Iowa Supreme Court Attorney Disciplinary Board v. James A. Weaver

IN THE SUPREME COURT OF IOWA

No. 11–1626

Filed March 16, 2012

IOWA SUPREME COURT ATTORNEY

DISCIPLINARY BOARD,

Complainant,

vs.

JAMES A. WEAVER,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

The Grievance Commission of the Supreme Court of Iowa found

respondent committed an ethical violation and recommended the

respondent be suspended from practicing law concurrent with his

disability suspension. LICENSE SUSPENDED.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for

complainant.

James A. Weaver, Muscatine, pro se.

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ZAGER, Justice.

The complainant, the Iowa Supreme Court Attorney Disciplinary

Board, alleges the respondent, James A. Weaver, violated Iowa Rule of

Professional Conduct 32:8.4(b). The alleged violation was based on

Weaver’s 2009 guilty pleas to charges of violating Iowa Code section

321J.2 (2009), operating while intoxicated (OWI), third offense, and

section 708.7(4), harassment in the third degree. The grievance

commission found Weaver’s conduct violated rule 32:8.4(b) and

recommended we suspend Weaver’s license to run concurrently with his

disability suspension. The commission also recommended Weaver be

required to include medical documentation of his fitness to practice law

and of his maintained sobriety prior to reinstatement. Upon our de novo

review, considering the present violation and Weaver’s overall conduct as

a judicial officer and practicing attorney, we suspend Weaver’s license to

practice law for a period of two years.

I. Factual Background.

Weaver was admitted to the Iowa bar in 1979 and served as an

associate district court judge from 1982 until 2004. In 2002, Weaver

was convicted of his first OWI. Following his 2002 conviction, this court

found Weaver violated multiple cannons of the Iowa Code of Judicial

Conduct and issued a public reprimand on December 10, 2004. Prior to

that time, however, Weaver had been arrested for a second OWI in

November 2004. Weaver retired from his judicial position on December

17, 2004, and resumed his career as a practicing attorney.

Weaver pled guilty to OWI second offense on April 18, 2005. See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 76

(Iowa 2008). At sentencing, the district court rejected the State’s

sentencing recommendation. Weaver was sentenced to an indeterminate

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term in prison not to exceed two years, ordered into placement in an

alcohol treatment correctional facility, and fined $1500. Id. Weaver

appealed his sentence. Id. at 77. Weaver also accused the sentencing

judge of “not being honest about the reasons why he committed [Weaver]

to the Department of Corrections.” Id. at 78. The court of appeals

affirmed his sentence, and this court denied further review. Id.

Based upon his conviction of OWI, second offense, and his

intemperate statements about the sentencing judge, the Board filed

ethical charges against Weaver. Id. at 74. This court found Weaver

committed a number of ethical violations relating to the statements he

made about the sentencing judge. See id. at 80–91. We also specifically

found that, even though a second OWI conviction was not a felony,

Weaver’s criminal act reflected adversely on his fitness to practice law, in

violation of our ethical rules. See id. at 79–80. Accordingly, on March

28, 2008, we suspended Weaver’s license to practice law for three

months. Id. at 92. Weaver failed to notify all of his clients of the

suspension in violation of Iowa Court Rule 35.22. We therefore extended

his suspension for sixty days, with no possibility of reinstatement until

August 28, 2008. Weaver’s license was reinstated on December 3, 2008.

On March 21, 2009, Weaver was pulled over for speeding and

failing to stop at a stop sign. A subsequent breathalyzer test revealed his

blood alcohol content (BAC) was .166. Following this latest incident, we

granted an application for disability suspension on May 4. In June of

2009, Weaver pled guilty to OWI, third offense, a class D felony. On

August 6, Weaver was sentenced to five years in prison and fined $3125.

The sentencing judge reported the conviction to the Board on August 10.

On November 23, 2009, three days after being released from the

Davenport Work Release Facility (DWRF), Weaver was arrested for third-

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degree harassment and for violating his parole. These charges stemmed

from Weaver calling his estranged wife twenty-six times in a period of a

few hours. Weaver’s parole officer, Nancy Boyle, testified before the

commission. Boyle testified she received phone calls regarding the

harassment from Weaver’s wife and the Moline, Illinois Police

Department. Weaver’s wife told Boyle she believed Weaver had been

drinking. The Moline police called Boyle and informed her that as a

result of numerous phone calls to Weaver’s wife, who worked in some

capacity for the Moline school system, school officials contacted them,

and the school district had “locked down” an elementary school. 1 Based

on these phone calls, and her concern that Weaver may be drinking,

Boyle had officers from the intensive supervision unit perform a safety

check on Weaver to “find out what was going on.” After making contact

with Weaver, a breathalyzer reading showed a BAC of .265 at 10:00 a.m.

that morning. Weaver refused voluntary substance abuse treatment and

was arrested for a parole violation. Weaver pled guilty to the harassment

charge on January 21, 2010. As a result, his parole was revoked, and he

was again placed at the DWRF.

Weaver was released from the work release facility on June 9. On

June 16, seven days after his release from the work release facility, Boyle

was contacted by Weaver’s now ex-wife. Weaver had gone to her house

the previous Friday as scheduled to retrieve some personal property.

Weaver became belligerent and upset, and she noted he had been

drinking. As a result of this confrontation, she called the Scott County

1At the hearing, Weaver objected to this testimony. Weaver wanted to call the

superintendent of schools to further explore the reason the school was shut down. The

commission agreed to accept Boyle’s testimony “merely as part of her reasons for . . .

her investigation.” We will also consider the school district’s response to Weaver’s

harassment when considering what ethical violations he committed and any

appropriate sanctions.

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Sheriff’s Department. She also advised Boyle that she had been

contacted by Weaver’s daughter. Weaver’s daughter had called because

she had been trying to reach Weaver for six days without success. She

was concerned not only for her father, who gets depressed and suicidal

when he drinks, but also for the safety of his ex-wife because he gets

very angry when he drinks. As a result of these concerns, Boyle, along

with Davenport police officers, performed a safety check on Weaver.

After some difficulty making entry into the house, they discovered

Weaver intoxicated, despondent, and making comments about suicide.

Weaver was again arrested for violation of his parole. Weaver agreed to

inpatient substance abuse treatment at that time. As a result of this

incident, however, Weaver’s parole was revoked, and he was sent to

prison. The court will set forth additional facts in this opinion when it

discusses an appropriate sanction.

The Board filed a two-count complaint on December 30, 2010, but

later withdrew Count II in an amended complaint. The amended

complaint alleged that Weaver had pled guilty to OWI, third offense, and

third-degree harassment. The amended complaint also noted that

Weaver’s parole had been revoked for consuming alcohol and that he was

sentenced to prison. The Board alleged Weaver’s conduct violated rule

32:8.4(b), which provides it is professional misconduct for a lawyer to

“commit a criminal act that reflects adversely on the lawyer’s honesty,

trustworthiness, or fitness as a lawyer in other respects.” The

commission held a hearing on the matter on September 12, 2011, and

found Weaver’s conviction for OWI, third offense, was a “sua sponte

violation of [d]isciplinary [r]ule 32:8.4(b).” It recommended that we

suspend Weaver’s license concurrently with his disability suspension

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and that we require Weaver to present medical documentation of his

sobriety and fitness to practice law prior to reinstatement.

II. Scope and Standard of Review.

Attorney disciplinary proceedings are reviewed de novo. Iowa Ct.

R. 35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784

N.W.2d 761, 764 (Iowa 2010). The Board bears the burden of proving

misconduct by a convincing preponderance of the evidence, which is a

lesser burden than proof beyond a reasonable doubt but a greater

burden than is imposed in the usual civil case. Templeton, 784 N.W.2d

at 764. If we determine the Board has met its burden and proven

misconduct, “we may impose a greater or lesser sanction than the

sanction recommended by the commission.” Id.; see also Iowa Ct. R.

35.10(1).

III. Findings of Fact.

The Board alleged that Weaver pled guilty to OWI, third offense

and harassment in the third degree and that Weaver drank alcohol in

violation of his parole. Under Iowa Court Rule 35.7(3), Weaver was

precluded from disputing that he had been convicted of the OWI charge. 2

2Regarding the OWI conviction, the Board provided notice to Weaver that it

intended to invoke issue preclusion under Iowa Court Rule 35.7(3). Issue preclusion is

therefore appropriate for the OWI charge. See Iowa Ct. R. 35.7(3) (providing for use of

issue preclusion in disciplinary case where certain requirements, including notice, are

met). However, issue preclusion is inappropriate for the other two allegations. The

Board did not give notice that it intended to invoke issue preclusion relating to the

harassment charge as is required by rule 35.7(3)(c). Regarding the parole violations,

rule 35.7(3)(b) requires “[t]he burden of proof in the prior proceeding [be] greater than a

mere preponderance of the evidence” to invoke issue preclusion. Weaver’s parole

violation revocation notes that the burden of proof in front of the administrative law

judge was only a preponderance of the evidence. Also, the Board did not give notice

that it intended to invoke issue preclusion on the issue of the parole violations. See id.

r. 35.7(3)(c). Since rule 35.7(3) does not apply to the harassment conviction or parole

revocation, we must review the factual allegations to determine whether the Board has

met its burden and proven the factual allegations contained in the complaint by a

convincing preponderance of the evidence.

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However, the Board did not provide notice of issue preclusion regarding

the harassment conviction, and therefore, we must determine whether

the Board has met its burden and proven Weaver committed the criminal

act of harassment before we can find a violation of rule 32:8.4(b).

Weaver pled guilty to harassment in the third degree on January

21, 2010. According to the harassment complaint offered by the Board

at the hearing, Weaver called his estranged wife twenty-six times in a six-

hour period. Weaver admitted making annoying calls to his wife but

denied that he used threatening language. Under the Iowa Code, “[a]

person commits harassment when, with intent to . . . annoy . . . another

person, the person . . . [c]ommunicates with another by telephone . . .

without legitimate purpose and in a manner likely to cause the other

person annoyance or harm.” Iowa Code § 708.7(1)(a)(1). Weaver pled

guilty to harassment and admitted to the commission that he made

annoying comments to his wife. 3 We find that the Board has proven by a

convincing preponderance of the evidence that Weaver committed the

criminal act of harassment.

The Board alleged Weaver’s parole was revoked for consuming

alcohol in violation of a condition of his parole. In support of this

allegation, the Board offered the testimony of Nancy Boyle, Weaver’s

parole officer, who testified that on June 16, 2010, she received a call

from Weaver’s ex-wife, who stated that Weaver had been drinking and

had gone to her home and behaved belligerently. Boyle stated she went

to Weaver’s residence accompanied by Davenport police officers. When

Weaver did not answer the door, the police entered his residence.

According to Boyle, she saw Weaver stumble into the hallway. Weaver

3In his posthearing brief, Weaver admitted having telephone conversations with

his ex-wife “that she could have found annoying.” He again denied threatening her.

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was brought out to the back porch, and he and Boyle talked. According

to Boyle, Weaver “reek[ed] of alcohol.” A breathalyzer test revealed

Weaver’s BAC was .11. Based on this information, Boyle sought and

received an arrest warrant. Weaver’s parole was subsequently revoked,

and he was sent to prison. Boyle’s testimony and the court documents

offered by the Board prove by a convincing preponderance of the

evidence that Weaver violated his parole.

IV. Ethical Violations.

In its amended complaint, the Board alleged Weaver’s conduct

violated rule 32:8.4(b), which states that “[i]t is professional misconduct

for a lawyer to . . . commit a criminal act that reflects adversely on the

lawyer’s honesty, trustworthiness, or fitness as a lawyer in other

respects.” However, the Board did not specify which of Weaver’s acts

allegedly violated rule 32:8.4(b). We will therefore examine each of

Weaver’s actions to determine whether they constitute a violation of rule

32:8.4(b).

Weaver has committed two criminal acts: He pled guilty to OWI,

third offense, and third-degree harassment. 4 Third-degree harassment is

a simple misdemeanor, and Weaver’s third OWI is a class D felony. See

Iowa Code §§ 321J.2(2)(c), 708.7(4). The commission found Weaver’s

felony “conviction [was] sua sponte [a] violation of [d]isciplinary [r]ule

32:8.4(b) based upon the prior decisions of the [Iowa] Supreme Court”

and cited past cases to support this proposition. See, e.g., Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Johnson, 774 N.W.2d 496, 499 (Iowa 2009)

4Weaver’s parole violations do not constitute violations of rule 32:8.4(b).

Weaver’s parole was revoked for consuming alcohol. While this was a violation of the

terms of his parole, consuming alcohol was not, in and of itself, a criminal act. Since

rule 32:8.4(b) only addresses criminal acts committed by attorneys, Weaver’s parole

violations do not fall within this rule.

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(noting that a third OWI conviction violated DR 1–102(A)(6), the

precursor to rule 32:8.4(b)), overruled on other grounds by Templeton,

784 N.W.2d at 768–69; see also Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Marcucci, 543 N.W.2d 879, 882 (Iowa 1996).

While our past cases may have suggested a conviction of OWI,

third offense, was a per se violation of rule 32:8.4(b), we rejected this

interpretation of rule 32:8.4(b) in Templeton. 784 N.W.2d at 767. In that

case, we noted that the comment to rule 32:8.4 states, “ ‘Illegal conduct

can reflect adversely on fitness to practice law. A pattern of repeated

offenses, even ones of minor significance when considered separately,

can indicate indifference to legal obligation.’ ” Id. (quoting Iowa R. Prof’l

Conduct 32:8.4(b) cmt. 2). We then held that, in order for a criminal act

to constitute a violation of rule 32:8.4(b),

“[t]here must be some rational connection other than the

criminality of the act between the conduct and the actor’s

fitness to practice law. Pertinent considerations include the

lawyer’s mental state; the extent to which the act

demonstrates disrespect for the law or law enforcement; the

presence or absence of a victim; the extent of actual or

potential injury to a victim; and the presence or absence of a

pattern of criminal conduct.”

Id. (citation omitted). Therefore, we will avoid using a “mechanical

process” to determine “[w]hether an attorney’s criminal behavior reflects

adversely on his fitness to practice law.” Weaver, 750 N.W.2d at 79; see

also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Keele, 795 N.W.2d 507,

514–15 (Iowa 2011) (finding there was no violation of rule 32:8.4(b) when

“the board has not demonstrated how this conviction relates to Keele’s

fitness to practice law”). 5 We will use the factors enumerated in

5Even though there must a “rational connection” between the conduct and the

actor’s fitness to practice law, we still have the authority to sanction an attorney for

conduct “unrelated to [the] representation of clients or any other facet of the practice of

law.” Templeton, 784 N.W.2d at 767.

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Templeton to inform our analysis of whether an attorney’s conduct

actually reflects on his or her honesty, trustworthiness, or fitness as a

lawyer in other respects. Templeton, 784 N.W.2d at 767; see also Keele,

795 N.W.2d at 514 (noting in cases in which illegal conduct was found to

adversely reflect on a lawyer’s fitness to practice law, a “sufficient nexus”

existed between the conduct and the attorney’s ability to function as a

lawyer).

Weaver was stopped by the Iowa State Patrol for speeding and

failing to stop at a stop sign. He then failed three field sobriety tests.

According to a breathalyzer test, he had a BAC of .166, which is more

than twice the legal limit of .08. Weaver’s conduct did not create any

actual victims, but by speeding and running stop signs while intoxicated,

he created a grave risk of potential injury to anyone on the same road.

This factor, therefore, favors a finding that Weaver’s criminal act violated

rule 32:8.4(b).

Weaver’s alcoholism undoubtedly contributed to his commission of

the criminal act of OWI, third offense. However, alcoholism is not a

“legal justification, excuse, or defense” for Weaver’s actions. Cf. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 41 (Iowa

2011) (noting depression not a legal justification, excuse, or defense for

attorney’s actions). We also note Weaver’s OWI was part of a pattern of

criminal conduct. This is Weaver’s third OWI conviction. His second

conviction arose out of similar circumstances. In that case, Weaver was

stopped after a citizen called in a reckless-driving report. Weaver, 750

N.W.2d at 76. During that incident, Weaver had a BAC of .185. Id.

Weaver’s three convictions for the same offense certainly indicate a

pattern of criminal conduct and demonstrate a disregard for laws

prohibiting the operation of motor vehicles while intoxicated. Cf. Keele,

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795 N.W.2d at 514 (finding, under the circumstances, that an isolated

incident did not demonstrate a pattern of disrespect for the law).

After reviewing the factors discussed in Templeton, we conclude

there is a sufficient nexus between Weaver’s criminal act of OWI, third

offense, and his fitness to practice law. Weaver’s criminal act is part of a

pattern of criminal conduct. This repeated disregard for the law forms a

rational connection between Weaver’s criminal act and his fitness to

practice law. See Templeton, 784 N.W.2d at 767; see also Marcucci, 543

N.W.2d at 882 (noting a third OWI conviction is a felony and as such

“constitutes an extremely serious breach of the rule of society”).

Accordingly, we find Weaver has violated rule 32:8.4(b).

The commission found Weaver’s OWI conviction was a violation of

rule 32:8.4(b), but did not make any conclusions regarding Weaver’s

harassment conviction, even though the conviction was contained in the

factual allegations submitted by the Board. Weaver argued in his

posthearing brief that “the Board has failed to prove that either the

harassment charge or the parole violations reflect adversely [on his

fitness] to practice law.” To find Weaver’s criminal act of harassment

also violated rule 32:8.4(b), we must find a sufficient nexus between the

criminal act and Weaver’s fitness to practice law. Keele, 795 N.W.2d at

515. We now apply the Templeton factors to Weaver’s act of harassment.

Weaver made repeated calls to his wife. While he denied

threatening her, he admitted the calls were annoying, which as noted

above, conforms to the statutory definition of harassment. See Iowa

Code § 708.7(1)(a)(1). Weaver chose to make twenty-six annoying calls to

his wife. Whatever his mental state or problems with alcoholism may

have been, they do not excuse the harassing behavior Weaver engaged in.

See Schmidt, 796 N.W.2d at 41. Even though Weaver claims he did not

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threaten his wife, such conduct is not necessary. See, e.g., Comm. on

Prof’l Ethics & Conduct v. Floy, 334 N.W.2d 739, 740 (Iowa 1983) (finding

that obscene phone calls constituted a violation of DR 1–102(A)(6)). The

Board has not alleged a pattern of harassment, a fact which weakens the

connection between Weaver’s actions and his fitness to practice law.

As we previously noted, not all criminal acts reflect on an

attorney’s fitness to practice law. However, we feel the type of

harassment engaged in by Weaver in this case does. Harassment is a

serious offense, and under the facts and circumstances of this case,

there is a clear connection between his actions and his fitness to practice

law. We have previously found that the criminal act of invasion of

privacy reflects adversely on an attorney’s fitness to practice law, noting

an intentional and knowing invasion of privacy “raises serious misgivings

about whether [the attorney] understands the concept of privacy and

respects the law protecting individuals’ privacy rights.” Templeton, 784

N.W.2d. at 766–68. Here, Weaver’s pattern of communication with his

wife raises similar concerns. Weaver made the conscious decision to

make numerous contacts with her. Moreover, these contacts raised

sufficient concern for the safety of school children that the Moline police

were called, and the police reported to Weaver’s parole officer that a

school was locked down as a result of Weaver’s calls. Clearly, under the

facts of this case, there were multiple victims of Weaver’s crime of

harassment. See id. at 767.

Attorneys are required to communicate with their clients, other

attorneys, judicial officers and court personnel, and law enforcement on

a regular basis. Weaver’s conduct demonstrates a clear disrespect for

the laws regarding acceptable forms of communication with others. It is

irrelevant that Weaver was not acting as an attorney when he committed

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the acts that led to his conviction. Johnson, 774 N.W.2d at 499

(“Lawyers do not shed their professional responsibility in their personal

lives.” (citation and internal quotation marks omitted)). Weaver has

shown his inability to communicate with others within the bounds of the

law, in this case with serious consequences. We therefore conclude that

by a convincing preponderance of the evidence, this criminal act of

harassment reflects adversely on Weaver’s fitness to practice law.

Accordingly, we find Weaver’s criminal act of harassment also constitutes

a violation of rule 32:8.4(b).

V. Sanctions.

Regarding sanctions, we have stated:

There is no standard sanction for a particular type of

misconduct, and though prior cases can be instructive, we

ultimately determine an appropriate sanction based on the

particular circumstances of each case. In determining the

appropriate discipline, we consider “the nature of the alleged

violations, the need for deterrence, protection of the public,

maintenance of the reputation of the bar as a whole, and the

respondent’s fitness to continue in the practice of law,” as

well as any aggravating and mitigating circumstances. The

form and extent of the sanction “ ‘must be tailored to the

specific facts and circumstances of each individual case.’ ”

Significant distinguishing factors in the imposition of

punishment center “ ‘on the existence of multiple instances

of neglect, past disciplinary problems, and other companion

violations.’ ”

Id. at 499–500 (internal citations omitted). Depression and alcoholism

can be mitigating factors if they contributed to an attorney’s misconduct.

See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Beek, 757 N.W.2d

639, 644 (Iowa 2008).

Weaver has been found guilty of OWI, third offense, a class D

felony, and third-degree harassment, a simple misdemeanor. Iowa Code

§§ 321J.2(2)(c), 708.7. A felony conviction is grounds for revocation or

suspension of an attorney’s license to practice law. Id. § 602.10122(1);

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Iowa Ct. R. 35.10(2). When an attorney’s misconduct consists of an OWI,

third offense, conviction, we have imposed a six-month suspension. See

Johnson, 774 N.W.2d at 500 (imposing a six-month suspension for a

conviction of OWI, third offense); Marcucci, 543 N.W.2d at 880, 883

(same). We have also imposed a six-month suspension when the OWI,

third offense, conviction was accompanied by another conviction for a

different crime, but noted that either conviction would warrant a

suspension. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ruth, 636

N.W.2d 86, 87, 89 (Iowa 2001) (imposing a six-month suspension for

OWI, third offense, and domestic abuse assault causing injury).

However, when an attorney’s misconduct involves a second or third OWI

conviction with numerous companion violations, we have imposed a two-

year suspension. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Carpenter, 781 N.W.2d 263, 269, 271 (Iowa 2010) (imposing a two-year

suspension for an attorney who committed “misconduct in seventeen

client matters, including neglect, failure to communicate, and failure to

safeguard his clients’ interests upon termination of representation, in

addition to his trust account violations and conviction of two traffic

offenses”); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713 N.W.2d

199, 206–08 (Iowa 2006) (imposing a two-year suspension for neglect of

client matters, appearing in court while intoxicated, being convicted of

OWI, third offense, and failing to respond to the Board’s inquiries),

overruled on other grounds by Templeton, 784 N.W.2d at 768–69.

This case presents numerous aggravating circumstances, most

notably Weaver’s criminal history, his history of alcohol abuse and

untreated chronic depression, as well as his long list of ethical violations.

Weaver, 750 N.W.2d at 75. Weaver was first convicted of OWI in

November of 2002. Id. As part of his sentence, he was ordered to

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complete inpatient substance abuse treatment. He remained alcohol free

until July 2003. Id. Weaver completed a second treatment program in

November of 2003 and refrained from alcohol use until August 2004. Id.

In December of 2004, we publicly reprimanded Weaver for his 2002 OWI

conviction. Id.

One month prior to the reprimand for his first OWI conviction,

Weaver was stopped for his second OWI after a citizen called police to

report a reckless driver. Id. at 76. Weaver’s BAC was .185. Id.

Following this arrest, Weaver underwent inpatient treatment for a third

time, which he completed on December 7, 2004. Id. On April 18, 2005,

Weaver pled guilty to his second OWI. Id. The district court sentenced

Weaver to an indeterminate prison term not to exceed two years and

ordered Weaver be placed at an appropriate alcohol treatment

correctional facility. Id. Weaver was to be released on parole “upon

achievement of the maximum benefits from the treatment program.” Id.

Weaver filed a motion to reconsider the sentence, “arguing that he would

not benefit from the sentence imposed, as he had already undergone the

inpatient treatment program that would be available through the

Department of Corrections.” Id. The district court denied the motion,

and the court of appeals affirmed the sentence on October 25, 2006. Id.

at 77–78.

Meanwhile, on June 1, 2005, an article was published in the

Muscatine Journal in which Weaver accused the district court judge of

bias against him. Id. at 77. We found Weaver’s second OWI conviction

and his “intemperate statements to the press” both warranted

suspension, and we suspended his license for three months. Id. at 91–

92. We extended Weaver’s suspension for an additional sixty days after

he failed to advise a client of his suspension, failed to return the client’s

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files to her, and failed to advise her of a court proceeding. Weaver also

admitted drinking alcoholic beverages for a ten-day period two weeks

prior to the hearing.

In November of 2008, the Board wrote Weaver, requesting

information in response to a complaint that had been filed against him.

Weaver did not reply. Though the Board ultimately concluded there was

insufficient proof of misconduct, it nonetheless admonished Weaver for

failing to respond to the Board’s inquiries.

On March 21, 2009, Weaver was arrested for a third OWI, the

conviction at issue in this opinion. He pled guilty on June 3, 2009. On

July 22, 2009, prior to sentencing, Michael R. Fitzsimmons, an intensive

drug court officer with the Seventh Judicial District wrote a letter to the

district court judge stating Weaver felt drug court was not

the place for him. [Weaver] had decided he did not need to

be in the Salvation Army Treatment Program and did not

need all the restrictions that Drug Court imposes.

It would appear that Mr. Weaver is intent on doing

things his own way. The lack of following my suggestions,

and statements to the Presentence Investigator, make him

inappropriate for placement in the Scott County Drug Court.

On August 6, Weaver was sentenced to an indeterminate term of five

years in prison and placed at the DWRF in Davenport.

Weaver was paroled from the DWRF on November 20, 2009. He

subsequently committed the act of harassment, which we have

previously detailed, and was placed in the Scott County jail from

November 23 to January 28, 2010, where he completed an eight-week,

jail-based treatment program. On January 21, he pled guilty to third-

degree harassment and was sentenced to seven days in jail and given

credit for time served. On January 28, he appeared before an

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administrative parole judge, who determined Weaver violated his parole

and sent Weaver to the DWRF again.

On June 9, Weaver was again paroled to Boyle from the DWRF.

Within one week, based upon the facts detailed earlier in this opinion,

Weaver was again arrested for parole violation. After a hearing, his

parole was again revoked on June 28, 2010, and he was sent to prison.

This long list of past disciplinary and legal problems is an

aggravating factor when considering Weaver’s sanction. See Carpenter,

781 N.W.2d at 270. Alcoholism can be a mitigating factor. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 154 ((Iowa)

2010) (noting, to the extent attorney acknowledged his alcoholism and

has taken steps to address the problem, the court considers these acts in

fashioning an appropriate sanction). So can depression. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa 2008).

“However, we are mindful that our primary goal is not to punish the

attorney, but ‘ “to protect the public from lawyers rendered unfit from

any cause.” ’ ” Hauser, 782 N.W.2d at 154 (citation omitted).

Weaver has repeatedly demonstrated that he is unwilling or unable

to conform his conduct to either the law or the ethical rules that govern

attorneys. He has also shown an unwillingness to comply with the terms

of his parole. The record contains numerous examples of Weaver’s

refusals to seek the help that is necessary for him to successfully cope

with his depression and alcoholism. In order to protect the public,

Weaver cannot be allowed to practice law until he has made lasting

changes and overcome his issues over the long term.

We have issued six-month suspensions for OWI, third offense,

convictions in the past. Johnson, 774 N.W.2d at 500; Marcucci, 543

N.W.2d at 880, 883. However, in this case, Weaver’s inability to conform

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his conduct to the demands of society and the rules of his profession

warrants a longer suspension. Aggravating circumstances start with the

fact that Weaver has a history of prior disciplinary actions. His

“considerable professional experience as an attorney and judge” is

another aggravating factor favoring a longer suspension. Weaver, 750

N.W.2d at 92. Additionally, while Weaver has acknowledged his chronic

substance abuse and mental health issues, Weaver has attempted in-

patient treatment on four separate occasions without success. He has

also resisted treatment with appropriate mental health providers,

deciding for himself what is appropriate. A longer sanction is also

warranted by the fact that the reputation of the bar as a whole has

suffered due to Weaver’s actions. See id. at 91–92 (noting conduct that

reduces citizens’ respect for our system of justice must be discouraged).

Our ultimate responsibility is to protect the public from unfit attorneys.

See Hauser, 782 N.W.2d at 154. A lengthy suspension is necessary to

discipline Weaver for his conduct and to protect the public. Accordingly,

we feel a two-year suspension is appropriate.

The next issue we must address is when Weaver’s suspension will

begin. Weaver’s license has been suspended pursuant to rule 35.16

since May 4, 2009. This suspension was due to Weaver’s inability to

discharge his professional responsibilities due to his depression and

alcoholism. The commission noted that Weaver’s disability suspension

“carries perhaps a heavier burden for reinstatement under [r]ule

35.16(8), then for the regular procedure on application for reinstatement

under [r]ule 35.13” and therefore recommended Weaver’s suspension for

his violations of rule 32:8.4(b) run concurrently with his disability

suspension. Weaver stated in his October 5, 2011 posthearing brief that

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he did not intend to “seek reinstatement from his disability suspension

until his symptoms have been in remission for two (2) years.”

We have stated that a disability suspension is not a sanction and

that it is necessary to discipline an attorney for his or her unethical

conduct “independent of a previous finding of [his or her] unfitness to

practice law.” Van Beek, 757 N.W.2d at 644; see also Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Maxwell, 705 N.W.2d 477, 480 (Iowa 2005)

(“Although a disability suspension shares some of the same objectives

and purposes of attorney discipline, a disability suspension is not a

sanction and does not specifically address unethical conduct and the

need to deter future conduct.”). Adopting the commission’s

recommendation would mean that Weaver would be eligible to apply for

reinstatement immediately. This result would not serve the purpose of

sanctioning Weaver for his unethical behavior. Accordingly, we suspend

Weaver’s license to practice law with no possibility of reinstatement for

two years from the date of this opinion.

The commission recommended that Weaver be required to provide

“medical documentation of his maintenance of sobriety and his fitness to

practice law.” When an attorney’s disciplinary problems arise out of

alcoholism and depression, “[w]e have a well-established history of

imposing such conditions.” Johnson, 774 N.W.2d at 501. We agree with

the commission that such conditions are appropriate in this case.

VI. Conclusion.

We suspend Weaver’s license with no possibility of reinstatement

for two years from the date of this opinion. Prior to reinstatement,

Weaver must provide medical documentation from a licensed health care

professional regarding his maintenance of sobriety and his fitness to

practice law. Pursuant to rule 35.12(3), this suspension applies to all

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facets of the practice of law. All costs are taxed to Weaver pursuant to

rule 35.26(1). Prior to reinstatement, Weaver must also show that he

has not practiced law during the period of suspension, that he has

notified his clients as required by rule 35.22, that he has paid all costs

required by rule 35.26(1), and that he meets the requirements of rule

35.13. Following this suspension, Weaver’s disability suspension will

remain in place until he has shown “by clear and convincing evidence[]

that [his] disability has been removed and [he] is fully qualified to resume

the practice of law.” Iowa Ct. R. 35.16(7).

LICENSE SUSPENDED.

All justices concur except Wiggins, J., who takes no part.