              IN THE SUPREME COURT OF IOWA
                               No. 16–1911

                         Filed February 10, 2017


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

PAUL KEVIN WATERMAN,

      Respondent.



      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance   commission    recommends    the   suspension   of   an

attorney’s license for a violation of ethical rules. LICENSE SUSPENDED.



      Tara M. van Brederode and Elizabeth Quinlan, for complainant.



      Matthew C. McDermott of Belin McCormick, P.C., Des Moines, for

respondent.
                                       2

MANSFIELD, Justice.

        An attorney had an intimate relationship with a client while

representing the client in a dissolution proceeding.              The attorney

withdrew from representation before the case concluded and self-

reported his conduct to the Iowa Supreme Court Attorney Disciplinary

Board (the Board). The Board charged the attorney with violating Iowa

Rule of Professional Conduct 32:1.8(j).

        The parties stipulated as to facts and as to the violation of rule

32:1.8(j). The parties also jointly recommended a thirty-day suspension.

Following a formal hearing, the grievance commission concluded the

attorney had violated the rule and recommended suspending the

attorney’s license for forty-five days and requiring him to attend therapy

for at least two years. Upon our review, we also find the attorney violated

rule 32:1.8(j). We suspend the attorney’s license to practice law for thirty

days.

        I. Background Facts and Proceedings.

        Paul Waterman practices law in Iowa City. After a short period of

working in Washington, D.C., Waterman was admitted to the Iowa bar in

2006. Since then, he has been engaged in private practice in the Iowa

City–Cedar Rapids area, most recently as a partner in a small law firm.

Waterman practices primarily in the area of family law.

        In May 2014, Jane Doe met with Waterman for legal advice. Doe is

a business professional with an M.B.A. and is a C.P.A. Doe had recently

separated from her husband and sought advice from Waterman

regarding    dissolution   of   her   marriage.   After   their    initial   May

consultation, Waterman did not hear from Doe again until September.

At that time, Doe wanted a protective order because her husband had

threatened violence.       Waterman explained to Doe the procedure for
                                      3

obtaining a protective order, and the next month, he filed a dissolution

petition on Doe’s behalf.     The main contested issue in the dissolution

case was custody of the couple’s young children.

      Waterman and Doe continued to meet to discuss the case.        The

conversation during those meetings, according to Waterman, started to

“diverge from professional topics.” Waterman and Doe also began having

lunch together and texting each other.

      Waterman recognized his relationship with Doe had moved beyond

that of an attorney and a client. He told Doe he should withdraw from

representing her and gave her the names of two lawyers. In November,

while Doe was still in the process of obtaining new counsel, she and her

husband participated in a mediation without counsel present.         The

mediation appeared to have resolved many of the parties’ issues,

including child custody.

      Based on the outcome of the mediation, Waterman drafted a

stipulation of settlement on Doe’s behalf and sent it to the husband’s

lawyer. Because Doe believed the mediation had been successful, she

did not retain new counsel. Around this time, Waterman and Doe began

a sexual relationship.

      Meanwhile, Waterman did not hear back from the husband’s

counsel for several weeks regarding the settlement.       Eventually, the

husband’s counsel informed Waterman that the husband had changed

his mind on custody and would not sign the stipulation. Negotiations

between the two attorneys followed.       Waterman once more discussed

with Doe the need to engage replacement counsel. Doe agreed she would

meet with a potential new attorney upon her return from a family

vacation over the holidays.
                                    4

      On January 12, 2015, the husband’s attorney emailed Waterman

indicating that the husband would accept the prior deal. Again believing

settlement was imminent, Doe did not retain the substitute attorney, and

Waterman remained her attorney of record.

      In mid-February, the husband’s attorney advised Waterman that

the husband had yet again changed his mind. Waterman told Doe that

he did not anticipate settlement and she must retain new counsel.

Waterman filed a motion to withdraw on February 27, and Doe hired new

counsel.

      During February, Doe’s husband became aware of a relationship

between Doe and Waterman. On March 3, the husband’s counsel sent

Waterman an email, stating that he intended to conduct additional

discovery relating to custody, including discovery on Waterman’s

relationship with Doe.    Waterman responded that he would be self-

reporting an ethical violation to the Board.    Waterman in fact filed a

detailed self-reporting letter with the Board on March 12.

      Following Waterman’s replacement as Doe’s counsel, Doe and her

husband participated in a second mediation in April.         A stipulation of

settlement was filed shortly thereafter. This settlement was a “tweaked”

version of the earlier document drafted by Waterman.             Waterman’s

relationship with Doe ended in June.

      Waterman’s self-reporting letter concluded,

             I admit and take full responsibility for my violation of
      Iowa Rule of Professional Conduct 32:1.8(j). I was aware of
      the rule when I committed the violation and did not take
      corrective action as quickly as I could have. I recognize that
      the rule forbidding attorneys from having sexual
      relationships with clients is especially important in family
      law cases as clients in those cases disclose intimate,
      personal details of their lives causing an increased likelihood
      that attorneys and clients will develop a personal bond. I am
      ashamed of my behavior, and I have engaged a professional
                                    5
      therapist . . . to assist me in developing a greater awareness
      of the need for professional boundaries in attorney-client
      relationships.

      On December 18, the Board filed a complaint against Waterman

alleging he had engaged in a sexual relationship with a client in violation

of Iowa Rule of Professional Conduct 32:1.8(j). Waterman answered the

complaint, admitting all allegations therein. The Board and Waterman

entered into a written stipulation. The stipulation set forth an agreed-

upon statement of facts, acknowledged that Waterman had violated rule

32:1.8(j), and recommended a thirty-day suspension.       The parties also

submitted a letter from Waterman’s therapist, which stated that

Waterman had been attending therapy since March 2015. After receiving

the stipulation, the commission scheduled a limited-scope hearing for

the parties to expand upon any mitigating or aggravating circumstances.

      At the hearing, Waterman testified that he had been diagnosed

with a depressive disorder in 2012 and had previously sought out

therapy, although he stopped attending in 2013. Waterman explained

that he returned to therapy two times a week following his withdrawal

from representing Doe.

      Waterman has not been the subject of a prior ethics complaint.

Waterman testified that he tries to take on pro bono cases regularly. Two

witnesses testified to Waterman’s positive reputation within the legal

community. The attorney for Doe’s husband testified that Waterman’s
relationship with Doe had not actually given his client any leverage in the

marriage dissolution proceedings.    This attorney also testified that he

had only been aware of a social relationship between Waterman and Doe;

he had no intention of reporting Waterman for ethical violations prior to

Waterman’s self-reporting.
                                     6

      After the hearing, the commission found that a violation of rule

32:1.8(j) had occurred. The commission members were divided between

thirty and sixty days on the length of an appropriate suspension. The

commission therefore recommended a suspension of Waterman’s license

for forty-five days.   The commission found the statement provided by

Waterman’s therapist “uninformative.”      In addition to a forty-five day

suspension, the commission thus recommended that Waterman remain

in therapy for at least two years and submit a report of his completion

and growth as a result of the therapy.

      II. Standard of Review.

      “We review attorney disciplinary proceedings de novo.”         Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Blessum, 861 N.W.2d 575, 582 (Iowa

2015). While we respectfully consider the findings of the commission, we

are not bound by them.       Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Moothart, 860 N.W.2d 598, 602 (Iowa 2015).         The Board must prove

attorney misconduct by a convincing preponderance of the evidence.

Blessum, 861 N.W.2d at 582. “This standard is more demanding than

proof by preponderance of the evidence, but less demanding than proof

beyond a reasonable doubt.”        Id. (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Ouderkirk, 845 N.W.2d 31, 33 (Iowa 2014)).

      “When the parties enter into a stipulation, . . . they are bound by

the stipulated facts, which we interpret with reference to their subject

matter and in light of the surrounding circumstances and the whole

record.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Johnson, 884 N.W.2d

772, 777 (Iowa 2016). However, “[w]e are not bound by stipulations as to

ethical violations or the appropriate sanction.” Id.
                                            7

      III. Analysis.

      A. Violation of Rule 32:1.8: Sexual Relations with a Client.

Iowa Rule of Professional Conduct 32:1.8(j) provides, “A lawyer shall not

have sexual relations with a client, or a representative of a client, unless

the person is the spouse of the lawyer or the sexual relationship predates

the   initiation   of    the   client-lawyer    relationship.”    Iowa    R.    Prof’l

Conduct 32:1.8(j).       This type of relationship is prohibited by the rule

“regardless of whether the relationship is consensual and regardless of

the absence of prejudice to the client.” Id. r. 32:1.8 cmt. 17; see also

Moothart, 860 N.W.2d at 605 (recognizing that “a per se rule applies”).

      There is no dispute Waterman violated rule 32:1.8(j). Waterman’s

sexual   relationship      with   Doe   commenced       shortly   after   the    first

mediation, while he was still her attorney. Waterman and Doe were not

married at that time.

      B. Sanction.        We must now determine the appropriate sanction

for Waterman’s violation of rule 32:1.8(j). “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.” Blessum, 861 N.W.2d at 591

(quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris, 847 N.W.2d

428, 435 (Iowa 2014)). We take into account

      the nature of the violations, the attorney’s fitness to continue
      in the practice of law, the protection of society from those
      unfit to practice law, the need to uphold public confidence in
      the justice system, deterrence, maintenance of the
      reputation of the bar as a whole, and any aggravating or
      mitigating circumstances.

Id. (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838

N.W.2d    648,     660    (Iowa   2013)).       “We   respectfully   consider     the
                                        8

commission’s recommended sanction, but we remain free to impose a

greater or lesser sanction.” Johnson, 884 N.W.2d at 779.

       Mitigating factors here include Waterman’s lack of a prior

disciplinary record, his self-reporting and acceptance of responsibility,

and his pro bono work. See id. at 781 (discussing these factors). An

additional mitigating factor is the lack of actual client harm. Id. at 782.

No one contends that Waterman’s ethical violation affected the course or

the outcome of the dissolution proceedings.           And a further mitigating

factor is Waterman’s decision to seek therapy to address certain mental

health issues that may have contributed to his misconduct. Id. at 781–

82.    On the other hand, an aggravating factor is that the relationship

occurred during the course of a domestic relations representation. Id. at

781.

       The appropriate discipline for an attorney who engages in a sexual

relationship with a client can range from public reprimand to a lengthy

period of suspension from the practice of law. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 767–68 (Iowa 2010).                 In

Johnson, we recently reviewed in detail our precedents in this area. See

884 N.W.2d at 780–81.

       The Board and Waterman maintain that Johnson and Iowa

Supreme Court Attorney Disciplinary Board v. Monroe, 784 N.W.2d 784

(Iowa 2010), are the most analogous decisions to the present case and

both support a thirty-day suspension. 1          We agree.      The attorney in

Johnson engaged in a sexual relationship with a client while representing


       1In  its statement to us, the Board continues to recommend a thirty-day
suspension despite the commission’s recommendation of forty-five days. See Iowa Ct.
R. 36.21(1). We agree that the Board should recommend a less severe sanction than
the commission has proposed when the Board believes that is appropriate.
                                     9

him in several criminal and family law matters.      884 N.W.2d at 775.

Johnson eventually self-reported her conduct to the Board, but only after

she had been confronted by federal law enforcement with evidence of the

relationship.   Id. at 775–76.   It was an aggravating circumstance that

Johnson had been representing the client in family and criminal matters.

Id. at 781.     We also noted, however, there was no evidence anyone

suffered harm as a result of the intimate relationship. Id. at 782. As

mitigating circumstances, we recognized that Johnson had no prior

history of discipline, that she had performed a significant amount of pro

bono work, and that she had also “sought counseling to address certain

mental health issues that may have contributed to her misconduct.” Id.

at 781–82. We imposed a thirty-day suspension. Id. at 782.

       In Johnson, we viewed Monroe as the “most comparable” of our

prior ethics cases. Id. at 781. Monroe likewise involved an attorney who

had a sexual relationship with a client while representing the client in a

dissolution proceeding and on various criminal charges. 784 N.W.2d at

787.    We recognized that clients in dissolution proceedings are

“particularly vulnerable[,] . . . and the possibility of harm, especially

when child custody matters are at stake, is high.”     Id. at 790.   As in

Johnson, there was no evidence that the sexual relationship in Monroe

affected the outcome of a legal proceeding.       Id. n.3.   The attorney

admitted he had violated the rule, and we shared the commission’s view

that he had “ ‘genuinely wanted to assist Ms. Doe, [but] lost sight of the

ethical boundaries’ governing his relationship with his client.” Id. at 791

(alteration in original). We noted that the misconduct appeared to be an

isolated incident, that the relationship between Monroe and the client

was “not predatory,” and that Monroe had sought counseling from a

professional that he had previously seen for depression prior to the
                                    10

misconduct. Id. at 791–92. We suspended Monroe’s license for thirty

days. Id. at 792.

      After    considering   the   relevant   facts   of   this   case,   the

recommendation of the commission, the aggravating and mitigating

circumstances, and our own precedents, we agree with the parties that a

thirty-day suspension of Waterman’s law license is warranted. We do not

adopt the commission’s recommendation that Waterman be required to

remain in therapy for two years. We often decline to impose conditions

like this, in part because we do not have a mechanism for supervising

their performance. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Hedgecoth, 862 N.W.2d 354, 366 (Iowa 2015).

      IV. Conclusion.

      For the reasons stated, we suspend Waterman from the practice of

law with no possibility of reinstatement for thirty days. This suspension

applies to all facets of ordinary law practice. See Iowa Ct. R. 34.23(3).

Pursuant to Iowa Court Rule 34.24, Waterman must notify his clients in

all pending matters. See id. r. 34.24(1). Waterman is assessed the costs

of this action. See id. r. 36.24(1). At the conclusion of this suspension,

Waterman will be automatically reinstated if he has paid all costs and

the Board has not filed an objection to the reinstatement.           See id.

r. 34.23(2).

      LICENSE SUSPENDED.
