Amended March 6, 2015 Iowa Supreme Court Attorney Disciplinary Board v. Gerald Anthony Lyman Moothart

IN THE SUPREME COURT OF IOWA
No. 14–1708

Filed March 6, 2015

Amended March 6, 2015

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

GERALD ANTHONY LYMAN MOOTHART,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

The grievance commission reports the respondent committed

multiple ethical violations and recommends a thirty-month suspension of

the attorney’s license. LICENSE SUSPENDED.

Charles L. Harrington, Elizabeth E. Quinlan, and Teresa A. Vens,
Des Moines, for complainant.

Christopher A. Clausen of Moothart & Clausen Law Office, Ames,

for respondent.
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APPEL, Justice.

The Iowa Supreme Court Disciplinary Board charged attorney

Gerald A.L. Moothart with multiple violations of our disciplinary rules in

connection with interactions and relationships with five women between

2006 and 2011. These charges include allegations of sexual harassment

in the practice of law with each of the five women, sexual relations with a

client with two of the women, and an allegation of a concurrent conflict of

interest arising as a result of his relationship with one woman.

After a hearing, a division of the Grievance Commission of the

Supreme Court of Iowa concluded that Moothart committed each of the

alleged violations and recommended a thirty-month suspension.

Additionally, the commission recommended that prior to reinstatement,

Moothart provide proof of participation in a psychological evaluation and

counseling, or other form of treatment, which would provide some

indication that he is fit to practice law.

Upon de novo review of the record and the commission’s findings of

fact, conclusions of law, and recommendations, we agree Moothart

committed all the violations found by the commission. Giving particular

consideration to the vulnerability of each woman with whom Moothart

interacted, we also agree with the commission’s recommended sanction

and order Moothart’s license suspended for thirty months. Additionally,

before he is reinstated, we require Moothart to provide this court with an

evaluation by a licensed health care professional, including proof of

participation in a counseling program specific to sexual harassment,

verifying his fitness to practice law.
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I. Background Facts and Proceedings.

Respondent Moothart is a licensed Iowa attorney. He graduated

from law school in May 1996, passed the Iowa bar examination, and was

admitted to practice the following month.

After obtaining his law license, Moothart worked as an assistant

county attorney for the Marshall County attorney’s office for about one

and one-half years. Thereafter, he began working in private practice in

Ames, Iowa, where he continues to practice today. He practices primarily

in criminal defense and family law. From March 2003 until December

2013, Moothart was a sole practitioner. In December 2013, an associate

attorney joined the firm.

Moothart generally has a reputation in the Ames area as a very

good defense and family-law attorney. He has developed forms and

methods of practice that are used by other attorneys and has been a

mentor to new attorneys. He has served as president and as a member

of the board of directors of the Center for Creative Justice in Ames.

On March 18, 2011, the State charged Moothart in Story County

with assault with intent to commit sexual abuse on Jane Doe #11 in

violation of section 709.11 of the Iowa Code. Three days after being
charged, Moothart filed a report with the Office of Professional

Regulation, which included a copy of the complaint.

Following a trial in June of 2011, Moothart was acquitted of the

criminal charge. After the filing of the criminal charge against Moothart,

Jane Does #2, #3, #4, and #5 filed complaints with the Ames police

department and later filed complaints with the Iowa Supreme Court

1Due to the nature of the complaints and the accompanying factual
backgrounds involved in this case, we use the pseudonym “Jane Doe” to identify each
woman involved in the proceedings against Moothart.
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Attorney Disciplinary Board. All of these complaints alleged that

Moothart engaged in various acts of sexual misconduct.

On December 31, 2013, the Board filed a five-count complaint

against Moothart. The complaint alleged Moothart engaged in sexual

harassment in the practice of law with each of the five women in violation

of Iowa Rule of Professional Conduct 32:8.4(g). In addition, for Jane Doe

#2 and Jane Doe #3, the Board alleged Moothart engaged in sexual

relations with a client, in violation of Iowa Rule of Professional Conduct

32:1.8(j). Lastly, with respect to Jane Doe #2, the Board additionally

alleged a conflict of interest in violation of Iowa Rule of Professional

Conduct 32:1.7(a)(2).

The commission held a hearing on May 14 and 15, 2014. All five

Jane Doe’s testified, as did Moothart, Jane Doe #1’s father, Jane Doe

#3’s caseworker, and attorney Daniel Gonnerman, a character witness

for Moothart.

The commission found that Moothart had committed all the

violations as charged by the Board. In making its findings and

conclusions, the commission generally credited the testimony of the

complaining witnesses and not that of Moothart. On legal issues, the

commission noted that violation of Iowa Rule of Professional Conduct

32:8.4(g), relating to sexual harassment, did not require an attorney–

client relationship, but only that the conduct occur “in the practice of

law.” The commission also concluded the term “sexual harassment” in

the rule is broadly construed and consent is not a defense in the context

of an attorney–client relationship. Based on the vulnerability of the

complainants, the pervasiveness of the misconduct, and the balance of

aggravating and mitigating factors, the commission recommended that

Moothart’s license be suspended for thirty months. The commission also
 5

recommended that prior to reinstatement, Moothart present proof that he

has obtained a psychological evaluation and counseling and that he was

fit to practice law.

II. Standard of Review.

We review factual findings of the commission de novo. Iowa Ct. R.

35.11(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809

N.W.2d 96, 101 (Iowa 2012). We give respectful consideration to the

findings of the commission, especially when considering credibility of

witnesses, but are not bound by them. Van Ginkel, 809 N.W.2d at 101;

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 759

(Iowa 2010). The Board must prove charges by a convincing

preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). “This burden is

higher than the burden in most civil cases, but lower than in a criminal

prosecution.” Van Ginkel, 809 N.W.2d at 102. It is also less stringent

than the clear and convincing evidence which is the highest standard of

civil proof. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Ronwin, 557 N.W.2d 515, 517 (Iowa 1996) (per curiam).

III. Legal Issues.

A. Introduction. Before we review the evidence developed at the

hearing and consider the appropriate sanction, if any, we first address

several important legal issues that will impact our approach to our

de novo review of the record. We will review the nature of the burden of

proof in this case; the scope of the phrase “sexual harassment . . . in the

practice of law” under Iowa Rule of Professional Conduct 32:8.4(g); the

proper approach to establishing the existence of an attorney–client

relationship under rule 32:1.8(j), which prohibits sexual relations with a

client; the applicability of rule 32:1.7(a)(2) prohibiting concurrent
 6

conflicts of interest when a conflict arises between one client and another

person who is not a client; and two rules of evidence that are applicable

to this disciplinary proceeding.

B. Burden of Proof. In this case, as in all disciplinary cases, we

note the Board bears the burden of proof of showing a violation of our

disciplinary rules by a convincing preponderance of the evidence. See,

e.g., Evans, 537 N.W.2d at 784. We note it is one thing to make

allegations or claims and another to provide evidence to meet the

somewhat heightened burden of proof in an attorney disciplinary case.

While we recognize that we live in an age in which there is often a rush to

judgment on controversial questions, episodes such as the McMartin

child abuse case and the Duke Lacrosse debacle show the fallacy of

assuming guilt when sexual misconduct is alleged. On the other hand,

we refuse to cast our eyes aside because of the uncomfortable nature of

the allegations in cases concerning charges of sexual misconduct

involving lawyers. It is our duty in this case, as it is in every case, to

carefully sift through the evidence, examine it with a critical eye, and

reach a fair and impartial result. We base our judgment solely on the

facts of the case and the applicable law.

C. Scope of “Sexual Harassment . . . in the Practice of Law”

Under Rule 32:8.4(g). Iowa Rule of Professional Conduct 32:8.4(g)

provides: “It is professional misconduct for a lawyer to . . . engage in

sexual harassment . . . in the practice of law . . . .” This case presents

several legal questions regarding the scope and meaning of the phrase

“sexual harassment . . . in the practice of law” as used in the rule.

We first note that the rule utilizes the comparatively broad phrase

“in the practice of law.” We have noted that this language is “quite

broad.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Steffes, 588
 7

N.W.2d 121, 124 (Iowa 1999). We think the language makes it clear that

the rule may be violated even if there is no attorney–client relationship

between the lawyer and the person subject to sexual harassment, as long

as the attorney is engaged in the practice of law. The rule may be

violated if a lawyer sexually harasses witnesses, court personnel, law

partners, law-office employees, or other third parties that come into

contact with a lawyer engaged in the practice of law. See id. Cases from

other jurisdictions prior to Iowa’s adoption of rule 32:8.4(g) have for some

time held that sexual harassment against non-clients violated more

general ethical rules. See, e.g., People v. Lowery, 894 P.2d 758, 760

(Colo. 1995) (en banc) (sexual harassment of employees); In re Discipline

of Peters, 428 N.W.2d 375, 376, 381–82 (Minn. 1988) (sexual harassment

of employees and law students); In re Gould, 4 A.D.2d 174, 176 (N.Y.

App. Div. 1957) (per curiam) (sexual harassment of job applicants).

Clearly, the adoption of rule 32:8.4(g), which explicitly prohibits sexual

harassment in the practice of law, was designed to strengthen, and not

limit, the application of ethical rules in the sexual harassment context.

See Steffes, 588 N.W.2d at 124.

Second, we consider what is meant by the term “sexual

harassment.” In briefing before the commission, Moothart offers a

narrow definition of sexual harassment borrowed largely from

employment law. Citing Equal Employment Opportunity Commission

guidelines, 29 C.F.R. § 1604.11 (1980), Moothart asserts that sexual

harassment must be unwelcome and must be more than an occasional

stray comment. The Board counters that Moothart’s definition of sexual

harassment is too narrow and out of context. According to the Board,

our cases indicate sexual harassment can include any physical or verbal

act of a sexual nature that has no legitimate place in a legal setting. See
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Steffes, 588 N.W.2d at 124 (noting that rule regarding sexual harassment

was adopted in response to recommendation made by the Equality in the

Courts Task Force, which examined “discriminatory treatment received

by women in the courtroom and from the legal system in general” (citing

Equality in the Cts. Task Force, State of Iowa, Final Report 41–92

(1993))). The commission agreed with the Board’s approach. So do we.

In Steffes, we emphasized the breadth of the term “sexual

harassment” used in rule 32:8.4(g). Id. We stated sexual harassment as

used in the rule includes “ ‘sexual advances, requests for sexual favors,

and other verbal [or] physical conduct of a sexual nature.’ ” Id. (quoting

Black’s Law Dictionary 1375 (6th ed. 1990)). We have not required that

the harassment be ongoing or pervasive as has been required in some

employment contexts. See, e.g., id. at 124–25 (deeming sexually

revealing photos allegedly documenting back injury conduct of a sexual

nature, thereby constituting sexual harassment).

Third, we have generally rejected the notion that consent is a

defense to acts of sexual harassment, at least in the context of an

attorney–client relationship. For instance in Iowa Supreme Court Board

of Professional Ethics & Conduct v. Hill (Hill II), we noted in the context of

sexual harassment that “the professional relationship renders it

impossible for the vulnerable layperson to be considered ‘consenting.’ ”

540 N.W.2d 43, 44 (Iowa 1995) (emphasis added). In short, Iowa has

adopted a per se rule regarding sexual harassment of a client. See id. at

43–44; see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713

N.W.2d 682, 703–04 (Iowa 2006).

D. Establishing an “Attorney–Client Relationship” Under Rule

32:1.8(j) Prohibiting Sexual Relations with a Client. Iowa Rule of

Professional Conduct 32:1.8(j) provides in relevant part: “A lawyer shall
 9

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.”

Unlike rule 32:8.4(g) related to sexual harassment, our rule

prohibiting sexual relations requires the existence of an attorney–client

relationship. Compare id. r. 32:1.8(j), with id. r. 32:8.4(g). When an

attorney–client relationship is present, however, a per se rule applies to

clients who are not spouses or when a sexual relationship does not

predate the attorney–client relationship. As with sexual harassment,

consent is not a defense. See Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Furlong, 625 N.W.2d 711, 714 (Iowa 2001).

In determining whether an attorney–client relationship is present,

a comment to our rules notes that “principles of substantive law external

to [the ethical rules] determine whether a client-lawyer relationship

exists.” Iowa R. Prof’l Conduct Scope [17]. In Iowa Supreme Court

Attorney Disciplinary Board v. Netti, “consistent with section 14 of the

Restatement (Third) of the Law Governing Lawyers,” we noted a three-

part test determines the existence of an attorney–client relationship. 797

N.W.2d 591, 599 (Iowa 2011). Such a relationship exists when:

(1) a person sought advice or assistance from an attorney, (2)
the advice or assistance sought pertained to matters within
the attorney’s professional competence, and (3) the attorney
expressly or impliedly agreed to give or actually gave the
desired advice or assistance.

Id. (quoting Comm. on Prof’l Ethics & Conduct v. Wunschel, 461 N.W.2d

840, 845 (Iowa 1990)); see also Restatement (Third) of the Law Governing

Lawyers § 14, at 125 (2000). Therefore, determining when an attorney–

client relationship begins is a question of fact. Cf. Wunschel, 461 N.W.2d

at 845; Kurtenbach v. TeKippe, 260 N.W.2d 53, 57 (Iowa 1977).
 10

For example, in determining the existence of an attorney–client

relationship, we have addressed situations involving persons who might

be considered former clients. For instance, in Iowa Supreme Court Board

of Professional Ethics & Conduct v. Walters, we considered a case in

which a lawyer borrowed money from a former client. 603 N.W.2d 772,

774–75 (Iowa 1999). The applicable disciplinary rule prohibited a

business transaction with a client under certain situations. Id. at 775.

We held that the rule applied “as long as the attorney has influence

arising from a previous attorney-client relationship and the client is

looking to the attorney to protect the client’s interest.” Id. at 775; see

also Manoir–ElectroAlloys Corp. v. Amalloy Corp., 711 F. Supp. 188, 194

(D.N.J. 1989) (holding client reasonably viewed law firm as continuing

representation in light of follow-up letters related to prior work);

Disciplinary Counsel v. Bunstein, 995 N.E.2d 184, 187 (Ohio 2013) (per

curiam) (finding lawyer–client relationship when lawyer had previously

represented client involving same issue and when client reasonably

sought attorney’s advice); In re Conduct of Hassenstab, 934 P.2d 1110,

1114 (Or. 1997) (noting “[a] lawyer need not be on retainer or engaged for

a specific purpose to be considered an attorney for a client who, from

time to time, calls that lawyer seeking legal advice” (alteration in original)

(internal quotation marks omitted)).

E. Conflict of Interest Involving Nonparties. Rule 32:1.7

provides in relevant part:

(a) . . . [A] lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:

....

(2) there is a significant risk that the representation of
one or more clients will be materially limited by the lawyer’s
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responsibilities to another client, a former client, or a third
person or by a personal interest of the lawyer.

Iowa R. Prof’l Conduct 32:1.7(a)(2).
For purposes of this case, it is important to observe that a

concurrent conflict of interest may arise even though there is only one

attorney–client relationship. When representing a client, the ABA long

ago emphasized that “[p]rotecting a client’s emotional and physical well-

being is surely as important as protecting the client’s financial well-

being.” ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 92-364

(1992). We agree.

A number of courts have found violations under conflict rules

similar to rule 32:1.7(a)(2) when a lawyer engaged in sexual misconduct

toward a client. For instance, in In re Disciplinary Proceedings Against

Ridgeway, the Wisconsin Supreme Court found a lawyer violated its

concurrent-conflicts rule when he provided beer to his client contrary to

the conditions of the client’s probation and had sexual contact with her

at the same time he was representing her on a possible probation

revocation matter. 462 N.W.2d 671, 671–73 (Wis. 1990). Similarly, in

People v. Bauder, the Colorado Supreme Court considered a case in

which an attorney sexually solicited the wife of a dissolution client. 941

P.2d 282, 282–83 (Colo. 1997) (en banc) (per curiam). The Colorado

court concluded that “while the women involved were not themselves

clients of the respondent, the respondent’s comments and proposals

violated the fiduciary duty that the respondent owed his client because of

the victims’ relationships to the client.” Id. at 283. Other jurisdictions

have found similar violations. See, e.g., In re Piatt, 951 P.2d 889, 891

(Ariz. 1997) (en banc) (holding sexual harassment of client by lawyer

violated rule prohibiting lawyer from representing client when that
 12

representation was materially limited by lawyer’s own interests); Attorney

Grievance Comm. of Md. v. Culver, 849 A.2d 423, 435 (Md. 2004) (holding

attorney who had sex with client placed his personal interest above those

of client who was in unstable emotional state due to pending divorce); In

re Application for Disciplinary Action Against Chinquist, 714 N.W.2d 469,

473–75 (N.D. 2006) (finding conflict of interest when lawyer engaged in

sexual relationship with client while working on visitation and child-

support issues); Chesley Payne, An Overview of Sexual Harassment in the

Attorney-Client Relationship as Interpreted Under the ABA Rules of

Professional Conduct, 26 J. Legal Prof. 249, 251 (2002) (noting

concurrent-conflict rule is an often cited rule “that squarely fits the

situation of sexual harassment in the attorney-client relationship”).

F. Evidentiary Issues Implicated in this Case. The Iowa Rules

of Evidence apply in disciplinary proceedings. See Iowa Ct. R. 36.14(3).

Our review of the record in this case reveals two evidentiary issues,

namely, the use of prior acts of the respondent as evidence of subsequent

acts, and the use of prior consistent statements to buttress the

credibility of the complainants’ testimony.

We begin with a discussion of the issue of use of prior acts as

evidence of subsequent acts. Iowa Rule of Evidence 5.404(b) generally

limits admissibility of proof “of other crimes, wrongs, or acts” in order “to

prove the character of a person in order to show that the person acted in

conformity” with that character at another time. The rule, however,

explicitly allows admission of such evidence “for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Id. Under the rule as

interpreted by our caselaw, prior bad acts are not admissible to show

general propensity of wrongdoing but may be admissible to show
 13

signature crimes, relationship of the parties, or other nonpropensity

facts. See State v. Putman, 848 N.W.2d 1, 10–13 (Iowa 2014) (canvassing

authorities and distinguishing between cases merely with common

threads and cases with striking similarities and admitting evidence as

relevant to identity of perpetrator); State v. Cox, 781 N.W.2d 757, 760–61

(Iowa 2010) (holding prior acts of sexual abuse not admissible when not

relevant to any nonpropensity purpose such as opportunity, common

scheme or plan, or modus operandi).

In this case, five separate charges were brought against Moothart.

Moothart did not seek to sever the charges, however, and did not seek to

limit the use of prior-bad-acts testimony. In any event, the evidence

related to each complainant was plainly admissible to show alleged

violations against them.

In at least one prior case, we declined to consider the application of

rule 5.404(b) in the context of multiple charges of sexual misconduct.

See, e.g., McGrath, 713 N.W.2d at 687 n.1; In re J.A.L., 694 N.W.2d 748,

753 (Iowa 2005) (declining to decide whether admission of prior-acts

evidence was harmless error and refraining from considering prior-acts

evidence in de novo review). In our de novo review, we recognize the

general proposition embraced by the rule, namely, that absent some

relevance other than propensity, evidence related to sexual harassment

of one person should be given no weight in determining the merits of a

different sexual harassment claim involving another person.

A second issue relates to the use of prior consistent statements.

Under Iowa Rule of Evidence 5.801(d)(1)(B), a prior consistent statement

is admissible if the declarant is available for cross-examination at the

hearing and if the prior consistent statement is offered to rebut the

opposing party’s express or implied charge of recent fabrication or
 14

improper influence or motive. Thus, to the extent Moothart challenged

the credibility of witness testimony, prior consistent statements of the

same witness are admissible to rebut the opposing party’s charge of

improper motive.

IV. Discussion of Merits.

A. Jane Doe #1 (Sexual Harassment). The Board charged

Moothart with sexual harassment of Jane Doe #1 in violation of rule

32:8.4(g). Based on our de novo review of the entire record, and giving

due consideration to the credibility determinations of the commission, we

find the following facts.

Jane Doe #1 was a twenty-two-year-old college student who was

arrested and charged with operating while intoxicated (OWI), first offense

in August 2010. With Moothart as her lawyer, Jane Doe #1 pled guilty,

received a deferred judgment, and was put on probation. During

attorney–client meetings with Jane Doe #1 in Moothart’s office, Moothart

made explicit and crude sexual comments about her body that made

Jane Doe #1 feel “really uncomfortable.”

Ultimately, Jane Doe #1 left school for a period of time, but when

she returned to school several months later, she contacted Moothart.

Although Moothart had sent Jane Doe #1 a letter after her sentencing

advising Jane Doe #1 that his representation had terminated, Moothart

instructed her to contact him upon her return to school so that he could

write a letter advocating her early discharge from probation. In addition,

Moothart later sent Jane Doe #1 a letter in early December with a copy of

her probation contract signed the previous month in which Jane Doe #1

declared that Moothart was her attorney. This letter told Jane Doe #1

that she should contact Moothart if she had any questions.
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Upon her return to college, Jane Doe #1 telephoned Moothart as

instructed and a meeting was scheduled for January 20, 2011. At the

subsequent meeting, Jane Doe #1 and Moothart sat in a conference room

at his office after hours and discussed matters related to her successful

completion of the terms of her probation for about forty-five minutes.

After this part of the evening concluded, Moothart mixed and served her

three or four vodka lemonade drinks and she became intoxicated.

Moothart did not consume alcohol, but drank soda.

As the evening progressed, the discussion changed to topics of a

sexual nature. At some point, Moothart asked Jane Doe #1 to come

around to his side of the table and show him her breasts. Although

exactly how this occurred is somewhat disputed, it is undisputed that

following Moothart’s request, Jane Doe #1’s breasts were fully exposed to

Moothart. Jane Doe #1 was “extremely uncomfortable” when Moothart

looked at her breasts. Shortly thereafter Moothart and Jane Doe #1

moved to a dark room where there was a couch. They sat on the couch

in a sexually provocative manner. Moothart then made sexual

suggestions to Jane Doe #1. At that point, Jane Doe #1 asked to be

driven home and Moothart drove Jane Doe #1 back to her apartment,

dropping her off at approximately 9:30 p.m.

Jane Doe #1’s father became aware something unusual had

happened that night after Jane Doe #1 called home after meeting with

Moothart in an intoxicated state, talked mostly to her mother, and

provided the outlines of the sexual encounter. Concerned about his

daughter’s welfare, Jane Doe #1’s father called Moothart’s law office that

evening at about 10:30 p.m. and left a message with Moothart. When

Jane Doe #1’s father eventually spoke with Moothart after a few days,
 16

Moothart told him that the purpose of the meeting with his daughter was

to discuss her probation.

Moothart admitted to many, though not all, of the facts recited by

Jane Doe #1, including that he provided alcohol to her that night, that

she exposed her breasts, that they sat together on the couch in sexually

suggestive positions, and that he took Jane Doe #1 home at that point.

He recognized that serving alcohol to someone on probation for an

alcohol offense was “the dumbest thing anybody could do, especially an

attorney.” He further testified the evening was not appropriate for a

married man with a daughter, stating, “There was nothing right about

that night.”

Moothart disputed, however, that he and Jane Doe #1 had an

attorney–client relationship during the encounter. Therefore, the fighting

issue was whether Jane Doe #1 was a client at the time the above events

transpired. On the question of Moothart’s relationship with Jane Doe #1

on January 20, we recognize that Moothart sent her a letter in October

2010 indicating his representation had concluded. However, we note

that his December letter to Jane Doe #1 included a probation contract

signed by Jane Doe #1 in November listing Moothart as her attorney.

Moothart was aware of this document as he forwarded it to Jane Doe #1.

Further, Jane Doe #1 called Moothart at his professional office while still

on probation to schedule an appointment which ultimately occurred at

the office, although after hours. Finally, when Jane Doe #1’s father

talked to Moothart on January 24, 2011, Moothart claimed the meeting

was professional in nature.

Under the facts as we view them, we think the Board established

by a convincing preponderance of the evidence that an attorney–client

relationship existed on January 20 under the standards of Netti, 797
 17

N.W.2d at 599. Further, we think the facts fit comfortably within the

approach recognized in Walters, in which we noted an attorney–client

relationship existed with a former client “as long as the attorney has

influence arising from a previous attorney–client relationship and the

client is looking to the attorney to protect the client’s interest.” 603

N.W.2d at 775.

We also conclude the acts described above are sufficient to

establish sexual harassment under our broad construction of the term.

See Steffes, 588 N.W.2d at 124. Moothart does not escape culpability

under our reading of sexual harassment under rule 32:8.4(g) simply

because (he claims) Jane Doe #1 was intoxicated and did not expressly

object to the activities or the sexual nature of their conversation. See

Steffes, 588 N.W.2d at 125 (noting client’s failure to actively resist

attorney’s inappropriate requests does not change ethical violation); Hill

II, 540 N.W.2d at 44 (noting a vulnerable layperson cannot consent to

sexual advances made by her attorney).

Based on our de novo review, we conclude the Board has

established by a convincing preponderance of the evidence that Moothart

violated rule 32:8.4(g) by engaging in sexual harassment in his office on

January 20.

B. Jane Doe #2 (Sexual Harassment, Sexual Relations with a

Client, and Conflict of Interest). The Board charged Moothart with

sexual harassment, sexual relations with a client, and conflict of interest

contrary to rules 32:8.4(g), 32:1.8(j), and 32:1.7(a)(2) regarding his

interactions with Jane Doe #2. Based on our de novo review of the entire

record, we find the following facts.

In the spring of 2010, Moothart was appointed to represent D.A.

for a probation violation as a result of D.A. being charged with domestic
 18

assault. Jane Doe #2 was the victim and primary witness of the

domestic assault.

Prior to D.A.’s probation revocation hearing, Jane Doe #2 met twice

with Moothart. During the first meeting in Moothart’s office, Moothart

complemented Jane Doe #2 on her physical appearance, with a specific

comment about her breasts, which he asked to see. Jane Doe #2 also

discussed her relationship with D.A. with Moothart, telling him D.A. was

abusive towards her.

Also during the first meeting, Jane Doe #2 told Moothart she did

not have a driver’s license. Moothart responded that he could help her

with that. Additionally, Moothart advised her to stay in a hotel to avoid

receiving a subpoena. Jane Doe #2 did so based on his request.

On the day of D.A.’s probation revocation hearing, Moothart met

with Jane Doe #2 alone in a conference room at the courthouse. At this

second meeting, Moothart started kissing her “and stuff” while they were

alone together. Jane Doe #2 did not object because she “was going to do

anything to help [D.A.].” She stated, “I really didn’t want to do it but I

did it so [Moothart] would do his best to get my boyfriend out.”

About a month later, Jane Doe #2 received a letter from Moothart,

stating in pertinent part:

Thank you for speaking with me earlier today, Ref: (a) I
am writing to confirm I will take no further action regarding
the status of your motor vehicle operator’s license pending
your formal request and agreement regarding the same.

In anticipation of you making such request, however,
attached please find a copy of the documents you will be
executing when you come to my office, Enc (1) and (2). To
expedite our meeting, please fill out Part B of the attached
Request prior to our meeting. Kindly note you will also need
to bring the following items with you to our meeting:
• Check in the amount of $5.50 payable to Treasurer,
State of Iowa (to include with the application)
 19
• Driver’s license or more likely, non-driver identification
card
The letter also included an “Affidavit of Consent,” which identified
Moothart as Jane Doe #2’s attorney. Following receipt of this letter, Jane

Doe #2 provided Moothart with the $5.50 and a copy of her nondriver

identification card.

A few weeks after Jane Doe #2 received the letter, Moothart picked

her up and they traveled together to a hotel outside of Ames. The same

day, Jane Doe #2 had her signature notarized on the Affidavit of Consent

and gave it to Moothart when they met. Prior to picking Jane Doe #2 up,

he had called and asked her what she preferred to drink, to which she

responded wine. At the hotel, Jane Doe #2 drank an entire bottle of

wine. Moothart drank no alcohol. Thereafter, Moothart and Jane Doe #2

had sex. Moothart paid for the hotel room. Following this night,

Moothart and Jane Doe #2 had several phone conversations, which

included conversations about her driver’s license.

Two months after the first hotel tryst, Jane Doe #2 and Moothart

met at another hotel outside of Ames. They discussed her driver’s license

and the steps Moothart was taking in resolving the matter. Moothart

brought beer for Jane Doe #2 to drink and they had sex. Moothart again

paid for the hotel room.

Following that night, Moothart wrote to Jane Doe #2 on office

letterhead requesting that she sign the Affidavit of Consent in front of a

notary. This letter also confirmed receipt of the $5.50 requested by

Moothart. The following week, a document in Moothart’s file, entitled

“Privacy Act Agreement for Request of Motor Vehicle Records,” identified

him as Jane Doe #2’s attorney.

Moothart admits he and Jane Doe #2 had sex on the two occasions

described above. Moothart insists, however, that Jane Doe #2 was not
 20

his client. Moothart testified he and Jane Doe #2 spoke only about

matters related to D.A.’s probation revocation hearing during his

meetings with Jane Doe #2 prior to the hearing. He claimed the later

sexual liaisons were consensual in nature.

With respect to the documents in his file on Jane Doe #2, Moothart

claims the letters were fake and designed to assuage D.A., a person with

a propensity toward violence. Moothart testified the letters and

discussions about Jane Doe #2’s driver’s license were designed as a ruse

to keep them safe from D.A. In support of his ruse claim, Moothart

noted that the document requesting a copy of Jane Doe #2’s driver’s

license record did not have a number for her nondriver identification, but

instead used an entry of 000XX0000. He further noted that the check

number for payment of the $5.50 was listed as 0000. Moothart argues

these incomplete entries indicate there was never any intention to submit

the documentation to the IDOT and that, in fact, he did not do so.

Further, Moothart testified there was, in fact, nothing he could do for

Jane Doe #2 regarding her request for a driver’s license, as her license

was suspended for nonpayment of fines.

On our de novo review, we conclude the Board proved its sexual

harassment claim by a convincing preponderance of the evidence. We

note the commission made two credibility determinations: it found Jane

Doe #2 credible, while it found Moothart’s testimony incredible. Aside

from the commission’s credibility determinations, which we consider

important, we are persuaded Moothart had unwanted sexual contact

with Jane Doe #2 before he admittedly took her to a motel to engage in

sexual intercourse. We therefore conclude the Board proved by a

convincing preponderance of the evidence that Moothart engaged in

sexual harassment in violation of rule 32:8.4(g).
 21

Like the commission, we also find that Moothart violated rule

32:1.8(j) by having sex with a client. Moothart offers an unusual theory,

claiming that oddities in the documents and the futility of the

representation demonstrate the lack of an attorney–client relationship. It

may well have been that Moothart regarded the documents as a ruse to

provide a buffer against the current and prospective rage of a jealous

client. The creation of false files, of course, would hardly generate

confidence in Moothart as a lawyer, but we concede for the purpose of

argument that it is possible that Moothart was devious enough to engage

in such behavior.

In determining whether there was an attorney–client relationship,

however, we have adopted a three-part test. The test generally requires

that “(1) a person sought advice or assistance from an attorney, (2) the

advice or assistance sought pertained to matters within the attorney’s

professional competence, and (3) the attorney expressly or impliedly

agreed to give or actually gave the desired advice or assistance.” State v.

Parker, 747 N.W.2d 196, 203 (Iowa 2008) (internal quotation marks

omitted); see also Netti, 797 N.W.2d at 599; Kurtenbach, 260 N.W.2d at

56 (stating that an attorney can give express or implied legal assistance

“when [a] person seeking legal services reasonably relies on the attorney

to provide them [services] and the attorney, aware of such reliance, does

nothing to negate it”); see generally Restatement (Third) of the Law

Governing Lawyers § 14, at 125 (detailing the formation of an attorney–

client relationship, including when a client reasonably relies on the

services of an attorney). Jane Doe #2 testified she believed Moothart was

assisting her in connection with her driver’s license. She had a

document notarized, at Moothart’s request, expressly stating that he was

her lawyer in connection with her driver’s license matter. Under these
 22

circumstances, we conclude that an attorney–client relationship was

established between Moothart and Jane Doe #2.

There is no persuasive reason to believe that Jane Doe #2 knew

she was executing a false consent at Moothart’s request. There is no

evidence that Jane Doe #2 was sophisticated about driver’s license

matters, including those involving her own license. That is why we have

lawyers. We think the documentary trail drives the balance well away

from equipoise and establishes by a convincing preponderance of the

evidence the existence of an attorney–client relationship at the time of

the sexual intercourse. We therefore conclude that Moothart violated

rule 32:1.8(j).

Finally, on the question of conflict of interest, we also agree with

the commission that Moothart violated rule 32:1.7(a)(2). Moothart

represented D.A. in a domestic abuse charge while at the same time he

sought to establish or engaged in a personal relationship with the

purported victim of the domestic abuse. An attorney cannot zealously

represent the interest of a person accused of domestic abuse while

seeking sexual favors from the alleged victim. Further, we note that by

engaging in sexual relations with Jane Doe #2, Moothart increased Jane

Doe #2’s risk of exposure to angry outbursts from D.A. We conclude the

Board established by a preponderance of the evidence that Moothart

violated rule 32:1.7(a)(2) by engaging in a personal relationship that gave

rise to a concurrent conflict of interest with an existing client.

C. Jane Doe #3 (Sexual Harassment, Sexual Relations with a

Client). The Board charged Moothart with sexual harassment and

sexual relations with a client in violation of rule 32:8.4(g) and rule

32:1.8(j), regarding his interactions with Jane Doe #3. Based on our

de novo review of the entire record, we find the following facts.
 23

At the time of the alleged transgressions, Jane Doe #3 was a

woman in her early thirties who was a single mother of two young

children. Moothart was court appointed to represent Jane Doe #3 in

three misdemeanor matters and two child-in-need-of-assistance matters

from September 2010 through December 2011. During this time, Jane

Doe #3’s children were in foster care.

Jane Doe #3 had an extensive history of mental-health and

substance-abuse problems and was being treated for PTSD, anxiety, and

depression. Moothart was well aware that her life was in turmoil.

During her first meeting with Moothart, Moothart questioned Jane

Doe #3 extensively about her past work in the escort business and work

as a prostitute. Jane Doe #3 felt uncomfortable with the questions and

did not understand why Moothart was asking about these things as they

had nothing to do with her case or with her children.

At this time, Jane Doe #3 was residing at a transitional living

facility in an attempt to address the problems in her life. After being

discharged early, she was placed at a residential treatment center. While

a resident at the center, Jane Doe #3 was able to leave and meet with

Moothart at his office several times.

During a subsequent meeting, Moothart complimented her

appearance and asked her to “flash him.” In response, Jane Doe #3

showed Moothart her breasts, which generated a crude sexual

compliment from Moothart. Jane Doe #3 was uncomfortable with his

requests; however, she complied because, as she stated, “Well, he was

my lawyer. I mean, and I was in a pretty tough situation. Going to lose

my kids.”

In later attorney–client sessions, Moothart made additional crude

sexual comments to Jane Doe #3. Eventually, Moothart scheduled a
 24

meeting at his office with Jane Doe #3 after business hours. At

Moothart’s request, Jane Doe #3 performed oral sex on Moothart. He

paid her $100 for doing so. After this incident, Moothart attempted to

arrange further meetings with Jane Doe #3 to engage in sex acts for

money, but she refused.

The sexual encounter bothered Jane Doe #3. She recognized she

faced adverse consequences, including loss of reputation, possible jail

time for prostitution, and negative consequences on her effort to be

united with her children if she disclosed the events that had transpired.

After some delay, she eventually told one of her caseworkers, R.S., and

obtained assistance in requesting that Moothart withdraw from pending

matters. Eventually Jane Doe #3 left residential treatment and had her

children returned to her and the juvenile court cases involving her

children closed.

R.S., an in-home caseworker for Children and Families of Iowa,

corroborated Jane Doe #3’s testimony about reporting the incident.

While R.S. offered testimony about a prior consistent statement by Jane

Doe #3 over Moothart’s objection, we note such evidence was admissible

because Moothart had attempted to impeach the testimony of Jane Doe

#3. See Iowa R. Evid. 5.801(d)(1)(B).

Based upon our de novo review of the facts, we conclude that

Moothart violated rule 32:8.4(g) when he made several crude sexual

comments to Jane Doe #3, including asking her to flash him. Like the

commission, we conclude these statements were “ ‘sexual advances,

request for sexual favors, and other verbal [or] physical conduct of a

sexual nature.’ ” See Steffes, 588 N.W.2d at 124 (quoting Black’s Law

Dictionary 1375). Further, Jane Doe #3 did not consent or welcome the

sexual advances made by Moothart and was clearly not in a position to
 25

do so, as she testified she was in a tough situation and was depending

on Moothart so she could regain custody of her children.

We also conclude that Moothart violated rule 32:1.8(j) by giving

Jane Doe #3 $100 in exchange for oral sex. There is no dispute that

Moothart was Jane Doe #3’s court-appointed attorney during this time.

D. Jane Doe #4 (Sexual Harassment). The Board charged

Moothart with sexual harassment of Jane Doe #4 in violation of rule

32:8.4(g). Based on our de novo review of the entire record, we find the

following facts.

In October 2010, Moothart was court appointed to represent

eighteen-year-old Jane Doe #4 on a probation violation matter stemming

from an OWI, first offense charge. During the course of his

representation, Moothart met with Jane Doe #4 three times. During the

first meeting in Moothart’s office, Moothart made comments about her

cleavage and asked her to pull her shirt down. Further, when Jane Doe

#4 asked how much Moothart would charge for his legal services, his

response was “it depends on how much cleavage you show me.” Jane

Doe #4 stated that as a result of Moothart’s behavior, she “felt kind of

embarrassed.” She stated, “I didn’t know really what to do. I didn’t want

to, I guess, risk having any issues with my case, so I just was compliant.”

At the second meeting, Jane Doe #4 and Moothart met at the

courthouse shortly before her hearing. Based on her last interaction

with Moothart, Jane Doe #4 brought her mother and sister with her, as

she “really didn’t want to be in another situation like the [last] meeting.”

Jane Doe #4 asked that they be able to go into the meeting room with her

and Moothart. Moothart refused to allow them to accompany her into

the meeting. At the meeting, Moothart made more comments about her

cleavage and again asked her to pull down her shirt.
 26

The last meeting occurred immediately after the hearing, when

Moothart again met privately with Jane Doe #4 in a courthouse

conference room where he asked Jane Doe #4 if they could get drinks

together and hang out in a hot tub. Because her case was over, Jane

Doe #4 felt comfortable telling Moothart his actions and comments were

inappropriate.

Based upon our de novo review, we conclude the Board proved by

a convincing preponderance of the evidence that Moothart’s behavior

with respect to Jane Doe #4 violated rule 32:8.4(g). Under the facts we

have found, Moothart’s behavior clearly constitutes sexual harassment

under this rule. 2

E. Jane Doe #5 (Sexual Harassment). The Board charged

Moothart with sexual harassment of Jane Doe #5 in violation of rule

32:8.4(g). Based on our review of the entire record, we make the

following findings of fact.

Jane Doe #5 testified that she had known Moothart since she was

ten or twelve. She began working at Moothart’s law office in April of

2006 as a legal secretary and receptionist.

In 2006, while Jane Doe #5 was working for Moothart, he
represented her in her dissolution-of-marriage case. In the office,

Moothart had often made sexual comments which made her feel

uncomfortable. These types of comments increased in frequency when

he began representing her in her dissolution case. She testified Moothart

would comment about her weight and how her body looked in different

2There is a question whether we should consider the similarity between Jane

Doe #4’s allegations and the allegations of other Jane Doe’s. We need not decide this
question, as even if we conclude that the acts only have a common thread and are not
strikingly similar, see Putman, 848 N.W.2d at 12, it does not affect the result in this
case. Even if we decline to view the claims as strikingly similar, the Board has met its
burden to prove each of the charges by a convincing preponderance of the evidence.
 27

outfits, about her breasts, and about other aspects of her body. He also

asked her to perform lap dances and taped a $20 bill to the back of a

cabinet door and said she was free to take it if she danced naked on the

conference room table.

At the beginning of her employment, Moothart’s driving privileges

had been revoked as the result of his second conviction for OWI and

Jane Doe #5 drove him to his appointments. On one occasion, while

Jane Doe #5 was driving him to court, Moothart reached over and

grabbed one of her breasts.

On another occasion while at work, Moothart asked Jane Doe #5 if

she knew what a particular sex toy was. After responding she did not,

Jane Doe #5 testified that he pulled up a picture on his computer and

asked if he should order one so they could use it while having sex. She

testified this made her “extremely uncomfortable.”

During a Saturday spent putting together new office furniture,

Jane Doe #5 was sitting at her desk and Moothart was on the ground

connecting wires. He looked up her skirt and commented on her

underwear.

Throughout Jane Doe #5’s employment, Moothart would regularly

make comments about female clients’ breasts. She also testified that

Moothart kept alcohol in the office and would offer it to certain clients.

On December 30, 2006, Jane Doe #5 met a client after hours to

celebrate the client’s case being over. While out together, Jane Doe #5

recalled being informed by the client of a highly inappropriate proposal of

a sexual nature from Moothart. Jane Doe #5 claimed that this was the

final straw and quit her job a few days later, in early January 2007.

In April 2009, Moothart was court appointed to represent Jane Doe

#5 in a juvenile case involving her son with special needs. Although
 28

Moothart testified that Jane Doe #5 wanted him to represent her in the

matter, Jane Doe #5 denies that was her desire. During his

representation from approximately May 2009 until the summer of 2011,

Moothart continued to make comments about her breasts.

Based on our de novo review, we conclude that the Board

established by a convincing preponderance of the evidence that Moothart

violated rule 32:8.4(g) by injecting sexual commentary into the workplace

and during the period of time when Jane Doe #5 was his client.

V. Sanction.

In order to determine the appropriate sanction in this case, we

must consider:

“[T]he nature of the violations, the attorney’s fitness to
continue in the practice of law, the protection of society from
those unfit to practice law, the need to uphold public
confidence in the justice system, deterrence, maintenance of
the reputation of the bar as a whole, and any aggravating or
mitigating circumstances.”

Van Ginkel, 809 N.W.2d at 108 (alteration in original) (quoting Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 748 N.W.2d 498, 502 (Iowa

2008)). “The primary goal of attorney discipline is to protect the public,

not to punish the attorney.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Barnhill, 847 N.W.2d 466, 487 (Iowa 2014). We are mindful there is no

“standard sanction for a particular type of misconduct, and though prior

cases can be instructive, we ultimately determine an appropriate

sanction based on the particular circumstances of each case.” Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa

2007); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morrison, 727

N.W.2d 115, 119 (Iowa 2007) (“We give the discipline recommended by

the Grievance Commission its due respect although the matter of

sanction is solely within the authority of this court.” (Internal quotation
 29

marks omitted.)). Further, the form and extent of the sanction must

necessarily be “ ‘tailored to the specific facts and circumstances of each

individual case.’ ” Van Ginkel, 809 N.W.2d at 108 (quoting Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009)).

With these principles in mind, we now consider the question of the

appropriate sanction in this case. Moothart acknowledges some level of

discipline is warranted, but contends anything more than a thirty-day

suspension will be devastating to his family and coworkers, including an

office assistant and a newly-hired associate. We conclude a more severe

sanction is appropriate. Moothart’s conduct indicates a pattern of

inappropriate behavior over many years that clearly harmed the women

with whom he interacted as well as the profession he represented.

We have considered instances of an Iowa attorney’s inappropriate

sexual misconduct on a number of occasions and imposed sanctions

ranging from a public reprimand to a three-year suspension. See, e.g.,

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761,

767–68, 771 (Iowa 2010) (imposing three-month suspension for attorney

on inactive status convicted of serious misdemeanor for window peeping);

Marzen, 779 N.W.2d at 764, 769 (suspending attorney for six months

when attorney engaged in consensual sexual relationship and accused

of entering into sex-for-fees relationship); McGrath, 713 N.W.2d at 703–

04 (imposing three-year suspension for attorney who sexually harassed

at least two female clients, including exchanging legal services for sex);

Furlong, 625 N.W.2d at 712–14 (suspending attorney for eighteen months

for engaging in a sexual relationship with one client and encouraging her

to withdraw her complaint with the Board and sexually harassing

another client); Steffes, 588 N.W.2d at 124–25 (imposing two-year

suspension for taking photographs of partially-clothed client under
 30

pretext photos needed to document back injury); Hill II, 540 N.W.2d at

43, 45 (suspending attorney for twelve months for making inappropriate

sexual advances toward client); Comm. on Prof’l Ethics & Conduct v.

Barrer, 495 N.W.2d 756, 757 (Iowa 1993) (imposing two-year suspension

for making obscene phone calls to teenage boys); Comm. on Prof’l Ethics

& Conduct v. Hill (Hill I), 436 N.W.2d 57, 58–59 (Iowa 1989) (suspending

attorney for three months for accepting vulnerable client’s offer to have

sex in exchange for money); Comm. on Prof’l Ethics & Conduct v. Vesole,

400 N.W.2d 591, 591–93 (Iowa 1987) (imposing three-year suspension

for repeated instances of indecent exposure to women); Comm. on Prof’l

Ethics & Conduct v. Durham, 279 N.W.2d 280, 281, 285–86 (Iowa 1979)

(reprimanding attorney for kissing and embracing inmate client).

Other jurisdictions have also dealt with similar attorney

misconduct and have imposed sanctions ranging from a public

reprimand to disbarment depending on the number of victims and

interactions, as well as the severity of the alleged misconduct. See, e.g.,

People v. Good, 893 P.2d 101, 102, 105 (Colo. 1995) (en banc) (per

curiam) (suspending attorney for one year and one day after engaging in

a consensual sexual relationship with a client); In re Tenenbaum, 880

A.2d 1025, 1026 (Del. 2005) (per curiam) (imposing suspension of three

years after attorney sexually harassed clients and employees over a

period of five to ten years); In re Hammond, 56 So. 3d 199, 201–05, 214

(La. 2011) (disbarring attorney who was found to have engaged in

repeated unwanted and coercive sexual contact with a number of clients,

most of whom were incarcerated inmates); Attorney Grievance Comm’n of

Md. v. Goldsborough, 624 A.2d 503, 514 (Md. 1993) (imposing a

minimum two-year indefinite suspension after attorney was accused of

sexual harassment of three women and requiring the attorney to
 31

“persuade [the court] that the conduct which necessitated his

suspension will never be repeated”); In re Discipline Action Against

Griffith, 838 N.W.2d 792, 792–93 (Minn. 2013) (suspending attorney

associated with a law school for ninety days for engaging in unwelcome

sexual conduct and contact with law student); State ex rel. Okla. Bar

Ass’n v. Miskovsky, 938 P.2d 744, 746–47, 751 (Okla. 1997) (imposing

sixty-day suspension after attorney made repeated sexual comments and

advances with two separate prospective divorce clients); In re White, 611

S.E.2d 917, 918–19 (S.C. 2005) (per curiam) (suspending attorney for

eighteen months after admitting to a pattern and practice of making

sexual comments and suggestions to clients); In re Yarborough, 524

S.E.2d 100, 103–05 (S.C. 1999) (per curiam) (reprimanding attorney for

making sexual advances and sexual comments to a client); In re

Discipline Proceedings Against Voss, 795 N.W.2d 415, 422–23 (Wis. 2011)

(per curiam) (suspending attorney for four years and eight months after

finding the attorney engaged in an ongoing sexual relationship with a

particularly vulnerable client and then attempted to intimidate her and

her family to avoid punishment).

This case is different from those resulting in reprimands and short

suspensions. Here, unlike in both Monroe and Morrison when the

attorneys were suspended for three months or less after each had sex

with one client, see Iowa Supreme Ct. Att’y Disciplinary Bd. v. Monroe,

784 N.W.2d 784, 787, 791 (Iowa 2010) (suspending attorney for thirty

days for having a sexual relationship with a dissolution client when at

the disciplinary hearing, the client testified she harbored no ill will

toward the attorney and continued to regard him as a friend); Morrison,

727 N.W.2d at 117, 120 (imposing three-month suspension for attorney

who admitted having sex with one client and acknowledged his conduct
 32

was unethical), Moothart admitted to having sex twice with one client,

and we have found he paid another client for sex and sexually harassed

five women. The pattern and extent of Moothart’s conduct is an

unprecedented set of facts in Iowa and therefore warrants a suspension

far beyond three months.

This case presents numerous aggravating factors, most notably the

vulnerability of the women with whom Moothart interacted and the

pattern of such conduct. See Templeton, 784 N.W.2d at 770 (noting “we

cannot overlook the serious, egregious, and persistent nature of

Templeton’s misconduct and the effect it had on his victims”); Comm. on

Prof'l Ethics & Conduct v. Tompkins, 415 N.W.2d 620, 623 (Iowa 1987)

(stating “the more egregious and persistent the conduct, the more

debased the character of the offender”). Each woman believed she

needed Moothart’s professional help and all were in difficult, stressful

situations. This is especially true with regards to Jane Doe #3, who was

at risk of losing her children and had mental health concerns. See

Marzen, 779 N.W.2d at 769 (“While many, if not most, people seek out

lawyers for help in matters of personal importance and may,

consequently, be vulnerable, the mental health condition of [the victim]

at the time the sexual relationship began is an aggravating circumstance

to consider in the imposition of discipline.”). Further, there was an

obvious power imbalance between Moothart and each woman, which he

acknowledged and took full advantage of. See generally State v. Johnson,

149 Iowa 462, 468, 128 N.W. 837, 839 (1910) (“[A]n attorney who

knowingly abuses the trust and confidence placed in him by his client is

unfit for the profession and unworthy of a place therein.”). Additionally,

this was not an isolated incident. Moothart’s actions show a specific

pattern of conduct with respect to a number of victims, which we
 33

consider an aggravating factor. See Iowa Supreme Court Bd. of Prof’l

Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 132 (Iowa 2003) (noting

pattern of misconduct is an aggravating factor).

This case is more analogous to those cases in which a lengthy

suspension was imposed. See McGrath, 713 N.W.2d at 703–04; Steffes,

588 N.W.2d at 125; Hill II, 540 N.W.2d at 45; Barrer, 495 N.W.2d at 757;

Vesole, 400 N.W.2d at 593.

The nature and extent of these ethical violations is very disturbing.

Although we credit Moothart for his lack of prior disciplinary record, his

voluntary work in connection with his daughter’s school and

extracurricular activities, his contributions to the local bar and legal

organizations, and his general reputation in the Ames legal community,

we are alarmed by the nature and pattern of his ethical violations. All

five women sought Moothart’s help with matters of personal importance.

Preying upon their vulnerability, Moothart manipulated each woman for

his own sexual gratification. We therefore think a lengthy suspension is

warranted to provide adequate deterrence and to protect future potential

clients and the reputation of the bar, particularly in light of the

seriousness of the offenses.

Therefore, we find the appropriate sanction for Moothart’s conduct

is suspension of his license to practice law indefinitely with no possibility

of reinstatement for thirty months. Prior to any application for

reinstatement, Moothart must provide this court with an evaluation by a

licensed health care professional, including proof of participation in a

counseling program specific to sexual harassment, verifying his fitness to

practice law. See Steffes, 588 N.W.2d at 125 (noting “as a condition of

license reinstatement, Steffes [was] required to demonstrate that he . . .

completed formal training in sensitivity to sexual harassment issues to
 34

prevent a reoccurrence of the conduct that resulted in his suspension”);

see also Templeton, 784 N.W.2d at 771.

VI. Conclusion.

For the above reasons, we suspend Moothart’s license to practice

law in this state for an indefinite period of time with no possibility of

reinstatement for thirty months. Additionally, Moothart must provide

this court with an evaluation by a licensed health care professional,

including proof of participation in a counseling program specific to

sexual harassment, verifying his fitness to practice law.

This suspension shall apply to all facets of law. Iowa Ct. R.

35.13(3). Moothart shall provide all of the notifications required by Iowa

Court Rule 35.23. The costs of this proceeding are taxed against

Moothart pursuant to Iowa Court Rule 35.27(1).

LICENSE SUSPENDED.