IN THE SUPREME COURT OF IOWA 

No. 52 / 05-1788 

Filed June 16, 2006 

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, 

Appellant, 

vs. 

JAMES M. BOX, 

Appellee. 

On appeal of the report of the Grievance Commission. 

Disciplinary board and respondent lawyer each appeal from findings 

and recommendations of the grievance commission. ATTORNEY 

REPRIMANDED. 

Wendell J. Harms, Des Moines, for appellant. 

Kent A. Gummert and Frank A. Comito of Gaudineer, Comito & 

George, L.L.P., West Des Moines, for appellee. 
2 

CARTER, Justice.

 Pursuant to Iowa Court Rule 35.11(2), the Iowa Supreme Court 

Attorney Disciplinary Board was granted permission to appeal from the 

findings and recommendations of the Grievance Commission concerning 

alleged disciplinary rule violations by the respondent attorney. The 

respondent attorney has cross-appealed from those findings and 

recommendations. Until now the matter has proceeded under the 

confidentiality provisions of Iowa Court Rule 35.11(2). Because we now 

conclude that public discipline is warranted, confidentiality is no longer 

required, and we refer to the respondent attorney by name in our opinion. 

 The complaint against attorney James M. Box alleged that he violated 

Disciplinary Rules 7—104(A)(1) and (2) of the Iowa Code of Professional 

Responsibility for Lawyers. These rules will henceforth be referred to in our 

opinion as DRs. DR 7—104(A)(1) prohibits communication by a lawyer 

representing a client with another person involved in the same transaction 

if it is known that the other person is represented by counsel with respect to 

that transaction. DR 7—104(A)(2) prohibits a lawyer representing a client 

from giving advice to another person whose interests are in conflict with 

those of the lawyer’s client. The Grievance Commission found that attorney 

Box violated DR 7—104(A)(1), but did not violate DR 7—104(A)(2). Attorney 

Box on his cross-appeal contends that he violated neither of these 

disciplinary rules. The appeal of the disciplinary board does not challenge 

the finding concerning DR 7—104(A)(2), but does challenge the Grievance 

Commission’s recommended sanction of a private admonition for the 

violation of DR 7—104(A)(1). The disciplinary board urges that the violation 

that was established calls for public discipline in the form of a reprimand. 

We agree with that contention. 
3 

 The facts that bear on our inquiry, as gleaned from the record, show 

the following events. In September 2001 Martha Hillard was an eighty-yearold widow. She was childless and, although she owned a home in 

Mediapolis, Iowa, she was then residing temporarily with her niece, Shirley 

Slonaker, in the Ottumwa area. 

 Martha had previously owned substantial farm real estate in 

Des Moines County, but after her brother, John, had moved his farming 

operations from Des Moines County to the Ottumwa area, she effected a 

tax-free exchange in 1996 of her Des Moines County farm property for 

agricultural land of like quantity in a tri-county area in Wapello, Mahaska, 

and Keokuk Counties. In September 2001 the farm property owned by 

Martha in this tri-county area totaled 315 acres and had a market value of 

$975,000. 

 In June 2001 Martha had executed a will prepared by a Burlington 

attorney. In that will, she devised a life estate in her farmland to her niece, 

Shirley Slonaker, with the remainder gifted in equal shares to each of 

Shirley’s four children. One of Shirley’s four children was Todd Gingrich. 

Todd, who was married, was farming Martha’s land in the tri-county area 

under lease in partnership with Martha’s brother, John Gingrich. 

Sometime prior to August 2, 2001, Martha had been approached by 

two life insurance brokers who influenced her to convert her estate plan 

into a living trust and, in the process, purchase some additional life 

insurance. Ultimately, she never purchased the additional life insurance, 

but she did execute a living trust instrument prepared by a Cedar Rapids 

lawyer. The trust was accompanied by a pour-over will that, upon her 

death, distributed all of her assets to the trust that had not previously been 

transferred there. The pour-over will revoked the will prepared by the 

Burlington lawyer less than two months before. Under the trust 
4 

instrument, Shirley was to be the sole beneficiary of the trust assets upon 

Martha’s death. Shirley was nominated as executor under the pour-over 

will and was designated as a successor trustee of the trust. 

Martha’s brother, John, and her nephew, Todd, learned of her estate 

planning activities and convinced her to go with them to attorney Box, who 

had previously represented both John and Todd, in order that Box might 

explain to her what the ultimate disposition of her property was to be under 

the trust instrument. They also sought to have Box counsel Martha as to 

the purchase of additional life insurance. John arranged for a meeting at 

Box’s office in Ottumwa on September 7, 2001. Martha arranged to have 

the Burlington attorney fax a copy of her June will to Box’s office. John and 

his wife came to the meeting with Todd. Shirley, who had previously 

furnished Box with a copy of the trust instrument, came to the meeting 

alone. There was at once an acrimonious discourse between Shirley and 

the others concerning Martha’s affairs. 

John and Todd insisted that the discussion not proceed further until 

Martha was present and drove to Shirley’s home to get her. Eventually, 

Martha joined the others in Box’s office. During the course of the 

discussion that followed, Box, who had read both the June will and the 

August trust instrument, advised all persons present, including Martha, 

concerning the contrasting disposition of Martha’s assets under the two 

instruments. He advised all persons concerning Shirley’s status as a 

successor trustee and what her powers would be. He also advised Martha 

against purchasing additional life insurance. 

 On September 10, 2001, Martha, accompanied by Shirley, counseled 

with attorney Orville Bloethe. She arranged to have attorney Bloethe 

prepare an amendment to the trust instrument, which provided that upon 

her death Shirley would have a life interest in the trust assets with the 
5 

remainder gifted to Shirley’s four children in equal shares. This 

amendment also provided that if one of Shirley’s children was farming the 

agricultural property at the time of Shirley’s death that person would have 

an option to purchase the farm at fair market value. Attorney Bloethe 

testified before the Grievance Commission that, at the time of the 

September 10 conference in his office, Martha appeared frightened and told 

him she was being pressured into granting Todd a five-year lease on the 

trust farm property and an option to purchase that property for less than 

market value. Martha had informed Bloethe of the meeting in Box’s office 

three days before. This prompted Bloethe to write attorney Box as follows: 

Martha M. Hillard has visited with me concerning her Last Will 

& Testament and her Revocable Trust, together with other 

personal matters. 

In the event you would want to communicate with Martha, you 

should contact me instead inasmuch as I will be representing 

Martha. 

This communication was dated September 11, 2001. Concerning the 

purposes of that letter, Bloethe testified: 

I didn’t want to send those people home without what I would 

say was protection. I’m just trying to protect them and see that 

if something came up, then I would be consulted; and then we 

can sit down and go from there. That’s all I was wanting to do. 

 Several weeks prior to October 10, 2001, Todd and his wife prepared 

a written five-year lease of the farmland in Martha’s trust with John and 

Todd as tenants. The lease agreement also contained an option for Todd to 

purchase approximately two-thirds of the trust farm property at a price 

substantially below its market value. On October 10, 2001, Shirley was 

visiting one of her children in Virginia. That morning about 8 a.m., John 

picked up Martha, who was staying at Shirley’s house, for purposes of 

taking her to the Mahaska County Courthouse to claim an agricultural tax 

exemption for the trust real estate. Todd joined them later in the morning. 
6 

While the three were together, Martha was presented with the proposed 

lease and option-to-purchase agreement, which she signed. According to 

the testimony of John and Todd, Martha then stated that perhaps she 

should give the farm property to Todd. 

 Todd’s version of what then occurred was that he declined to accept 

the property as a gift but expressed a willingness to purchase the land if the 

price were less than market value. According to both Todd and John, an 

agreement was then reached for Todd to purchase all of the trust farm 

property for $362,000 pursuant to an installment contract. The terms of 

the agreement were to include a down payment of $40,000 by March 1, 

2002, and annual payments of $40,000 per year thereafter. John and Todd 

testified that, after reaching such an oral understanding, they sought to 

schedule an appointment that same day with an attorney named Neary for 

purposes of obtaining a written installment contract. That attorney was on 

vacation. They next contacted attorney Box’s law office seeking an 

appointment with James Box. Box was busy so they obtained an 

appointment for the afternoon of October 10 with his nephew, who was an 

associate in the office. 

 When John, Todd, and Martha went to Box’s office later on 

October 10, Box was in fact available and ushered them into his office. At 

this time, he was not aware of their purpose in seeking his services. He was 

told the reason the group was there was Martha’s intention to sell the trust 

farm property to Todd on terms to which the parties had agreed. Box then 

spoke with Martha concerning Bloethe’s letter and expressed the view that 

he should not be talking to her. According to Box and the others present, 

Martha responded testily that she could speak to whatever lawyer she 
7 

chose.1 Box accepted this as a renunciation by Martha of Bloethe’s 

representation of her as to the subject matter of her meeting with Box. 

After being advised of the agreement that had been reached between Martha 

and Todd, Box proceeded to prepare an installment contract for the sale of 

the trust real estate pursuant to the terms that had been previously 

negotiated. According to Todd and John, Martha wanted Todd to pay the 

lowest possible rate of interest. The only input Box had involving the 

structure of the transaction was to make a suggestion concerning the 

minimum rate of interest necessary to avoid an imputed interest penalty 

under Internal Revenue Service imputed interest rules and to explain how 

the property taxes should be prorated in order to correspond with the 

March 1, 2002 possession date. When Box completed the contract 

document, Todd signed it. Box then informed Martha that she did not have 

to sign the agreement at that time or at any other time. He told her that 

she could go home and think it over and discuss it with someone else. 

Notwithstanding that suggestion, Martha signed the agreement in Box’s 

office on October 10. 

 Later that day, or the following day, Martha spoke with Shirley’s exhusband, Kenneth Slonaker, concerning her visit to the Box law office. 

Kenneth telephoned Shirley in Virginia concerning that matter, and during 

the conversation, Martha joined the telephone conversation and told Shirley 

that she did not know what she had done, but she believed she may have 

sold the farm to Todd. On October 18, 2001, an associate in the Bloethe 

law office wrote to attorney Box, advising him that Martha was rescinding 

the contract of sale. This was followed up by two subsequent letters to Box 

 

1By the time of the Grievance Commission hearing, which took place in September 

2005, Martha’s memory of the events at the October 10, 2001 meeting in Box’s office had 

faded. In her testimony before the commission on that subject, she was able to recall few 

of the details other than to maintain that Bloethe was her attorney at the time. 
8 

concerning Martha’s intention to rescind the transaction. Eventually, Todd 

communicated to Martha, through Shirley, that he would not agree to 

rescission of the contract of sale. Litigation followed in which the district 

court ultimately rescinded the contract of sale. In the meantime, Martha 

had amended the trust in such a way that Todd was denied the remainder 

interest and option to purchase that had previously been accorded him. 

 Our review is de novo. See Iowa Supreme Ct. Bd. of Prof’l Ethics & 

Conduct v. Plumb, 589 N.W.2d 746, 748 (Iowa 1999). The disciplinary board 

must establish the violations by a convincing preponderance of the 

evidence. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Adams, 623 

N.W.2d 815, 818 (Iowa 2001). While we give respectful consideration to the 

Grievance Commission’s findings and recommendations, we are not bound 

by them. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Winkel, 599 

N.W.2d 456, 460 (Iowa 1999). Ultimately, it is our duty to decide what 

discipline is appropriate. Id. 

 The Grievance Commission found that attorney Box’s conduct at the 

October 10, 2001 meeting constituted a violation of DR 7—104(A)(1). That 

rule provides: 

 (A) During the course of representing a client a lawyer 

shall not: 

 (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. 

Iowa Code of Prof’l Responsibility for Lawyers DR 7—104(A)(1). 

 Attorney Box points out that some courts have found that this rule 

only applies to formal adversary proceedings such as litigation. United 

States v. Ryans, 903 F.2d 731, 739 (10th Cir. 1990); Tucker v. Norfolk & W. 

Ry., 849 F. Supp. 1096, 1098 (E.D. Va. 1994). This narrow approach has 
9 

been rejected by other courts. The Supreme Court of Vermont addressed 

the meaning of the word “parties” in DR 7—104(A)(1) as follows: 

[W]e have no trouble concluding that the definition of “parties” 

under the rule is not restricted to named parties in a lawsuit. 

The language of the rule suggests no limitation on the word 

“party.” Instead, the rule prohibits communication “on the 

subject of the representation” with a party that is represented 

by a lawyer “in that matter.” The use of the words “subject” 

and “matter,” rather than “lawsuit,” indicates that DR 7—104 

applies to all transactions for which lawyers are hired and 

cannot be construed to imply that its application is limited to 

cases where suit is filed. 

In re Illuzzi, 616 A.2d 233, 236 (Vt. 1992). In a similar vein, a New York 

federal court has concluded: 

[DR 7—104(A)(1)], which has a long history in the canons of 

ethics, does not by its terms apply only to litigation, nor does it 

apply specifically to a prosecutor. Indeed, it applies to persons 

retained to handle real estate transactions, administer estates 

for an executor, seek legislative relief, or any other of the 

myriad of tasks for which lawyers are employed. Its essential 

purpose is to avoid misunderstandings, unfairness or 

overreaching when a skilled lawyer speaks to a layperson, and 

to preserve the collegiality which must exist among members of 

the bar, and cannot if lawyers talk to another’s client behind 

the lawyer’s back. 

United States v. Galanis, 685 F. Supp. 901, 902 (S.D.N.Y. 1988) (citation 

omitted). We agree with the view of those courts that apply DR 7—104(A)(1) 

to any transaction in which the contacted party is represented by a lawyer. 

 Attorney Box next urges that Bloethe’s representation of Martha was 

not in regard to any transaction that was continuing in nature. He points 

out that Bloethe testified that when Martha left his office on September 10 

there was no additional legal work that he was scheduled to do for her (the 

September 11 letter to Box had been dictated at this time, but not 

transcribed). This argument ignores the fact that the September 11 letter 

clearly speaks to contacts with Martha on matters arising in the future. Nor 

are we persuaded that DR 7—104(A)(1) does not apply because the subject 
10 

matter of Bloethe’s representation of Martha at the time he wrote the letter 

did not involve the sale of real estate. The second paragraph of Bloethe’s 

letter is broadly inclusive and indicates that he will be representing Martha 

in any matter for which Box might need to communicate with her in Box’s 

professional capacity. We are satisfied that this was also Martha’s view of 

their relationship. 

 The final argument advanced by Box in contending that he did not 

violate the disciplinary rule is that Martha waived representation by counsel 

by presenting herself at his office and responding to his reference to 

Bloethe’s letter by stating that she could talk to whatever lawyer she chose. 

To accept this contention would in our view greatly undermine the 

protection sought to be afforded by DR 7—104(A)(1). As observed by the 

Tennessee Supreme Court: 

The main function of the disciplinary rule [7—104(A)(1)] is to 

preserve the proper functioning of the legal system and to 

“prevent situations in which a represented party may be taken 

advantage of by adverse counsel.” 

Monceret v. Bd. of Prof’l Responsibility, 29 S.W.3d 455, 459 (Tenn. 2000) 

(quoting Wright v. Group Health Hosp., 691 P.2d 564, 567 (1984)) (footnote 

omitted). The court in Monceret went on to state: 

[T]he language of the Rule specifically requires the consent of 

the party’s lawyer, and there is no indication that the party 

alone may waive the protections of the Rule. . . . 

 . . . . 

 An apparent majority of courts have followed this 

interpretation and have held that the Rule is not waived simply 

because the represented person initiates contact or is 

otherwise willing to communicate. . . . In short, the ethical 

responsibility rests with the attorney and not the layman. 

Monceret, 29 S.W.3d at 461 (citations and footnote omitted). In a similar 

vein, the Indiana Supreme Court has stated that “lawyers should 

independently verify that opposing parties wishing to communicate directly 
11 

with them are in fact not represented by counsel . . . .” In re Capper, 757 

N.E.2d 138, 140 (Ind. 2001). We are in accord with the interpretation of the 

rule that the Tennessee and Indiana courts have approved. 

 The Minnesota Supreme Court recently traced the lengthy history of 

the so-called “no contact rule” as an accepted principle of legal ethics 

beginning in 1836. State v. Miller, 600 N.W.2d 457, 463 n.5 (Minn. 1999). 

This discussion indicates the rule has been universally accepted during the 

Twentieth Century and was included first in the American Bar Association’s 

1908 Canon of Ethics and has been carried forward in both the ABA Code of 

Professional Responsibility for Lawyers (which is the basis for DR 7—

104(A)(1)) and is now included in rule 4.2 of the ABA Rules of Professional 

Conduct. We adopted rule 4.2 of the ABA Model Rules effective July 1, 

2005. Our version of that rule, Iowa R. Prof’l Conduct 32:4.2, 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. 

Comment 3 accompanying that rule provides: 

The rule applies even though the represented person initiates 

or consents to the communication. A lawyer must immediately 

terminate communication with a person if, after commencing 

communication, the lawyer learns that the person is one with 

whom communication is not permitted by this rule. 

We are satisfied that neither this new ethical rule nor the comment 

accompanying it added any new ethical requirement that had not been 

contained in DR 7—104(A)(1). The substance of comment 3 is embodied in 

the language of DR 7—104(A)(1) that specifically requires the consent of the 

party’s lawyer. Based on our conclusion as to the meaning of DR 7—

104(A)(1), we find by a convincing preponderance of the evidence that Box 
12 

violated that rule by carrying out the October 10, 2001 transaction with 

Martha. 

 We are not suggesting that DR 7—104(A)(1) serves to defeat the right 

of the party sought to be contacted by an attorney to discharge that party’s 

own lawyer. It does, however, require verification that this has been done 

before the other lawyer makes contact with a previously represented party. 

We are satisfied that DR 7—104(A)(1) required Box to recognize the 

vulnerability of Martha, as an unrepresented party at the meeting, and, at 

the very least, to verify the status of Bloethe’s representation by a simple 

telephone call. 

 In considering the application of DR 7—104(A)(1) as a rule of legal 

ethics, we are not concerned with the bona fides of the real estate sales 

transaction between Martha and Todd. Even if the facts presented 

convinced us that Martha, in the exercise of sound and independent 

judgment, wished to sell the land to Todd for the contract price, this would 

not alter the fact that attorney Box violated the disciplinary rule by failing to 

run the proposed transaction through her attorney. The circumstances 

facing Box at the October 10 meeting were such that he should have 

welcomed the participation of an attorney representing Martha’s interests. 

The acrimonious discourse among family members concerning Martha’s 

affairs that took place in Box’s office on September 11 should have served 

as a warning to him that controversy was likely to arise from the sale of 

property to his client, who was one of several objects of Martha’s bounty, for 

only one-third of its value. 

 Having determined that Box has violated a disciplinary rule, we agree 

with the disciplinary board’s conclusion that this conduct warrants a public 

reprimand rather than the private admonition recommended by the 

Grievance Commission. The proper sanction to be imposed for a 
13 

disciplinary violation rests on the particular facts of each case. Iowa 

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Herrera, 626 N.W.2d 107, 115 

(Iowa 2001). Comparison with other disciplinary cases involving like 

conduct is a factor that ordinarily weighs heavily in our determination of a 

proper sanction. In the present situation, a case exactly like this one is not 

available because our previous decisions dealing with a violation of DR 7—

104(A)(1), Herrera, 626 N.W.2d at 113-14, and Comm. on Prof’l Ethics & 

Conduct v. Zimmermann, 522 N.W.2d 619 (Iowa 1994), involved additional 

violations by the offending attorneys. We concluded that the two violations 

in combination warranted a public reprimand in Zimmermann and a 

suspension in Herrera. Despite the absence of a similar case, we can draw 

some comparison from cases involving simple conflicts of interest in which a 

public reprimand or suspension has been ordered. See, e.g., Iowa Supreme 

Ct. Bd. of Prof’l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 

1999) (suspension ordered); Comm. on Prof’l Ethics & Conduct v. Jackson, 

492 N.W.2d 430, 434-35 (Iowa 1992) (reprimand ordered). Of more 

importance perhaps is the fact that Box’s violation resulted in substantial 

harm, initially to Martha, and eventually to his own client. We have 

consistently held that harm to a client or third party is an aggravating 

factor with regard to disciplinary violations. Adams, 623 N.W.2d at 819; 

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 

(Iowa 2000); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Freeman, 603 

N.W.2d 600, 604 (Iowa 1999). 

 In making our decision, we do not ignore the fact that Box has 

established a fine reputation as a competent attorney who has served his 

clients well for many years. His ethical lapse in October 2001 was an 

isolated incident that was inconsistent with his normal pattern of care and 

concern for the profession. Notwithstanding that factor, the ethical 
14 

violation we have discussed did occur, and Box must bear the consequences 

of that violation. We hereby reprimand attorney James M. Box and order 

that he pay the costs of this disciplinary proceeding. 

ATTORNEY REPRIMANDED.