                  IN THE SUPREME COURT OF IOWA
                                 No. 10–0193

                            Filed July 16, 2010


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

WILLIAM RAY MONROE,

      Respondent.



      On review of the report of the Grievance Commission of the Supreme

Court of Iowa.



      Grievance     commission   recommends       thirty-day   suspension   of

respondent’s license to practice law. LICENSE SUSPENDED.



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

complainant.



      William R. Monroe, Burlington, pro se.
                                      2

TERNUS, Chief Justice.

      The complainant, Iowa Supreme Court Attorney Disciplinary Board,

filed charges against the respondent, William Monroe, alleging he engaged in

a sexual relationship with a client in violation of the Iowa Rules of

Professional Conduct.    After a hearing before a division of the Grievance

Commission of the Supreme Court of Iowa, the commission found the alleged

misconduct had occurred, and this misconduct violated the respondent’s

ethical duties as an Iowa lawyer. The commission recommended a thirty-day

suspension of the respondent’s license to practice law.

      Upon our review of the record in this case, as well as the commission’s

report, we agree with the commission’s findings of fact and with its legal

conclusion Monroe’s sexual relationship with his client violated Iowa Rule of

Professional Conduct 32:1.8(j). We disagree, however, with the commission’s

conclusion Monroe’s conduct was prejudicial to the administration of justice

in violation of Iowa Rule of Professional Conduct 32:8.4(d). More specifically,

we reject the board’s position that a sexual relationship between attorney

and client automatically prejudices the administration of justice, requiring

instead that there be proof the relationship actually hampered the proper

functioning of the court system. Notwithstanding our contrary conclusion

with respect to a violation of rule 32:8.4(d), we concur in the commission’s

recommended sanction and suspend the law license of William Monroe for

thirty days.

      I. Prior Proceedings.

      On July 14, 2009, the board filed an amended complaint against

William Monroe alleging that in 2007 Monroe entered an appearance for

Jane Doe in a dissolution-of-marriage action and thereafter began a sexual

relationship with her. The board further alleged Monroe represented Doe in

some criminal matters, including a charge of public intoxication, while they
                                             3

continued to be intimately involved.              The board charged Monroe with

violating rule 32:1.8(j) (“A lawyer shall not have sexual relations with a client

. . . unless the person is the spouse of the lawyer or the sexual relationship

predates the initiation of the client-lawyer relationship.”), and rule 32:8.4(d)

(“It is professional misconduct for a lawyer to . . . engage in conduct that is

prejudicial to the administration of justice.”). 1 Monroe admitted the board’s

factual allegations, with the qualification that “the [sexual] relationship was

established before the public intoxication case began.” He also admitted this

conduct violated rule 32:1.8(j). As for the alleged violation of rule 32:8.4(d),

Monroe stated: “Admits that violating Rule 32:1.8(j) is per se prejudicial to

the administration of justice. Denies that any other actions of Respondent

on behalf of Jane Doe, the victim in this case, were prejudicial to the

administration of justice.” (Footnote omitted.)

       At the hearing before a division of the grievance commission, the

division chair urged the parties to focus their evidence on an appropriate

sanction in view of Monroe’s admission of the operative facts and the ethical

violations. Notwithstanding Monroe’s limited admission to a violation of rule

32:8.4(d), restricting it to a “per se” violation of the rule, the board did not

challenge the commission’s view of the narrow purpose of the hearing.
Similarly, in its report to this court, the commission accepted Monroe’s

concession that his conduct violated rule 32:1.8(j) and rule 32:8.4(d) and

made no additional finding that the board proved a violation of rule 32:8.4(d)

beyond the per se violation that Monroe admitted.


       1Based  on Monroe’s alleged violation of rule 32:1.8(j), the board also charged Monroe
with a violation of Iowa Rule of Professional Conduct 32:8.4(a), which states: “It is
professional misconduct for a lawyer to . . . violate or attempt to violate the Iowa Rules of
Professional Conduct . . . .” As we have recently stated, rule 32:8.4(a) does not provide an
independent ground for an ethical infraction when based solely on the violation of another
rule. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa
2010). Therefore, we give this claim no further attention.
                                           4

        The commission’s report, filed on February 1, 2010, focused on the

appropriate sanction for the admitted ethical infractions. The commission

noted    several   factors    it   considered   as   aggravating,    including   Doe’s

vulnerability, Monroe’s initial evasiveness when an opposing attorney

questioned his relationship with Doe, Monroe’s failure to withdraw from his

representation of Doe in the criminal matters despite his withdrawal in the

dissolution action, Monroe’s injection of himself in the pending dissolution

action after his withdrawal, and the resulting harm to Doe. The commission

cited the following circumstances it considered mitigating: Monroe’s clean

disciplinary record, Monroe’s service in the Marines, Monroe’s extraordinary

amount of pro bono work, Monroe’s cooperation with the board and during

the hearing, and Monroe’s acceptance of responsibility for his conduct. In

addition to these matters, the commission stated its belief that Monroe “is a

naïve person who genuinely wanted to assist Ms. Doe, and that [he] lost

sight of the ethical boundaries due to lack of education in the area.” The

commission recommended Monroe’s license to practice law be suspended for

thirty days, and suggested he be required to present evidence that he had

completed counseling “as to how to identify and avoid relationships with

vulnerable people” prior to reinstatement.

        II. Scope of Review.

        We review attorney disciplinary proceedings de novo. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 759 (Iowa 2010). The

commission’s       findings    and    recommendations          are   given   respectful

consideration, but we are not bound by them.             Id.     Nonetheless, we give

special weight to the commission’s findings concerning the credibility of

witnesses. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713 N.W.2d

682, 695 (Iowa 2006).          The board has the burden of proving attorney

misconduct by a convincing preponderance of the evidence. Iowa Supreme
                                      5

Ct. Att’y Disciplinary Bd. v. Johnson, 774 N.W.2d 496, 497–98 (Iowa 2009).

As frequently stated, “ ‘This burden is less than proof beyond a reasonable

doubt, but more than the preponderance standard required in the usual civil

case.’ ” Id. at 498 (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conrad,

723 N.W.2d 791, 792 (Iowa 2006)).      Upon proof of misconduct, the court

may impose a lesser or greater sanction than that recommended by the

commission. Id.

      III. Factual Findings.

      Monroe was admitted to practice law in Iowa in 1998. In 2007 he was

retained by Doe to represent her in a dissolution proceeding that included a

child custody issue. Monroe was acquainted with Doe, having represented

her in a prior legal matter. In late May 2007, Monroe and Doe commenced a

sexual relationship. Monroe continued to represent Doe, and after various

misdemeanor criminal charges were filed against Doe in the summer of

2007, Monroe represented her in those matters as well.

      The intimate relationship between Monroe and his client ended in mid-

August 2007 by mutual agreement. Doe decided she was not interested in

having a serious relationship at that time. In addition, they both recognized

that their relationship might be detrimental to Doe in the dissolution action

and may interfere with Monroe’s representation of Doe.

      Doe testified at the hearing before the commission, and we find, that

she was not coerced by Monroe to engage in an intimate relationship with

him, that there was no understanding or anticipation that her attorney fees

would be reduced by virtue of their relationship, and that she felt it was her

own decision to be in or out of the relationship.     Doe harbors no ill will
                                              6

toward Monroe and continues to regard him as a good friend upon whom she

can call in times of need. 2

      Eventually, Doe’s husband became aware of his wife’s relationship

with Monroe. He told his attorney who then reported the situation to the

disciplinary authorities in the fall of 2007, resulting in the filing of the

charges at issue here.

      The attorney representing Doe’s husband also contacted the assistant

county attorney to share his concerns regarding Monroe’s relationship with

Doe. The assistant county attorney told Monroe what she had heard and

suggested that Monroe should not represent Doe in the criminal matters.

Although Monroe withdrew from the dissolution case in early fall 2007, he

continued to represent Doe in the criminal matters until they were resolved

in October 2007.        Even though Monroe no longer represented Doe in the

dissolution matter, he periodically injected himself into that case through

phone calls to Doe’s new attorney regarding suggestions and information

pertinent to the dissolution proceeding.            After Doe was billed for her new

attorney’s conversations with Monroe, Doe asked Monroe to refrain from

contacting her new attorney.

      As previously stated, Monroe admitted in the disciplinary case that he

had a sexual relationship with Doe and that his conduct violated rules

32:1.8(j) and 32:8.4(d).       Consequently, the hearing before the commission

focused on the appropriate sanction for this misconduct. As noted above,

after considering various aggravating and mitigating circumstances, the

commission recommended a one-month suspension.




      2Doe    testified that she and Monroe “were friends before, friends during, and friends
after—now.”
                                         7

      IV. Ethical Violations.

      A. Rule 32:1.8(j)––Sexual Relationship with Client.                   We conclude

Monroe’s intimate relationship with his client violated Iowa Rule of

Professional Conduct 32:1.8(j). Monroe seems to suggest in his answer that

his relationship with Doe was not improper with respect to the public

intoxication   case   because    their   intimate       relationship    predated     his

representation of her on that matter. This suggestion indicates Monroe may

misperceive the charges against him.          Monroe was not charged with an

ethical violation based on his representation of Doe after their intimate

relationship began. The ethical charges against him were based solely on

the fact he had a sexual relationship with his client, and the board relied on

Monroe’s     continuing   representation     of   Doe    only   as     an    aggravating

circumstance. Consequently, whether Monroe’s continuing representation of

Doe was itself ethical misconduct is not at issue here. Nonetheless, we will

address the impact of his continued representation on the charge that was

made by the board, that Monroe’s sexual relationship with Doe violated rule

32:1.8(j).

      Monroe’s sexual relationship with his client was not legitimized once

he withdrew from representing her in the dissolution matter. Rule 32:1.8(j)

provides: “A lawyer shall not have sexual relations with a client . . . unless

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

initiation of the client-lawyer relationship.”      (Emphasis added.)          Monroe’s

client-lawyer relationship with Doe commenced in the spring of 2007. He

did not have sexual relations with her until late May 2007. Therefore, the

rule’s exception for sexual relationships that predate the client-lawyer

relationship does not apply here. Monroe’s intimate relationship with Doe

violated rule 32:1.8(j) for the entire period it existed because their client-
                                        8

lawyer relationship predated their sexual relationship and Doe continued to

be his client during the time they were intimately involved.

      B.   Rule 32:8.4(d)––Conduct Prejudicial to the Administration of

Justice. “Whether conduct is prejudicial to the administration of justice is

not subject to a precise test.”    Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Buchanan, 757 N.W.2d 251, 255 (Iowa 2008).           “Generally, acts that have

been deemed prejudicial to the administration of justice have ‘hampered the

efficient and proper operation of the courts or of ancillary systems upon

which the courts rely.’ ”   Iowa Supreme Ct. Att’y Disciplinary Bd. v. Borth,

728 N.W.2d 205, 211 (Iowa 2007) (quoting Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999)). Based on

these principles, we reject the proposition that a sexual relationship between

client and attorney is a per se violation of rule 32:8.4(d).

      The prohibition of sexual relationships between client and attorney

rests on the belief that a conflict between the client’s interest and the

attorney’s personal interests is inherent in such situations.      See Iowa R.

Prof’l Conduct 32:1.8 (entitled “Conflict of interest: current clients: specific

rules”); 1 Geoffrey C. Hazard, Jr., et al., The Law of Lawyering § 12.2, at 12–

8 (3d ed. 2004 Supp.) [hereinafter “The Law of Lawyering”] (noting rule

regarding sexual relationships regulates “a troubling situation implicating

conflict of interest concerns”).   The proposition that a sexual relationship

between client and attorney is a per se violation of rule 32:8.4(d) would

necessarily rest on a similar belief: that an intimate relationship between

client and attorney automatically prejudices the administration of justice.

There are at least two flaws in this reasoning.

      First, rule 32:8.4(d) does not prohibit a particular act or conduct in

isolation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784

N.W.2d 761, 768–69 (Iowa 2010).             It prohibits conduct that has an
                                      9

undesirable effect:   prejudice to the administration of justice, i.e., some

interference with the efficient and proper operation of the courts through a

deviation “from the well-understood norms and conventions of practice.” Id.

at 769. See generally 2 The Law of Lawyering § 65.6, at 65–15 (3d ed. 2009

Supp.) (noting with disapproval that some courts have applied rule 8.4(d) “to

conduct that, while reprehensible, seems quite far from prejudicing the

‘administration’ of any particular proceeding or of ‘justice’ generally”).

Clearly, a client-attorney relationship compromised by a concurrent intimate

relationship could prompt acts or omissions by the attorney or client that

would impede the proper functioning of the court system for purposes of the

client’s case. Nonetheless, we think such a result is not inevitable, as the

subject of many client-attorney relationships does not involve court

proceedings at all.

      The second reason we think a violation of rule 32:1.8(j) does not result

in a per se violation of rule 32:8.4(d) is the inconsistency between this

conclusion and our allowance of exceptions to the prohibition of sexual

relationships between client and attorney. If sexual relationships between

client and attorney always compromise the administration of justice, there

would be no sound basis for allowing a client-attorney relationship to exist

between spouses or for accommodating a client-attorney relationship when

the sexual relationship predates the client-attorney relationship. Moreover,

if sexual relationships between client and attorney automatically prejudice

the administration of justice, an attorney relying on the rule 32:1.8(j)

exceptions as a safe harbor would find their protection illusory because he or

she would still face charges under rule 32:8.4(d), which does not contain

comparable exceptions.

      The commission accepted Monroe’s admission that his violation of rule

32:1.8(j) is “per se prejudicial to the administration of justice.”   For the
                                      10

reasons we have discussed, we do not. As noted, the board was satisfied to

rely on Monroe’s admission and did not seek to prove specific ways in which

this relationship “hampered the efficient and proper operation of the courts

or of ancillary systems upon which the courts rely.” Steffes, 588 N.W.2d at

123. We conclude, therefore, that the board has failed to prove a violation of

rule 32:8.4(d). This conclusion does not, however, preclude consideration of

the effects of Monroe’s misconduct on his representation of Doe in

determining the appropriate sanction, a matter we now address.

      V. Sanction.

      “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.”

Johnson, 774 N.W.2d at 499.       In determining a suitable sanction for an

attorney’s ethical violations,

      we consider the nature and extent of the respondent’s ethical
      infractions, his fitness to continue practicing law, our obligation
      to protect the public from further harm by the respondent, the
      need to deter other attorneys from engaging in similar
      misconduct, our desire to maintain the reputation of the bar as
      a whole, and any aggravating or mitigating circumstances.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kallsen, 670 N.W.2d 161,

164 (Iowa 2003).       We think two of these considerations mandate a

suspension here: the nature of the ethical infraction and the need to deter

other attorneys from engaging in similar misconduct.

      Monroe had a sexual relationship with his client that spanned several

weeks. Cf. Comm. on Prof’l Ethics & Conduct v. Durham, 279 N.W.2d 280,

285–86 (Iowa 1979) (publicly reprimanding attorney who had inappropriate

physical contact with client during prison visit with client). There is no gray

area with respect to the prohibition of such conduct, no nuance subject to

differing interpretations. See Marzen, 779 N.W.2d at 767 (“Our ethics rules
                                         11

are clear, and our cases have consistently and explicitly condemned sexual

relationships between an attorney and a client.”); Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Furlong, 625 N.W.2d 711, 714 (Iowa 2001)

(“Professional   responsibility    involves   many     gray    areas,   but   sexual

relationships between attorney and client is not one of these.”). Therefore,

the ethical violation is obvious and should have been obvious to Monroe

before he engaged in sex with his client.

      This type of misconduct also clearly jeopardizes the client’s interests.

See Iowa R. Prof’l Conduct 32:1.8(j) cmt. [17] (discussing dangers posed by

attorney’s sexual relationship with client).       The fact that the misconduct

occurred while Monroe represented Doe in a dissolution action and in

criminal matters is an aggravating circumstance because clients are

particularly vulnerable under these circumstances, and the possibility of

harm, especially when child custody matters are at stake, is high. 3 See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Morrison, 727 N.W.2d 115, 118 (Iowa

2007) (stating “a sexual relationship between attorney and client may be

harmful to the client’s interest,” particularly when client is dealing with a

divorce or criminal charges); 1 Restatement (Third) of the Law Governing

Lawyers § 16, cmt. e (1998) (“A lawyer may not . . . enter a sexual
relationship with a client when that would undermine a client’s case, abuse

the client’s dependence on the lawyer, or create risk to the lawyer’s

independent judgment, for example, when the lawyer represents the client in

a divorce proceeding.”). Moreover, Monroe failed to recognize the potential

for harm as evidenced by his continuing representation of Doe after their

sexual relationship commenced.          Finally, Doe suffered from situational

        3We note there was no proof Monroe’s sexual relationship with Doe impacted the

child custody dispute between Doe and her husband. The board merely argues “the
relationship could have had negative repercussions on Ms. Doe’s custody of her child.”
(Emphasis added.)
                                            12

depression in reaction to her marital situation, further affecting her capacity

to make good choices for herself. 4 It is important to deter other attorneys in

similar circumstances from putting their own self-interest ahead of those of

the client, the very antithesis of a lawyer’s professional duty.

       On the other hand, the situation presented by the facts of this case is

less egregious than we have encountered with respect to other violations of

rule 32:1.8(j). See, e.g., Marzen, 779 N.W.2d at 768–69 (finding attorney’s

sexual relationship with extremely vulnerable client, whom he represented in

an involuntary commitment proceeding, warranted six-month suspension);

Morrison, 727 N.W.2d at 119–20 (imposing three-month suspension on

attorney who engaged in sexual relationship with client after he had been

previously admonished for making sexual advances toward another client);

McGrath, 713 N.W.2d at 703–04 (concluding three-year suspension was

warranted for attorney who preyed upon dissolution client’s vulnerability by

obtaining sex in exchange for legal services and who had attempted to do so

with another dissolution client); Furlong, 625 N.W.2d at 713–14 (imposing

eighteen-month suspension on attorney who performed “uninvited and

unwelcome” sex acts on client and sexually harassed at least two other

clients by making unwanted sexually motivated physical contact with them).

In the present case, the misconduct appears to be an isolated occurrence,

there being no evidence that Monroe had engaged in similar transgressions

in the past. In addition, Monroe’s conduct was not predatory, Doe felt she

entered the relationship voluntarily and that Monroe had not taken

advantage of her, and Doe has seemingly suffered no emotional harm from




       4Doe  had been treated in the past for other mental health problems, but there is no
evidence these past problems were active at the time in question or had any influence on
Doe’s capacity for good decision-making.
                                            13

the relationship. 5 We agree with the commission’s observation that Monroe

“genuinely wanted to assist Ms. Doe, [but] lost sight of the ethical

boundaries” governing his relationship with his client. In addition, as the

commission       noted,     Monroe      had      his   own     “emotional/personality

weaknesses/vulnerabilities.”

       We also consider Monroe’s “fitness to continue practicing law” and

“our obligation to protect the public from further harm” by this attorney.

Kallsen, 670 N.W.2d at 164. Clearly, Monroe needs a better understanding

of his ethical obligations, the vulnerability of clients under the stress of a

dissolution or facing criminal charges, and the impact a sexual relationship

between him and his client has on his client and his own ability to

professionally represent that client. Without this knowledge, Monroe poses a

risk to the public. We also note, however, that Monroe has contributed a

significant amount of time to the representation of clients on a pro bono

basis. In addition, members of the bar and of the judiciary testified at the

hearing that, other than the matter that brought Monroe to the attention of

the disciplinary authorities, he has practiced in an ethical fashion. Taking

all of the pertinent factors into consideration, we concur in the commission’s

recommendation that Monroe’s license to practice law in this state be

suspended for thirty days.

       The commission also recommended that Monroe’s license not be

reinstated until he has furnished “evidence that he has completed

counseling (at his expense), which counseling is focused on [his] current lack

of appreciation for how his behavior with Jane Doe was wrong.”                    Shortly


       5Doe was being treated for her situational depression during the time in question,
but the board introduced no evidence from Doe or her therapist that Doe’s relationship with
Monroe adversely affected Doe’s mental or emotional state. The only harm shown in the
record was attorney fees incurred by Doe that were attributable to Monroe’s contact with
Doe’s new attorney.
                                           14

before submission of this matter to our court on May 19, 2010, Monroe filed

a report from a mental health counselor whom he has been seeing on a

weekly basis since February 2010. 6 (Monroe had previously been a client of

the same professional when he suffered from depression in 2004.)                    The

counselor stated that she has “identified and processed at length” with

Monroe “the issues of unequal power in a relationship with a [p]rofessional,”

including “the serious repercussions and the risk of harm, both mentally

and emotionally, to a client who is in a vulnerable state.”             The counselor

opined that Monroe was keenly aware of the ramifications of such a

relationship and had resolved not to let it happen again. She stated she has

worked with Monroe to “set up guidelines within his thinking and also within

his office to prevent any future reoccurrence.”

       We are satisfied the May report from Monroe’s counselor provides

sufficient verification that Monroe has addressed the matters leading to his

unethical behavior.        Therefore, we decline to require any additional

counseling prior to reinstatement. If the board has a basis to challenge the

accuracy of the report submitted by Monroe, it has an opportunity to object

to Monroe’s automatic reinstatement under Iowa Court Rule 35.12(2).

       VI. Disposition.
       We suspend Monroe’s license to practice law for thirty days.                 This

suspension shall apply to all facets of the practice of law as provided in Iowa

Court Rule 35.12(3) and requires notification of clients as outlined in Iowa

Court Rule 35.22. Costs are taxed to Monroe pursuant to Iowa Court Rule



       6The  board objected to Monroe’s late submission of this report. In an order dated
March 19, 2010, this court invited the parties to submit statements addressing the
propriety of the commission’s recommended sanction. These statements were due on May
10, 2010. Because Monroe did not submit his counselor’s report by May 10, 2010, we
conclude he did not intend that we consider his rehabilitative efforts in determining the
appropriate length of any suspension, and we have not done so.
                                     15

35.26. Automatic reinstatement shall not be ordered until all costs are paid.

Iowa Ct. R. 35.12(2).

      LICENSE SUSPENDED.
