Given these facts, we agree with the Commission that it is

unnecessary to decide the precise standard that governs determinations

as to whether disqualification is required under rule 51:2.11(A) based on

a former attorney–client relationship between a judge and an attorney

appearing before the judge in this case. Instead, we conclude a

reasonable person with knowledge of all the facts on July 25 might have

had a reasonable basis for questioning Judge Howes’s impartiality when

she signed the ex parte order even if Judge Howes did not have an

ongoing attorney–client relationship with Ms. Pauly on that date. 7 See

Bride, 556 N.W.2d at 455; see also Mann, 512 N.W.2d at 532. When an

attorney who contemporaneously represents or recently represented a

judge in a personal matter appears before the judge in another case and

the judge does not disclose that fact to the parties, the judge’s

impartiality might reasonably be questioned.

Accordingly, unless Judge Howes disclosed all the facts relevant to

her representation by Ms. Pauly to the parties and obtained a waiver of

7Under these facts and our caselaw, we find it unnecessary to determine

whether the attorney–client relationship Judge Howes and Ms. Pauly shared in May

2013 was ongoing when Judge Howes signed the ex parte order.

25

the disqualification requirement under rule 51:2.11(C), she was required

to disqualify herself from deciding whether to grant the application for a

temporary injunction under rule 51:2.11(A) so long as the rule of

necessity did not apply. Under our caselaw interpreting the language of

rule 51:2.11, Judge Howes was required to disclose to the parties every

relevant fact concerning her representation by Ms. Pauly before signing

the order, including the fact that she did not pay for the legal services

Ms. Pauly provided, in order to assure the parties received an

opportunity to file and be heard on a motion seeking her disqualification

unless she actually disqualified herself. See Bride, 556 N.W.2d at 455;

see also Forsmark, 349 N.W.2d at 768–69.

Thus, because Judge Howes signed the order granting the

temporary injunction ex parte, we agree with the Commission that her

inability to disclose the facts concerning her representation by Ms. Pauly

to Ms. Jadoon or Ms. Jadoon’s counsel obligated her to recuse herself

unless the rule of necessity excused her from the sua sponte

disqualification requirement.

3. Governing legal principles concerning the rule of necessity. The

rule of necessity constitutes an exception to the general rule obligating a

judge to disqualify himself or herself from any judicial proceeding in

which his or her impartiality might reasonably be questioned. Iowa Code

of Judicial Conduct R. 51:2.11 cmt. 3. Because the disqualification rule

rests on sound public policy, the rule of necessity is strictly construed.

State ex rel. Brown v. Dietrick, 444 S.E.2d 47, 55 (W. Va. 1994). Thus,

although necessity may afford a judge who would otherwise be

disqualified the power to hear a case, necessity extends such power only

when the occasion truly requires.

26

Although the rule of necessity has its genesis in the common law,

state and federal courts alike recognize its continued vitality in modern

times. United States v. Will, 449 U.S. 200, 213, 101 S. Ct. 471, 480, 66

L. Ed. 2d 392, 405 (1980). The common law tradition has “long regarded

the absence of an appropriate forum in which to resolve a legitimate case

to be intolerable.” Bd. of Trs. of Pub. Emps’ Ret. Fund v. Hill, 472 N.E.2d

204, 206 (Ind. 1985). The rule of necessity thus reflects the longstanding

principle that to deny an individual access to courts for the vindication of

his or her rights constitutes a far more egregious wrong than to permit a

judge to hear a matter in which he or she has some interest. See

Weinstock v. Holden, 995 S.W.2d 408, 410 (Mo. 1999) (en banc) (per

curiam).

When the matter to be decided affects the interests of every judge

qualified to hear it, the rule of necessity clearly applies “without resort to

further factual development.” State ex rel. Hash v. McGraw, 376 S.E.2d

634, 639 (W. Va. 1988) (McGraw, J., noting his disqualification). The

theory on which the rule rests when such circumstances arise is that

“where all are disqualified, none are disqualified.” Ignacio v. Judges of

U.S. Ct. of Appeals for Ninth Circuit, 453 F.3d 1160, 1165 (9th Cir. 2006)

(quoting Pilla v. Am. Bar Ass’n., 542 F.2d 56, 59 (8th Cir. 1976)). Courts

ordinarily invoke the rule of the necessity in such circumstances because

disqualifying every judge with an interest in the matter to be decided

would leave the parties with no court in which to resolve a dispute. See,

e.g., id. (applying the rule because a litigant sued all the judges in a

federal circuit); Hill, 472 N.E.2d at 206 (applying the rule to consider a

challenge to a statutory amendment affecting judicial retirement

benefits); Weinstock, 995 S.W.2d at 410 (applying the rule to consider a

resolution affecting judicial pay). Similarly, the rule of necessity has

27

been invoked to prevent an attorney who represented every judge within

a jurisdiction from having no court in which to practice. See Reilly by

Reilly v. Se. Pa. Transp. Auth., 489 A.2d 1291, 1295 (Pa. 1985).

The rule of necessity contemplated in comment 3 to rule 51:2.11(A)

is broader than the common law rule in that it may also override the

disqualification obligation of a judge who is “the only judge available in a

matter requiring immediate judicial action” when certain conditions are

met. Iowa Code of Judicial Conduct R. 51:2.11(A) cmt. 3. Nonetheless,

the rule of necessity applies on this basis only when (1) the matter to be

decided requires “immediate judicial action,” (2) the judge is “the only

judge available” to decide it, (3) the judge “disclose[s] on the record the

basis for possible disqualification,” and (4) the judge makes “reasonable

efforts to transfer the matter to another judge as soon as practicable.”

Id.

A judge has an affirmative obligation to assure deciding a matter is

in fact necessary before relying on the rule of necessity to excuse a duty

of disqualification based on the unavailability of another judge. To

establish necessity excused a disqualification requirement, a judge must

show he or she made reasonable efforts to transfer the particular matter

to which it applied to another judge “as soon as practicable.” Id. It

follows that when a judge learns it is practicable to transfer a matter

from which he or she would ordinarily be disqualified to another judge

before considering it, the rule of necessity does not permit the judge to

consider it. Stated another way, a judge with a duty of disqualification

can only show he or she was the only judge available to decide a matter

requiring immediate attention when the evidence shows it was not

practicable for the judge to transfer the matter to another judge before

deciding it. Thus, under such circumstances, a judge must assess

28

whether any available options for transferring the matter to another

judge satisfies the degree of urgency called for before relying on the rule

of necessity.

4. Application of the rule of necessity. Judge Howes contends the

rule of necessity excused her from any duty she had to disqualify herself

from deciding whether to grant the temporary injunction. We agree with

Judge Howes that an application for a temporary injunction is the sort of

matter that may require immediate judicial attention. 8 But we conclude

the circumstances existing when Judge Howes signed the ex parte order

did not excuse her from disqualification based on necessity for two

reasons. 9

First, we are not persuaded that Judge Howes was the only judge

available to consider the application for a temporary injunction. The

record indicates at least six or seven of the eight district court judges

with chambers in the Scott County Courthouse were present on the

morning Ms. Pauly presented the ex parte application to Judge Howes.

Judge Howes presented evidence revealing that every judge present in

the courthouse when she signed the order granting the temporary

injunction had a full morning according to the assignment schedule.

However, we conclude this evidence, though relevant, was insufficient to

conclude necessity excused her failure to disqualify herself from

considering the ex parte application for the injunction.

8Because we decide necessity did not excuse Judge Howes from disqualification

on other grounds, we do not address whether the application Ms. Pauly presented to

her warranted a conclusion that the requisite degree of urgency existed.

9Similarly, because we conclude necessity did not excuse Judge Howes from

disqualification on other grounds, we need not decide whether necessity may excuse a

judge’s duty of disqualification without advance disclosure of the basis for

disqualification to the party not present in an ex parte proceeding permitted by law if

disclosure is made on the record during that proceeding.

29

Ample testimony indicated the assignment schedule often included

matters that had fallen off the schedule because they settled at the last

minute. That was precisely the reason Judge Howes was available the

morning she considered the application for a temporary injunction

despite the assignment schedule indicating she would not be.

Additionally, the evidence demonstrated the assignment judge was

scheduled to hear motions in fifteen-minute intervals for the remainder

of the morning following the morning order hour. Thus, the evidence

unequivocally established not only that at least one judge present in the

courthouse was not in the midst of a jury trial, but also that it would be

possible to interrupt that judge to request that he consider an emergency

matter within fifteen minutes. We are confident any judge who had been

informed by Judge Howes or a court administrator that he or she was the

only judge without a conflict available to consider an emergency

application for a temporary injunction would have agreed to take five

minutes to consider it.

Moreover, we note Judge Howes presented no evidence to suggest

she attempted to verify she was the only judge available before

considering the application for a temporary injunction. Because there

were at least a half dozen judges in the courthouse that morning, it was

not obvious that necessity permitted Judge Howes to consider the

application despite her conflict, as might have been the case had she

been the only judge in the courthouse. Yet the record reflects no

evidence suggesting Ms. Pauly told Judge Howes she had attempted to

present the application to the other judges in the courthouse. Nor does

the record reveal any evidence suggesting Judge Howes asked Ms. Pauly

if she had done so. In fact, the record reflects no evidence suggesting

30

Judge Howes consulted the assignment schedule or called the court

administrator before considering the application.

Second, we are not persuaded that Judge Howes made reasonable

efforts to transfer the matter to another judge or considered whether

transfer was practicable under the circumstances before considering it.

The record reveals no evidence suggesting Judge Howes attempted to

assess whether transfer was practicable under the circumstances. There

was no evidence suggesting Judge Howes investigated the degree of

urgency called for by questioning Ms. Pauly. 10 Nor did the evidence

suggest Judge Howes checked with the court administrator or the clerks

in the chambers of any of the other judges before deciding to consider

the application herself. During her testimony before the Commission,

Judge Howes acknowledged that, given the nature of the application, it

was immediately apparent to her that considering it would take mere

minutes. Thus, in light of the many other judges present in the

courthouse, Judge Howes had no basis for concluding transfer to

another judge was wholly impracticable without some investigation.

Under these circumstances, we conclude her failure to investigate and

her failure to attempt to find another judge to consider the ex parte

application fatally undermine her claim of necessity.

Our research has not uncovered a single case in which a judge

successfully invoked the rule of necessity under similar circumstances.

See Huffman v. Ark. Judicial Discipline & Disability Comm’n, 42 S.W.3d

386, 393 (Ark. 2001) (concluding there was no showing of necessity when

it was unclear a party seeking a temporary restraining order could not

10For example, had Judge Howes questioned Ms. Pauly, she might have learned

that Ms. Pauly prepared the application for a temporary injunction the night before yet

arrived at the courthouse after the morning order hour had ended.

31

have waited “until another judge could be found” or been sent to the

chambers of a judge on the bench in the same courthouse “to wait for

him to take a recess or otherwise become available”). Unless necessity is

evident from the circumstances, a judge may not invoke the rule of

necessity to circumvent his or her duty of disqualification without first

attempting to determine whether transfer was practicable under the

circumstances.

The record in this case does not support a finding that necessity

was evident from the circumstances existing when Judge Howes

considered the application for a temporary injunction. Nor does the

record support a finding that Judge Howes determined transfer of the

matter to another judge was impracticable. Therefore, we conclude the

rule of necessity did not excuse Judge Howes from the duty of

disqualification that arose due to her attorney–client relationship with

Ms. Pauly. Accordingly, we agree with the Commission that Judge

Howes violated rule 51:2.11(A) and canon 2 of the Iowa Code of Judicial

Conduct when she decided whether to grant the application for a

temporary injunction Ms. Pauly presented to her on July 25, 2013.

B. Rule 51:3.13(A) and Canon 3. We next consider whether

Judge Howes violated rule 51:3.13(A) and canon 3 of the Iowa Code of

Judicial Conduct by failing to minimize the risk of conflict with her

judicial obligations and accepting gifts of free legal services from

Mr. Jasper and Ms. Pauly.

1. Governing legal principles. Canon 3 of the Iowa Code of Judicial

Conduct provides that “a judge shall conduct the judge’s personal and

extrajudicial activities to minimize the risk of conflict with the obligations

of judicial office.” Because judges accepting gifts creates a risk of conflict

with their judicial obligations, rule 51:3.13 limits the circumstances

32

under which a judge may accept a gift or thing of value from another

person.

First, rule 51:3.13(A) sets forth two considerations a judge must

take into account before accepting any gift or thing of value. It provides,

“A judge . . . shall not accept or solicit any gift, loan, bequest, benefit, or

other thing of value, if acceptance is prohibited by law or would appear to

a reasonable person to undermine the judge’s independence, integrity, or

impartiality.” Iowa Code of Judicial Conduct R. 51:3.13(A). Under this

rule, a judge may not accept a gift or thing of value in violation of the

state gift laws set forth in chapter 68B of the Iowa Code. See Iowa Code

§§ 68B.2, .22, .23, .34. In addition, a judge may not accept a gift or

thing of value when its acceptance would reasonably appear to

undermine his or her independence, integrity, or impartiality. Iowa Code

of Judicial Conduct R. 51:3.13(A).

Second, rule 51:3.13(B) sets forth an exclusive list of gifts and

things of value a judge may accept from a “restricted donor.” Any party

or other person involved in a case pending before a judge qualifies as a

“restricted donor.” See id., Terminology. Therefore, the rule identifies

the only gifts or things of value a judge may accept from an individual

involved in a pending case before him or her. Id. r. 51:3.13 cmt. 1.

Third, rule 51:3.13(C) describes circumstances under which a

judge may accept a gift or thing of value from an individual who is not a

restricted donor. It provides that a judge may accept gifts and things of

value “from friends, relatives, or other persons, including lawyers, whose

appearance or interest in a proceeding pending or impending before the

judge would in any event require disqualification of the judge under rule

51:2.11.” Id. r. 51:3.13(C)(1). Under this rule, a judge may generally

accept gifts or things of value from lawyers or other individuals whose

33

appearance before the judge would require disqualification or disclosure

under rule 51:2.11 with the important caveat that acceptance may not

otherwise be prohibited under rule 51:3.13(A). Id. r. 51:3.13(C).

“Whenever a judge accepts a gift or other thing of value without

paying fair market value, there is a risk that the benefit might be viewed

as intended to influence the judge’s decision in a case.” Id. r. 51:3.13

cmt. 1. Nevertheless, the Iowa Code of Judicial Conduct recognizes that

acceptance of a gift is unlikely to appear to a reasonable person to

undermine judicial independence, integrity, or impartiality when the

circumstances quite clearly indicate the person giving the gift did not

give it based on the recipient’s status as a judge. Rule 51:3.13 generally

does not prohibit judges accepting special pricing, discounts, and other

benefits made available to the public or certain classes of persons by

businesses or financial institutions:

Businesses and financial institutions frequently make

available special pricing, discounts, and other benefits,

either in connection with a temporary promotion or for

preferred customers, based upon longevity of the

relationship, volume of business transacted, and other

factors. A judge may freely accept such benefits if they are

available to the general public, or if the judge qualifies for

the special price or discount according to the same criteria

as are applied to persons who are not judges. As an

example, loans provided at generally prevailing interest rates

are not gifts, but a judge could not accept a loan from a

financial institution at below-market interest rates unless

the same rate was being made available to the general public

for a certain period of time or only to borrowers with

specified qualifications that the judge also possesses.

Id. r. 51:3.13 cmt. 3. Accordingly, rule 51:3.13(B) permits a judge to

accept “commercial or financial opportunities and benefits, including

special pricing and discounts” offered by restricted donors so long as “the

same opportunities and benefits . . . are made available on the same

34

terms to similarly situated persons who are not judges.” Id.

r. 51:3.13(B)(2).

Because legal services constitute a thing of value, rule 51:3.13(A)

forbids a judge from accepting free legal services if doing so would appear

to a reasonable person to undermine his or her independence, integrity,

or impartiality. Attorneys with matters presently before a judge fall

within the definition of “restricted donor” precisely because a judge

accepting a thing of value from such an attorney would appear to a

reasonable person to undermine the judge’s independence, integrity, or

impartiality.

However, an attorney or firm who is currently providing legal

services to a judge is an attorney or firm whose appearance before the

judge would trigger the disqualification or disclosure requirement of rule

51:2.11. Therefore, under rule 51:3.13(C), a judge may accept free legal

services from an attorney or firm currently representing him or her

because it would trigger the disqualification or disclosure requirement of

rule 51:2.11 if that attorney or firm were to appear before the judge.

Ordinarily, a reasonable person would not perceive a judge’s acceptance

of free legal services to undermine the judge’s independence, integrity, or

impartiality if the judge is required to disclose the relevant facts and

obtained a waiver of disqualification from the parties under rule

51:2.11(C) before deciding a matter.

In contrast, when a judge accepts free legal services from an

attorney or firm and then permits the attorney or firm to appear before

him or her in court without disclosing the relevant facts and obtaining a

waiver as required by rule 51:2.11(C), the judge’s conduct might appear

to a reasonable person to undermine his or her independence, integrity,

or impartiality. The language of 51:3.13(C) explicitly acknowledges a

35

judge deciding a matter in which a party is represented by a lawyer from

whom the judge accepted free legal services is sufficient to trigger the

disqualification or disclosure requirement of rule 51:2.11 so long as the

matter was impending when the services were accepted.11 Its clear

implication is that a reasonable person might believe a judge’s

independence, integrity, or impartiality has been compromised if the

judge fails to disclose his or her recent acceptance of free legal services

from an attorney or firm before deciding a matter in which the attorney

or firm appears.

Because rule 51:3.13(A) requires judges to avoid accepting gifts or

things of value under circumstances that might erode or diminish

confidence in the judicial system, it would be ill-served to the task for

which it was intended if we were to construe it in an overly mechanical

fashion. Accordingly, we conclude any judge who accepts free legal

services from an attorney or firm has a continuing obligation under

51:3.13(A) and canon 3 to ensure his or her acceptance of those services

would not appear to a reasonable person to undermine his or her

independence, integrity, or impartiality by honoring the disclosure and

waiver requirements of rule 51:2.11(C) before deciding a matter in which

the attorney or firm appears.

Because rule 51:3.13 does not forbid judges accepting free legal

services under all circumstances, occasionally an attorney from whom a

judge accepted free legal services will be scheduled to appear before the

judge in court. Once a judge has accepted free legal services from an

attorney or firm, the judge must either disqualify himself or herself from

11The Iowa Code of Judicial Conduct defines “impending matter” as “a matter

that is imminent or expected to occur in the near future.” Iowa Code of Judicial

Conduct, Terminology.

36

any matter in which the attorney or firm who provided the services

appears or disclose his or her acceptance of free legal services and obtain

a waiver of the disqualification requirement from the parties. See id.

r. 51:2.11(A), (C). A judge violates rule 51:3.13(A) and canon 3 of the

Iowa Code of Judicial Conduct by failing to ensure his or her acceptance

of free legal services does not reasonably appear to undermine his or her

independence, integrity, or impartiality.

2. Application of legal principles. Though Judge Howes offered to

pay Mr. Jasper and Ms. Pauly for their legal services, the record indicates

she accepted free legal services from both attorneys when they refused

her offers for payment. The Commission concluded Judge Howes

violated rule 51:3.13(A) because it found her acceptance of free legal

services from Mr. Jasper and Ms. Pauly would appear to a reasonable

person to undermine her independence, integrity, or impartiality. 12

Judge Howes had an attorney–client relationship with each of the

attorneys from whom she accepted free legal services at the time she

accepted the services. Furthermore, the record contains no evidence

suggesting the attorneys from whom Judge Howes accepted free legal

services were restricted donors. Accordingly, we conclude Judge Howes

did not violate rule 51:3.13 merely by accepting free legal services. See

id. r. 51:3.13(C)(1).

However, the record also reveals Judge Howes failed to honor her

continuing obligation to ensure her acceptance of free legal services from

Ms. Pauly would not reasonably appear to undermine her independence,

12Ms. Pauly filed the petition for dissolution of the marriage between

Mr. Khawaja and Ms. Jadoon in the district court on November 9, 2012. However, the

Commission did not charge Judge Howes with violating 51:3.13(B) or find that

Ms. Pauly was a restricted donor.

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integrity, or impartiality by failing to disqualify herself from a matter in

which Ms. Pauly appeared or disclose her acceptance of free legal

services from Ms. Pauly to the parties and obtain a waiver of the

disqualification requirement. 13 Because Judge Howes failed to disqualify

herself or disclose her acceptance of free legal services from an attorney

who appeared before her, we agree with the Commission that she

violated rule 51:3.13(A) and canon 3 of the Iowa Code of Judicial

Conduct. 14

C. Rules 51:1.1 and 51:1.2 and Canon 1. We now consider

whether Judge Howes violated rules 51:1.1 and 51:1.2 as well as canon 1

of the Iowa Code of Judicial Conduct by failing to comply with the rules

set forth therein, failing to avoid the appearance of impropriety, and

failing to promote public confidence in the independence, integrity, and

impartiality of the judiciary.

1. Governing legal principles. Canon 1 of the Iowa Code of Judicial

Conduct provides that “a judge shall uphold and promote the

independence, integrity, and impartiality of the judiciary and shall avoid

impropriety and the appearance of impropriety.” Rule 51:1.1 provides

that judges “shall comply with the law, including the Iowa Code of

Judicial Conduct.” Id. r. 51:1.1. Rule 51:1.2 provides that a judge must

“act at all times in a manner that promotes public confidence in the

13We note the record does not indicate whether Judge Howes honored these

requirements when Mr. Jasper appeared before her after she accepted free legal services

from him.

14Because we conclude rule 51:3.13(A) imposes a continuing obligation on a

judge who accepts free legal services from an attorney to ensure his or her acceptance

of those services would not reasonably appear to undermine his or her independence,

integrity, or impartiality by honoring the disqualification or disclosure requirement of

rule 51:2.11 before deciding a matter in which the attorney appears, we need not decide

whether the matter Judge Howes decided constituted an “impending matter.” See Iowa

Code of Judicial Conduct, Terminology; id. r. 51:3.13(C)(1).

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independence, integrity, and impartiality of the judiciary and shall avoid

impropriety and the appearance of impropriety.” Id. r. 51:1.2. For

purposes of applying this rule, the term “impropriety” means “conduct

that violates the law, court rules, or provisions of the Iowa Code of

Judicial Conduct, and conduct that undermines a judge’s independence,

integrity, or impartiality.” Id., Terminology. The term “integrity” means

“probity, fairness, honesty, uprightness, and soundness of character.”

Id.

As the preamble to the Iowa Code of Judicial Conduct provides,

judges “should aspire at all times to conduct that ensures the greatest

possible public confidence in their independence, impartiality, integrity,

and competence.” Id., Preamble [2]. Accordingly, rule 51:1.2 governs a

judge’s conduct both on and off the bench. In re Meldrum, 834 N.W.2d

650, 653 (Iowa 2013); Block, 816 N.W.2d at 364; see Iowa Code of

Judicial Conduct R. 51:1.2 cmt. 1.

The comments to rule 51:1.2 describe various means by which a

judge might fail to promote public confidence in the judiciary or fail to

avoid the appearance of impropriety. In particular, conduct undermines,

rather than promotes, public confidence in the judiciary when it appears

to compromise the independence, integrity, and impartiality of a judge.

Iowa Code of Judicial Conduct R. 51:1.2 cmt. 3. Conduct creates an

appearance of impropriety when it violates the Iowa Code of Judicial

Conduct or creates in reasonable minds the perception that a judge

engaged in conduct reflecting adversely on his or her impartiality or

fitness as a judge. Id. r. 51:1.2 cmt. 5.

2. Application of legal principles. Judge Howes decided a matter

from which she failed to disqualify herself when the rule of necessity did

not apply without disclosing all the relevant facts and obtaining a waiver

39

of the disqualification requirement from the parties. She also failed to

ensure her acceptance of free legal services did not reasonably appear to

undermine her independence, integrity, or impartiality by deciding a

matter in which an attorney from whom she accepted free legal services

represented a party without disclosing her acceptance of free legal

services from the attorney and obtaining a waiver of the disqualification

requirement from the parties. By this conduct, Judge Howes failed to

comply with the Iowa Code of Judicial Conduct, failed to avoid the

appearance of impropriety, and failed to promote public confidence in the

independence, integrity, and impartiality of the judiciary. Therefore, we

agree with the Commission that Judge Howes violated rules 51:1.1 and

51:2.1 as well as canon 1.

D. Rules 51:1.1, 51:1.2, and 51:2.16(A) as well as Canons 1

and 2. Finally, we consider whether Judge Howes violated rules 51:1.1,

51:1.2, and 51:2.16(A) as well as canons 1 and 2 of the Iowa Code of

Judicial Conduct by failing to be honest and candid with the

Commission. Rule 51:2.16(A) provides that judges “shall cooperate and

be candid and honest with judicial and lawyer disciplinary agencies.”

The Commission charged Judge Howes with failing to be honest

and candid with it based on statements appearing in her letter explaining

her conduct. Judge Howes sent the letter in response to the

Commission’s request that she provide a written explanation of her

conduct addressing the circumstances under which she signed the

ex parte order and whether Ms. Pauly represented her at that time. In it,

Judge Howes stated she had not contacted or hired Ms. Pauly upon

receiving the letter from Mr. Henderkott in which he requested she

reimburse him the money deducted from his tax return.

40

This statement conflicted with a statement appearing in the

response Judge Howes sent to Mr. Henderkott upon receiving his letter.

Specifically, in the response to Mr. Henderkott, Judge Howes indicated

she had discussed the tax issue with her attorney, whom she identified

as Ms. Pauly.

During the hearing before the Commission, Judge Howes testified

she never intended to mislead the Commission about her

communications with Ms. Pauly. Judge Howes also acknowledged the

statement in her response to Mr. Henderkott indicating she had spoken

to Ms. Pauly was untruthful. Judge Howes did not remember precisely

why she wrote the untruthful statement to Mr. Henderkott, but she

indicated it might have been because she intended to tell Ms. Pauly

about Mr. Henderkott’s letter at the time or because she wished to

assume a particular posture in her communications with him.

Although the Commission expressed concern that Judge Howes

did not thoroughly review her records before responding to its request for

a written explanation of her conduct, it concluded Judge Howes did not

intentionally deceive it. Therefore, the Commission concluded there was

not a convincing preponderance of the evidence indicating Judge Howes

failed to cooperate with its investigation or deceived it in violation of any

particular rule or canon.

After careful review of the record, we also conclude the evidence

was inadequate to prove Judge Howes was intentionally dishonest with

the Commission. What Judge Howes wrote to the Commission was

inconsistent with what she wrote to Mr. Henderkott. However, in both

her written explanation of her conduct and her testimony before the

Commission, Judge Howes acknowledged that Ms. Pauly wrote the

May 22 letter on her behalf. In addition, Judge Howes consistently

41

indicated to the Commission that she communicated about the tax

dispute with Ms. Pauly only after Ms. Pauly received the letter from

Mr. Kepros, and Ms. Pauly corroborated this account of the timeline in

her testimony.

Although a convincing preponderance of the evidence indicates

Judge Howes made an inaccurate statement, the record indicates it was

probably the statement in her letter to Mr. Henderkott, not the statement

in her written explanation of her conduct to the Commission. However

carefully worded the letter Judge Howes wrote to the Commission might

have been, the evidence was inadequate to prove she violated any rule or

canon in the manner charged by a convincing preponderance of the

evidence. Accordingly, we agree with the Commission the evidence does

not prove Judge Howes violated rules 51:1.1, 51:1.2, and 51:2.16(A) as

well as canons 1 and 2 of the Iowa Code of Judicial Conduct in the

manner charged.

IV. Sanction.

We impose sanctions in judicial discipline proceedings “not to

punish the individual judge, but to restore and maintain the dignity,

honor, and impartiality of the judicial office.” In re McCormick, 639

N.W.2d 12, 16 (Iowa 2002). We also impose sanctions to protect the

public by deterring judges from engaging in unethical conduct in the

future. Block, 816 N.W.2d at 365.

There are no standard sanctions in judicial discipline cases based

on the rule or rules violated. Meldrum, 834 N.W.2d at 654. Ultimately,

we determine the suitable sanction by considering the goals served by

judicial discipline and the entire record before us. In re Dean, 855

N.W.2d 186, 192 (Iowa 2014). We tailor the sanction to the particular

case by considering all the aggravating or mitigating factors that may

42

bear upon the appropriate sanction for the offending conduct. Krull, 860

N.W.2d at 46.

We begin our analysis concerning the appropriate sanction in a

judicial discipline case by considering the following factors:

1. whether the misconduct is isolated or a pattern of

misconduct;

2. the nature, extent, and frequency of the acts of

misconduct;

3. whether the misconduct occurred in or out of the

courtroom;

4. whether the misconduct occurred in the judge’s official

capacity or in his or her private life;

5. whether the judge has acknowledged or recognized the

misconduct;

6. whether the judge has made an effort to change or modify

his or her conduct;

7. the length of service on the bench;

8. whether there have been any prior complaints;

9. the effect of the misconduct upon the integrity of and

respect for the judiciary; and

10. the extent to which the judge exploited the judicial office

to satisfy personal interests.

Krull, 860 N.W.2d at 46 (quoting Block, 816 N.W.2d at 365–66). We may

also consider any additional factors we find relevant to calibrating the

sanction to the particular misconduct, including the sanctions imposed

in cases involving similar misconduct and the subjective motivations of

the judge who engaged in misconduct. See id. at 46–47; McCormick, 639

N.W.2d at 16–18.

The Commission recommended Judge Howes be publicly

reprimanded, rather than temporarily suspended, in light of a

43

consideration it found to mitigate the severity of her misconduct. In

particular, the Commission concluded the legal culture in which Judge

Howes works likely contributed to her apparent confusion regarding the

applicable standards for identifying conflicts that warrant judicial recusal

and the appropriateness of judges accepting free legal services from

attorneys likely to appear before them. We give respectful consideration

to the Commission’s recommendation regarding an appropriate sanction,

but we are not bound by it. Krull, 860 N.W.2d at 43.

On the one hand, several factors we ordinarily weigh in considering

the appropriate sanction for judicial misconduct counsel in favor of a

serious sanction here. Though Judge Howes’s misconduct took place

during an isolated episode, it was particularly likely to erode the

confidence of litigants appearing before her. Furthermore, though Judge

Howes never engaged in misconduct in a public courtroom, she

committed misconduct in her chambers while acting in her official

capacity. Additionally, misconduct of the sort at issue in this case is

understandably likely to undermine public respect for and public

confidence in the integrity of the judiciary.

On the other hand, several additional factors we traditionally find

relevant to determining an appropriate sanction in a judicial discipline

case counsel in favor of a lighter sanction. The conduct by which Judge

Howes violated her ethical duties involved an isolated decision. In view

of the charges against her, Judge Howes appears to have at least

resolved to be more cautious about ensuring her conduct complies with

her ethical duties in the future. Judge Howes has served the state as a

member of the judiciary for approximately twenty-three years, and she

has never been disciplined before. Nor does the evidence suggest Judge

Howes exploited her judicial role to her personal benefit. On the

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contrary, judges and attorneys who appeared before the Commission on

her behalf indicated she has an excellent reputation as a judge.

We agree with the Commission that additional circumstances are

relevant to selecting the appropriate sanction in this case. Based on the

testimony of the other judges who appeared before the Commission on

her behalf, it is evident Judge Howes was not alone in her mistaken

beliefs concerning her ethical obligations. But we are mindful that

judges are responsible for assuring that they understand the parameters

of their ethical duties. Because avoiding even the appearance of

impropriety is of paramount importance to maintaining the public trust

and respect for the judiciary, judges should conduct themselves

especially cautiously whenever those parameters appear to be unclear or

debatable. Accordingly, we conclude the apparent lack of clarity

concerning the rules violated counsels only slightly in favor of a lighter

sanction.

In addition, Judge Howes has reassured us that she did not

intentionally or knowingly disregard her ethical obligations. Rather, it is

clear that, were it not for her mistaken beliefs concerning the rules

governing her conduct, she would have conducted herself differently to

avoid violating them. Judge Howes acted in good faith and took care to

assure she honored what she understood those requirements to be.

Moreover, we are firmly convinced Judge Howes did not intend to give

Ms. Pauly or her client any advantage by granting the application for a

temporary injunction. Rather, the order she signed was merely a

temporary order maintaining the status quo pending a further hearing,

and she believed that an emergency warranting immediate action existed.

We conclude these facts also counsel in favor of a lighter sanction.

45

Under the circumstances of this case, we believe a formal

reprimand is unnecessary to maintain the dignity, honor, and

impartiality of judiciary. See McCormick, 639 N.W.2d at 16. Judge

Howes clearly violated the Iowa Code of Judicial Conduct, but she would

have conducted herself differently had she understood her ethical

obligations. See In re Frerichs, 238 N.W.2d 764, 770 (Iowa 1976).

Shared confusion concerning the parameters of those obligations directly

and understandably contributed to her conduct.

In appropriate cases, a public admonition may be adequate to

repair an appearance of impropriety in service to the public interest. See

Comm. on Prof’l Ethics & Conduct v. Liles, 430 N.W.2d 111, 112–13 (Iowa

1988) (“The public’s interest in guarding against even an appearance of

impropriety can be adequately served here by an admonition.”). A public

admonishment may also perform the important function of avoiding the

appearance of impropriety in the future by instructing members of the

bench as to how to avoid violating their ethical obligations when similar

circumstances arise. See id. at 113. Accordingly, we conclude a public

admonishment will serve the fundamental purposes of judicial discipline

in this case. Block, 816 N.W.2d at 365; McCormick, 639 N.W.2d at 16.

We are mindful of statutory and constitutional limits on our power

to sanction a judicial officer. Section 602.2106(3)(b) of the Iowa Code

permits this court to discipline or remove a judicial officer when the

Commission files an application for judicial discipline. Iowa Code

§ 602.2106(3)(b). In the context of attorney disciplinary proceedings,

however, we have previously recognized that public admonitions

constitute something “considerably less severe than reprimands, and . . .

something less than actual discipline.” Liles, 430 N.W.2d at 113.

46

Notwithstanding this distinction, we conclude this court has the

power to admonish, rather than reprimand, suspend, or remove, a judge

when the Commission files an application for judicial discipline for the

following reasons. First, section 602.2106(4) states that this court may

“render the decree that it deems appropriate” when it finds an

application for judicial discipline “should be granted in whole or in part.”

Iowa Code § 602.2106(4). Second, the Iowa Constitution grants this

court “supervisory and administrative control over all inferior judicial

tribunals throughout the state.” Iowa Const. art. V, § 4. Thus, we

conclude that when the Commission makes an application for discipline

of a judicial officer to this court, upon deciding to grant the application

this court has the power to admonish rather than reprimand, suspend,

or remove a judicial officer.

V. Conclusion and Sanction.

We conclude Judge Howes violated rules 51:1.1, 51:1.2,

51:2.11(A), and 51:3.13(A) as well as canons 1, 2, and 3 of the Iowa Code

of Judicial Conduct. We therefore grant the Commission’s application for

judicial discipline and publicly admonish Judge Howes for her conduct.

APPLICATION GRANTED AND JUDGE PUBLICLY ADMONISHED.