               IN THE SUPREME COURT OF IOWA
                              No. 10–1288

                         Filed February 11, 2011


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

CLOVIS BOWLES,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends suspension of attorney‘s

license. LICENSE SUSPENDED.



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

complainant.


      Clovis Bowles, Lisbon, pro se.
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HECHT, Justice.

       The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint against the respondent, Clovis Bowles, alleging he engaged in

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

Professional Conduct. After a hearing, the grievance commission found

Bowles‘ conduct violated several provisions of the Iowa Rules of

Professional Conduct and recommended Bowles‘ license be suspended.

       I. Prior Proceedings.

       On August 6, 2010, the board filed a complaint against Bowles
alleging he violated Iowa Rules of Professional Conduct 32:1.8(j)

(prohibiting sexual relations between a lawyer and client except in

circumstances not relevant here), 32:1.14(a) (requiring a lawyer to

properly maintain a normal client-lawyer relationship with a client whose

capacity to make adequately considered decisions was diminished),

32:8.4(d) (prohibiting conduct that is prejudicial to the administration of

justice), and 32:8.4(a) (defining professional misconduct to include any

violation of the Iowa Rules of Professional Conduct).1 After a hearing, a

division of the Grievance Commission of the Supreme Court of Iowa

found Bowles had committed multiple violations of his ethical duties as

an Iowa lawyer.         A majority of the commission recommended Bowles‘

license to practice law be suspended for three years.2




        1The board withdrew the charge that the respondent violated rule 32:8.4(a) in

view of our decision in Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d
761 (Iowa 2010). Accordingly, we give no further consideration to this aspect of the
charge.
       2One     commission member recommended the revocation of Bowles‘ license to
practice law.
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      II. Scope of Review.

      We review disciplinary proceedings de novo.       Iowa Supreme Ct.

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

give respectful consideration to the findings and recommendations of the

commission, but we are not bound by them. Id. This court gives 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). It is the board‘s burden to prove attorney

misconduct by a convincing preponderance of the evidence. Id. ―This
burden is less than proof beyond a reasonable doubt, but more than the

preponderance standard required in the usual civil case.‖ Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa

2004).   If this court finds the board has proven misconduct, we may

impose a lesser or greater sanction than that recommended by the

commission. Id.

      III. Factual Findings.

      Upon our review of the record in this case, we make the following

findings of fact.   In August of 2007, Bowles met with a woman (―the

client‖) and her male friend in his law office. The client revealed she had

been discharged that day from a mental health facility where she had

been treated after a recent suicide attempt. Her three children had been

removed from her custody following an investigation by the Iowa

Department of Human Services, and she sought Bowles‘ professional

services in the related juvenile court proceedings.

      Bowles agreed to represent the client and scheduled a second

meeting a few days later in his office. On this occasion, the client came
alone. While discussing the removal of her children, the client became

emotional.   During the conversation about the client‘s fitness as a
                                     4

parent, they discussed her history as a prostitute and her abuse of crack

cocaine and alcohol. Bowles asked if he could kiss her. They embraced

and had sexual relations in Bowles‘ office on that occasion.

        Bowles had sex with the client on subsequent occasions while he

represented her.     However, both the lawyer-client and the personal

relationship between Bowles and the client soon broke down. The client

filed a complaint with the Iowa Supreme Court Disciplinary Board on

September 10, 2007, alleging Bowles had engaged in ethical misconduct

when he engaged in sex acts with her in his law office and at her home.
She retained new counsel.

        When the board requested him to respond to the complaint,

Bowles denied the allegation of a sexual relationship with the client. In

his defense, he relied in part on an affidavit executed by the client falsely

denying she had engaged in sexual relations with him.          The affidavit,

which Bowles knew to be false, was prepared with his assistance and

signed by the client before a notary public.

        Bowles and the client renewed their personal relationship after the

ethical complaint was filed.     Believing her chances of regaining the

custody of her children would be improved if she were married to an

attorney, the client married Bowles on October 1, 2007. The détente was

short-lived though, as the marriage was dissolved on November 14,

2007.

        The client‘s legal problems continued, however, and she contacted

Bowles requesting his professional assistance in defending against a

pending contempt charge. Bowles agreed to meet with the client at the

Black Hawk County courthouse on January 24, 2008, to discuss the
matter.    The two went to the courthouse library.       Bowles admits he

grabbed the client‘s buttocks as she entered the library.       Believing it
                                    5

would induce Bowles to represent her the next day at a hearing on the

contempt charge, the client began to perform oral sex on him.            An

unidentified third party entered the room and interrupted the sex act.

      Later the same day, Bowles approached a district court judge and

requested to speak to him. He appeared to be emotionally upset at the

time and admitted he had engaged in a sex act with a client in the

courthouse earlier that day. The judge told Bowles to report his ethical

misconduct to the board, advised him to seek legal counsel and mental

health treatment, and cautioned him against further representation of
the client under the circumstances. Ignoring the judge‘s admonitions,

Bowles appeared in court the next day with the client and made legal

arguments on her behalf.

      Although he persisted in his denial of the sexual relationship prior

to the hearing before the commission, Bowles admitted at the hearing

that he had sex with the client during the existence of the lawyer-client

relationship.

      IV. Ethical Violations.

      A. Rule 32:1.8(j)—Sexual Relationship with Client.              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.‖

Bowles violated this rule when he had sex with the client at his law office

and on at least one other occasion when he had sex with the client at her

home.   After the client filed an ethical complaint and consulted other

counsel, Bowles again participated in a sex act in the courthouse library

with the client who sought to induce him to represent her in a hearing
scheduled for the following day. Bowles appeared in court the next day

with the client and made legal arguments on her behalf. We conclude
                                        6

the clear and convincing evidence establishes Bowles violated this rule by

engaging in sexual relations with the client on at least three occasions.

      B. Rule    32:1.14(a)—Representing       Client   with   Diminished

Capacity. Rule 32:1.14 requires lawyers, ―as far as reasonably possible,

[to] maintain a normal client-lawyer relationship‖ with a client whose

capacity to make adequately considered decisions is diminished. Iowa R.

Prof‘l Conduct 32:1.14(a). The plain language of this rule addresses the

obligation of lawyers to be attentive and responsive to circumstances in

which a client‘s mental or legal capacity is impaired and to take
―reasonably necessary protective action, including consulting with

individuals or entities that have the ability to take action to protect the

client, and, in appropriate cases, seeking the appointment of a guardian

ad litem, conservator, or guardian.‖ Id. r. 32:1.14(b). Noting the client

was in a hospital for mental health treatment following a suicide attempt

when she initially called Bowles to schedule a consultation, and noting

further that the client had a history of drug and alcohol abuse, was in a

depressed state, and was vulnerable when she first engaged in a sex act

with Bowles, the commission found the client ―suffered from diminished

capacity at least at times during the relationship.‖ Although the record

amply demonstrates the client had recent mental health difficulties, had

a history of drug and alcohol abuse, and was vulnerable and under

considerable stress as a consequence of the removal of her children

during the time Bowles represented her, we do not believe a clear

preponderance of the evidence supports a finding that her ability to make

considered decisions was sufficiently impaired to support a conclusion

that Bowles violated rule 32:1.14(a).
      The record reveals the client‘s mental health had improved

sufficiently to justify her discharge from the hospital prior to the
                                       7

initiation of the lawyer-client relationship.     Although the client was

emotionally   distressed     and   vulnerable   during   the   attorney-client

relationship, and notwithstanding her history of drug and alcohol abuse

that had caused her financial hardship, the record does not support a

finding that these stressors and chemical dependencies were so severe as

to impair her capacity ―to make adequately considered decisions‖ in

connection    with   the     matters   about    which    she   sought    legal

representation. Indeed, the client‘s testimony did not suggest her mental

state—or medications, if any, taken to treat it—caused her difficulty in
making decisions during the time she was represented by Bowles. The

board offered no evidence tending to prove the client‘s use of crack

cocaine or alcohol substantially diminished her capacity to make

adequately considered decisions during the time she was represented by

Bowles.   Upon our review of the record, we conclude a convincing

preponderance of the evidence does not support a conclusion that

Bowles violated this rule.

      C. Rule 32:8.4(d)—Conduct Prejudicial to the Administration

of Justice.    The commission concluded Bowles engaged in conduct

prejudicial to the administration of justice when he (1) engaged in sexual

conduct at the courthouse with the client who believed he would

represent her if she engaged him in oral sex, (2) represented the client in

a court hearing the day after a district court judge advised him not to do

so, and (3) knowingly relied on the client‘s false affidavit to defend

against the charge that he had violated the ethical rules.          We have

previously concluded that an attorney‘s sexual conduct with a client does

not constitute a per se violation of rule 32:8.4(d). Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Monroe, 784 N.W.2d 784, 789 (Iowa 2010). In other

words, rule 32:8.4(d) ―does not prohibit a particular act or conduct in
                                     8

isolation.‖   Id.   The rule instead prohibits conduct that produces ―an

undesirable effect: . . . some interference with the efficient and proper

operation of the courts through a deviation ‗from the well-understood

norms and conventions of practice.‘ ‖ Id. (quoting Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010)).

      Although, as we have already noted, Bowles did commit an ethical

violation when he had sexual relations with the client on multiple

occasions, we conclude the sexual misconduct did not violate rule

32:8.4(d).    The board failed to prove that the sexual misconduct
interfered with the efficient and proper operation of the courts.

      Additionally, while Bowles exhibited extremely poor judgment in

appearing in court with the client the day after he was advised by a judge

not to do so, we conclude the board has not established that the conduct

disrupted the efficient operation of the courts.      Accordingly, Bowles‘

appearance at the contempt hearing did not constitute a violation of rule

32:8.4(d).

      Bowles knowingly facilitated the client‘s preparation of a false

affidavit and then relied on the document in defending against the charge

of ethical misconduct prior to the hearing before the commission. His

attempt to obstruct the investigation of, and prosecution for, his

misconduct interfered with the efficient and proper operation of this

court‘s regulatory function. Accordingly, we conclude the board did meet

its burden to prove Bowles violated rule 32:8.4(d).

      V. Sanction.

      We determine an appropriate sanction based on the particular

circumstances of each case. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Marks, 759 N.W.2d 328, 332 (Iowa 2009). In selecting the appropriate

sanction for an ethical violation,
                                   9
      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 have previously detailed the rationale for suspending the

license of lawyers who engage in improper sexual conduct with clients.

Monroe, 784 N.W.2d at 790 (noting the nature of the ethical infraction

and the need to deter other attorneys from engaging in similar

misconduct are considerations mandating suspensions for sexual

misconduct).   In McGrath, our opinion surveyed sanctions imposed in

other cases involving sexual misconduct by attorneys.      McGrath, 713

N.W.2d at 703. The sanctions imposed for such misconduct have ranged

from a public reprimand, Comm. on Prof’l Ethics & Conduct v. Durham,

279 N.W.2d 280, 285–86 (Iowa 1979) (attorney engaged in kissing and

caressing with a prisoner-client on three occasions), to a suspension of

three years, McGrath, 713 N.W.2d at 703 (attorney solicited sex from one

client and engaged in intercourse with another client on two occasions in
exchange for legal services).

      We conclude a suspension of Bowles‘ license is appropriate in this

case. He breached the trust bestowed on members of the bar when he

engaged in sex acts with a vulnerable client who sought his professional

assistance in a matter of profound personal significance—custody of

children. The sanction of suspension is justified in this case to protect

members of the public and to discourage similar misconduct by other
lawyers. McGrath, 713 N.W.2d at 703. In determining the appropriate

length of the suspension, we have viewed sexual misconduct by lawyers
                                           10

with clients who are mentally or emotionally challenged as deserving of a

greater sanction. Marzen, 779 N.W.2d at 769 (noting the client‘s mental

health challenges were an aggravating circumstance in the determination

of the imposition of attorney‘s discipline).

       Bowles urges the court to consider as mitigating circumstances his

anxiety, depression, and attention deficit disorder that affected him

during the period in which his misconduct occurred.3                          Mitigating

circumstances, while not excusing the disciplinary violations, may have a

bearing on severity of sanction. Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Grotewold, 642 N.W.2d 288, 292–96 (Iowa 2002) (major

depression).     ―While depression does not minimize the seriousness of

unethical conduct, it can impact our approach to discipline.‖ Id. at 295.

For purposes of our adjudication of this matter, we credit Bowles‘

testimony that he was experiencing some mental health challenges

during the period in which he engaged in the misconduct described

above. We have previously noted, however, that the determination that

mental health difficulties are a mitigating circumstance in the imposition

of discipline is dependent upon the relationship between the unethical

conduct and the mental health difficulties. Id. We are not persuaded on

this record that such a relationship existed between Bowles‘ misconduct

and his mental health difficulties.             Accordingly, we conclude Bowles‘

misconduct is not mitigated by any mental health condition extant at the

time of his misconduct.



       3Bowles   submitted two documents to the commission after the date of the
hearing in this matter. The board has filed a motion to exclude the documents referred
to by Bowles as ―exhibits‖ one and two. Because Bowles laid no foundation in the
record for the admission of the documents and the board had no opportunity during the
hearing to challenge their authenticity, relevance, or probative value, this court will not
consider them.
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       We conclude a suspension of eighteen months is appropriate in

this case. Although lesser sanctions have been imposed in other recent

cases in which an attorney engaged in multiple acts of sexual

misconduct with a single client, see Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Morrison, 727 N.W.2d 115, 119–20 (Iowa 2007), this case presents

aggravating circumstances justifying a longer suspension. As in Marzen,

the client in this case had only recently been discharged from a mental

health facility. Marzen, 779 N.W.2d at 765. The respondent committed a

separate violation of our disciplinary rules when he facilitated the client‘s
preparation of a false affidavit and then relied on the document to

obstruct the investigation and prosecution of this matter.        A further

aggravating factor affecting our determination of the sanction in this case

is the fact that the respondent was publicly reprimanded on a previous

occasion for his neglect of an appeal resulting in its dismissal. Case law

establishes that ―prior disciplinary action is properly considered as an

aggravating circumstance.‖     Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Gallner, 621 N.W.2d 183, 188 (Iowa 2001).

       VI. Conclusion.

       We suspend Bowles‘ license to practice law with no possibility of

reinstatement for a period of not less than eighteen months from the date

of this opinion. This suspension applies to all facets of the practice of

law.   See Iowa Ct. R. 35.12(3).     Bowles shall have the burden upon

application for reinstatement to prove he has not practiced during the

period of suspension and he meets all the requirements set forth in Iowa

Court Rule 35.13. The costs of the action are taxed against Bowles as

provided in Iowa Court Rule 35.26(1).
       LICENSE SUSPENDED.
