Iowa Supreme Court Attorney Disciplinary Board Vs. Jesse M. Marzen

IN THE SUPREME COURT OF IOWA
No. 08–1546

Filed March 19, 2010

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Appellant,

vs.

JESSE M. MARZEN,

Appellee.

On appeal of the report of the Grievance Commission of the

Supreme Court of Iowa.

Appeal and cross-appeal from grievance commission decision

finding respondent disclosed privileged information, but did not engage

in a sexual relationship with a client. LICENSE SUSPENDED.

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

appellant.

Roger L. Sutton of Sutton Law Office, Charles City, for appellee.
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CADY, Justice.

The Iowa Supreme Court Attorney Disciplinary Board alleged

Jesse M. Marzen committed numerous violations of the Iowa Rules of

Professional Conduct by engaging in a sexual relationship with a client,

disclosing client confidences to the public, and making a

misrepresentation to a judge. The grievance commission found there

was insufficient evidence of an ethical violation on the charges of a

sexual relationship with a client and a misrepresentation to a judge, but

found Marzen violated disciplinary rules by disclosing client confidences.

Upon our de novo review, we find Marzen violated the rules of

professional conduct and impose an indefinite suspension not to exceed

six months.

I. General Background Facts and Proceedings.

Jesse M. Marzen is an Iowa lawyer. He was admitted to the

practice of law in 2004 after graduating from St. Thomas School of Law.

He practiced law in Charles City and is currently the Floyd County

Attorney.

In September 2006, a complaint was filed against Marzen with the

disciplinary board. It was filed by a woman named “Jane Doe.” 1 She

alleged Marzen engaged in a sexual relationship with her after

representing her in a mental health commitment hearing. Soon after, a

district court judge also filed a complaint against Marzen after hearing

testimony from Doe, in the course of a hearing in an action to modify

child custody, regarding a sexual relationship with Marzen.

1Due to the nature of the complaint and the accompanying factual background,
we use the pseudonym “Jane Doe” to identify the woman involved in the proceedings
against Marzen.
 3

Marzen was a candidate for the position of Floyd County Attorney

at the time the complaints were filed. News of the allegations against

Marzen and of a potential investigation by the disciplinary board quickly

spread throughout the immediate community and beyond and was

highly publicized by the local and surrounding media. In response to

media inquiries, Marzen spoke publicly about the allegations. He was

subsequently elected as Floyd County Attorney in a hotly contested

three-way race.

In 2007, the board brought three disciplinary charges against

Marzen. Count I alleged Marzen engaged in sexual relations with Doe

when she was his client. Count II alleged Marzen made a

misrepresentation to a judge during the mental health commitment

proceeding concerning Doe. Count III alleged Marzen disclosed

information about Doe to the local press that he obtained in confidence

during an attorney-client relationship. The board further alleged Marzen

revealed information to the press that he knew was false.

At the hearing on the complaint, Doe testified she had sexual

intercourse with Marzen on numerous occasions while he represented

her. Marzen steadfastly denied any intimate contact with Doe. Following

the hearing, the commission dismissed Count I (sexual misconduct) and

Count II (misrepresentation) based upon insufficient evidence. It found

the board proved Marzen revealed confidential information to the media

without the consent of Doe, as alleged in Count III. The commission

recommended Marzen be suspended for a period of three months. One

member of the commission dissented from the dismissal of Count I. The

dissenting member believed the events established at least one occasion

of sexual intercourse between Doe and Marzen during the course of their

attorney-client relationship.
 4

The board filed an application to appeal Count I. We granted the

application and further granted Marzen the right to cross-appeal.

Marzen only cross-appealed as to Count III.

II. Standard of Review.

We review attorney disciplinary proceedings de novo. Iowa Ct. R.

35.10(1). Although we give weight to the commission’s factual findings,

especially when considering the credibility of witnesses, we are not

bound by them. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

O’Brien, 690 N.W.2d 57, 57 (Iowa 2004). The board has the burden to

prove the allegations of misconduct contained in the complaint 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). While this

burden is higher than the burden in civil cases, it is lower than in a

criminal prosecution. Id.; accord Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Ronwin, 557 N.W.2d 515, 517 (Iowa 1996).

III. Discussion.

A. Sexual Relationship.

1. Legal framework. The legal framework for considering a charge

of sexual misconduct is well-established. Under our ethical rules, an

attorney is prohibited from having a sexual relationship with a client

when the client is not the lawyer’s spouse or when the sexual

relationship did not predate the initiation of the attorney-client

relationship. Iowa R. Prof’l Conduct 32:1.8(j). This court has recognized

that “ ‘the professional relationship renders it impossible for the

vulnerable layperson to be considered “consenting” ’ ” to the sexual

relationship. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Furlong,

625 N.W.2d 711, 714 (Iowa 2001) (quoting Iowa Supreme Ct. Bd. of Prof’l

Ethics & Conduct v. Hill, 540 N.W.2d 43, 44 (Iowa 1995) (Hill II)).
 5

In addition, a sexual relationship between an attorney and a client

can be accompanied by circumstances that aggravate the misconduct.

For instance, when the sexual relationship between an attorney and

client involves a sex-for-fees arrangement, the misconduct is considered

much more serious. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

McGrath, 713 N.W.2d 682, 703–04 (Iowa 2006).

2. Background facts. The relevant facts relating to the charge of

sexual misconduct first surfaced in January 2006, when Doe was

involuntarily hospitalized after she overdosed on prescription drugs and

alcohol and expressed suicidal thoughts. Marzen was court-appointed to

represent her in the hospitalization commitment hearing. He met Doe for

the first time on January 10, just prior to the hearing at the Mitchell

County Courthouse in Osage, although he had seen her in town at

various times in the past. Doe was released from the hospitalization

commitment by the presiding judge at the conclusion of the hearing to

pursue outpatient treatment.

After the hearing, Doe indicated she needed transportation to

Charles City, and Marzen agreed to give her a ride. The two left together,

alone, in Marzen’s car, and two inconsistent accounts of what transpired

in the following hours, days, and weeks emerged at the disciplinary

hearing.

During the trip from Osage to Charles City, Doe discussed her

need for additional legal services. Marzen agreed to represent her in a

dispute with her mother, a child support collection action, and a

modification-of-child-custody proceeding.

Doe testified Marzen took her to his house in Charles City after

arriving from the hospitalization hearing in Osage, where they eventually

engaged in various sex acts in the living room of the house. This
 6

occurred after they consumed a few beers and exchanged a few vague

references to an exchange of services. To support her testimony, Doe

provided a description of the layout of Marzen’s home and offered

testimony about the presence of a quarter-sized mole on his back.

Additionally, she said Marzen had “funny”-appearing buttocks due to a

loose fold of skin hanging from the lower portion of his buttocks.

Doe testified she engaged in sexual intercourse with Marzen on

four additional occasions—once more in Marzen’s home, once in the

home where she was residing, once in an automobile driven by Marzen,

and once at Marzen’s law office. She described each encounter in

graphic detail. The car sex described by Doe occurred when the two

drove to a storage facility in Osage under the auspices that it was

necessary to examine the contents of a storage unit.

The board called several witnesses at the hearing in support of the

testimony of Doe. One witness, John Steiert, testified Marzen admitted

in his presence during a confrontation at Doe’s apartment and at a later

meeting with Marzen and Doe at Marzen’s law office to a sexual

relationship with Doe. Another witness, Amanda Knapp, testified she

observed Marzen and Doe emerge from a bedroom in the house where

Doe was living following her release from the hospitalization

commitment. The house was owned by Amanda’s mother, Connie

Knapp, who was very close to Doe. Amanda had stopped by the house

unannounced when she observed Doe and Marzen walking out of the

bedroom. The situation was momentarily uncomfortable for Amanda,

and Doe hastily offered a reason for her presence in the bedroom with

Marzen. Amanda believed the clumsy explanation was fabricated.

Additionally, Amanda testified she drove Doe to Marzen’s office one

evening and dropped her off at the building.
 7

Another witness, Connie Knapp, testified Doe mentioned to her

that she had gone for a ride with Marzen in his car on one occasion to a

storage unit in Osage. Judith O’Donohoe, a lawyer, testified Doe told her

about her sexual relationship with Marzen. This revelation occurred

during a conference at her office in February of 2006, long before Marzen

filed papers to run for Floyd County Attorney in August 2006. This

testimony was given in response to a claim by Marzen that Doe made up

the claim of sexual misconduct to hinder his campaign for county

attorney.

Marzen denied the existence of any sexual relationship at any time

with Doe. He testified Doe was never at his house. However, he

acknowledged he had been at the house where Doe was staying on

multiple occasions, but only for business purposes. Marzen denied

Amanda confronted them emerging from a bedroom. Instead, he testified

he was in the living room of the house with Doe when Amanda arrived.

He also denied making any admissions of a sexual relationship to Steiert.

He further disputed the accuracy of Doe’s description of the house,

claiming her drawing was not even close to depicting the actual layout of

his residence. With respect to the physical description of his body,

Marzen claimed he had more than ten moles on his back, which Doe

failed to mention, as well as a mole on the lower portion of his abdomen

that Doe should have mentioned if her descriptions of their sex acts were

truthful.

Marzen denied the presence of a flap of loose skin on the bottom

portion of his buttocks. He did, however, acknowledge he weighed 325

pounds when he graduated from high school and lost between 125 and

150 pounds since that time. He also acknowledged he has loose skin

around his waist and inside his arms. Marzen agreed he had a large
 8

mole on his back as described by Doe, but believed she could have seen

the mole when he was at the swimming pool in Charles City during the

summer of 2006. Marzen recalled that Doe and her son were at the pool

on one occasion when he was swimming at the pool. He also said he

commonly removed his shirt when he mowed his lawn. Marzen did not

deny he was at the storage facility with Doe, but denied any sexual

activity occurred. He said they drove to the facility in separate vehicles.

In addition to his testimony, Marzen offered testimony from a

number of witnesses. Rod Mulcahy, a lawyer in Marzen’s former law

office, testified the attorneys and staff at the office would work on tax

matters in the office in January until eight or nine o’clock in the evening.

He felt it would be difficult for Marzen to have had sex in his office during

this time without being noticed.

Marzen also offered testimony from a number of witnesses

designed to show Doe had a propensity to lie or exaggerate. In

particular, Marzen offered the testimony of David Skilton, an attorney,

who represented Doe’s mother in an action brought by Doe to obtain an

injunction against her mother. Skilton said Doe testified at the hearing

on the injunction that “no one had ever hurt her or . . . done anything to

her in a sexual way except one time” in an incident with her parole

officer. Skilton also said Doe testified that Marzen “didn’t do a good job”

in his representation of her.

Marzen offered testimony from John Farrell, a probation officer

formerly assigned to Doe. Doe had sued Farrell for sexual misconduct,

intentional infliction of emotional distress, assault, and false

imprisonment. Although Farrell denied any sexual harassment or other

such conduct, he settled the lawsuit for $5000. Marzen argues the

Farrell lawsuit establishes a motive for Doe to concoct a similar claim
 9

against him. He believes Doe merely wanted to avoid paying him for his

legal services and, eventually, wanted to file a lawsuit against him to

force a settlement.

The parties introduced a number of exhibits. In particular, the

exhibits showed that a comforter in a bedroom of the house where Doe

was residing and a coat allegedly worn by Doe during the car-sex episode

were tested for DNA by the Iowa Department of Criminal Investigation.

The test results were negative. The exhibits also contained a report from

a doctor who examined Marzen’s back and buttocks for purposes of this

proceeding. However, the report did not indicate the doctor understood

that one of the purposes of the examination was to confirm or deny the

presence of visible additional layers of tissue or fat, medically referred to

as panniculi, on his lower buttocks. The report documented only that

Marzen’s buttocks and perineum appeared “normal,” without a specific

statement affirming or denying the presence of loose folds of skin. The

medical examination indicated Marzen did have a mole in the middle of

his back that was recently surgically removed.

3. Ethical violation. The critical factual issues presented in the

sexual-misconduct charge are whether the evidence adduced before the

commission supported a prohibited sexual relationship by a convincing

preponderance of the evidence and, if so, the degree of aggravation

associated with the ethical violation. We readily recognize only two

people know the truth of the sexual-misconduct allegations at the center

of this case, and we can only perform our role in the course of our

de novo review of the record to sort through the evidence to piece

together our view of the facts by using our common principles of fact-

finding. In making our factual determinations, our task is complicated

by the many complexities and inconsistencies in the evidence as well as
 10

gaps in the record. Further, there were credibility problems for both Doe

and Marzen. The commission noted Doe had a history of accusation of

wrongdoing against persons in authority, had her credibility questioned

by a district court judge, and had a history of lying to authorities. On

the other hand, the commission noted Marzen had illusions of grandeur

and had demonstrated an ability to stretch the truth to fit his needs.

Upon our de novo review of the record, we basically agree with the

assessments of the commission with respect to the credibility of Marzen

and Doe. The issue, however, is not whether Doe or Marzen always tell

the truth. The issue is whether one of them was truthful regarding the

issues presented in this case. See McGrath, 713 N.W.2d at 701. In the

end, we can only find a violation of sexual misconduct if we find by a

convincing preponderance of the evidence that Marzen and Doe engaged

in sexual relations during the time Marzen represented Doe. Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784

(Iowa 1995) (burden of proof). We readily understand the commission

had the advantage of hearing and seeing the witnesses who testified at

the hearing and made a finding that the board failed to prove sexual

relations occurred between Marzen and Doe. We give this finding weight,

but also recognize the commission was not unanimous in its finding. We

also consider the view of the dissenting member of the commission, who

was convinced Marzen and Doe engaged in sexual relations.

While the testimony by Doe and Marzen over the fighting issue of

sexual relations was wildly conflicting, some evidence tended to both

corroborate and discredit the testimony of both persons, while other

evidence surfaced to expose Marzen generally as a person who was quick

to deny even testimony and evidence against him that was otherwise

credible in light of the other evidence presented and common experience.
 11

For example, contrary to the assertion by Marzen, the sketch drawn by

Doe of the layout of Marzen’s home, while not to scale, correctly

identified the positions of the living room, dining room, kitchen,

bathroom, hallways, and bedrooms. It was the type of sketch to be

expected from a person with limited familiarity with the house. More

importantly, it was the type of sketch expected to be drawn by a person

who had in fact been in the house. Marzen’s criticism of the sketch at

the hearing was not only dubious and overdone, but suspicious and

unreasonable.

Similarly, Marzen flatly denied Doe’s description of his buttocks.

Yet, he failed to further counter the claim of panniculi on his buttocks

with equally sharp and decisive evidence to verify his denial. The claim

involved an unusual but distinctive condition of a private part of a

person’s body, and Marzen had the ability to disprove the existence of the

condition and discredit Doe. The medical examination was such an

opportunity, but the written report by the doctor who examined Marzen

failed to either confirm or deny the presence of panniculi on his lower

buttocks. Moreover, the claim of panniculi on Marzen’s buttocks was

consistent with the presence of panniculi he admitted was present on

other areas of his body. The claim itself was unusual enough that a

person accusing another of sexual impropriety would not likely conceive

of and fabricate the condition as an identifying mark to falsely frame an

accused, especially when the condition would appear to be easily

disproven by the accused if it did not exist.

We also find Doe’s testimony regarding the location of a mole on

Marzen’s back, which was surgically removed after the alleged incidents,

was significant. While it is possible Doe could have observed the mole

under circumstances other than as testified by Doe, her testimony about
 12

the mole was another piece of evidence to support her version of their

relationship. Furthermore, the testimony of Amanda that Doe and

Marzen emerged from a bedroom under what Amanda thought were

suspicious circumstances, while of limited value in and of itself, added to

the credibility of Doe’s testimony. Although not a disinterested witness,

Steiert testified in clear and unambiguous terms that Marzen had twice

admitted to him the existence of a sexual relationship with Doe.

Finally, we consider the issue of motivation. We credit the

testimony of O’Donohoe that Doe presented at her office on February 27,

2006, and reported the sexual relationship. At that point in time, there

was no suggestion Marzen would press Doe to collect his fee, which

would have given Doe motivation to make a false claim against Marzen.

Further, there was no political motivation on the part of O’Donohoe or

Doe to fabricate the existence of a sexual relationship. Finally, there was

no reason to think at that point in time that the disclosure would

advance Doe in the custody dispute with her former husband. Indeed,

as events ultimately unfolded, the district court used Doe’s relationship

with Marzen as a factor in granting a modification of child custody

adverse to Doe.

It is conceivable that Doe’s need for attention could have motivated

her to make a false claim. Yet, there is no doubt Marzen suddenly

started to give considerable attention to Doe following the involuntary

commitment hearing, both in and out of his office. Further, while Doe

conceivably could have been trying to set Marzen up for a bogus claim,

she did not file a lawsuit against him contemporaneously with her

original disclosure to O’Donohoe. She filed her action only after her

relationship with Marzen had been exposed publicly in the media eight

months after her meeting with O’Donohoe. Further, there was no
 13

evidence that Marzen, as a young, inexperienced lawyer in a small town,

was a good target for a financial windfall.

On the other hand, Marzen’s denials beginning in September 2006

were suspect. He had much at stake, including his law license and his

legal career. Thus, he had substantial motivation to deny the existence

of a sexual relationship. His evidence in support of this denial of sexual

relations was not nearly as credible as the evidence by Doe to support

her testimony.

On the whole, we find Doe’s testimony, coupled with the

corroborating evidence, is sufficient for us to conclude the board

demonstrated by a convincing preponderance of the evidence that Doe

and Marzen engaged in a sexual relationship. We also conclude the

sexual relationship occurred during the time Marzen represented Doe on

several legal matters.

4. Aggravating circumstances. We next consider whether the

board proved any aggravating circumstances. We begin by considering

whether the board proved by a convincing preponderance of evidence

that Marzen engaged in a sex-for-fees arrangement with Doe. Unlike her

testimony regarding the sex acts, Doe’s testimony on this point was

vague. She contended there was no explicit discussion of sex for fees,

but that it was “like, you help me, I’ll help you.” She did not specifically

attribute this statement to Marzen, and it may have simply reflected her

state of mind. Further, while it is plausible her phraseology amounted to

a sex-for-fees offer, it is also plausible that it was simply an expression

that a consensual sexual relationship would be satisfying to both parties.

The documentary trail on the sex-for-fees issue did not present

convincing evidence in support of the board’s position. Marzen appeared

to have contemporaneously recorded his time and ultimately presented
 14

bills to Doe or to her significant other. He appeared to exercise billing

judgment in reducing his first invoice on private pay matters. Once he

presented an invoice, he further marked down the invoice “per

agreement,” but this did not establish sex for fees but only an agreement

to reduce the bill. On this issue, we also believe Doe’s tendency to

exaggerate is pertinent. It may be that she thought it necessary to

engage in sex to keep Marzen adequately engaged in her legal affairs. It

may also be true that she thought she would get a reduction in fees if

she did so. These beliefs, however, do not establish a sex-for-fees

arrangement. On the record presented, we do not find convincing

evidence of a sex-for-fees agreement.

The absence of convincing proof of a sex-for-fees agreement does

not end our inquiry into the presence of other aggravating

circumstances. In considering the presence of other aggravating

circumstances in this case, it is important to keep in mind Doe had just

been discharged from an involuntary mental health commitment at the

time of the sexual relationship. She had no money and no place to live.

She had a difficult relationship with her mother that was reaching a

boiling point. Her continued custody of her child was also in question.

These circumstances presented unique challenges to the maintenance of

her sobriety. Thus, even if the evidence failed to establish a sex-for-fees

arrangement, the evidence did show Marzen, as an attorney, took

advantage of a client who was extremely vulnerable. Such conduct

constitutes an aggravating factor to support a more severe sanction. See

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

121, 125 (Iowa 1999) (two-year suspension for egregious sexual

exploitation of a very vulnerable client).
 15

B. Public Disclosure of Confidential Information.

1. Background facts and legal framework. On October 27, 2006,

Marzen was interviewed by KIMT News Channel 3 of Mason City. Marzen

was asked to comment on Doe’s allegations and the ongoing disciplinary

investigation. Marzen responded, “[Doe] stated she had been in a

situation with her probation officer. I didn’t find out until later that it

was sexual misconduct.” Marzen further told print reporters that Doe

ended his representation when she could not pay her bill. The board

alleged this behavior violated Iowa Rule of Professional Conduct

32:1.6(a). See Iowa R. Prof’l Conduct 32:1.6(a) (“A lawyer shall not reveal

information relating to the representation of a client unless the client

gives informed consent, the disclosure is impliedly authorized in order to

carry out the representation, or the disclosure is permitted by paragraph

(b) or required by paragraph (c).”).

In contrast to Count I, resolution of Count III presents a legal

question. Factually, there is no doubt that Marzen publicly disclosed

Doe’s prior history with and litigation involving her former probation

officer. Further, there is no factual question that Marzen learned this

information through a confidential conversation with his client. 2 Doe
also testified that she never consented to Marzen’s disclosure. The

question thus presented is whether an attorney violates the rules of

confidentiality by disclosing information learned through client

confidences when that information is also available in the public forum.

2In his brief, Marzen suggests that the information he released may have come
from public sources. While it is clear that such information may have been publicly
available, Marzen’s own testimony recognizes that he learned of this information
through his conversations with Doe. Prior to representing Doe, Marzen only had a
vague notion that there was an issue with one of the probation officers. It was through
his representation of Doe that he discovered the specifics.
 16

2. Ethical violation. While Marzen’s attempt to evade application of

the rule of confidentiality is novel, it cannot be sustained. Although Iowa

has no case law directly on point, the Kansas Supreme Court recently

dealt with a similar scenario. In In re Bryan, 61 P.3d 641, 645 (Kan.

2003), an attorney disclosed to a store manager and to a loss-prevention

manager that his former client “has a history of making false claims.”

The attorney defended his disclosure, arguing “that information

previously disclosed to the general public in court pleadings does not

retain any confidentiality that would prohibit subsequent disclosure of

that information.” Bryan, 61 P.3d at 656. The Kansas Supreme Court

rejected the argument. Id. The court noted that the ethical requirement

of confidentiality is broader than the narrowly interpreted attorney-client

privilege. Id. Thus, the rule of confidentiality must apply to all

communication between the lawyer and client, even if the information is

otherwise available.

This result is consistent with the approach taken in other

jurisdictions. See Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 572–

73 (2d Cir. 1973) (“[T]he client’s privilege in confidential information

disclosed to his attorney ‘is not nullified by the fact that the

circumstances to be disclosed are part of a public record, or that there

are other available sources for such information, or by the fact that the

lawyer received the same information from other sources.’ ” (quoting

Henry S. Drinker, Legal Ethics 135 (1953))); In re Rules of Prof’l Conduct

& Insurer Imposed Billing Rules & Procedures, 2 P.3d 806, 822 (Mont.

2000) (holding rule of confidentiality “extends to all communications

between insureds and defense counsel and that this rule is therefore

broader in both scope and protection than the attorney-client privilege

and the work product doctrine”); In re Advisory Opinion No. 544, 511
 17

A.2d 609, 612 (N.J. 1986) (concluding “this Rule [of Confidentiality]

expands the scope of protected information to include all information

relating to the representation, regardless of the source or whether the

client has requested it be kept confidential or whether disclosure of the

information would be embarrassing or detrimental to the client”).

This result is also consistent with the overall structure of our rules

of confidentiality. For instance, our rules prohibit an attorney from

profiting on information obtained through client confidences, without an

explicit exception for information that is otherwise publicly available.

See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Miller, 568 N.W.2d

665, 667 (Iowa 1997). The reason for this omission is clear—the sanctity

of the lawyer-client relationship is necessary to ensure free and

unrestrained communication without fear of betrayal. On this issue of

first impression, therefore, we hold that the rule of confidentiality is

breached when an attorney discloses information learned through the

attorney-client relationship even if that information is otherwise publicly

available.

Marzen argues that, even if his disclosures constituted a breach of

confidentiality, that breach was excused by rule 32:1.6(b)(5). That rule

provides:

A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably
believes necessary: . . . to establish a claim or defense on
behalf of the lawyer in a controversy between the lawyer and
the client, to establish a defense to a criminal charge or civil
claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any
proceeding concerning the lawyer’s representation of the
client[.]

Iowa R. Prof’l Conduct 32:1.6(b)(5). Comment ten to the rule makes clear

that the ability to defend arises in criminal and civil proceedings,
 18

including disciplinary actions. Id. 32:1.6 cmt. 10. However, it is not

clear from Marzen’s statements to the media that he was attempting to

mount a defense; rather, it would appear that he was attempting to

defame Doe. See Bryan, 61 P.3d at 658 (concluding disclosure had a

negative purpose). The ability to defend, moreover, is not absolute. A

lawyer can reveal confidential client information only in the appropriate

forum and only to the extent necessary to offer protection. While

certainly the revelation of Doe’s confidential information to the local

media was necessary to defend Marzen’s bid for county attorney, it was

not necessary to defend him against the allegations of this disciplinary

proceeding. We have considered all of Marzen’s claims and find his

conduct violated rule 32:1.6(a).

C. Sanction. “There is no standard discipline for a particular type

of attorney misconduct . . . .” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Kadenge, 706 N.W.2d 403, 410 (Iowa 2005). “[W]e are obliged to tailor

disciplinary sanctions to the specific facts and circumstances of each

individual case.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Erbes, 604 N.W.2d 656, 659 (Iowa 2000). Nevertheless, this court tries

to achieve a certain level of consistency. Kadenge, 706 N.W.2d at 410.

In determining the appropriate sanction, we consider “ ‘the nature of the

violations, protection of the public, deterrence of similar misconduct by

others, the lawyer’s fitness to practice, and [the court’s] duty to uphold

the integrity of the profession in the eyes of the public.’ ” Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006)

(quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Honken, 688

N.W.2d 812, 820 (Iowa 2004)). Relevant aggravating and mitigating

circumstances will also be considered. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Earley, 729 N.W.2d 437, 443 (Iowa 2007).
 19

Although the facts and circumstances of this case are unique, the

ethical violation is not unprecedented. Our ethics rules are clear, and

our cases have consistently and explicitly condemned sexual

relationships between an attorney and a client. The rationale is equally

clear:

“The unequal balance of power in the attorney-client
relationship, rooted in the attorney’s special skill and
knowledge on the one hand and the client’s potential
vulnerability on the other, may enable the lawyer to
dominate and take unfair advantage. When a lawyer uses
this power to initiate a sexual relationship with a client,
actual harm to the client, and the client’s interest, may
result. Such overreaching by an attorney is harmful in any
legal representation but presents an even greater danger to
the client seeking advice in times of personal crisis . . . .”

Furlong, 625 N.W.2d at 714 (quoting Iowa Code of Prof’l Responsibility for

Lawyers EC 5-25). 3 Consequently, a violation of the governing ethical

rule is a serious transgression. Clients figuratively, if not literally, can

trust lawyers with their lives, and they have the right to expect, as we

demand, the lawyer will treat that trust with care derived from those

noble traditions of service, integrity, and commitment found at the heart

of the legal profession. See Comm. on Prof’l Ethics & Conduct v. Hill, 436

N.W.2d 57, 59 (Iowa 1989) (Hill I).

Our past cases reveal a broad range of discipline for attorneys who

engage in sexual relations with a client. This range is between a public

reprimand and a lengthy period of suspension from the practice of law.

The wide range of discipline largely results from the presence or absence

of circumstances in addition to the sexual relations that make the overall

misconduct more serious. For example, in McGrath, we suspended an

3The
same explanation for the rule prohibiting sexual conduct between attorneys
and clients can now be found in the Iowa Rules of Professional Conduct. See Iowa R.
Prof’l Conduct 32:1.8(j) & cmt. 17.
 20

attorney for three years when the sexual relations involved a client in a

case concerning matters of paramount personal importance to the client,

included a sex-for-fees arrangement, and the attorney had solicited sex

from another client. 713 N.W.2d at 703. On the other hand, we publicly

reprimanded a lawyer who had sexual contact with a client during visits

with the client in the penitentiary. Comm. on Prof’l Ethics & Conduct v.

Durham, 279 N.W.2d 280, 285–86 (Iowa 1979). See generally Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Morrison, 727 N.W.2d 115, 120 (Iowa

2007) (suspension from practice for three months where attorney had

sexual relationship with dissolution client and had been previously

admonished for the same conduct with a different client); Furlong, 625

N.W.2d at 713–14 (eighteen-month suspension for carrying on a sexual

relationship with one client, attempting to dissuade her from

complaining to disciplinary authorities, and sexually harassing another

client); Hill II, 540 N.W.2d at 44–45 (self-described “hands-on” counselor

suspended and reprimanded in two previous disciplinary proceedings

was suspended for twelve months for making unwelcome sexual

advances toward client in child-custody case); Hill I, 436 N.W.2d at 58–

59 (three-month suspension for sexual relationship with client in divorce

and custody case).

Our prior case containing facts most similar to the facts of this

case is Hill I. In Hill I, the attorney had sexual intercourse on one

occasion with a client who had sought his representation to obtain a

divorce involving custody of children. 436 N.W.2d at 59. At the time, the

client was unemployed, drug-addicted, and emotionally unstable. Id. at

58. We suspended the attorney from the practice of law for a period of

three months. Id. at 59. The facts of this case are also similar to
 21

Morrison, in which we also imposed a three-month suspension. 727

N.W.2d at 120.

The discipline imposed for violating the confidences of a client also

varies with the particular facts and circumstances. We have not had the

occasion in our prior cases to impose discipline based solely on the

disclosure of confidential client information, but have only imposed

discipline in conjunction with other misconduct. Generally, however,

discipline for the violation of client confidence would appear to warrant a

modest period of suspension between sixty days and three months when

combined with aggravating circumstances. Miller, 568 N.W.2d at 667

(sixty-day suspension imposed on attorney revealing confidential

information of client for financial reasons and for attempting to demand

withdrawal of ethics complaint); Iowa Supreme Ct. Bd. of Prof’l Ethics &

Conduct v. Sikma, 533 N.W.2d 532, 537–38 (Iowa 1995) (three-month

suspension for entering into a business transaction with a client

involving misuse of client’s confidential information). A violation would

likely result in something less than a suspension without any

aggravating circumstances. Nevertheless, disclosure or misuse of a

client’s confidential information is an especially problematic violation

since

[a] fundamental principle in the client-lawyer relationship is
that, in the absence of the client's informed consent, the
lawyer must not reveal information relating to the
representation. . . . This contributes to the trust that is the
hallmark of the client-lawyer relationship.

Iowa R. Prof’l Conduct 32:1.6 cmt. 2.

Because one of the purposes of the rules at issue in this case is to

prevent exploitation of vulnerable clients, a violation is even more

egregious when the particular client is mentally or emotionally unstable.
 22

See McGrath, 713 N.W.2d at 703 (“Preying upon this vulnerability

[involving custody of and visitation with the clients’ children], the

respondent manipulated these women ... for his own sexual

gratification.”). In this case, Marzen’s sexual relationship with Doe was

particularly offensive to the notions of trustworthiness and

professionalism built into the foundation of the rule because Marzen met

Doe as a court-appointed attorney for her involuntary mental health

commitment proceeding. In addition to her mental instability, Marzen

knew Doe was involved in family conflict, including a child-custody

dispute. In such circumstances of “paramount personal importance,”

the professional and confidential relationship between attorney and

client is critical and a betrayal of the relationship must be sanctioned

with that betrayal in mind. Id. 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 Doe at the

time the sexual relationship began is an aggravating circumstance to

consider in the imposition of discipline.

Considering all the circumstances of this case, we conclude

Marzen should be suspended from the practice of law for a period of six

months. Although his sexual misconduct was not accompanied by the

type of aggravating circumstances that has warranted a suspension for a

lengthier period of time in other cases, he exploited the attorney-client

relationship for his own sexual gratification to the detriment of his client

and the profession. His egocentric attitude was also apparent in the

public disclosure of confidential information. Yet, the most serious

circumstance is he became sexually involved with his client at a time

when she was most vulnerable and the trust of a lawyer was most

needed and expected. This case goes well beyond the vulnerability that
 23

is inherent in all attorney-client relationships. We conclude Marzen

should be suspended from the practice of law in this state for a period of

time not less than six months.

IV. Conclusion.

We suspend Marzen’s license to practice law with no possibility of

reinstatement for a period not less than six months from the date of the

filing of this opinion. This suspension applies to all facets of the practice

of law pursuant to Iowa Court Rule 35.12(3). Upon application for

reinstatement, Marzen shall have the burden to prove he has not

practiced during the period of suspension and that he meets all the

requirements of reinstatement provided in Iowa Court Rule 35.13. Costs

of the action are taxed against Marzen in accordance with Iowa Court

Rule 35.26(1).

LICENSE SUSPENDED.

All justices concur except Appel and Baker, JJ., who concur in

part and dissent in part.
 24

#08–1546, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen
APPEL, Justice (concurring in part and dissenting in part).
I respectfully dissent. The majority has presented a thorough and
thoughtful review of this unattractive record. My difficulty arises from
the fact that this court is necessarily conducting its review on a cold
record where credibility determinations are necessary to the outcome of
the case.
There are numerous troubling features in the record. For instance,
in a proceeding brought by Doe against her mother, Doe testified under
oath that there was no sexual misconduct in her relationship with
Marzen. In addition, prior to the events which give rise to these
proceedings, Doe obtained a financial settlement in connection with a
charge of sexual misconduct involving a probation officer. These facts
raise substantial credibility issues.
The board has the burden to prove the allegations of misconduct
contained in the complaint by a convincing preponderance of the
evidence. While this burden is lower than in a criminal prosecution, it is
higher than the burden in most civil cases. Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Evans, 537 N.W.2d 783, 784 (Iowa 1995). A
majority of the grievance commission members who heard the testimony
determined that the board did not establish by a convincing
preponderance of the evidence that Marzen engaged in sexual
misconduct. On this record, I cannot conclude that the board met its
heightened burden when the majority of the panel that actually heard
the testimony came to a different conclusion.
I concur in the majority’s analysis and conclusions regarding the
disclosure of confidential information. I would find that a public
reprimand is the appropriate sanction for this violation.
Baker, J., joins this concurrence in part and dissent in part.