Iowa Supreme Court Attorney Disciplinary Board v. Don Richard John Bauermeister
Iowa Supreme Court Attorney Disciplinary Board v. Don Richard John Bauermeister
Opinion of the Court
Attorney Don Richard John Bauermeister pleaded guilty to federal felony drug charges. He sent a coconspirator on multiple trips to Oregon to acquire bulk quantities of marijuana for Bauermeister to sell for profit in Omaha. His mule was arrested in Utah returning with thirteen pounds *172of marijuana.
I. Background Facts and Proceedings.
We find the following facts on our de novo review of the record. Bauermeister, a resident of Omaha, Nebraska, was admitted to practice law in Iowa in 2002. He worked as a full-time assistant city attorney for the City of Council Bluffs. He also maintained a small, part-time private practice in Council Bluffs. His private practice consisted primarily of defending criminal cases. Bauermeister closed his private practice and resigned from the city attorney's office after his arrest.
From November 18, 2016, until January 9, 2017, Bauermeister conspired with other individuals to buy marijuana in Oregon to sell in Omaha. Bauermeister engaged in drug dealing to make money. He does not claim any addiction or medicinal need for marijuana. Bauermeister paid a coconspirator to travel from Omaha to Medford, Oregon, pick up the marijuana, and bring it to Omaha. Bauermeister's coconspirator made three trips to bring marijuana from Oregon to Nebraska for resale. For the first two trips, Bauermeister paid the mule $1500 upon delivery of the marijuana to Bauermeister in Omaha. The coconspirator brought back six pounds of marijuana on the first trip and eight pounds on the second trip.
For the third trip, Bauermeister agreed to pay Gerald Wyzenski $2000 upon delivery of the marijuana. On January 9, 2017, during the drive back from Oregon, Wyzenski was stopped by a Utah state trooper for having an expired motor vehicle registration. The trooper smelled marijuana in the vehicle and conducted a search. This search revealed twelve, one-pound packages of marijuana and one package of THC wax, together weighing thirteen pounds.
Law enforcement obtained a search warrant for Wyzenski's cell phone, which held text messages with Bauermeister about the drug deals. In these text messages, Bauermeister gave specific directions to meet the source of the marijuana.
On May 31, federal agents personally served Bauermeister with a search warrant for his cell phone. He turned his phone over to the agents and cooperated with the investigation. On June 9, Bauermeister self-reported his conduct to the Board.
On August 24, Bauermeister was indicted on one count of conspiring to possess and distribute a controlled substance in violation of
*173On October 30, Bauermeister pleaded guilty as charged in the indictment in exchange for the federal government's nonbinding sentencing recommendation of probation. Bauermeister was sentenced on January 29, 2018, to five years of probation and a $5000 fine. Bauermeister's license to practice law has been temporarily suspended since February 21 of that year. Bauermeister filed an affidavit consenting to revocation of his license. Our court elected to refer his case to the Board for investigation.
On July 19, the Board filed a complaint against Bauermeister, alleging he violated Iowa Rule of Professional Conduct 32:8.4(b) by "commit[ting] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." The Board gave him notice that his criminal conviction was conclusive evidence warranting revocation or suspension of his license under Iowa Code section 602.10122 (2016). The Board also notified him that it intended to invoke the doctrine of issue preclusion under Iowa Court Rule 36.17(4)(c ).
The parties stipulated to the facts and to Bauermeister's violation of Iowa Rule of Professional Conduct 32:8.4(b). On December 26, after a hearing, the commission issued its findings of fact, conclusions of law, and recommended sanction. The commission adopted the stipulation of facts and rule violation and recommended revocation until February 21, 2023.
The parties disagree as to the appropriate sanction. Bauermeister now requests a suspension of his license to practice law until January 31, 2023, to track with his federal probation. The Board recommends revocation.
II. Standard of Review.
"We review attorney disciplinary proceedings de novo." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Templeton ,
The parties have submitted a stipulation of facts and violation. "Stipulations of fact are controlling, but stipulations as to violations and appropriate sanctions do not bind us." Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lubinus ,
III. Ethical Violations.
The Board alleged, and Bauermeister admits, that Bauermeister's conviction of conspiring to possess and distribute a controlled substance in violation of
*174Rule 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). Nevertheless, "[t]he mere commission of a criminal act does not necessarily reflect adversely on the fitness of an attorney to practice law." Templeton ,
In Templeton , we adopted Oregon's approach to analyzing when an attorney's criminal act reflects on his fitness to practice law.
Each case must be decided on its own facts. There must be some rational connection other than the criminality of the act between the conduct and the actor's fitness to practice law. Pertinent considerations include 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.
Bauermeister engaged in a pattern of criminal conduct through his involvement in illegal drug trafficking from Oregon to Nebraska. He used a coconspirator to pick up the marijuana in Oregon and drive back with it, exposing that individual to felony criminal liability. Bauermeister's motivation was greed. His actions showed a disrespect for the law and law enforcement that is particularly troubling given his employment as a Council Bluffs city attorney and his criminal defense private practice representing persons charged with drug crimes. We conclude Bauermeister's criminal conduct reflects on his fitness to practice law, establishing a violation of rule 32:8.4(b). We must next determine the proper sanction.
IV. Sanction.
As noted, Bauermeister initially consented to revocation of his law license. Our rules now permit a revoked attorney to seek reinstatement after five years. Iowa Ct. R. 34.25(7). The commission recommended revocation of Bauermeister's license to practice law. The Board also recommends revocation. The Board notes that revoking Bauermeister's license now would prevent him from applying for reinstatement until one year after his probation ends but that revocation is still the appropriate sanction given our precedent and the commission's recommendations. Bauermeister presently recommends a period of suspension to run until he completes his federal probation in 2023.
There is no uniform sanction for a particular ethical violation. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Turner ,
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. The form and extent of the sanctions must be tailored to the specific facts and circumstances of each individual case. Significant distinguishing factors in the *175imposition of punishment center on the existence of multiple instances of neglect, past disciplinary problems, and other companion violations.
Iowa Supreme Ct. Att'y Disciplinary Bd. v. Cannon ,
"A felony conviction is grounds for revocation or suspension of an attorney's license to practice law." Roush ,
By contrast, we have consistently revoked the licenses of attorneys who engaged in drug trafficking. Comm. on Prof'l Ethics & Conduct v. Kaufman ,
We have imposed lesser sanctions for criminal conduct involving personal drug use or impaired driving. See Roush ,
This case presents aggravating circumstances. Bauermeister was the orchestrator of the illegal drug dealing. He paid a coconspirator to assume the risk of transporting marijuana across state lines, resulting in federal felony criminal charges against that individual. Bauermeister participated in at least two earlier drug deals over several months before his mule was stopped by police and arrested. Bauermeister's pattern of criminal conduct *176shows disrespect for the rule of law and for law enforcement officials.
Another aggravating factor is that Bauermeister engaged in for-profit drug dealing while serving as an assistant city attorney. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Stansberry ,
We find mitigating factors in this case insufficient to forestall revocation. Bauermeister has no prior discipline. Lubinus ,
After reviewing the recommendations from the commission, the Board, and Bauermeister; the aggravating and mitigating factors; and our precedent, we conclude the appropriate sanction is revocation of Bauermeister's license to practice law.
V. Disposition.
We revoke Bauermeister's license to practice law in the State of Iowa. All costs of this proceeding are assessed against him. Iowa Ct. R. 36.24(1).
LICENSE REVOKED.
All justices concur except Wiggins, J., who concurs in part and dissents in part, and Christensen, J., who takes no part.
See United States v. Molina ,
Concurring in Part
*177I respectfully dissent. I agree with the majority that Bauermeister's conduct violated Iowa Rule of Professional Conduct 32:8.4(b). However, I disagree on the appropriate sanction.
In determining the proper sanction, "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.' " Iowa Supreme Ct. Att'y Disciplinary Bd. v. Powell ,
A conviction of a felony may be grounds for revocation or suspension of an attorney's license to practice law.
In Iowa Supreme Court Board of Professional Ethics & Conduct v. Marcucci , the attorney pled guilty to operating while intoxicated (OWI), third offense, a class "D" felony.
In Iowa Supreme Court Board of Professional Ethics & Conduct v. Palmer , the attorney pled guilty to "fraudulent use of an unauthorized access device to obtain monies from a federally insured bank," a felony under federal law.
In Iowa Supreme Court Board of Professional Ethics & Conduct v. Vinyard , a federal jury found the attorney guilty of twelve counts of money laundering and fourteen counts of mail fraud.
In Iowa Supreme Court Attorney Disciplinary Board v. Dull , the attorney was convicted of OWI, third offense, a class "D" felony.
In Iowa Supreme Court Attorney Disciplinary Board v. Carroll , the attorney pled guilty to second-degree theft, a class "D" felony under Iowa law.
In Iowa Supreme Court Attorney Disciplinary Board v. Weaver , the attorney pled guilty to OWI, third offense, a class "D" felony.
In Iowa Supreme Court Attorney Disciplinary Board v. Wheeler , the attorney pled guilty to the felony of knowingly making a false statement to a financial institution.
In Iowa Supreme Court Attorney Disciplinary Board v. Bieber , the attorney pled guilty to misprision of a felony, a felony under federal law.
In Iowa Supreme Court Attorney Disciplinary Board v. Roush , the attorney pled guilty to possession of cocaine base, a felony under federal law.
In Iowa Supreme Court Attorney Disciplinary Board v. Stowe , the attorney was convicted of two counts of felony forgery in violation of Iowa Code section 715A.2.
In Iowa Supreme Court Attorney Disciplinary Board v. Engelmann , a federal jury convicted the attorney of one count of conspiracy to commit bank fraud or wire *179fraud, two counts of bank fraud, and six counts of wire fraud.
In examining these cases where felony convictions were the basis of discipline, a pattern arises. Where the felony involves dishonesty, we consider whether the dishonesty was intended to result in the misappropriation or conversion of funds. If it was so intended, as in Palmer , Vinyard , Carroll , Stowe , and Engelmann , we have not hesitated to revoke the attorney's license. See Engelmann ,
Because Bauermeister's conduct does not involve dishonesty, his conviction for conspiracy to possess and distribute marijuana should not lead to the revocation of his license to practice law. Instead, we must look at the aggravating and mitigating factors to determine the proper discipline. This disposition is consistent with other jurisdictions. See, e.g. , Fink v. Ky. Bar Ass'n ,
Bauermeister was a public official when he committed this act. This is an aggravating factor. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Stansberry ,
On the other side of the scale, many mitigating factors are in Bauermeister's favor. First, he has no prior record of discipline. See Bieber , 824 N.W.2d at 527 ; Wheeler , 824 N.W.2d at 513 ; Iowa Supreme Ct. Att'y Disciplinary Bd. v. Lustgraaf ,
Lastly, the assistant United States attorney who prosecuted Bauermeister and the federal judge who sentenced him did make a determination: Bauermeister did not need to be imprisoned for rehabilitation, punishment, or public-protection reasons. See, e.g. , Powell ,
Having considered all the factors mentioned above, I would conclude Bauermeister's conduct requires us to suspend his license to practice law indefinitely without possibility of reinstatement for three years rather than revoke his license.
We declined to address the ethics violations arising from the attorney's other misconduct, including the possession conviction, because we decided to revoke his license for the conversion-related misconduct. Stowe ,
Reference
- Full Case Name
- IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Don Richard John BAUERMEISTER, Respondent.
- Cited By
- 5 cases
- Status
- Published