              IN THE SUPREME COURT OF IOWA
                           No. 129 / 06-1062

                        Filed February 16, 2007

IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Appellee,

vs.

MARTHA JOHNSON,

      Appellant.


      On review of the report of the Grievance Commission.



      The Iowa Supreme Court Grievance Commission recommends a

suspension of Johnson’s license for a period of six months.   A public

reprimand is imposed. RESPONDENT REPRIMANDED.



      Robert C. Oberbillig, Des Moines, for appellant.



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

appellee.
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Hecht, Justice.

      The Grievance Commission has recommended attorney Martha

Johnson’s license to practice law in Iowa be suspended for six months for

violations of DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule),

DR 9-101(B) (a lawyer shall not accept private employment in a matter in

which she had “substantial responsibility” while serving as a public

employee), and DR 1-102(A)(5) (a lawyer shall not engage in conduct that is

prejudicial to the administration of justice). Although we agree with the

Commission’s finding that Johnson violated these provisions of the Iowa

Code of Professional Responsibility for Lawyers, we conclude the

appropriate sanction in this case is a public reprimand.

      I. Factual and Procedural Background.

      Johnson was first licensed to practice law in 1994. She engaged in

private practice in Des Moines until January of 1999, when she was hired

as an assistant county attorney in the juvenile division of the Polk County

Attorney’s office. In August of 2001, she was assigned to work as the

attorney in the intake unit within that office. In that capacity, she reviewed

and signed petitions in emergency removal and child-in-need-of-assistance

cases, appeared as counsel for the State in contested removal hearings, and

advised the Department of Human Services in such cases. In the summer

of 2002, she applied and was interviewed for the position of executive

director of the Youth Law Center (YLC), a non-profit organization that

employs attorneys who are available for appointment as guardians ad litem

in Polk County juvenile cases.

      Before offering the job to Johnson, the YLC’s board of directors,

including three seasoned attorneys, assessed the potential for a conflict of

interest arising from the interface between Johnson’s past work as an
                                             3

assistant county attorney and the duties of the YLC’s executive director.

The directors contemplated, but did not make, a request of the Iowa State

Bar Association’s Committee on Professional Ethics and Standards for an

ethics opinion on the question of whether Johnson’s past employment

would disqualify her from representing the YLC’s clients.                      The board

concluded Johnson would be able to avoid conflicts of interest for herself

and the YLC if she and other YLC lawyers prospectively avoided involvement

in cases in which she had been substantially involved previously as an

assistant county attorney and offered the position to her. 1

       Johnson made inquiries in an effort to determine whether acceptance

of employment with the YLC would create substantial conflict of interest

problems. She first consulted Ray Blase, her supervisor in the juvenile

division of the county attorney’s office. Blase suggested Johnson should

request a waiver of any conflicts of interest from the Department of Human

Services, the agency Johnson frequently advised during her service as

assistant county attorney. Johnson also requested a meeting with the four

judges who presided in Polk County juvenile court cases to discuss how

potential conflicts of interest might be dealt with if she should be hired as

the YLC’s director. 2 Although such a joint meeting with judges was never
held, Johnson did discuss with at least two other juvenile court judges her


       1We   have approved the deployment of so-called “Chinese Walls” as a means of
overcoming imputed disqualification of associates of attorneys affected by a conflict of
interest in certain circumstances. See Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 601
(Iowa 2002).

       2In a conversation with a district associate judge, Johnson requested a meeting with
juvenile court judges to discuss how potential conflicts of interest might be managed if she
were to accept employment with the Center. The judge declined to participate in such a
meeting on the ground that the court might be required to rule on conflict of interest issues
that could arise if Johnson accepted employment with the Center. The judge also
recommended that Johnson seek an opinion from the Bar Association’s Committee on
Professional Ethics and Standards.
                                            4

intention to apply for the position. Those judges were very supportive of the

idea and encouraged Johnson to pursue it. Johnson also spoke to an

attorney employed by the Board of Professional Ethics and Conduct, who

noted conflict of interest issues are evaluated on a case-by-case basis and

observed generally that a conflict of interest could arise if Johnson were to

perform legal services as an employee of the YLC in cases in which she had

substantial responsibility as an assistant county attorney.

       Johnson accepted the YLC’s offer of employment. Before she began

work for the YLC in January of 2003, Johnson reviewed certain ethics

opinions issued by the Bar Association’s Committee on Professional Ethics

and Standards and read opinions of this court addressing conflicts of

interest. She also took other measures intended to shield her from cases

that might present a conflict of interest. Johnson prepared and delivered to

the YLC a list of cases in which she believed she had assumed substantial

responsibility as an assistant county attorney. She also prepared a form for

use by other YLC attorneys to prompt their vigilance for and identification of

any cases handled by Johnson in her former employment. Consistent with

Mr. Blase’s suggestion, Johnson requested and received a letter in which

DHS purportedly waived any conflict of interest arising as a consequence of

her former employment and her new position with the YLC. 3
       Johnson quickly immersed herself in the management of the YLC and

its substantial caseload. Unfortunately, her pre-employment attentiveness

to the potential for conflicts of interest waned. Johnson and the YLC failed

       3We  subsequently decided that a conflict of interest of the type alleged against
Johnson in this case “may not be waived.” See Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 494
(Iowa 2003). We nonetheless make reference to the letter because it provides background
information evidencing Johnson’s pre-employment concerns about potential conflicts of
interest and her intention to address them before they arose. We acknowledge that under
the Iowa Rules of Professional Conduct, which became effective July 1, 2005, consent to a
conflict may be obtained.
                                            5

to implement an effective Chinese Wall to shield her from juvenile cases

with which she had been substantially involved as an assistant county

attorney. She appeared at hearings in March and May of 2003 as guardian

ad litem in two separate juvenile cases in which she previously had

substantial involvement as an assistant county attorney. 4

       Although the State did not object to Johnson’s involvement as

guardian ad litem in those two cases, counsel for parents eventually did

claim Johnson and her lawyer-colleagues at the YLC should be disqualified

from involvement in cases in which Johnson had been substantially

involved as an assistant county attorney. After hearings on the issue were

held in Polk County District Court, Johnson and the YLC’s other lawyers

were disqualified in numerous cases. 5                   The district court found

disqualification was required in those cases because case-by-case litigation

of the conflict of interest issue would “threaten[] the timely disposition and

finality of hundreds of [juvenile] cases in Polk County.”                       Johnson

subsequently resigned her employment with the YLC.

       The district court reported Johnson’s disqualification based on

conflict of interest to the Board of Professional Ethics and Conduct. An

investigation was undertaken, and the Board notified Johnson on

March 18, 2004 that she would be

       publicly reprimanded for undertaking employment with the
       Youth Law Center, a private non-profit organization
       representing juveniles in Child in Need of Assistance matters,
       notwithstanding [her] “substantial responsibility” for such
       matters on behalf of the State while a member of the [Polk]

       4In each case, Johnson had signed a petition as an assistant county attorney
alleging one or more children were in need of assistance.

       5An   account of the history of the controversy and litigation surrounding Johnson’s
conflict of interest and the several orders disqualifying Johnson and the YLC’s other
employee-lawyers in certain juvenile cases may be found in our decision in Sorci, 671
N.W.2d at 485-88, and will not be repeated here.
                                     6
      County Attorney’s Office, contrary to DR 9-101(B) of the Iowa
      Code of Professional Responsibility for Lawyers.

On April 15, 2004, Johnson took written exception to the public reprimand

and asserted she had accepted the position with the YLC in good faith after

undertaking the measures recounted above. After reviewing Johnson’s

exception to the public reprimand, the Board notified her by letter dated

June 10, 2004 of its intent to file a complaint with the Grievance

Commission. The Commission held a hearing and found Johnson violated

DR 9-101(B) (accepting private employment in a matter in which she had

substantial responsibility as an attorney for a governmental entity), DR 1-

102(A)(5) (engaging in conduct prejudicial to the administration of justice),

and DR 1-102(A)(1) (violating a disciplinary rule), and recommended

suspension of Johnson’s license to practice law for a period of six months.

      II. Scope and Standards of Review.

      Our review of attorney disciplinary proceedings is de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa

2006) (citation omitted).     We give respectful consideration to the

Commission’s factual findings and discipline recommendations, but we are

not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v.

Winkel, 599 N.W.2d 456, 460 (Iowa 1999) (citation omitted). The Board

must prove attorney misconduct by a convincing preponderance of the
evidence. Walker, 712 N.W.2d at 684 (citation omitted). This burden is less

than proof beyond a reasonable doubt, but more than the preponderance

standard generally applied in civil cases. Iowa Supreme Ct. Bd. of Prof'l

Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004) (citation

omitted). If misconduct is proved, we “may impose a lesser or greater

sanction than the discipline recommended by the grievance commission.”

Id. (citations omitted).
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      III. Discussion.

      The professional conduct at issue in this case occurred in 2003. We

must therefore determine whether Johnson violated provisions of the Iowa

Code of Professional Responsibility for Lawyers which were then extant. 6

      In Sorci, we concluded a lawyer assumes substantial responsibility as

an attorney when in the course of representing a client, she gives legal

advice, signs a pleading, or appears at a hearing. Sorci v. Iowa Dist. Ct., 671

N.W.2d 482, 486 (Iowa 2003). We find, by a convincing preponderance of

the evidence, that Johnson signed CINA petitions as an assistant county

attorney in two juvenile cases, and she later appeared as guardian ad litem

for the children whose interests were at stake in those cases. We conclude

Johnson’s conduct did violate DR 9-101(B) and DR 1-102(A)(1). Because

her conduct provoked significant disruption of the administration of

numerous juvenile cases in Polk County, see Sorci, 671 N.W.2d at 487-89,

we also find Johnson engaged in conduct prejudicial to the administration

of justice in violation of DR 1-102(A)(5).

      Johnson does not seriously take issue with the proposition that she

had substantial responsibility as an assistant county attorney in CINA

cases in which she signed pleadings. She urges us to conclude nonetheless

that she did not violate DR 9-101(B) because (1) her acceptance of

employment with the YLC was not unethical; (2) as an assistant county

attorney and as a guardian ad litem, her consistent objective was to

promote the best interests of the children who were the subjects of juvenile

cases, (3) consistent with court rules and customary practice, all

information gained in juvenile cases as an attorney for the State was

routinely shared with all parties and therefore not confidential, (4) DHS


      6The   Iowa Rules of Professional Conduct became effective July 1, 2005.
                                        8

waived in writing any conflict of interest, and (5) she acted in good faith by

exploring the potential for conflicts of interest before accepting employment

with the Center and by taking reasonable measures during that

employment to avoid conflicts of interest. We conclude, however, that these

facts do not preclude our determination that a violation of our ethical rules

occurred.

        1. Accepting employment with YLC.          We agree with Johnson’s

assertion that her acceptance of her employment with YLC did not

constitute a violation of our Rules of Professional Responsibility. But her

employment as the executive director of the YLC is not the ground of the

alleged ethical violation in this case.      It is Johnson’s failure to avoid

involvement as a guardian ad litem in cases in which she had substantial

responsibility as an assistant county attorney which forms the basis for the

sanction urged by the Board and recommended by the Commission in this

case.

        2. Best interests of clients. It is undisputed that the best interests of

children must be a primary concern to both attorneys representing the

State and those who serve as guardians ad litem. In this broad sense, the

objectives of counsel for the State and guardians ad litem are consistent in

juvenile court proceedings. But we are not persuaded that the apparent

consistency of the parties’ objectives precludes a sanction for violation of

DR 9-101(B) and DR 1-102(A)(1) here, for in a narrower sense the State’s

conception of a child’s best interests may diverge from that of the child who

may reasonably urge his guardian ad litem to advance an outcome not

preferred by the State. The potential for divergent understandings of the

best interests of the parties in juvenile cases persuades us to reject

Johnson’s contention that, as a matter of law, the commonality of the
                                     9

former and latter clients’ interests precludes the finding of an ethical

violation under the circumstances of this case.      Indeed, DR 9-101(B)

categorically prohibits the acceptance of private employment in matters in

which Johnson previously had substantial responsibility as an attorney for

a governmental entity. The rule makes no exceptions for juvenile cases or

other proceedings in which a lawyer’s former and current clients may have

some broadly stated common objectives or interests. We are not inclined to

dilute the important purposes of the categorical prohibition by recognizing

the “clients’ best interests exception” advanced by Johnson.

      3. Confidences of clients. Johnson urges us to conclude she did not

violate ethical rules in this case because any information to which she

became privy as an assistant county attorney in juvenile cases was

routinely shared with other attorneys and their clients. She notes that the

new Iowa Rules of Professional Conduct restrict a lawyer who has

information that she knows is “confidential government information about a

person” from representing “a private client whose interests are adverse to

that person in a matter in which the information could be used to the

material disadvantage of that person.” Iowa R. of Prof’l Conduct 32:1.11(c)

(2005). Although we have no occasion in this case to interpret or apply this

new rule, which was adopted after Johnson provided legal services as a

guardian ad litem in the two juvenile cases referred to above, we note that

the rule’s plain language does not confine the prohibition against

representation to matters in which a former government lawyer gained

confidential information about a person. See Iowa R. of Prof’l Conduct

32:1.11(a)(2). Similarly, the plain language of DR 9-101(B) that we apply in

this case makes no exception allowing a former public employee-lawyer to

accept private employment in a case in which she had substantial
                                     10

responsibility as a government lawyer so long as she gained no confidential

information in the former representation.

      4. Consent of the former client. Johnson contends we should find no

violation of DR 9-101(B) and DR 1-102(A)(1) because she obtained DHS’s

consent in writing to her representation of juveniles in the cases that form

the basis for the ethical complaint against her. She urges us to consider

that new rule 32:1.11 expressly authorizes a lawyer who was formerly

employed by the government to represent a client in a matter

notwithstanding the lawyer’s prior substantial participation on behalf of the

government in connection with the same matter if the appropriate

government agency gives its informed written consent to the representation.

See Iowa R. of Prof’l Conduct 32:1.11(a)(2). As we have already noted, the

new rule is not controlling in this case. Furthermore, we have previously

decided consistent with a formal opinion of the Iowa Supreme Court Board

of Professional Ethics and Conduct that under the rules prevailing at the

time of Johnson’s conduct, the conflict of interest was not subject to waiver.

Sorci, 671 N.W.2d at 494 (citing Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct, Formal Op. 98-09 (1998)).

      5. Johnson’s good faith.    Johnson posits that we should find no

ethical infraction in this case because she believed in good faith that her

conduct did not violate the rules in question. To her credit, she considered

the potential conflicts of interest that could arise if she accepted

employment with the YLC. However, Johnson cites no authority for the

proposition that a violation of DR 9-101(B) and DR 1-102(A)(1) cannot be

found in the absence of a lawyer-actor’s bad faith, and we find no merit in

it. We do, however, consider Johnson’s good faith as a circumstance in our

determination of the appropriate sanction in this case.
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      IV. Sanction Imposed.

      Having found that Johnson’s conduct violated certain ethical rules,

we next consider the appropriate sanction. “Any violation of the Code of

Professional Responsibility necessarily reflects adversely on the fitness of an

attorney to practice law.” Comm. on Prof‘l Ethics & Conduct v. Durham, 279

N.W.2d 280, 285 (Iowa 1979). In determining the sanction, “we consider

the respondent’s fitness to continue in the practice of law, deterrence of

others from similar conduct, and the assurance to the public that the

courts will maintain the ethics of the profession.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 185 (Iowa 2005) (citation omitted)

(internal quotation marks omitted). We also consider any aggravating and

mitigating circumstances. Id.

      We find that Johnson is fit to continue in the practice of law. The

record discloses that she is well-regarded by judicial officers and fellow

members of the bar as a competent lawyer who was willing and able to

competently undertake difficult juvenile cases. We do not believe under the

circumstances of this case that a license suspension is necessary to deter

similar future conduct. Indeed, we conclude a public reprimand will amply

assure the public that the courts will maintain the ethical standard for

lawyers who leave government service and undertake private representation

of parties in matters for which the lawyers had substantial responsibility in

their former government service.        Our decision to impose a public

reprimand rather than the suspension recommended by the Commission is

also strongly influenced by the fact that Johnson has no prior disciplinary

record, and by the fact that she considered and took some steps to avoid
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potential conflicts before she began her employment with the YLC. Costs

shall be taxed to Johnson.

      RESPONDENT REPRIMANDED.

      All justices concur except Appel, J., who takes no part.
