Iowa Supreme Court Attorney Disciplinary Board v. Richard R. Schmidt

IN THE SUPREME COURT OF IOWA
No. 10–0912

Filed April 8, 2011

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

RICHARD R. SCHMIDT,

Respondent.

On review of the report of the Grievance Commission of the

Supreme Court of Iowa.

The Grievance Commission of the Supreme Court of Iowa filed a

report recommending respondent’s license be suspended for six months.

LICENSE SUSPENDED.

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

complainant.

Mark McCormick of Belin McCormick, P.C., Des Moines, for

respondent.
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WIGGINS, Justice.

The Iowa Supreme Court Disciplinary Board filed a complaint

alleging the respondent, Richard R. Schmidt, violated ethical rules by

communicating with a represented party without the consent of opposing

counsel or a court order and by engaging in domestic abuse. The

grievance commission found Schmidt’s conduct violated provisions of the

Iowa Rules of Professional Conduct and recommended Schmidt’s license

be suspended for six months. Having considered the record, we agree

Schmidt committed ethical violations. We disagree, however, with the

commission’s sanction recommendation; therefore, we suspend his

license to practice law in Iowa for thirty days.

I. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d 98, 101 (Iowa

2010). The board has the burden of proving an attorney’s ethical

misconduct by a convincing preponderance of the evidence. Id. “This

burden is less than proof beyond a reasonable doubt, but more than the

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

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

2004). We are not bound by the commission’s findings and

recommendations, but we give them respectful consideration. Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Lustgraaf, 792 N.W.2d 295, 297

(Iowa 2010). We give particular weight to the commission’s assessments

of witnesses’ credibility. Id. at 299. Upon proof of misconduct, we may

impose a greater or lesser sanction than the sanction recommended by

the commission. Axt, 791 N.W.2d at 101.
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II. Proceedings.

On April 13, 2009, the board filed its complaint against Schmidt.

In count I, the complaint alleged Schmidt violated Iowa Rules of

Professional Conduct 32:8.4(b), which prohibits misconduct reflecting

adversely on a lawyer’s fitness to practice law, and 32:8.4(d), which

prohibits misconduct prejudicial to the administration of justice, in

connection with his commission and conviction of aggravated

misdemeanor domestic abuse crimes against his wife. In count II, the

complaint claimed Schmidt violated rule 32:8.4(d), as well as rule

32:4.2(a), which prohibits communication with a represented party

without the opposing party’s consent or a court order. The board claims

the violation occurred when Schmidt, or his representative at his

direction, was involved in assisting his client in personally obtaining the

opposing party’s signature on a consent decree when such actions

violated a no-contact order and opposing counsel did not consent to the

actions nor did a court order permit them. 1

In its report, the commission found Schmidt committed the alleged

ethical violations. The commission also recommended a six-month

suspension.
III. Findings of Fact.

On our de novo review, we find the facts as follow.

A. General Background. Schmidt was born and raised in

Des Moines, Iowa. He attended Iowa State University. In May 1994

Schmidt graduated from Drake Law School and began private practice in

1Also in connection with counts I and II, the board alleged, and the commission
found, violations of rule 32:8.4(a), which prohibits misconduct in violation of the rules
of professional conduct. We do not consider a violation of this rule as a separate ethical
infraction, and so we give it no further consideration. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010).
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the areas of family law, personal injury, and workers’ compensation.

Schmidt currently practices in Des Moines in a four-lawyer group of sole

practitioners.

B. Prohibited Communication with a Represented Party. In

November 2005 Schmidt filed a petition for dissolution of marriage for a

wife. Attorney Mason J. Ouderkirk represented the husband. The

district court entered several orders, including one continuing a no-

contact order between the husband and wife. Schmidt sent Ouderkirk a

consent decree that Schmidt’s client wanted her spouse to sign.

Ouderkirk presented the consent decree to the husband. The husband

rejected it. During the course of the representation, Schmidt filed several

applications to show cause as to why the husband was not in violation of

the no-contact order.

On May 26, 2006, the husband called Ouderkirk to inform him

that he and his wife had come to an agreement and Ouderkirk should be

receiving a revised consent decree. The same day, the wife called

Schmidt, requesting he prepare the same consent decree he had

previously prepared and informing him that her husband would probably

terminate Ouderkirk’s representation. Schmidt, either personally or

through a representative in his law office acting upon his direction,

changed the consent decree to indicate the husband was pro se,

removing references to Ouderkirk’s representation from the decree. The

wife then picked up the consent decree and took it to her husband. Both

parties signed the decree before a notary public. Schmidt then signed

the decree.

After the decree was signed, Schmidt faxed it to Ouderkirk’s office.

After reviewing the decree, Ouderkirk told Schmidt he found the
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situation unusual and noted Schmidt had stated the husband was pro se

when he knew Ouderkirk was the attorney of record.

Ouderkirk contacted his client, informing him the decree had all

the provisions to which the husband had previously objected to, the

decree was unfair to the husband, and Ouderkirk did not approve of the

decree. Ouderkirk then informed the husband that the husband had to

decide whether he wished to continue with the proceedings or agree to

the decree. The husband contacted Ouderkirk and stated he did not

want to continue with the proceedings.

On May 31 Ouderkirk filed an application to withdraw and

Schmidt filed a dismissal of the application to show cause why the no-

contact order had not been violated by the husband. In June 2006 the

court granted Ouderkirk’s motion to withdraw and filed the consent

decree.

C. Domestic Abuse. On June 6, 2006, the incident of domestic

abuse by Schmidt of his wife occurred. Prior to June 6 Schmidt had

never been violent toward his wife. Moreover, Schmidt had never acted

with violence toward anyone else.

Schmidt’s marriage was tumultuous. In 1997 Schmidt began

seeking therapeutic assistance for problems in his marriage. He started

taking doctor-prescribed medications, including medications for

depression, consisting of Prozac, Wellbutrin, and Effexor. On June 6

Schmidt was taking Effexor. For about two and one-half years prior to

June 6, Schmidt did not share a bedroom with his wife, but slept in the

basement of the couple’s home. In Spring 2006 Schmidt’s wife informed

him that she intended to leave him.

In August 2005 Schmidt attempted suicide, but failed. After this

attempt, Schmidt sought psychiatric care. In August 2006 Schmidt
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began seeing Dr. Easton, a psychiatrist. Also after his suicide attempt,

Schmidt began seeing P.J. McDonald, a licensed independent social

worker and marriage and family therapist. Schmidt continues to see

both practitioners.

On the evening of June 6, 2006, Schmidt and his wife began

arguing about childcare issues. They were on the concrete patio near

their hot tub. When his wife walked away from the argument, Schmidt

grabbed her and threw her down, causing her to hit her head. Schmidt

then began to choke her, and she temporarily lost consciousness.

Schmidt then chased her around the house, choking her two more times

into unconsciousness. At some point, Schmidt let her up and she fled

the house, running to a neighbor’s house. Schmidt followed.

Schmidt attacked his wife again in the neighbor’s kitchen as she

tried to call 911. Eventually, the couple began running through the

neighbor’s garage. The neighbor, who was in his backyard, went to his

garage after hearing screaming coming from the garage. The neighbor

asked Schmidt what happened, and Schmidt said his wife had fallen in

the hot tub, hitting her head. The neighbor went to the kitchen, and

found the 911 dispatcher still on the line. The dispatcher said help was

on the way. Throughout the entire incident, the couple’s children

watched and chased them. They screamed and cried for Schmidt to stop.

A Polk County sheriff’s deputy arrived at the neighbor’s house.

The deputy put Schmidt in the patrol car so he could assist Schmidt’s

wife. When he returned to the car, he found Schmidt had broken the

screen or “steel cage” between the front and back seats and had moved

the deputy’s cell phone. Upon the deputy’s inquiry, Schmidt said he had

to use the cell phone to make some calls.
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Schmidt’s wife was taken to the emergency room and was seen by

a physician. The physician found she was in moderate distress, with

abrasions to her neck, a three-centimeter-long head laceration, and

abrasions on her nose and knees. Further examination revealed pain

and stiffness of the neck, consistent with strangulation.

As a result of this incident, Schmidt pleaded guilty to two

aggravated misdemeanors involving domestic abuse crimes. In March

2007 Schmidt was sentenced to incarceration for one year with all but

thirty days suspended. The no-contact order prohibiting Schmidt from

contact with his wife and children was ordered to remain in full force

through March 2012, unless modified by a court order.

In November the couple’s marriage was dissolved. In connection

with the dissolution proceeding, the no-contact order was modified to

permit Schmidt two supervised visitations with his children. The

children were too traumatized to visit with Schmidt, and therefore,

Schmidt has not seen his children since June 6, 2006.

In addition to the physical injury she sustained, Schmidt’s wife lost

thirty pounds, was off work for months, undertook intensive counseling,

experiences flashbacks, and fears Schmidt. The children were also

harmed. The children exhibit symptoms of anxiety, especially when

separated from their mother. They have trouble in crowds, unfamiliar

surroundings, and staying the night at friends’ houses. At least one

child has trouble sleeping, has stomach problems, and is on an

antidepressant. They have been in counseling.

Even before the disposition of his criminal case, Schmidt began

intensive rehabilitative efforts, attending a ten-day program pertaining to

therapeutic approaches to change destructive behaviors at a retreat in

Arizona; a domestic abuse and intervention program at the West Central
 8

Mental Health Center; parent enrichment classes sponsored by the Child

Abuse Prevention Council; and a five-week program in anger

management that the children’s therapist recommended. Schmidt

continues counseling with McDonald and Dr. Easton. He has adopted a

rigorous exercise regime and has improved his depressive state to the

point where he is no longer on medications.

Schmidt takes responsibility for his actions and is remorseful.

McDonald expressed surprise, noting that the incident was “out of

character” for Schmidt and an “aberration.” Even the district court judge

who sentenced Schmidt for his aggravated misdemeanors stated that the

acts “are most accurately described as an aberration in [Schmidt’s] life

and do not seem likely to be repeated by” him. We agree with this

assessment. We also agree with the commission’s finding that Schmidt’s

conduct has not affected his behavior toward his clients, fellow lawyers,

and judges.

IV. Ethical Violations.

A. Violation of 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). In Iowa Supreme Court Attorney

Disciplinary Board v. Gailey, 790 N.W.2d 801 (Iowa 2010), we recently

had occasion to interpret this rule. In Gailey, we noted that the language

of rule 32:4.2(a) is substantially similar to our prior disciplinary rule,

DR 7–104(A)(1). Gailey, 790 N.W.2d at 806. DR 7–104(A)(1) stated:

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

We then observed that 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.

Id. We held that we should interpret rule 32:4.2(a) in the same manner

we interpreted DR 7–104(A)(1). Id.

The record shows Schmidt, or one of his representatives at

Schmidt’s direction, prepared the consent decree by removing opposing

counsel’s name and indicating the husband was proceeding pro se.

Schmidt, or one of his representatives at his direction, then gave the

consent decree to the wife so that she could personally take it to her

husband to sign. The record also indicates that opposing counsel

objected, showing Schmidt did not have opposing counsel’s consent to

act as Schmidt did. These facts establish that Schmidt engaged in a

prohibited communication and violated rule 32:4.2(a). Moreover,

Schmidt cannot circumvent rule 32:4.2(a) by having his client do what

he cannot do, especially when a no-contact order exists prohibiting the

parties from contacting each other. Schmidt aided and abetted his

client’s violation of that order. See id. at 807 (recognizing, “a lawyer

should not aid or abet a party to ignore a no-contact order”).

The purpose underlying rule 32:4.2(a) is the same as that of DR 7–

104(A)(1). The rule protects the represented party from the imbalance of

legal skill and acumen between the lawyer and that party. Iowa Supreme

Ct. Bd. of Prof’l Ethics & Conduct v. Herrera, 626 N.W.2d 107, 113 (Iowa
 10

2001). The rule “promotes the integrity of the attorney-client

relationship and serves to prevent a variety of overreaching.” Id. at 113–

14.

B. Violations of Rule 32:8.4(b). Rule 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). We

recently interpreted rule 32:8.4(b) in Iowa Supreme Court Attorney

Disciplinary Board v. Templeton, 784 N.W.2d 761 (Iowa 2010). In

Templeton we stated, “The mere commission of a criminal act does not

necessarily reflect adversely on the fitness of an attorney to practice law.”

Templeton, 784 N.W.2d at 767 (citing 2 Geoffrey C. Hazard, Jr. et al., The

Law of Lawyering § 65.4, at 65-8 to 65-9 (3d ed. 2009 Supp.) [hereinafter

The Law of Lawyering]). “One’s fitness to practice law . . . is determined

by more than one’s competency in legal matters. It includes one’s

[moral] character and one’s suitability to act as an officer of the court.”

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford, 625 N.W.2d

672, 683 (Iowa 2001).

In assessing whether rule 32:8.4(b) has been violated, we look to

“[t]he nature and circumstances of the act . . . to determine if the

commission of the criminal act reflects adversely on the attorney’s fitness

to practice law.” Tempelton, 784 N.W.2d at 767. There cannot be too

much attention focused on the moral quality of the conduct; instead, the

court must focus on the link between the conduct and the actor’s ability

to function as a lawyer. The Law of Lawyering § 65.4, at 65-8. Whether

an attorney is fit to practice law encompasses whether the attorney “can

be trusted to represent clients vigorously and without overreaching,” and

maintain a professional relationship. Id. at 65-9. Whether an attorney is
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fit to practice law also depends on whether his conduct manifests

“character defects calling into question the wisdom of trusting the lawyer

with important controversies and confidential information.” Id. at 65-9

to 65-10. Pertinent considerations in determining a rule 32:8.4(b)

violation 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.”

Templeton, 784 N.W.2d at 767 (quoting In re Conduct of White, 815 P.2d

1257, 1265 (Or. 1991)).

An act that signals the characteristic of intemperance is considered

to be an act that reflects adversely on a lawyer’s fitness to practice law.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Steffes, 588 N.W.2d

121, 124 (Iowa 1999) (“When an attorney’s conduct cannot fairly be

characterized as temperate and dignified and crosses the line into

professional impropriety, such conduct reflects adversely on the

attorney’s fitness to practice law.”). We have found violations of rule

32:8.4(b) for acts of violence. See, e.g., Axt, 791 N.W.2d at 101–02; see
also Comm. on Prof’l Ethics & Conduct v. Wilson, 270 N.W.2d 613, 615

(Iowa 1978) (disciplining respondent for intemperate conduct of assault

on another attorney under former Canon 1 of our prior Iowa Code of

Professional Responsibility for Lawyers).

We note that not all acts of violence will lead to discipline. The

Law of Lawyering § 65.4, at 65-8 to 65-9. For example, a lawyer who

becomes involved in an isolated incident of assault and battery while

drunk, “might well be considered unlikely to commit such a violent

outburst in his professional life,” and thereby not be subject to
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discipline. Id. at 65-9. “On the other hand, a lawyer who, nursing a

grudge of some kind, deliberately assaulted another would manifest

character defects calling into question the wisdom of trusting the lawyer

with important controversies and confidential information,” and thereby

be subject to discipline. Id. at 65-9 to 65-10; see also In re Johnson, 471

P.2d 269, 271 (Ariz. 1970) (“Isolated, trivial incidents of [assault] not

involving a fixed pattern of misbehavior find ample redress in the

criminal and civil laws. . . . [Such incidents arise] out of the infirmities of

human nature. They are not the appropriate subject matter of a solemn

reprimand by this Court.”); White, 815 P.2d at 1265 (“For example, a

misdemeanor assault arising from a private dispute would not, in and of

itself, violate [a disciplinary] rule.”).

We turn now to an application of the Templeton considerations.

Schmidt’s acts of violence were more than trivial. As to Schmidt’s mental

state, he and his wife were having marital problems for a number of

years. Over that time, he chose to remain hostile to his wife, rather than

end his relationship. At the time of the assaults, he made the conscious

decision to act on this hostility and assault his wife multiple times,

rather than walk away from the situation. Schmidt’s depression does not

excuse the choices he made, especially as there was no evidence

submitted that this mental condition clouded Schmidt’s judgment in any

manner. No legal justification, excuse, or defense exists for Schmidt’s

commission of these acts.

Several actions by Schmidt indicate disrespect of the law or law

enforcement. Schmidt prevented his wife from calling 911 and tried to

prevent his neighbor from doing the same by lying to him about what

had occurred; he broke the steel cage in the police car and then used the

police officer’s cell phone without permission. The finding of a violation
 13

of rule 32:8.4(b) is also supported by the presence of victims, Schmidt’s

wife and his children. His wife was physically and mentally injured, and

the children were traumatized. The only consideration weighing in favor

of finding Schmidt’s conduct was not a violation of the rule is the lack of

a pattern of criminal conduct. In light of this analysis, we find Schmidt

violated rule 32:8.4(b) with his acts of domestic abuse.

C. Violations of Rule 32:8.4(d). Schmidt violated rule 32:8.4(d)

when he communicated with a represented party without opposing

counsel’s consent, but not when he engaged in private acts of domestic

violence. Rule 32:8.4(d) provides, “It 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)); accord

Steffes, 588 N.W.2d at 123.

1. Prohibited communication with a represented party. With regard

to Schmidt’s communication with a represented party without opposing

counsel’s consent, the record establishes that Schmidt hampered

opposing counsel’s representation of the husband so thoroughly that

opposing counsel was forced to withdraw from representation because he

believed the consent decree hurt the husband’s interests. This conduct

violates rule 32:8.4(d), as it constitutes the type of overreaching that our

ethical rules are meant to prevent in protecting the integrity of the

attorney-client relationship. Herrera, 626 N.W.2d at 113–14 (discussing

DR 7–104(A)(1), now found in rule 32:4.2(a)).
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Further, we stated in Gailey that,

[i]n 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 . . . .

Gailey, 790 N.W.2d at 807. When Schmidt prepared the consent decree

for the wife to take to her husband, such actions violated the no-contact

order in the case, thereby resulting in a violation of rule 32:8.4(d).

2. Domestic abuse. We have held that, when the basis of a

domestic abuse conviction results from personal conduct that is

unrelated to the practice of law, no violation of rule 32:8.4(d) occurs.

Axt, 791 N.W.2d at 102. We have such a case before us; especially given

our finding that the domestic abuse did not affect Schmidt’s

relationships with his clients, fellow lawyers, and judges. Thus, the

board has failed to prove this alleged ethical violation.

V. Sanction.

“ ‘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.

Ackerman, 786 N.W.2d 491, 497 (Iowa 2010) (quoting Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Earley, 774 N.W.2d 301, 308 (Iowa 2009)). In

tailoring the sanction to the particular circumstances of each case,

“we consider the 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.”
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Iowa Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 61

(Iowa 2009) (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland,

748 N.W.2d 498, 502 (Iowa 2008)).

In the past, attorneys have been admonished for violations of

ethical rules prohibiting communications with represented parties.

Comm. on Prof’l Ethics & Conduct v. Zimmermann, 522 N.W.2d 619, 621

(Iowa 1994). Unlike a public reprimand, an admonition does not amount

to discipline. Id. We have also disciplined attorneys for violating ethical

rules prohibiting communications with represented parties. Sanctions

have ranged from public reprimands, suspensions of law licenses, and

revocation of law licenses. See, e.g., Gailey, 790 N.W.2d at 808

(imposing sixty-day suspension of license of respondent with two

incidents of prior discipline for aiding and abetting client’s violation of a

no-contact order and offering witness an inducement to testify that is

prohibited by law); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Box, 715

N.W.2d 758, 765 (Iowa 2006) (imposing a public reprimand on

respondent with no prior disciplinary record when prohibited

communication resulted in substantial harm; rejecting request to

privately admonish respondent); Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Sullins, 556 N.W.2d 456, 457 (Iowa 1996) (imposing a public

reprimand on respondent for direct contact with child witness in child

abuse proceedings when respondent knew lawyer would soon be

appointed for child and refusal to respond to ethical committee’s

inquiries on an unrelated matter); Comm. on Prof’l Ethics & Conduct v.

Shepler, 519 N.W.2d 92, 93 (Iowa 1994) (revoking respondent’s license

for intentionally taking advantage of elderly woman with diminished

capacity by obtaining her signature on three subordination agreements

after being told woman would not subordinate her interest in property,
 16

as well as by failing to contact woman’s lawyer concerning any business

dealings after being told to do so); Comm. on Prof’l Ethics & Conduct v.

Hoffman, 402 N.W.2d 449, 451 (Iowa 1987) (imposing a public reprimand

on respondent whose nine intemperate letters involved some persons

known to be represented by counsel).

Attorneys also have been admonished for first offense domestic

violence. Axt, 791 N.W.2d at 100 (indicating that respondent was

admonished for committing his first offense of domestic abuse assault

against his wife and for resisting arrest while intoxicated). Again, this

does not amount to discipline. Zimmermann, 522 N.W.2d at 621. In

light of our determination that domestic abuse violence is a

“reprehensible crime,” we now find that admonishment for such acts to

be inappropriate. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Polson, 569 N.W.2d 612, 613 (Iowa 1997). Under circumstances where

admonitions have been found sufficient for committing domestic abuse

assault, we now hold that the more appropriate disposition is to at least
impose the discipline of a public reprimand.

In one nondomestic assault case involving other serious

misconduct, we imposed a two-month suspension. Iowa Supreme Ct.

Bd. of Prof’l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 135–36

(Iowa 1999) (imposing two-month suspension on respondent’s license for

conviction of assault and criminal trespass). As to our prior domestic

abuse cases, we have imposed the discipline of suspension ranging from

three months to two years, depending on the nature and extent of other

misconduct proved by the board in the same case. See, e.g., Axt, 791

N.W.2d at 102–03 (imposing two-year suspension of respondent’s license

with prior record of discipline for second offense domestic abuse assault

and multiple violations of a court’s no-contact order); Iowa Supreme Ct.
 17

Bd. of Prof’l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 89 (Iowa 2001)

(imposing six-month suspension of respondent’s license for domestic

abuse and OWI-third offense convictions); Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Apland, 599 N.W.2d 453, 454–56 (Iowa 1999)

(imposing two-year suspension on respondent’s license for “embarking

on a course of harassment, threats, misrepresentations, and outright

lies” toward his ex-wife and representing himself to be an attorney when

his license was under suspension); Polson, 569 N.W.2d at 613–14

(imposing two-year suspension on respondent’s license for conviction of

domestic abuse causing injury and thirty-one violations of a protective

order); Comm. on Prof’l Ethics & Conduct v. Lapointe, 415 N.W.2d 617,

620 (Iowa 1987) (imposing fourteen-month suspension on respondent’s

license for convictions of assault on his girlfriend and tampering with a

witness); Comm. on Prof’l Ethics & Conduct v. Patterson, 369 N.W.2d 798,

799, 801 (Iowa 1985) (imposing three-month suspension on

respondent’s license for conviction of domestic assault lasting two hours

where photographs “taken the following day show a badly disfigured and

battered woman, a dramatic testimonial to respondent’s eighteen-month

instruction in the martial arts”). The common thread in these assault

cases in which we imposed a suspension is that the attorney also
committed other serious misconduct.

The mitigating circumstances present include the following. First,

Schmidt has no prior record of discipline. Lustgraaf, 792 N.W.2d at 301–

02 (considering prior ethical practices in fashioning sanction). Second,

Schmidt suffered from clinical depression and he has received in-depth

treatment for his depression and domestic abuse. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Fields, 790 N.W.2d 791, 799–800 (Iowa 2010)

(considering depression a mitigating circumstance and noting
 18

respondent’s “efforts to get healthy must be considered in fashioning an

appropriate sanction”). Third, Schmidt takes responsibility for his

actions and is remorseful. Id. at 799 (noting respondent “acknowledged

his misconduct and has not attempted to shift blame for his actions”).

Fourth, the incident of domestic abuse was out of character for Schmidt

and an aberration. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Carpenter,

781 N.W.2d 263, 271 (Iowa 2010) (noting imposition of public reprimand

was appropriate when ethical violation was an isolated incident involving

client trust account violations). Fifth, Schmidt’s domestic-abuse conduct

did not affect his behavior toward his clients, fellow lawyers, or judges.

Axt, 791 N.W.2d at 102 (holding no violation of rule 32:8.4(d) occurred

because the domestic abuse did not occur within the context of

respondent’s practice). Finally, the mere act of communicating with a

represented party without opposing counsel’s consent is normally not an

offense requiring suspension of an attorney’s license. Box, 715 N.W.2d

at 765 (imposing a public reprimand on respondent with no prior

disciplinary record for communicating with a represented party without

opposing counsel’s consent); Sullins, 556 N.W.2d at 457; Hoffman, 402

N.W.2d at 451. While none of these mitigating circumstances excuse

Schmidt’s conduct, they nevertheless constitute factors that we take into

account in imposing less severe discipline. Fields, 790 N.W.2d at 799–

800 (recognizing mitigating circumstances do not excuse conduct, but

are considered in fashioning discipline).

Acts of domestic abuse committed by attorneys are serious and will

not be tolerated by this court. Schmidt’s acts were not trivial. He had no

legal justification or defense for his actions. His actions are especially

egregious, not only because his conduct caused substantial harm to his

spouse and his children, but also because he attempted to prohibit his
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spouse from contacting the authorities and, when apprehended, he

displayed a disregard towards the police by breaking the screen between

the front and back seats of the police vehicle. Generally, these

circumstances would require us to suspend Schmidt’s license for a

period of up to six months. However, the mitigating circumstances

compel us to suspend Schmidt’s license to practice law for a shorter

period. We consider the most important mitigating factors being his lack

of prior discipline, his taking responsibility for his actions, his

remorsefulness, and the fact that this act was a one-time aberration and

not a part of a pattern of abuse. We also note that he has taken

significant steps to prevent this from happening again.

VI. Disposition.

Accordingly, we suspend Schmidt from the practice of law for thirty

days. This suspension applies to all facets of the practice of law. See

Iowa Ct. R. 35.12(3). Schmidt must comply with Iowa Court Rule 35.22

dealing with notification of clients and counsel. Costs of this action are

taxed to Schmidt pursuant to Iowa Court Rule 35.26. Absent an

objection by the board and under the condition that Schmidt has paid all

costs assessed under rule 35.26, we shall reinstate Schmidt’s license to

practice law on the day after the thirty-day suspension period expires.

See Iowa Ct. R. 35.12(2).

LICENSE SUSPENDED.

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