IN THE SUPREME COURT OF IOWA
No. 117 / 06-1017
Filed February 23, 2007
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
CHARLES K. BORTH,
Respondent.
On review of the report of the Grievance Commission.
Iowa Supreme Court Grievance Commission recommends respondent
be reprimanded for unethical conduct. ATTORNEY REPRIMANDED.
Charles L. Harrington and Teresa A. Vens, Des Moines, for
complainant.
John D. Brown, Emmetsburg, for respondent.
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TERNUS, Chief Justice.
This disciplinary case against assistant Clay County Attorney
Charles K. Borth is the third in a series of disciplinary cases involving
alleged misconduct by prosecutors in Clay County. See Iowa Supreme Ct.
Attorney Disciplinary Bd. v. Zenor, 707 N.W.2d 176 (Iowa 2005); Iowa
Supreme Ct. Attorney Disciplinary Bd. v. Howe, 706 N.W.2d 360 (Iowa 2005).
The respondent here is charged with (1) representing a criminal defendant
while serving as an assistant county attorney, (2) amending traffic citations
to cowl-lamp violations not supported by probable cause, and (3)
negotiating plea bargains that required defendants to contribute to various
funds, including funds maintained by governmental subdivisions, contrary
to the terms of Iowa Code section 907.13(2) (2003). See generally Iowa Code
§ 907.13(2) (allowing court to require charitable donation in lieu of
community service imposed as a condition of probation).
The Iowa Supreme Court Grievance Commission concluded Borth had
violated the Iowa Code of Professional Responsibility for Lawyers in several
respects. The Commission recommended he be given a public reprimand.
We agree Borth violated our ethics rules, and we concur in the
Commission’s recommendation to publicly reprimand the respondent.
I. Scope of Review.
The supreme court reviews a report of the Commission de novo.
Howe, 706 N.W.2d at 366. “Under this standard of review, we give weight to
the factual findings of the Commission, especially with respect to witness
credibility, but we find the facts anew.” Iowa Supreme Ct. Bd. of Prof’l Ethics
& Conduct v. Beckman, 674 N.W.2d 129, 131 (Iowa 2004). “Although we
respectfully consider the discipline recommended by the Commission, the
final decision on the appropriate sanction is for this court.” Howe, 706
N.W.2d at 366. The complainant, the Iowa Supreme Court Attorney
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Disciplinary Board, must prove its allegations of misconduct by a
convincing preponderance of the evidence. Id.
II. General Factual Background.
Charles Borth has been licensed to practice law in this state since
1995. After clerking for the Third Judicial District for two years, in 1997 he
joined the Spencer law firm of Zenor & Houchins. At the same time, Borth
became an assistant Clay County attorney, a position he continues to hold.1
As an assistant county attorney, Borth prosecutes criminal offenses and
handles juvenile cases for the county.
The record establishes that Borth is active in his community,
hardworking, and respected by other lawyers and judges in the area. He
has not previously been disciplined for an ethical violation.
On January 4, 2005, the disciplinary board filed a three-count
complaint against Borth. We will discuss each charge separately.
III. Count I: Defense of Kenneth John Borth.
On March 29, 2002, in Spencer, Clay County, Iowa, the respondent’s
father, Kenneth John Borth, was charged with public intoxication, a
violation of a Spencer municipal ordinance. On April 3, 2002, respondent
entered a plea of not guilty on behalf of his father. Subsequently,
respondent communicated with Brad Howe, the assistant city attorney, and
negotiated a disposition of the charge against Kenneth Borth. On May 2,
2002, a deferred prosecution was ordered on the public intoxication charge,
and on November 1, 2002, the criminal case was dismissed. The
respondent was an assistant county attorney when he defended his father
on this criminal charge.
1When Borth first joined the Zenor & Houchins law firm, Michael Zenor was the
county attorney, and Michael Houchins was an assistant county attorney. At the time this
matter was heard in May 2006, Houchins was the county attorney, and Zenor was an
assistant county attorney.
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The Board alleged this conduct violated DR 8-101(B), which provides:
“County attorneys and assistant county attorneys shall not engage in the
defense of an accused in any criminal matter during the time they are
holding this public office.” The Commission concluded Borth violated DR 8-
101(B), and we agree.
IV. Count II: Misdemeanor Charges Not Supported by Probable Cause.
In his capacity as an assistant county attorney, Borth negotiated plea
agreements to traffic citations. In approximately seventy-four cases
between 1998 and 2004, he facilitated the amendment of a simple
misdemeanor traffic violation to a nonmoving violation under the cowl-lamp
statute, Iowa Code section 321.406. See generally Iowa Code § 321.406
(stating motor vehicles may be equipped with no more than two side cowl or
fender lamps). As in the plea bargains involved in Howe and Zenor, the
arresting officer, the defendant, and the presiding judge concurred in the
amendment. Everyone involved, including Borth, knew the cowl-lamp
charges were not supported by probable cause. In fact, there was no
factual basis for the charges at all because vehicles no longer have cowl or
fender lamps.
The Board charged Borth with violating several ethics rules in
negotiating these plea bargains and presenting them to the court for
approval. In Howe, we held identical conduct “clearly violated” DR 7-103(A),
which “states that a prosecutor ‘shall not institute or cause to be instituted
criminal charges when the lawyer knows or it is obvious that the charges
are not supported by probable cause.’ ” 706 N.W.2d at 368 (quoting DR 7-
103(A)). The Commission concluded Borth violated DR 7-103(A), and again,
we agree.
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V. Count III: Plea Bargains Requiring Charitable Contributions.
In several of the cases in which Borth agreed to reduce a traffic
citation to a cowl-lamp violation, the negotiated plea bargain included a
requirement that the defendant make a charitable contribution to a
designated entity. In three cases, the defendants were required to
contribute to the Clay County Canine Fund; in another case, a contribution
was made to the Clay County DARE Program. In a fifth case, the defendant
was ordered to make contributions to the canine fund and to the Clay
County Crime Stoppers.
Iowa law allows courts to include charitable donations in a
defendant’s sentence under specified circumstances. Iowa Code section
907.13 permits a court to “establish as a condition of probation that the
defendant perform unpaid community service for a time not to exceed the
maximum period of confinement for the offense of which the defendant is
convicted.” Iowa Code § 907.13(1). If the court imposes such a condition,
the defendant, in cooperation with his probation officer and the department
of correctional services, must prepare a plan to implement the community
service condition. Id. This plan is submitted to the court for approval or
modification. Id. § 907.13(2). One modification option available to the court
is to allow the defendant to satisfy some or all of the community service
obligation “through the donation of property to a charitable organization
other than a governmental subdivision.” Id.
The charitable contributions negotiated by Borth in the cases
described above were not authorized by section 907.13, as he forthrightly
admitted at the hearing. The defendants in these cases were not placed on
probation and were not ordered to complete community service. Even if
these prerequisites had been met, section 907.13 only permits the court to
order contributions to nongovernmental entities. Both the Clay County
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Canine Fund and the Clay County DARE Program were accounts of the Clay
County sheriff, a governmental entity.
The Board alleged the charitable contribution required by the
respondent in these cases constituted an illegal sentence. It claims Borth’s
negotiation of illegal sentences violated DR 1-102(A)(5), which provides that
a lawyer shall not engage in conduct prejudicial to the administration of
justice. See Iowa R. Prof’l Conduct 32:8.4(d) (stating it is “professional
misconduct for a lawyer to . . . engage in conduct that is prejudicial to the
administration of justice”).
The Commission determined there was no statutory authority for the
respondent’s demand that the defendants in the cited prosecutions agree to
make a charitable contribution as part of their negotiated sentences.
Notwithstanding this determination, the Commission concluded the Board
had failed to prove “the contribution requirements injured the
administration or efficiency of the judicial system.”
Borth contends on appeal that the Commission correctly concluded
he did not act unethically in negotiating the plea bargains in question.
While he acknowledges the plea agreements were not authorized by section
907.13(2), he claims that defect does not equate to an ethical infraction
because he had no wrongful intent and believed at the time that the plea
agreements were appropriate dispositions of the criminal charges.
We first reject the argument that the Board must show the
respondent knew his conduct constituted a violation of the ethics rules or
that the respondent acted with an improper purpose or motive. Neither
intent, knowledge, nor wrongful motive is required to establish a violation of
DR 1-102(A)(5). Cf. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Johnson,
___ N.W.2d ___, ___ (Iowa 2007) (holding attorney’s good-faith belief that her
conduct did not violate conflict-of-interest rule contained in DR 9-101(B)
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was not a defense); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Walters, 603 N.W.2d 772, 775 (Iowa 1999) (stating it was “not necessary to
show that the lawyer acted with bad or fraudulent intent” in order to
establish lawyer violated DR 5-104(A) by soliciting loan from former client);
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 577 N.W.2d 50,
56 (Iowa 1998) (concluding respondent committed an ethical violation by
misappropriating client’s funds even though the misappropriation “was not
intentional given the uncertainty at the time about whether such fees were
subject to trust account requirements”); Comm. on Prof’l Ethics & Conduct v.
Davidson, 398 N.W.2d 856, 859 (Iowa 1987) (concluding attorney committed
an ethical violation despite the attorney’s “apparent lack of culpability”
where office staff error resulted in commingling of client funds for two
years). In rejecting a similar defense many years ago, this court said:
If all individuals are presumed to know the law and cannot use
ignorance as a defense, respondent, a trained professional with
the basic skills and tools to acquaint himself with the legal
significance of the facts, cannot insulate himself from censure
simply by claiming ignorance.
Comm. on Prof’l Ethics & Conduct v. Zimmerman, 354 N.W.2d 235, 238 (Iowa
1984). Similarly, here, Borth’s unawareness that the charitable
contributions he negotiated were not authorized by law is not a defense to
the Board’s charges.
We now turn to the Commission’s determination that Borth’s conduct
was not unethical. In explaining its conclusion, the Commission observed:
There is evidence in the record that this type of sentence was
agreed to by other prosecutors in other counties, many with
more years of experience than Mr. Borth. None of the
contributions benefited Mr. Borth personally in any way. The
contributions were all approved by the court and administered
through the clerk of court’s office. There is no question that
the funds were put to their intended purpose. There is no
evidence that the contributions were applied only in cases
where the defendants were wealthy.
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We have no disagreement with the Commission’s observations, as the
evidence fully supports them. We are persuaded, however, that these facts
do not avoid the prejudice to the administration of justice inherent in
Borth’s action.
“[T]here is no typical form of conduct that prejudices the
administration of justice.” See Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999). Generally, acts that
have been deemed prejudicial to the administration of justice have
“hampered the efficient and proper operation of the courts or of ancillary
systems upon which the courts rely.” Id.
In the present case, Borth’s actions facilitated the imposition of
several illegal sentences. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa
2001) (holding an illegal sentence is “one not authorized by statute”). Illegal
sentences are void and can be challenged at any time. See State v. Woody,
613 N.W.2d 215, 218 (Iowa 2000) (“An illegal sentence is void and ‘not
subject to the usual concepts of waiver . . . .’ Because an illegal sentence is
void, it can be corrected at any time.” (quoting State v. Ohnmacht, 342
N.W.2d 838, 843 (Iowa 1983))). The potential use of court time to address
such challenges in the cases at issue here would divert judicial resources
from other matters and thereby hamper the efficient and proper operation of
the courts. See Johnson, ___ N.W.2d at ___ (holding attorney’s conflict of
interest that resulted in numerous challenges to her participation in
pending cases and the potential for many similar challenges was conduct
prejudicial to the administration of justice). We need not wait for such
challenges to be made to conclude Borth’s actions were prejudicial to the
administration of justice. Accordingly, we hold Borth’s illegal plea
agreements violated DR 1-102(A)(5).
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VI. Discipline.
The Commission recommends that Borth be given a public
reprimand. The Board argues a more severe sanction is warranted.
To determine the appropriate sanction,
we consider the nature and extent of the respondent’s ethical
infractions, his fitness to continue practicing law, our
obligation to protect the public from further harm by the
respondent, the need to deter other attorneys from engaging in
similar misconduct, our desire to maintain the reputation of
the bar as a whole, and any aggravating or mitigating
circumstances.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kallsen, 670 N.W.2d 161,
164 (Iowa 2003). Upon our consideration of these factors, we agree with the
Commission that a public reprimand is an adequate sanction.
Although Borth should have known better than to represent his
father in a criminal case, it appears his violation of DR 8-101(B) is isolated.
Borth’s other ethical violations—negotiation of guilty pleas to cowl-lamp
charges and imposition of unauthorized charitable donations—were
practices that had not been addressed by this court at the time Borth
engaged in this conduct. This fact militates in favor of a public reprimand.
See Howe, 706 N.W.2d at 380 (noting public reprimand would be sufficient
sanction for filing cowl-lamp charges since court had not “given guidance on
the limitations placed on plea-bargained charges by DR 7-103(A)” prior to
that case); Apland, 577 N.W.2d at 60 (imposing public reprimand for
attorney’s unethical handling of advance fee payment because court had not
previously addressed the proper handling of such payments).
Other circumstances also indicate that a public reprimand is
adequate discipline in this case. Borth ceased negotiating plea bargains to
cowl-lamp charges and stopped asking defendants to agree to make
charitable contributions immediately upon learning these practices were
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questionable. He has had no other ethical violations, enjoys a good
reputation in the legal community, and cooperated fully with the Board
during its investigation. For these reasons, we think Borth is
unquestionably fit to practice law, and there is no need to protect the public
from further harm at his hands. Finally, we believe a public reprimand will
serve as a sufficient deterrent to other lawyers and will demonstrate to the
public that lawyers will be held accountable for unethical conduct.
We publicly reprimand Charles K. Borth for his ethical violations.
The costs of this proceeding are taxed against the respondent.
ATTORNEY REPRIMANDED.
All justices concur except Larson, J., who concurs in part and
dissents in part, and Appel, J., who takes no part.
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#117/06-1017, Iowa Supreme Ct. Att’y Disciplinary Bd. v. Borth
LARSON, Justice (concurring in part; dissenting in part).
I concur in the majority opinion, except for Division IV, and I concur
in the sanction imposed. However, I dissent from Division IV, finding a
violation of DR 7—103(A) for accepting guilty pleas to nonmoving violations
for the reasons set out in my dissent in Iowa Supreme Court Attorney
Disciplinary Board v. Howe, 706 N.W.2d 360, 382 (Iowa 2005).
Iowa Supreme Court Attorney Disciplinary Board Vs. Charles K. Borth
Combined Opinion