                IN THE SUPREME COURT OF IOWA
                               No. 09–0765

                          Filed October 23, 2009


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

JEFFREY MARK JOHNSON,

      Respondent.



      On review of the report of the grievance commission.



      Grievance commission recommends attorney’s license be suspended

for nine months. LICENSE SUSPENDED.



      Charles L. Harrington and Wendell J. Harms, Des Moines, for

complainant.



      Jeffrey M. Johnson, Davenport, pro se.
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PER CURIAM.
      This matter comes before us on the report of a division of the

Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10.

The Iowa Supreme Court Attorney Disciplinary Board alleged that the

respondent, Jeffrey Mark Johnson, violated ethical rules as a result of his

conviction of operating a motor vehicle while intoxicated (OWI), third offense,

a class “D” felony.     The grievance commission concluded that Johnson

engaged in the alleged misconduct and recommended we suspend Johnson’s

license with no possibility of reinstatement for a period of not less than nine

months.    It also recommended that, upon application for reinstatement,

Johnson provide documentation from a licensed health care professional

verifying his maintenance of sobriety and fitness to practice law.

      Upon our respectful consideration of the findings of fact, conclusions

of law, and recommendation of the commission, we find the respondent

committed the alleged ethical violations and suspend his license to practice

law indefinitely with no possibility of reinstatement for six months. Upon

application for reinstatement, Johnson shall provide medical documentation

from a licensed heath care professional of his maintenance of sobriety and

his fitness to practice law.

      I. Standard of Review.

      Our review of attorney disciplinary proceedings is de novo. Iowa Ct. R.

35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d

812, 815 (Iowa 2007); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713

N.W.2d    199,   201    (Iowa     2006).       The   commission's   findings   and

recommendations are given respectful consideration, but we are not bound

by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Isaacson, 750 N.W.2d

104, 106 (Iowa 2008).          The board has the burden of proving attorney
                                        3

misconduct by a convincing preponderance of the evidence. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006).

      “This burden is less than proof beyond a reasonable doubt, but
      more than the preponderance standard required in the usual
      civil case. Once misconduct is proven, we ‘may impose a lesser
      or greater sanction than the discipline recommended by the
      grievance commission.’ ”

Id. (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674

N.W.2d 139, 142 (Iowa 2004)); accord Dull, 713 N.W.2d at 201.

      II. Factual Background and Prior Proceedings.

      Johnson has been licensed to practice law in this state since 1981.

During this time, he has engaged in private practice of a general nature and

has served as a magistrate for three terms.

      Johnson has an acknowledged long history of alcohol abuse, including

two prior OWI convictions.     He has also appeared intoxicated in a public

park and received a private admonition for appearing in juvenile court while

intoxicated.   After his second OWI offense, on April 25, 2006, Johnson

signed an affidavit in which he acknowledged his conduct was prejudicial to

the administration of justice in violation of the Iowa Code of Professional

Responsibility for Lawyers and agreed to cooperate with the Iowa Lawyers

Assistance Program, participate in Alcoholics Anonymous (AA), and comply

with all criminal and traffic laws.         In return, the board deferred its

investigation of Johnson’s conduct for one year.       Eighteen months later,

however, on October 12, 2007, Johnson was arrested for operating a motor

vehicle while intoxicated, third offense.

      Johnson pled guilty to OWI, third offense, in violation of Iowa Code

section 321J.2(1)(a)–(b) (2007) and was sentenced to an indeterminate five-

year term of incarceration. He was also fined and ordered to pay court costs

and attorney fees.
                                             4

       Subsequently, the board filed this complaint against Johnson, alleging

Johnson’s conduct violated several provisions of the Iowa Rules of

Professional Conduct. 1 In his answer, Johnson admitted the allegations of

the complaint, except for a clarification that he had not practiced law since

September 2005. Currently, his license is on inactive status.

       On January 30, 2009, the grievance commission held a hearing. The

board presented its evidence, which included the record of Johnson’s felony

conviction for OWI, third offense. Under Iowa Code section 602.10122, “[t]he

record of [the felony] conviction is conclusive evidence” that the accused

attorney committed the alleged felony.

       Johnson represented himself at the hearing. He offered evidence of his

efforts to reach and maintain sobriety to argue against license revocation

and in support of a finding of his fitness to practice law. Johnson reported

that since 2004 he has undergone extensive treatment for alcohol abuse

through several different programs.              He provided documentation of his

attendance and participation in these treatment programs. Furthermore, he

testified that he has not imbibed alcohol since October 12, 2007.

       The respondent testified that he is currently on parole and lives in a

structured environment that facilitates his rehabilitation.               His parole and

work release program require him to provide urine samples every week to

two weeks, attend AA meetings three times a week, refrain from alcohol

consumption, refrain from associating with felons, remain in Scott County,

and report to his parole officer. His parole program continues until May 23,




       1
         In a letter dated July 22, 2008, the board informed Johnson that, because he had
successfully completed the deferral program, it had closed its investigation and would not be
seeking discipline with regard to the OWI, second offense. In the same letter, however, the
board reminded Johnson that the OWI, third offense, was still the subject of the current
disciplinary action.
                                             5

2010, subject to early release. He is currently working full time redacting

documents.

         Based    on   the     evidence   presented,      the   grievance       commission

determined that Johnson violated Iowa Rules of Professional Conduct

32:8.4(a) (“It is professional misconduct for a lawyer to . . . violate . . . [a]

Rule[]    of    Professional    Conduct    . . . .”);   32:8.4(b)   (“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[.]”); and 32:8.4(d) (“It is professional misconduct for a lawyer to . . .

engage in conduct that is prejudicial to the administration of justice[.]”). The

commission recommended that we suspend Johnson’s license with no

possibility of reinstatement for a period of not less than nine months. It also

recommended that, upon application for reinstatement, Johnson provide

documentation from a licensed health care professional verifying his

maintenance of sobriety and fitness to practice law.

         III. Ethical Violations.
         We agree the board has proven Johnson’s ethical violations of rules

32:8.4(a), 32:8.4(b), and 32:8.4(d). In Dull, we held that a conviction of OWI,

third offense, violated DR 1–102(A)(1) (now rule 32:8.4(a)), DR 1–102(A)(5)

(now rule 32:8.4(d)), and DR 1–102(A)(6) (now rule 32:8.4(b)). 2                  Dull, 713

N.W.2d at 204; see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver,

750 N.W.2d 71, 79 (Iowa 2008) (holding conviction of OWI constituted

conduct reflecting poorly on fitness to practice law); Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 88 (Iowa 2001) (same); Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 881

(Iowa 1996) (same). The fact that Johnson was not practicing law at the time

         2The
            Iowa Rules of Professional Conduct became effective on July 1, 2005, replacing
the Iowa Code of Professional Responsibility for Lawyers.
                                      6

of his offense does not require a different conclusion as to whether he

engaged in misconduct.      We have held:      “It makes no difference that

respondent was not acting as a lawyer at the time of his misconduct.

Lawyers do not shed their professional responsibility in their personal lives.”

Comm. on Prof’l Ethics & Conduct v. Millen, 357 N.W.2d 313, 315 (Iowa 1984).

      IV. 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.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Plumb, 589 N.W.2d 746,

748–49 (Iowa 1999); accord Dull, 713 N.W.2d at 206.

             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.

Ruth, 636 N.W.2d at 88 (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999)).           The form and

extent of the sanction “ ‘must be tailored to the specific facts and

circumstances of each individual case.’ ” Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (quoting Comm. on Prof'l

Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981)). 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. (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)).

      Under Iowa Court Rule 35.10(2), we “may revoke or suspend the

license of an attorney admitted to practice in Iowa upon . . . conviction of a

felony.” Similarly, under Iowa Code section 602.10122, an attorney’s license
                                         7

may be revoked or suspended “[w]hen the attorney has been convicted of a

felony.” We have specifically held that conviction for OWI, third offense, is

ground for revocation or suspension. Marcucci, 543 N.W.2d at 882. Based

upon the specific facts and our prior case law, we conclude suspension, not

revocation, is warranted in this case.

      The underlying facts presented here are very similar to those found in

Marcucci.     Like Johnson, Marcucci was convicted of operating a motor

vehicle while under the influence, third offense. Id. at 880. In determining

the appropriate sanction, we noted Marcucci’s rehabilitative efforts and the

fact that no clients had been hurt by the attorney’s misconduct as factors

supporting a more lenient sanction. Id. at 881–83. We rejected, however,

the sufficiency of a public reprimand, noting the seriousness of the

underlying offense and its reflection on an attorney’s fitness to practice law.

Id. at 882; see also Comm. on Prof’l Ethics & Conduct v. Tompkins, 415

N.W.2d 620, 624 (Iowa 1987) (“We might ask ourselves how the public can

have confidence in our system of justice if we overlook or minimize knowing

and willful criminal conduct.”). Based upon these facts, we held a six-month

suspension was warranted. Marcucci, 543 N.W.2d at 883.

      Similarly, here, there was no evidence presented that indicated

Johnson neglected or injured any of his clients by his drinking. In addition,

he has fully cooperated with the board in this and other disciplinary

proceedings. See Ruth, 636 N.W.2d at 88 (considering attorney’s cooperation

with the commission in the determination of the appropriate sanction). In

addition, Johnson is in full compliance with his parole and work release

conditions and is actively attempting to control his alcoholism. Id. at 88–89

(considering attorney’s efforts to sustain sobriety as mitigation in assessing

sanctions).
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      We note, however, that a prior private admonition was given to

Johnson in 2005 for appearing at a court hearing while under the influence.

Our prior case law makes such a private admonition an aggravating

circumstance. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lemanski,

606 N.W.2d 11, 14 (Iowa 2000).

      Based upon these facts and considering similar prior cases, we

conclude a six-month suspension, rather than the nine-month suspension

recommended by the commission, is warranted. Cf. Ruth, 636 N.W.2d at 89

(suspending attorney’s license for six months as a result of two criminal

convictions—domestic abuse assault causing injury and OWI, third offense—

after noting attorney’s diligent efforts at rehabilitation with regard to both

convictions); Marcucci, 543 N.W.2d at 881–83 (six-month suspension

warranted when no harm to clients and attorney’s rehabilitative efforts were

significant), with Dull, 713 N.W.2d at 205–08 (attorney’s acts, including

appearing in court intoxicated; conviction of OWI, third offense; harmfully

neglecting clients’ cases; and failing to respond to the board’s inquiries,

warranted two-year license suspension). We agree, however, that Johnson,

upon applying for reinstatement, should be required to establish his fitness

to practice law through medical documentation. We have a well-established

history of imposing such conditions. See Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Curtis, 749 N.W.2d 694, 703–04 (Iowa 2008) (conditions imposed

regarding depression and attention deficit disorder); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 205–06 (Iowa 2006)

(conditions imposed with regard to depression); Dull, 713 N.W.2d at 207–08

(conditions imposed with regard to alcoholism); Iowa Supreme Ct. Att’y

Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96–97 (Iowa 2006) (conditions

imposed with regard to depression and anxiety). Therefore, upon application

for reinstatement, Johnson shall provide documentation from a licensed
                                      9

health care professional regarding the maintenance of his sobriety and

fitness to practice law.

      V. Conclusion.

      We suspend Johnson’s license to practice law indefinitely with no

possibility of reinstatement for six months from the date of the filing of this

opinion.    This suspension shall apply to all facets of the practice of law.

Iowa Ct. R. 35.12(3). Upon any application for reinstatement, Johnson shall

have the burden to show he has not practiced law during the period of

suspension and that he meets the requirements of Iowa Court Rule 35.13.

He shall also provide medical documentation from a licensed health care

professional regarding the maintenance of his sobriety and his fitness to

practice law. Johnson shall provide all of the notifications required by Iowa

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

35.26(1).

      LICENSE SUSPENDED.

      This opinion shall be published.
