               IN THE SUPREME COURT OF IOWA
                              No. 10–0832

                          Filed March 25, 2011


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

JAMES ROBERT KEELE,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission reports respondent has committed ethical

infractions and recommends a nine-month suspension of respondent’s

license to practice law. COMPLAINT DISMISSED.



      Charles L. Harrington and Amanda K. Robinson, Des Moines, for

complainant.


      J.E. Tobey, III, Davenport, for respondent.
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WIGGINS, Justice.

       The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against the respondent, James R. Keele, alleging violations of

the Iowa Rules of Professional Conduct.     A division of the Grievance

Commission of the Supreme Court of Iowa found the respondent’s

conduct violated three provisions of the rules and recommended we

suspend his license to practice law with no possibility of reinstatement

for a period of nine months. On our de novo review, we find the board

has failed to establish by a convincing preponderance of the evidence

that the respondent has committed a new violation of our ethical rules.

Accordingly, we dismiss the board’s complaint.

       I. Scope of Review.

       We review attorney disciplinary proceedings de novo.            Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801, 803 (Iowa

2010).   The board has the burden of proving an attorney’s ethical

misconduct by a convincing preponderance of the evidence.          Id.    A

convincing   preponderance    of   the   evidence   is   more   than     the

preponderance standard required in a typical civil case, but less than

proof beyond a reasonable doubt.     Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Templeton, 784 N.W.2d 761, 764 (Iowa 2010).          Although the

commission’s findings and recommendations are not binding on us, we

give them respectful consideration. Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Hoglan, 781 N.W.2d 279, 281 (Iowa 2010) (per curiam).       “Upon

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

sanction recommended by the commission.” Templeton, 784 N.W.2d at

764.
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      II. Findings of Fact.

      On our de novo review, we find the following facts. James Robert

Keele is a sixty-two-year-old attorney who has lived in West Liberty,

Muscatine County his entire life.        Keele received his undergraduate

degree from Cornell College and then attended the University of Iowa,

College of Law. In 1972 Keele graduated from law school and received

his Iowa license to practice law. Keele joined his father’s general practice

in West Liberty, where he continues to work as a solo practitioner to this

day. In 1971 Keele married and subsequently had two children who are

now fully grown.

      In 2006 or 2007, a court finalized Keele’s dissolution of marriage.

After the dissolution, Keele lived alone in his West Liberty home and

became lonely and depressed. He began to frequent bars and nightclubs,

associate with new people, and use illegal drugs.         Keele rented an

apartment in Davenport where he partied with other drug addicts, who

supplied him with drugs.      Eventually, he became addicted to crack

cocaine. From January 2007 through July, he was using crack cocaine

on a regular basis.    During this period, Keele continued to represent

clients without complaint. However, he spent less time at the office and

quit going to work on a regular basis.

      On the evening of July 18, 2007, Keele was up all night partying

and using crack cocaine at his Davenport apartment. The next day he

had a routine order signed at the courthouse in Muscatine.             After

appearing in court, he got into his vehicle and headed northbound on

Highway 61, back to Davenport. At some point while driving, Keele fell

asleep, swerved off the road, and crashed into a steep ditch.      Another

driver witnessed the crash, pulled over, and called 911. While waiting for
                                        4

the authorities to arrive, the witness observed Keele get out of his vehicle,

pull a black bag out of his car, and throw the bag over a fence.

      When officers arrived on the scene, the witness informed them

about the black bag. The officers retrieved the bag and inside found drug

paraphernalia, including a black pipe, spoons with white residue and

burn marks, a plastic bag containing baking soda, and a digital scale

that tested positive for the presence of cocaine. The officers took Keele

into custody. When he arrived at the jail, his urine tested positive for the

presence of cocaine.         The State charged Keele with operating while

intoxicated (OWI), first offense, and possession of drug paraphernalia in

relation to this incident.

      Based on the drug paraphernalia found in the black bag, the

authorities obtained a search warrant for Keele’s West Liberty home. In

an empty upstairs bedroom closet, officers found a Chinese SKS 7.62

mm rifle with two detached magazine clips in a cloth gun case. The rifle

was not loaded and there was no ammunition found inside the magazine

clips or anywhere else in the house. Keele was present while the officers

were conducting the search and explained that he was holding onto the

rifle for one of his clients. Approximately a year earlier, in the summer of

2006, one of Keele’s clients planned to plead guilty to a domestic-abuse

charge and asked Keele to hold onto the rifle for him because it would be

illegal for him to possess the firearm upon his conviction. Keele agreed

and placed the firearm in a vacant upstairs closet where it remained

until the officers discovered it.

      Following this incident, Keele voluntarily entered into a three-

month drug and alcohol treatment program at Rogers Memorial Hospital

in Oconomowoc, Wisconsin.           He successfully completed the treatment

program, returned to West Liberty, and began to rebuild his law practice.
                                            5

Once home, he sought aftercare treatment by attending almost daily

Alcoholics Anonymous (AA) meetings and weekly counseling sessions

with a psychiatrist. Keele also entered guilty pleas to the State’s charges

and received a deferred judgment. On September 25, 2008, we accepted

a public reprimand handed down by the board finding Keele’s conduct

surrounding his convictions for OWI, first offense, and possession of

drug paraphernalia violated the Iowa Rules of Professional Conduct. See

Iowa Ct. R. 35.3 (allowing the supreme court to accept a public

reprimand issued by the board as the appropriate sanction for a violation

of the Iowa Rules of Professional Conduct).

       On November 15, 2007, Keele was indicted in federal court for

knowingly possessing a firearm while being an unlawful user of, or

addicted to, a controlled substance in violation of 18 U.S.C. §§ 922(g)(3)

and 924(a)(2) (2006), a felony.            A jury trial was held and the jury

returned a verdict finding Keele guilty.            The court sentenced Keele on

September 30, 2008. He appealed his conviction to the Eighth Circuit

Court of Appeals.           The circuit court affirmed his conviction on

December 21, 2009. 1

       In sentencing Keele, the United States District Court for the
Southern District of Iowa determined Keele’s conviction represented the

most innocuous and basic form of the offense charged. Accordingly, the

court departed from the sentencing guidelines and sentenced Keele to a

term of probation for three years. As conditions of probation, Keele was

        1On appeal, Keele argued that probable cause did not support the issuance of a

search warrant for his West Liberty home. The district court upheld the search under
the good-faith exception, even though it found there was not sufficient probable cause
for the issuance of the search warrant. The Eighth Circuit Court of Appeals affirmed
the district court by finding the magistrate judge who issued the search warrant had a
“ ‘substantial basis for concluding that probable cause existed.’ ” United States v. Keele,
589 F.3d 940, 944 (8th Cir. 2009) (quoting United States v. Montes-Medina, 570 F.3d
1052, 1059 (8th Cir. 2009)).
                                         6

required to serve six months in a residential reentry center, followed by

another six months of home confinement with an electronic monitoring

device. The court, however, granted Keele work release privileges for the

duration of both these conditions. In addition, Keele was required to pay

a $4100 fine.

      Beginning in late October 2008, Keele lived in a work release

center in Davenport for six months. While there, he fully participated in

one-on-one      counseling   sessions,       attended   almost   daily   Narcotics

Anonymous and AA meetings, and got involved in a program entitled,

“Celebrate Recovery” at a local church. After successfully completing his

stay at the work release center, in April 2009 Keele returned to his West

Liberty home, where he was placed on house arrest with an electronic

monitoring device for another six-month period. During his time at the

work release center and on house arrest, he continued to practice law

out of his West Liberty office during the day. In October Keele’s house-

arrest monitoring ended.      However, he continues to be on supervised

release until December 29, 2011.

      Throughout his probationary period, Keele has been regularly and

randomly drug tested and has never tested positive for drugs or alcohol.

Currently, Keele attends AA meetings approximately two times a month.

His probation officer believes this is sufficient. Although his counselors

have recommended he obtain a sponsor, at present, he does not have a

sponsor. Nevertheless, Keele continues to remain sober and engaged in

his recovery.

      Based solely on his federal felony conviction, the board filed the

present complaint against Keele, claiming he violated Iowa Rules of

Professional Conduct 32:8.4(a) (violating or attempting to violate the Iowa

Rules of Professional Conduct), 32:8.4(b) (committing a criminal act that
                                           7

reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as

a lawyer in other respects), and 32:8.4(d) (engaging in conduct that is

prejudicial to the administration of justice).           The board invoked issue

preclusion as to Keele’s conviction and stated the record of conviction

was conclusive evidence “warranting revocation or suspension of his

license to practice law, pursuant to Iowa Code § 602.10122.”

       The commission concluded Keele violated rules 32:8.4(a), (b), and

(d). After considering the aggravating and mitigating circumstances, the

commission recommended we suspend Keele’s license to practice law

with no possibility of reinstatement for nine months. Keele appeals from

the commission’s recommendation.

       III. Analysis.

       Based upon our recent holding in Templeton, on appeal, the board

has abandoned its other claims and now only seeks to impose sanctions

for Keele’s violation of rule 32:8.4(b). See Templeton, 784 N.W.2d at 768–

69. Rule 32:8.4(b) 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.” Iowa R. Prof’l

Conduct 32:8.4(b) (emphasis added).

       We derived rule 32:8.4(b) of the Iowa Rules of Professional Conduct

from two of our prior disciplinary rules, DR 1–102(A)(3) and (6),

contained in the Iowa Code of Professional Responsibility for Lawyers. 2

See Iowa Code of Prof’l Responsibility DR 1–102(A)(3) (a lawyer shall not

engage in illegal conduct involving moral turpitude), DR 1–102(A)(6) (a

lawyer shall not engage in any other conduct that adversely reflects on


       2On  July 1, 2005, the Iowa Rules of Professional Conduct replaced the Iowa
Code of Professional Responsibility for Lawyers. See Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Barry, 762 N.W.2d 129, 131 n.1 (Iowa 2009).
                                         8

the fitness to practice law). Rule 32:8.4(b) is both broader and narrower

than these prior disciplinary rules. 2 Geoffrey C. Hazard, Jr., et al., The

Law of Lawyering § 65.4, at 65-9 (3d ed. 2009 Supp.) [hereinafter The

Law of Lawyering]. As one commentator has explained:
      [A]lthough DR 1-102(A)(3) was limited to criminal conduct, it
      included the [notoriously ambiguous] language about moral
      turpitude. DR 1-102(A)(6), on the other hand, applied to
      conduct adversely reflecting on a person’s fitness to practice
      law, but applied to any conduct, whether or not criminal.
Id. Rule 32:8.4(b) improved upon DR 1–102(A)(3) and (6) by combining

their key elements while removing the vague language of “moral

turpitude.” Id.

      An attorney’s fitness to practice law includes his or her moral

character, suitability to act as an officer of the court, ability to maintain

a professional relationship, competency in legal matters, and whether he

or   she   can    be   trusted   to   vigorously   represent   clients,   without

overreaching. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford,
625 N.W.2d 672, 683 (Iowa 2001); The Law of Lawyering § 65.4, at 65-9.

Conduct that reflects adversely on an attorney’s fitness to practice law

includes conduct that reveals character defects, which affects the

lawyer’s ability to deal with important controversies and confidential

information and that “ ‘lessen[ ] public confidence in the legal

profession.’ ”    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Barry, 762

N.W.2d 129, 138 (Iowa 2009) (quoting Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Johnston, 732 N.W.2d 448, 454 (Iowa 2007)); The Law of

Lawyering § 65.4, at 65-9 to 65-10; see also Iowa Supreme Ct. Bd. of

Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 124 (Iowa 1999)

(recognizing intemperate and undignified conduct reflects adversely on

an attorney’s fitness to practice law).            In determining whether an
                                     9

attorney’s criminal conduct reflects adversely on his or her fitness to

practice law, we consider the following factors:
      “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.”

Templeton, 784 N.W.2d at 767 (quoting In re Conduct of White, 815 P.2d

1257, 1265 (Or. 1991)).

      Sections 922(g)(3) and 924(a)(2) of title 18 contained in the United

States Code make it illegal for a person who is an unlawful user of, or

addicted to, any controlled substance to knowingly possess a firearm.

To be guilty of this crime, the person must be an unlawful user of, or

addicted to, a controlled substance. See 18 U.S.C. § 922(g)(3). Keele’s

federal criminal conviction conclusively established the fact that he was

an unlawful user of, or addicted to, a controlled substance. Iowa Ct. R.

35.7(3).   We have previously found Keele violated the Iowa Rules of

Professional Conduct for his illegal use of crack cocaine, which resulted

in his convictions for OWI, first offense, and possession of drug

paraphernalia and disciplined him with a public reprimand. We cannot

discipline an attorney twice for the same conduct. Therefore, we will not

consider his unlawful use of, or addiction to, a controlled substance as a

new violation of the Iowa Rules of Professional Conduct.

      The only conduct we have not already considered or sanctioned

Keele for is his illegal possession of a firearm. Accordingly, we will focus

only on whether Keele’s illegal possession of a firearm reflects adversely

on his fitness to practice law in violation of Iowa Rule of Professional

Conduct 32:8.4(b).
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       Iowa   Code   section   602.10122    provides   that   an    attorney’s

conviction of a felony is a “sufficient cause[ ] for revocation or

suspension” of the attorney’s license to practice law.             Iowa Code

§ 602.10122(1) (2007).    However, we have also stated that “[t]he mere

commission of a criminal act does not necessarily reflect adversely on

the fitness of an attorney to practice law.” Templeton, 784 N.W.2d at

767.   While many crimes, such as forgery and perjury, by their very

nature reflect adversely on an attorney’s fitness to practice law, other

crimes do not. The Law of Lawyering § 65.4, at 65-8; accord State ex rel.

Okla. Bar Ass’n v. Armstrong, 791 P.2d 815, 818 (Okla. 1990) (“A

lawyer’s conviction of some crimes will, by itself, demonstrate such

lawyer’s unfitness to practice law.       On the other hand, a lawyer’s

conviction for some kinds of illegal conduct will not facially demonstrate

the lawyer’s unfitness to practice law.”). Therefore, for a criminal act,

whether felonious or otherwise, to reflect adversely on an attorney’s

fitness to practice law, the board must establish a sufficient link

between the criminal activity and the attorney’s ability to function as a

lawyer. The Law of Lawyering § 65.4, at 65-8; accord State ex rel. Okla.

Bar Ass’n v. Armstrong, 848 P.2d 538, 539–40 (Okla. 1992) (refusing to

impose discipline for attorney’s felonious conviction of driving under the

influence, second offense, where bar failed to introduce any evidence

linking the conviction to the attorney’s unfitness to practice law).

       In past cases, in this jurisdiction and elsewhere, where an

attorney’s illegal possession and/or use of a firearm was found to reflect

adversely on his fitness to practice law, a sufficient nexus between the

illegal conduct and the attorney’s ability to function as a lawyer was

present. Barry, 762 N.W.2d at 136, 138 (linking attorney’s illegal use of

confiscated firearms to his pattern of abuses while serving the public as
                                    11

full-time county attorney); see also In re Pleva, 525 A.2d 1104, 1107–08

(N.J. 1987) (linking attorney’s illegal possession of firearms to his

dishonesty in filling out a certificate before purchasing the firearms);

State ex rel. Okla. Bar Ass’n v. Badger, 912 P.2d 312, 314–15 (Okla.

1995) (linking attorney’s illegal purchase and possession of firearms to

his lack of judgment and reliance on “facially questionable advice”); In re

Disciplinary Proceedings Against Schuh, 730 N.W.2d 152, 154 (Wis.

2007) (linking attorney’s conviction for knowingly possessing a firearm

in furtherance of a drug trafficking crime to “violations of his obligations

as an attorney”).   Some of these cases involved the use of a firearm

during incidents of domestic abuse. See, e.g., In re Runyon, 491 N.E.2d

189, 190 (Ind. 1986) (linking attorney’s three felony convictions for

possessing unregistered firearms to his “heinous” acts of forcing his way

into ex-wife’s apartment, hitting her with a club, and holding her at

gunpoint). Other cases involved displaying the weapon in a threatening

manner or discharging it, thereby showing disrespect for the law, a lack

of judgment, and placing the public at great risk. See, e.g., People v.

Hook, 91 P.3d 1070, 1073–74 (Colo. 2004) (recognizing attorney’s

discharge of a firearm in a public place risked serious injury or death to

two people); People v. Senn, 824 P.2d 822, 825 (Colo. 1992) (linking

attorney’s discharge of a firearm directly over his wife’s head during an

argument to a “critical failure of judgment” and “a contempt for the law

which was at odds with [his] duty to uphold the law”); In re Martin, 888

So.2d 178, 181–82 (La. 2004) (linking attorney’s felony conviction for

having a stand-off with police and discharging his pistol in the air to the

great risk of harm stemming from such crimes); Disciplinary Counsel v.

Howard, 914 N.E.2d 377, 381 (Ohio 2009) (linking attorney’s felony

convictions resulting from a stand-off with the police and discharging
                                      12

his firearm twice at an officer to the risk of harm posed to police officers,

his neighbors, and himself from these crimes); In re Ervin, 694 S.E.2d 6,

9 (S.C. 2010) (linking attorney’s conduct of presenting and pointing a

firearm at another driver during a road rage incident to the exercise of

“extremely poor judgment”). The common factor in all of these cases is

that the attorney’s possession and/or use of the firearm related in some

way to his fitness to practice law.

       The board has established that Keele was convicted of a felony for

knowingly possessing a firearm while being an unlawful user of, or

addicted to, a controlled substance.        However, the board has not

demonstrated how this conviction relates to Keele’s fitness to practice

law.    Keele’s illegal possession of a firearm has not affected the

professional relationships he has with his clients, fellow lawyers, or

judges. This criminal conduct has not called into question his ability to

competently and vigorously represent clients in important controversies

and guard confidential information. Keele legally gained possession of

the firearm on behalf of a client prior to his struggles with addiction;

therefore, the nexus linking his criminal conduct to his fitness to

practice law is tenuous.     See The Law of Lawyering § 65.4, at 65-9

(“[E]ven among serious crimes the degree of immorality involved may

differ and so may implications about the offender’s character and

capacity to cause more harm in the future.”). His legal receipt of the

firearm for a client does not reflect poor judgment or disrespect for the

law.

       In considering the factors we announced in Templeton, we note

Keele’s illegal possession of the firearm is an isolated incident and does

not demonstrate a pattern of criminal conduct or disrespect for the law.

Cf. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci, 543
                                      13

N.W.2d 879, 882–83 (Iowa 1996) (disciplining attorney for pattern of

criminal conduct resulting in felony conviction for OWI, third offense).

He did not display or threaten any person with the weapon, fire the

weapon, use the weapon during an act of domestic violence, or otherwise

victimize any person with the weapon. While we agree with the board

that a drug addict’s possession of a firearm poses a serious threat of

injury to potential victims, we also agree with the federal district court’s

conclusion that Keele’s possession of the firearm was innocuous and

posed no real risk of actual or potential injury to a victim.          This

conclusion is supported by the facts that the firearm was unloaded,

discovered in an empty upstairs closet, packed away in a cloth case, and

no ammunition was found in the house. Finally, Keele’s mental state

did not cause him to obtain the firearm. He legally took possession of

the firearm for the benefit of a client prior to becoming depressed or

using crack cocaine.

      Thus, the board has failed to establish by a convincing

preponderance of the evidence that a sufficient nexus exists between

Keele’s illegal possession of the firearm and his ability to function as a

lawyer. Accordingly, while we do not condone or excuse Keele’s conduct,

we find Keele’s illegal possession of the firearm does not adversely reflect

on his fitness to practice law in violation of rule 32:8.4(b).

      IV. Conclusion and Disposition.

      We have previously found Keele’s unlawful use of, or addiction to,

a controlled substance violated the Iowa Rules of Professional Conduct

and warranted discipline in the form of a public reprimand. Therefore, in

considering the present complaint, we only consider Keele’s conduct in

illegally possessing a weapon for purposes of determining whether Keele

has committed a new violation of the Iowa Rules of Professional Conduct.
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Because we find the board has failed to establish by a convincing

preponderance of the evidence that Keele’s illegal possession of a weapon

violates rule 32:8.4(b), we dismiss the board’s complaint.

      COMPLAINT DISMISSED.

      All justices concur except Waterman, Mansfield, and Zager, JJ.,

who take no part.
