              IN THE SUPREME COURT OF IOWA
                              No. 09–0937

                         Filed November 19, 2010


IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

      Complainant,

vs.

JOHN W. GAILEY,

      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 thirty-day suspension of respondent’s

license to practice law. LICENSED SUSPENDED.



      Charles L. Harrington and Amanda K. Robinson, for complainant.



      John W. Gailey, Fort Dodge, pro se.
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WIGGINS, Justice.

      The Iowa Supreme Court Attorney Disciplinary Board brought a

complaint against the respondent, John W. Gailey, alleging multiple

violations of our ethical rules. A division of the Grievance Commission of

the Supreme Court of Iowa filed a report recommending that we suspend

Gailey’s license to practice law in Iowa for thirty days. Pursuant to our

court rules, we are required to review the report of the commission. See

Iowa Ct. R. 35.10. Upon our review, we concur the respondent violated

our ethical rules and suspend his license to practice law for sixty days.

      I. Scope of Review.

      We review lawyer disciplinary proceedings de novo. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 330 (Iowa 2009).

The board has the burden to prove disciplinary violations by a convincing

preponderance of the evidence. Id. A convincing preponderance of the

evidence is “ ‘less than proof beyond a reasonable doubt, but more than

the preponderance standard required in the usual civil case.’ ”       Iowa

Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226, 230

(Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Lett, 674 N.W.2d 139, 142 (Iowa 2004)).           We give weight to the

commission’s findings, but its findings do not bind us. Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Hauser, 782 N.W.2d 147, 149 (Iowa 2010).

      II. Findings of Fact.

      Instead of holding a hearing, the commission decided the case on a

joint stipulation filed by the board and Gailey. The stipulation contained

a stipulation of facts and a stipulation recommending a thirty-day

suspension.    The fact that the parties stipulated a recommended

sanction requires us to conclude the parties also stipulated Gailey’s

conduct violated Iowa’s Rules of Professional Conduct.
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      We have recognized there are two types of stipulations that a

tribunal may use in litigated matters. Matter of Prop. Seized, 501 N.W.2d

482, 485 (Iowa 1993). The first type is a stipulation that admits facts,

relieving a party from the inconvenience of proving the facts in the

stipulation. Graen’s Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d

295, 300 (Iowa 1983). The second type is a stipulation that amounts to a

concession of an issue in the litigation.       Matter of Prop. Seized, 501

N.W.2d at 485.

      A stipulation of facts by the parties is binding on the parties.

Graen’s Mens Wear, Inc., 329 N.W.2d at 299.             We construe factual

stipulations by attempting to determine and give effect to the parties’

intentions. Id. at 300. In doing so, we interpret the stipulation “with

reference to its subject matter and in light of the surrounding

circumstances and the whole record, including the state of the pleadings

and issues involved.” Id.

      We treat a stipulation conceding an issue in the case like a

settlement agreement. In re Marriage of Briddle, 756 N.W.2d 35, 39–40

(Iowa 2008).     If sufficient legal consideration supports this type of

stipulation, it is entitled to all of the sanctity of an ordinary contract. Id.

at 40. However, we are not bound to enforce these stipulations if they

are unreasonable, against good morals, or contrary to sound public

policy. In re Estate of Clark, 181 N.W.2d 138, 142 (Iowa 1970).

      Applying these principles to a disciplinary case, we will rely on the

stipulation to determine the facts in issue.       However, we will not be

bound by a stipulation of a violation or of a sanction in reaching our final

decision in a disciplinary case. We have inherent constitutional power to

license and discipline attorneys within the State of Iowa. Comm. on Prof’l

Ethics & Conduct v. Gartin, 272 N.W.2d 485, 487 (Iowa 1978). Our rules
                                      4

require us to determine whether an attorney’s conduct violates our

ethical rules, and if it does, we must determine the proper sanction for

the violation. See Iowa Ct. R. 35.10. Nowhere in our rules have we given

the parties the authority to determine what conduct constitutes a

violation of our ethical rules or what sanction an attorney should receive

for such violation.   The parties to a disciplinary proceeding cannot

substitute their judgment as to what conduct constitutes a violation of

our ethical rules or what sanction we should impose for such a violation.

The constitution and our court rules vest this function solely in our

court. Accordingly, to allow the parties to make these determinations is

against the public policy surrounding our attorney disciplinary system.

      Therefore, we find the facts from the stipulation of facts.      After

doing so, we will determine whether the facts establish a violation of the

Iowa Rules of Professional Conduct. Finally, if we find a violation, we will

determine the appropriate sanction.

      Using the stipulation of the parties together with our review of the

record, we make the following findings of fact. John Gailey is a seventy-

four-year-old attorney, practicing law for forty-five years in Iowa.    His

son, Denis, told Gailey the state planned to charge Denis with sexual

abuse of his stepdaughter.     Gailey contacted the county attorney and

advised her that he would voluntarily surrender Denis to the authorities

and arrange for Denis’s bail. On April 25, 2007, before Gailey was able

to surrender his son, Gailey learned that his son kidnapped his spouse,

Dawn, and their biological child.         Upon learning of this kidnapping,

Gailey advised the authorities of Denis’s actions. Denis was arrested and

the state charged him with kidnapping. On April 26 the criminal court

entered a no-contact order requiring Denis to have no contact with

Dawn.
                                         5

        On April 27 Dawn filed a dissolution of marriage petition. Counsel

represented her in the dissolution matter.         On May 7 Gailey filed an

appearance on behalf of his son in the dissolution matter. Although a

second attorney filed an appearance in the dissolution on behalf of

Denis, Gailey did not withdraw as attorney in the dissolution action until

July 25.

        On June 29, while still representing Denis in the dissolution

matter, Gailey met with Dawn.            Dawn’s attorney did not give Gailey

permission to contact Dawn. At the meeting, Gailey provided Dawn with

a letter from Denis. Denis requested Gailey deliver the letter to Dawn

and speak with Dawn face to face on his behalf regarding her potential

testimony in the criminal action. Denis violated the no-contact order by

having his father deliver the letter to Dawn.

        The letter is entitled “My Last Plea for Your Help.” In the letter,

Denis states: “I have no fantasies in my head that I’m gonna get off light

on all this but I think that you could be my light at the end of the tunnel.

People always change their story just a little bit and it allows for some

chance in the situation.” (Emphasis added.) Denis goes on to say that he

thinks he should be punished but not locked up and the key thrown

away.

        Dawn reviewed a copy of the letter from Denis and asked Gailey

what the letter meant. Gailey responded that he believed that if she were

to   testify   that   there   was   no   permanent   damage,   physically   or

psychologically, that the criminal charges would be lessened.        He also

told her he thought Denis would be agreeable to a more favorable

division of assets in the dissolution case if she were to testify in this

manner. Part of the conversation between Gailey and Dawn also related

to her concerns about the prosecutor asking her daughter to testify at
                                         6

trial.   Gailey advised Dawn to talk to the county attorney about these

concerns. At no time did Gailey directly ask Dawn to lie or change her

testimony.

         On July 24 the state charged Gailey with tampering with a witness

in violation of Iowa Code section 720.4 (2007).               That charge was

dismissed due to the state’s failure to file a timely trial information.

Thereafter, the state charged Gailey with suborning perjury in violation

of Iowa Code section 720.3 and aiding and abetting a violation of a no-

contact order in violation of Iowa Code sections 664A.7 and 703.1. These

criminal charges proceeded to trial.          The court acquitted Gailey of the

charge of suborning perjury, but found him guilty of aiding and abetting

a violation of a no-contact order, a simple misdemeanor.

         III. Violations.

         In its complaint, the board alleged Gailey’s conduct violated the

following Iowa Rules of Professional Conduct: 32:3.4(b), 32:4.2(a),

32:8.4(a), 32:8.4(b), 32:8.4(c), and 32:8.4(d).           We will discuss each

allegation separately.

         A. Rule 32:3.4(b). Rule 32:3.4(b) provides that “[a] lawyer shall

not falsify evidence, counsel or assist a witness to testify falsely, or offer

an inducement to a witness that is prohibited by law.”            Iowa R. Prof’l

Conduct 32:3.4(b).          As the comment to the rule explains, “[f]air

competition in the adversary system is secured by prohibitions against

destruction     or   concealment    of       evidence,   improperly   influencing

witnesses, obstructive tactics in discovery procedure, and the like.” Id.

cmt. 1.      If Gailey requested Dawn to refrain from giving favorable

testimony to the state in the criminal matter involving Denis, Gailey

violated rule 32:3.4(b). Matter of Alcantara, 676 A.2d 1030, 1035 (N.J.

1995).
                                    7

      In response to Dawn’s question as to what the letter meant, Gailey

explained to her he believed that if she were to testify that there was no

permanent damage, physically or psychologically, the criminal charges

against Denis would be lessened. This in and of itself does not violate

rule 32:3.4(b).   A lawyer is allowed to explain the consequence of a

witness’s testimony without fear of being accused of counseling or

assisting a witness to testify falsely.       Moreover, the stipulation

affirmatively states Gailey did not ask Dawn to lie or change her

testimony.

      We do believe, however, Gailey’s conduct went farther than just

explaining the consequence of Dawn’s testimony.        When Gailey told

Dawn that he thought Denis would be agreeable to a more favorable

division of assets in the dissolution case if she were to testify in this

manner, he crossed the line. By offering Dawn a favorable dissolution

settlement, Gailey violated rule 32:3.4(b), which forbids an attorney to

offer an inducement to a witness that is prohibited by law.

      We see no problem with an attorney reimbursing a witness for his

or her actual expenses, including the witness’s loss of time from

employment. We also recognize in the case of expert witnesses, experts

should receive reasonable compensation from an attorney for the expert’s

time in preparing and testifying at trial. Generally, courts around the

country allow these types of payments by an attorney to a person when

the person is called as a witness to testify. 2 Geoffrey C. Hazard, Jr. et

al., The Law of Lawyering § 30.6, at 30-10 (3d ed. 2001).

      Gailey’s conduct goes well beyond reimbursement for expenses,

reimbursement for time lost from employment, and expert witness fees.

Here, Gailey offered Dawn a favorable dissolution settlement as an

inducement for her to testify in a certain way. The dissolution settlement
                                         8

was   unrelated      to   any   lawful   reimbursement    for   her   testimony.

Accordingly, offering Dawn a favorable dissolution settlement is an

inducement prohibited by law and a violation of rule 32:3.4(b).

      B. Rule 32:4.2(a). Rule 32:4.2(a) provides:

      In representing a client, a lawyer shall not communicate
      about the subject of the representation with a person the
      lawyer knows to be represented by another lawyer in the
      matter, unless the lawyer has the consent of the other lawyer
      or is authorized to do so by law or a court order.

Iowa R. Prof’l Conduct 32:4.2(a).            The language of rule 32:4.2(a) is
substantially similar to our prior disciplinary rule, DR 7–104(A)(1). Our

prior rule stated:

            (A) During the course of representing a client a lawyer
      shall not:

            (1) Communicate or cause another to communicate on
      the subject of the representation with a party known to be
      represented by a lawyer in that matter except with the prior
      consent of the lawyer representing such other party or as
      authorized by law.

Iowa Code of Prof’l Responsibility DR 7–104(A)(1).

      We have interpreted our prior rule to prohibit an attorney from

communicating with an adverse party represented by counsel concerning
litigation or a transactional matter unless the attorney for the adverse

party gives the opposing attorney permission to talk to the adverse party.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Box, 715 N.W.2d 758, 763

(Iowa 2006). We see no reason not to interpret our present rule in the

same manner.

      The record establishes Gailey communicated with Dawn about a

financial settlement in the dissolution matter at a time when she was

represented by counsel. The record also reveals that Gailey did not have

the permission of Dawn’s attorney when they had that conversation.
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Therefore, we find Gailey’s conduct in communicating with Dawn violated

rule 32:4.2(a).

      C. Rule 32:8.4(a). Rule 32:8.4(a) states that “[i]t is professional

misconduct for a lawyer to . . . violate or attempt to violate the Iowa

Rules of Professional Conduct.”      Iowa R. Prof’l Conduct 32:8.4(a).     We

have previously held that we will not consider a violation of rule 32:8.4(a)

as a separate violation for purposes of determining an attorney’s

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

N.W.2d 761, 769 (Iowa 2010).         Accordingly, we give this charge no

further consideration.

      D.     Rule 32:8.4(b).       Rule 32:8.4(b) provides that “[i]t 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). Gailey was

convicted of aiding and abetting a violation of a no-contact order in

violation   of    Iowa   Code   sections   664A.7   and   703.1,    a   simple

misdemeanor.       We have the authority to discipline an attorney who is

convicted of a misdemeanor that violates the rules of professional

conduct. Iowa Ct. R. 35.10(2).

      Not all criminal convictions violate rule 32:8.4(b).         To prove a

violation of rule 32:8.4(b) the board must show some rational connection

between the attorney’s conduct and the attorney’s fitness to practice law

other than the criminality of the act. Templeton, 784 N.W.2d at 767. We

find the board has met this burden.

      Attorneys cannot ignore a ruling of a tribunal made in the course

of a proceeding.     Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728

N.W.2d 806, 813 (Iowa 2007). It follows that a lawyer should not aid or

abet a party to ignore a no-contact order. It is essential that the aider
                                       10

and abettor have knowledge of the perpetrator’s criminal activity prior to

its commission. State v. Vesey, 241 N.W.2d 888, 891 (Iowa 1976). Here,

Gailey had knowledge of his son’s intent to violate the no-contact order

by having the letter delivered to Dawn.       The conduct of an attorney

helping another person violate a court order evidences the attorney’s

disrespect for a lawful order of the court. Gailey’s disrespect for a court

order leads us to the conclusion that an attorney who cannot respect a

lawful order of the court lacks the required fitness to practice law. Thus,

we find a rational connection between Gailey’s conduct and Gailey’s

fitness to practice law other than the criminality of the act. Therefore, we

find Gailey violated rule 32:8.4(b).

      E. Rule 32:8.4(c). Rule 32:8.4(c) states that “[i]t is professional

misconduct for a lawyer to . . . engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation.”       The stipulation acknowledged

Gailey did not ask Dawn to lie or change her testimony. Therefore, the

board has not proved Gailey violated rule 32:8.4(c).

      F. Rule 32:8.4(d). Rule 32:8.4(d) provides that “[i]t is professional

misconduct for a lawyer to . . . engage in conduct that is prejudicial to

the administration of justice.”   We have defined conduct prejudicial to

the administration of justice to be acts that hamper “ ‘the efficient and

proper operation of the courts or of ancillary systems upon which the

courts rely’ ” by violating the well-understood norms and conventions of

the practice of law.     Templeton, 784 N.W.2d at 768 (quoting Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa

2005)).   In order for our system of justice to work, attorneys should

counsel their clients to abide by court orders.     It is outside the well-

understood norms and conventions of the practice of law for a lawyer to

aid and abet the violation of a no-contact order or offer a witness an
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inducement to testify that is prohibited by law. Thus, we find Gailey’s

conduct violated rule 32:8.4(d).

         IV. Sanction.

         In determining the sanction a lawyer must face for misconduct, we

have stated:

         The goal of the Code of Professional Responsibility is “to
         maintain public confidence in the legal profession as well as
         to provide a policing mechanism for poor lawyering.” When
         deciding on an appropriate sanction for an attorney’s
         misconduct, we consider “the nature of the violations,
         protection of the public, deterrence of similar misconduct by
         others, the lawyer’s fitness to practice, and [the court’s] duty
         to uphold the integrity of the profession in the eyes of the
         public.”    We also consider aggravating and mitigating
         circumstances present in the disciplinary action.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Honken, 688 N.W.2d

812, 820 (Iowa 2004) (alteration in original) (quoting Comm. on Prof’l

Ethics & Conduct v. Gill, 479 N.W.2d 303, 306 (Iowa 1991) (first quote);

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. D’Angelo, 619 N.W.2d
333, 338 (Iowa 2000) (second quote)).

         Aggravating factors include a prior reprimand of Gailey for

engaging      in   conduct    involving     dishonesty,   fraud,   deceit,   and

misrepresentation when he falsely advised an adverse party in a

deposition that he had a tape recording of a prior conversation with that

party.    Another aggravating factor is a previous private admonishment

for making an extrajudicial statement regarding a pending criminal

matter concerning his two sons.

         We have previously given attorneys a public reprimand when the

attorneys communicated with an adverse party who is represented by

counsel when the attorneys did not have permission from counsel to

communicate with the adverse party.             See Box, 715 N.W.2d at 765
                                     12

(finding an attorney with no prior disciplinary record should receive a

public reprimand where his communication with a represented client

resulted in substantial harm); Comm. on Prof’l Ethics & Conduct v.

Hoffman, 402 N.W.2d 449, 451 (Iowa 1987) (holding lawyer’s writing nine

intemperate letters, some to persons known to be represented by

counsel, warranted public reprimand).

      However, this case is more serious than merely communicating

with an adverse party, given our finding that Gailey aided and abetted

his son in violating the no-contact order and offered Dawn an

inducement to testify that is prohibited by law.        The fact Gailey was

helping his family is not an excuse. See Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Thompson, 595 N.W.2d 132, 134 (Iowa 1999) (stating

court not swayed by attorney’s argument that his actions were those of a

concerned father, not an attorney, and therefore should not be held to

have reflected adversely on fitness to practice law).

      Accordingly, we suspend Gailey’s license to practice law in the

State of Iowa for sixty days. This suspension applies to all facets of the

practice of law. See Iowa Ct. R. 35.12(3). Gailey must comply with Iowa

Court Rule 35.22 dealing with notification of clients and counsel. Costs

of this action are taxed to Gailey pursuant to Iowa Court Rule 35.26.

Absent an objection by the board and under the condition that Gailey

has paid all costs assessed under rule 35.26, we shall reinstate Gailey’s

license to practice law on the day after the sixty-day suspension period

expires. See Iowa Ct. R. 35.12(2).

      LICENSE SUSPENDED.

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