IN THE SUPREME COURT OF IOWA

No. 09–0765

Filed October 23, 2009

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Complainant,

vs.

JEFFREY MARK JOHNSON,

Respondent.

On review of the report of the grievance commission.

Grievance commission recommends attorney’s license be suspended 

for nine months. LICENSE SUSPENDED.

Charles L. Harrington and Wendell J. Harms, Des Moines, for 

complainant.

Jeffrey M. Johnson, Davenport, pro se.
2

PER CURIAM.

This matter comes before us on the report of a division of the 

Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10. 

The Iowa Supreme Court Attorney Disciplinary Board alleged that the 

respondent, Jeffrey Mark Johnson, violated ethical rules as a result of his 

conviction of operating a motor vehicle while intoxicated (OWI), third offense, 

a class “D” felony. The grievance commission concluded that Johnson 

engaged in the alleged misconduct and recommended we suspend Johnson’s 

license with no possibility of reinstatement for a period of not less than nine 

months. It also recommended that, upon application for reinstatement, 

Johnson provide documentation from a licensed health care professional 

verifying his maintenance of sobriety and fitness to practice law. 

Upon our respectful consideration of the findings of fact, conclusions 

of law, and recommendation of the commission, we find the respondent 

committed the alleged ethical violations and suspend his license to practice 

law indefinitely with no possibility of reinstatement for six months. Upon 

application for reinstatement, Johnson shall provide medical documentation 

from a licensed heath care professional of his maintenance of sobriety and 

his fitness to practice law.

I. Standard of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Ct. R. 

35.10(1); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 

812, 815 (Iowa 2007); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713 

N.W.2d 199, 201 (Iowa 2006). The commission's findings and 

recommendations are given respectful consideration, but we are not bound 

by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Isaacson, 750 N.W.2d 

104, 106 (Iowa 2008). The board has the burden of proving attorney 
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misconduct by a convincing preponderance of the evidence. Iowa Supreme 

Ct. Att’y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006).

“This burden is less than proof beyond a reasonable doubt, but 

more than the preponderance standard required in the usual 

civil case. Once misconduct is proven, we ‘may impose a lesser 

or greater sanction than the discipline recommended by the 

grievance commission.’ ”

Id. (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674 

N.W.2d 139, 142 (Iowa 2004)); accord Dull, 713 N.W.2d at 201.

II. Factual Background and Prior Proceedings.

Johnson has been licensed to practice law in this state since 1981. 

During this time, he has engaged in private practice of a general nature and 

has served as a magistrate for three terms. 

Johnson has an acknowledged long history of alcohol abuse, including 

two prior OWI convictions. He has also appeared intoxicated in a public 

park and received a private admonition for appearing in juvenile court while 

intoxicated. After his second OWI offense, on April 25, 2006, Johnson 

signed an affidavit in which he acknowledged his conduct was prejudicial to 

the administration of justice in violation of the Iowa Code of Professional 

Responsibility for Lawyers and agreed to cooperate with the Iowa Lawyers 

Assistance Program, participate in Alcoholics Anonymous (AA), and comply 

with all criminal and traffic laws. In return, the board deferred its 

investigation of Johnson’s conduct for one year. Eighteen months later, 

however, on October 12, 2007, Johnson was arrested for operating a motor 

vehicle while intoxicated, third offense. 

Johnson pled guilty to OWI, third offense, in violation of Iowa Code 

section 321J.2(1)(a)–(b) (2007) and was sentenced to an indeterminate fiveyear term of incarceration. He was also fined and ordered to pay court costs 

and attorney fees. 
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Subsequently, the board filed this complaint against Johnson, alleging 

Johnson’s conduct violated several provisions of the Iowa Rules of 

Professional Conduct.1

On January 30, 2009, the grievance commission held a hearing. The 

board presented its evidence, which included the record of Johnson’s felony 

conviction for OWI, third offense. Under Iowa Code section 602.10122, “[t]he 

record of [the felony] conviction is conclusive evidence” that the accused 

attorney committed the alleged felony. 

 In his answer, Johnson admitted the allegations of 

the complaint, except for a clarification that he had not practiced law since 

September 2005. Currently, his license is on inactive status.

Johnson represented himself at the hearing. He offered evidence of his 

efforts to reach and maintain sobriety to argue against license revocation 

and in support of a finding of his fitness to practice law. Johnson reported 

that since 2004 he has undergone extensive treatment for alcohol abuse 

through several different programs. He provided documentation of his 

attendance and participation in these treatment programs. Furthermore, he 

testified that he has not imbibed alcohol since October 12, 2007.

The respondent testified that he is currently on parole and lives in a 

structured environment that facilitates his rehabilitation. His parole and 

work release program require him to provide urine samples every week to 

two weeks, attend AA meetings three times a week, refrain from alcohol 

consumption, refrain from associating with felons, remain in Scott County, 

and report to his parole officer. His parole program continues until May 23, 

 1

In a letter dated July 22, 2008, the board informed Johnson that, because he had 

successfully completed the deferral program, it had closed its investigation and would not be 

seeking discipline with regard to the OWI, second offense. In the same letter, however, the 

board reminded Johnson that the OWI, third offense, was still the subject of the current 

disciplinary action.
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2010, subject to early release. He is currently working full time redacting 

documents. 

Based on the evidence presented, the grievance commission 

determined that Johnson violated Iowa Rules of Professional Conduct 

32:8.4(a) (“It is professional misconduct for a lawyer to . . . violate . . . [a] 

Rule[] of Professional Conduct . . . .”); 32:8.4(b) (“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[.]”); and 32:8.4(d) (“It is professional misconduct for a lawyer to . . . 

engage in conduct that is prejudicial to the administration of justice[.]”). The 

commission recommended that we suspend Johnson’s license with no 

possibility of reinstatement for a period of not less than nine months. It also 

recommended that, upon application for reinstatement, Johnson provide 

documentation from a licensed health care professional verifying his 

maintenance of sobriety and fitness to practice law.

III. Ethical Violations.

We agree the board has proven Johnson’s ethical violations of rules 

32:8.4(a), 32:8.4(b), and 32:8.4(d). In Dull, we held that a conviction of OWI, 

third offense, violated DR 1–102(A)(1) (now rule 32:8.4(a)), DR 1–102(A)(5) 

(now rule 32:8.4(d)), and DR 1–102(A)(6) (now rule 32:8.4(b)).2

 2The Iowa Rules of Professional Conduct became effective on July 1, 2005, replacing 

the Iowa Code of Professional Responsibility for Lawyers.

Dull, 713 

N.W.2d at 204; see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weaver, 

750 N.W.2d 71, 79 (Iowa 2008) (holding conviction of OWI constituted 

conduct reflecting poorly on fitness to practice law); Iowa Supreme Ct. Bd. of 

Prof’l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 88 (Iowa 2001) (same); Iowa 

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 881

(Iowa 1996) (same). The fact that Johnson was not practicing law at the time 
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of his offense does not require a different conclusion as to whether he 

engaged in misconduct. We have held: “It makes no difference that 

respondent was not acting as a lawyer at the time of his misconduct. 

Lawyers do not shed their professional responsibility in their personal lives.” 

Comm. on Prof’l Ethics & Conduct v. Millen, 357 N.W.2d 313, 315 (Iowa 1984).

IV. 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. Bd. of Prof’l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 

748–49 (Iowa 1999); accord Dull, 713 N.W.2d at 206. 

In determining the appropriate discipline, we consider “the 

nature of the alleged violations, the need for deterrence, 

protection of the public, maintenance of the reputation of the 

[bar] as a whole, and the respondent’s fitness to continue in the 

practice of law,” [as well as] any aggravating and mitigating 

circumstances. 

Ruth, 636 N.W.2d at 88 (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & 

Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999)). The form and 

extent of the sanction “ ‘must be tailored to the specific facts and 

circumstances of each individual case.’ ” Iowa Supreme Ct. Att’y Disciplinary 

Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (quoting Comm. on Prof'l 

Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981)). Significant 

distinguishing factors in the imposition of punishment center on “ ‘the 

existence of multiple instances of neglect, past disciplinary problems, and

other companion violations.’ ” Id. (quoting Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)). 

Under Iowa Court Rule 35.10(2), we “may revoke or suspend the 

license of an attorney admitted to practice in Iowa upon . . . conviction of a 

felony.” Similarly, under Iowa Code section 602.10122, an attorney’s license 
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may be revoked or suspended “[w]hen the attorney has been convicted of a 

felony.” We have specifically held that conviction for OWI, third offense, is 

ground for revocation or suspension. Marcucci, 543 N.W.2d at 882. Based 

upon the specific facts and our prior case law, we conclude suspension, not 

revocation, is warranted in this case.

The underlying facts presented here are very similar to those found in 

Marcucci. Like Johnson, Marcucci was convicted of operating a motor 

vehicle while under the influence, third offense. Id. at 880. In determining 

the appropriate sanction, we noted Marcucci’s rehabilitative efforts and the 

fact that no clients had been hurt by the attorney’s misconduct as factors 

supporting a more lenient sanction. Id. at 881–83. We rejected, however, 

the sufficiency of a public reprimand, noting the seriousness of the 

underlying offense and its reflection on an attorney’s fitness to practice law. 

Id. at 882; see also Comm. on Prof’l Ethics & Conduct v. Tompkins, 415 

N.W.2d 620, 624 (Iowa 1987) (“We might ask ourselves how the public can 

have confidence in our system of justice if we overlook or minimize knowing

and willful criminal conduct.”). Based upon these facts, we held a six-month 

suspension was warranted. Marcucci, 543 N.W.2d at 883. 

Similarly, here, there was no evidence presented that indicated 

Johnson neglected or injured any of his clients by his drinking. In addition, 

he has fully cooperated with the board in this and other disciplinary 

proceedings. See Ruth, 636 N.W.2d at 88 (considering attorney’s cooperation 

with the commission in the determination of the appropriate sanction). In 

addition, Johnson is in full compliance with his parole and work release 

conditions and is actively attempting to control his alcoholism. Id. at 88–89 

(considering attorney’s efforts to sustain sobriety as mitigation in assessing 

sanctions). 
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We note, however, that a prior private admonition was given to 

Johnson in 2005 for appearing at a court hearing while under the influence. 

Our prior case law makes such a private admonition an aggravating 

circumstance. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lemanski,

606 N.W.2d 11, 14 (Iowa 2000). 

Based upon these facts and considering similar prior cases, we 

conclude a six-month suspension, rather than the nine-month suspension 

recommended by the commission, is warranted. Cf. Ruth, 636 N.W.2d at 89 

(suspending attorney’s license for six months as a result of two criminal 

convictions—domestic abuse assault causing injury and OWI, third offense—

after noting attorney’s diligent efforts at rehabilitation with regard to both 

convictions); Marcucci, 543 N.W.2d at 881–83 (six-month suspension 

warranted when no harm to clients and attorney’s rehabilitative efforts were 

significant), with Dull, 713 N.W.2d at 205–08 (attorney’s acts, including 

appearing in court intoxicated; conviction of OWI, third offense; harmfully 

neglecting clients’ cases; and failing to respond to the board’s inquiries,

warranted two-year license suspension). We agree, however, that Johnson, 

upon applying for reinstatement, should be required to establish his fitness 

to practice law through medical documentation. We have a well-established 

history of imposing such conditions. See Iowa Supreme Ct. Att’y Disciplinary 

Bd. v. Curtis, 749 N.W.2d 694, 703–04 (Iowa 2008) (conditions imposed 

regarding depression and attention deficit disorder); Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 205–06 (Iowa 2006) 

(conditions imposed with regard to depression); Dull, 713 N.W.2d at 207–08 

(conditions imposed with regard to alcoholism); Iowa Supreme Ct. Att’y 

Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96–97 (Iowa 2006) (conditions 

imposed with regard to depression and anxiety). Therefore, upon application 

for reinstatement, Johnson shall provide documentation from a licensed 
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health care professional regarding the maintenance of his sobriety and 

fitness to practice law. 

V. Conclusion.

We suspend Johnson’s license to practice law indefinitely with no 

possibility of reinstatement for six months from the date of the filing of this 

opinion. This suspension shall apply to all facets of the practice of law. 

Iowa Ct. R. 35.12(3). Upon any application for reinstatement, Johnson shall 

have the burden to show he has not practiced law during the period of 

suspension and that he meets the requirements of Iowa Court Rule 35.13. 

He shall also provide medical documentation from a licensed health care 

professional regarding the maintenance of his sobriety and his fitness to 

practice law. Johnson shall provide all of the notifications required by Iowa 

Court Rule 35.22. Costs are taxed to Johnson pursuant to Iowa Court Rule 

35.26(1).

LICENSE SUSPENDED.

This opinion shall be published.