IN THE SUPREME COURT OF IOWA 

No. 121/ 07-0671 

Filed March 28, 2008 

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, 

 Complainant, 

vs. 

JAMES ANDREW WEAVER, 

 Respondent. 

 On review of the report of the Grievance Commission. 

 Iowa Supreme Court Grievance Commission recommends 

suspension of respondent’s license to practice law. LICENSE 

SUSPENDED. 

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

complainant. 

 James A. Weaver, Muscatine, respondent, pro se. 
2

TERNUS, Chief Justice. 

 The complainant, Iowa Supreme Court Attorney Disciplinary 

Board, filed a two-count complaint against the respondent, James 

Weaver. Weaver, an Iowa attorney, was charged with ethical violations 

based on (1) his commission of second-offense operating while 

intoxicated (OWI), and (2) his statements to a newspaper reporter 

challenging the honesty of the judge presiding over Weaver’s criminal 

OWI prosecution. The matter was heard before a panel of the Iowa 

Supreme Court Grievance Commission, which determined Weaver had 

violated the Iowa Code of Professional Responsibility for Lawyers and 

recommended that Weaver’s license to practice law be suspended for 

three months. After reviewing the record and considering the arguments 

of the parties, we agree that Weaver has committed ethical infractions, 

and we suspend his license to practice law with no possibility of 

reinstatement for three months. 

I. Scope of Review.

 This matter is before the court for review of the Grievance 

Commission’s report and for final disposition of the charges lodged 

against the respondent by the Board. See Iowa Ct. Rs. 35.9, .10(1). The 

Board has the burden to prove the alleged ethical violations by a 

convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of 

Prof’l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 130–31 (Iowa 

2004). “A convincing preponderance of the evidence is a greater 

quantum of evidence than that required in a civil trial, but less than that 

required to sustain a criminal conviction.” Comm. on Prof’l Ethics & 

Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985). 

 We review the factual findings of the Grievance Commission 

de novo. Iowa Ct. R. 35.11(3). Although we give weight to the 
3

Commission's findings, especially when considering the credibility of 

witnesses, we find the facts anew. Iowa Supreme Ct. Att’y Disciplinary 

Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). “We also respectfully 

consider the discipline recommended by the Commission, but we are not 

bound by such recommendations.” Iowa Supreme Ct. Bd. of Prof’l Ethics 

& Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001). 

II. Factual Findings.

A. Weaver’s Alcoholism and OWI Violations. Weaver, who was 

fifty-one at the time of the conduct giving rise to this case, has practiced 

law in Iowa since his admission to the bar in 1979. From 1982 until 

December 2004, he served as an associate district court judge. In 

December 2004, this court granted Weaver’s request for a disability 

retirement from his judicial position. Since that time, he has engaged in 

the private practice of law in Muscatine. 

 On November 15, 2002, Weaver was convicted of the crime of 

operating while intoxicated, first offense. As part of his sentence, he was 

ordered to complete inpatient treatment for alcoholism. So, in late 2002, 

Weaver spent twenty-eight days in an inpatient treatment program called 

New Beginnings. He thereafter remained alcohol free until July 2003. 

 Meanwhile, the Commission on Judicial Qualifications determined 

that Weaver’s conduct of driving while intoxicated violated the Iowa Code 

of Judicial Conduct. As part of its investigation of this incident, the 

Commission on Judicial Qualifications required Weaver to undergo a 

substance abuse evaluation at Rush Behavioral Health Center. This 

evaluation, conducted in September 2003 after Weaver’s relapse, led to 

Weaver’s inpatient treatment in a Florida program designed for 

professionals. After his second treatment was completed in November 

2003, Weaver remained abstinent until August 2004. 
4

 In late 2004, the Commission on Judicial Qualifications 

recommended to this court that Weaver receive a public reprimand for 

the conduct that had resulted in Weaver’s first OWI conviction. Acting 

on this recommendation, we entered an order on December 10, 2004, 

finding Weaver had violated Canons 1 and 2A of the Iowa Code of 

Judicial Conduct and publicly reprimanding him for these violations.1 

That same month, the court granted Weaver’s application for disability 

retirement based on his alcoholism. 

 On November 8, 2004, approximately one month before Weaver 

was publicly reprimanded for his first OWI offense, he was arrested for 

second-offense OWI after a citizen called police with a reckless-driving 

report. Weaver was subsequently charged with OWI, second offense, 

after testing revealed he had a .185 blood alcohol content. 

 After his second arrest, Weaver was admitted to the Multiple 

Addictions Recovery Center (MARC) in Davenport on November 10, 2004, 

where he underwent his third inpatient treatment for alcoholism. 

Weaver was successfully discharged from that program on December 7, 

2004, and reported at the hearing on the current disciplinary charges 

that he has remained alcohol free since that date. Weaver resumed the 

practice of law in January 2005. 

 Judge Denver Dillard was assigned to preside over Weaver’s second 

OWI prosecution, and on April 18, 2005, he accepted Weaver’s guilty plea 

to OWI, second offense. Because Weaver had waived any delay in 

sentencing, he was sentenced on the same day. Pursuant to a plea 

 1Iowa Code of Judicial Conduct Canon 1 provides: “A judge . . . should observe 

. . . high standards of conduct so that the integrity and independence of the judiciary 

may be preserved.” Canon 2A states: “A judge should respect and comply with the law 

and should act at all times in a manner that promotes public confidence in the integrity 

and impartiality of the judiciary.” 
5

agreement between Weaver and the State, the State recommended a 

$1500 fine, payment of costs, and 180 days in the county jail with all but 

seven days suspended. Weaver asked the court that he be given credit 

against any jail time for the period he spent in inpatient treatment in 

MARC after his second arrest. 

 Following a nearly two-hour hearing, Judge Dillard rejected the 

State’s recommendation and, invoking Iowa Code section 904.513,2

sentenced Weaver to the Iowa Department of Corrections for an 

indeterminate term not to exceed two years. The court ordered that 

Weaver, upon mittimus, be immediately placed at an appropriate alcohol 

treatment correctional facility, and upon achievement of the maximum 

benefits from the treatment program, be released on parole. He also 

fined Weaver $1500 plus surcharges. Because Weaver had spent no time 

in jail following his arrest, the court allowed no credit for time previously 

served. 

 Weaver immediately asked the court to keep the record open so he 

could submit his MARC records to show that he had already completed 

the same program that would be available through the Department of 

Corrections. The judge responded that he would entertain a motion to 

reconsider the sentence and would schedule a hearing for that purpose, 

but he was not going to change his mind about the sentence at the 

sentencing hearing. He set the date of May 6, 2005, for Weaver to report 

to the department for commencement of his sentence. 

 2Section 904.513 provides for the assignment of OWI violators to treatment 

facilities based on a continuum of programming developed by the district departments 

of correctional services. Iowa Code § 904.513(1)(a). The continuum includes a range of 

treatment options from community residential facilities to prison. Id. Offenders are 

assigned to a particular treatment option based initially on standardized assessment 

criteria and ultimately on their treatment program performance, compliance with the 

conditions of an assignment, and other factors. Id. § 904.513(1)(b)(1), (1)(b)(4), (2). 
6

 The day after sentencing, April 19, Weaver filed a motion to 

reconsider sentence, arguing that he would not benefit from the sentence 

imposed, as he had already undergone the inpatient treatment program 

that would be available through the Department of Corrections. He also 

filed several other motions, attaching reports from his MARC treatment 

to a motion to reopen the record. On May 6, Judge Dillard denied 

Weaver’s motions, stating in pertinent part: 

The Defendant [Weaver] has filed Motion for Reconsideration 

of Sentence, Motion to Delay Mittimus, Motion to Reopen the 

Record and Motion for a Presentence Addendum. All of said 

motions are directed at the request of the Defendant that the 

court reconsider its sentence before the Defendant begins 

serving any portion thereof. Based upon the conclusions 

reached by the court that the defendant has a serious 

alcohol and substance abuse addiction problem and the past 

failures of treatment, the court believes that the Defendant’s 

sentence should commence and that any reconsideration of 

sentence would be based, in part, upon the progress of the 

Defendant in the treatment program pursuant to Iowa Code 

section 904.513. 

The judge scheduled a hearing for June 3, 2005, for purposes of 

reconsidering Weaver’s sentence. 

 The same day that Judge Dillard’s order denying Weaver’s motions 

was filed, Weaver filed a notice of appeal of his conviction and sentence. 

Due to his appeal, Weaver did not report to the department to begin his 

sentence as scheduled on May 6. 

 On May 31, when Judge Dillard became aware that Weaver had 

appealed, Judge Dillard signed an order canceling the June 3 hearing 

“[f]or the reason that the Defendant has filed a Notice of Appeal in this 

matter.” Weaver immediately filed a motion to reconsider the 

cancellation of the hearing, which the judge denied on June 1, 2005, 

stating: 

The Defendant’s appeal of the judgment and sentence of the 

court and his posting of the appeal bond has stayed the 
7

execution of the sentence. The Defendant’s rejection of the 

court’s judgment makes it impossible for the court to 

evaluate the rehabilitative effect of the sentence. 

 On the same day this order was filed, Weaver spoke with a 

newspaper reporter from the Muscatine Journal. An article published the 

following day was headlined: “Bias on the bench. Ongoing court battle 

pits judge against retired judge as Weaver makes allegations of personal 

bias, dishonesty against presiding judge.” The reporter included quotes 

from Weaver in the body of the article, which stated in pertinent part: 

 “When Judge Dillard sentenced me in April, he felt 

that I was in need of substance abuse treatment,” Weaver 

said. “I pointed out to him that I had completed the same 

treatment program in November 2004.” 

 Although Weaver was supposed to report to the 

Davenport facility on May 6, Davenport attorney, James D. 

Hoffman, filed four motions before Dillard on May 3, asking 

that Weaver’s alcohol treatment program records be added 

into the court’s records and contending that Weaver would 

not gain any benefit from the Davenport substance abuse 

program because he received similar treatment at a local 

private hospital program. 

 Dillard overruled three of Weaver’s motions on May 6, 

but scheduled a hearing for reconsideration of sentence for 

1:30 p.m. Friday, June 3, at the Muscatine County 

Courthouse. 

 However, on May 31, Dillard canceled the hearing, 

noting that Weaver had filed an appeal of his sentence. A 

motion filed the next day by Weaver’s attorney, asking 

Dillard to reconsider the decision to cancel, was rejected. 

“Those [treatment] records were provided to the court 

during the last two weeks of May,” Weaver said. “In 

response, Dillard canceled the hearing.”

 Weaver didn’t know why Dillard would show personal 

bias against him by imposing a two-year prison sentence and 

canceling Friday’s hearing. The usual sentence for second-

[offense] operating while intoxicated is a seven-day jail 

sentence with a 60-day suspended jail term. 
8

“I can’t speculate about the reasons why he did this,” 

he said. “But he’s not being honest about the reasons why he 

committed me to the Department of Corrections.” 

(Emphasis added.) 

 On October 25, 2006, the Iowa Court of Appeals affirmed Weaver’s 

sentence, concluding Judge Dillard did not abuse his discretion when 

imposing sentence. This court denied Weaver’s request for further 

review. 

B. Disciplinary Proceedings. Based upon the above incidents, 

on December 13, 2006, the Iowa Supreme Court Attorney Disciplinary 

Board filed a two-count complaint against Weaver, charging him with 

ethical violations based on his second-offense OWI conviction and the 

statements he made to the newspaper reporter that are italicized above. 

In response to the complaint, Weaver admitted his OWI conviction and 

that he made the statements at issue, but denied he had violated any 

ethical rules. 

 After a hearing before a panel of the Grievance Commission at 

which both parties presented evidence, the Commission issued its report, 

thoroughly reviewing the evidence, considering both parties’ arguments, 

and explaining its recommended findings of fact, conclusions of law, and 

sanctions. With respect to count 1, regarding the OWI-second offense, 

the Commission concluded Weaver violated DR 1–102(A)(6), prohibiting a 

lawyer from engaging in conduct that adversely reflects on the fitness to 

practice law. The Commission also determined that Weaver’s statements 

to the reporter were ethical violations, as alleged in count 2 of the 

Board’s complaint. Specifically, the Commission concluded Weaver’s 

statement about why Judge Dillard canceled the reconsideration hearing 

(1) was a false accusation in violation of DR 8–102(B), which prohibits an 

attorney from “knowingly mak[ing] false accusations against a judge”; (2) 
9

was prejudicial to the administration of justice in violation of DR 1–

102(A)(5), which prohibits an attorney from “engag[ing] in conduct that is 

prejudicial to the administration of justice”; and (3) was a 

misrepresentation of fact in violation of DR 1–102(A)(4), which prohibits 

an attorney from “engag[ing] in conduct involving dishonesty, fraud, 

deceit or misrepresentation.” Finally, the Commission concluded 

Weaver’s statement that the judge was being dishonest about the 

reasons for Weaver’s sentence also constituted unethical conduct. 

 With respect to an appropriate sanction, the Commission, after 

reviewing mitigating and aggravating circumstances, concluded the 

ethical violations detailed in each count independently warranted a 

three-month suspension. Nonetheless, the Commission recommended 

that Weaver’s license be suspended for a total of three months for all 

violations. 

III. Count I—Commission of Second-Offense OWI.

 As noted above, the Commission concluded Weaver’s second 

commission of drunk driving was an ethical infraction in violation of 

DR 1–102(A)(6) (conduct adversely reflecting on fitness to practice law). 

Pointing out his OWI offense was only an aggravated misdemeanor, 

Weaver contends operating while intoxicated is an ethical infraction only 

when the crime is classified as a felony. He relies on our decision in 

Iowa Supreme Court Board of Professional Ethics & Conduct v. Marcucci, 

543 N.W.2d 879 (Iowa 1996). 

 In Marcucci, the respondent had been convicted of third-offense 

OWI, a class “D” felony. 543 N.W.2d at 880. In concluding the 

respondent had violated DR 1–102(A)(6), we agreed with the reasoning of 

the Grievance Commission, quoting with approval from its report: 

“ ‘[T]he [Commission] is concerned with the public perception of an 
10

attorney with serious alcohol abuse problems and feels that such abuse 

“adversely reflected” on his fitness to practice law.’ ” Id. at 881. Noting 

that the offense of which the respondent was convicted was a felony, we 

stated “[w]e need not decide the gravity of a first-offense conviction for 

OWI for purposes of applying DR 1–102(A)(6).” Id. at 882. Contrary to 

Weaver’s arguments, this court clearly did not hold that an OWI offense 

is an ethical violation only when it constitutes a felony. 

 Whether an attorney’s criminal behavior reflects adversely on his 

fitness to practice law is not determined by a mechanical process of 

classifying conduct as a felony or a misdemeanor. The term “fitness” as 

used in DR 1–102(A)(6) embraces not only one’s legal competency, but 

also “one’s character and one’s suitability to act as an officer of the 

court.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Mulford, 625 

N.W.2d 672, 683 (Iowa 2001). This disciplinary rule “focuses on matters 

that ‘lessen[] public confidence in the legal profession.’ ” Iowa Supreme 

Ct. Att’y Disciplinary Bd. v. Johnston, 732 N.W.2d 448, 454 (Iowa 2007) 

(quoting Marcucci, 543 N.W.2d at 882). Therefore, we examine the 

attorney’s conduct and the surrounding circumstances in determining 

whether there is an ethical violation. 

 We found a violation of DR 1–102(A)(6) for misdemeanor conduct in 

Iowa Supreme Court Board of Professional Ethics & Conduct v. Thompson, 

595 N.W.2d 132 (Iowa 1999). In that case, the attorney was convicted of 

two simple misdemeanors, assault and trespass, arising out of the 

attorney’s threatening of his daughter’s boyfriend with a loaded shotgun. 

Thompson, 595 N.W.2d at 132, 133. Holding this conduct reflected 

adversely on the attorney’s fitness to practice law, we observed: 

“[W]hen those licensed to operate the law’s machinery 

knowingly violate essential criminal statutes, there 
11

inexorably follows an intensified loss of lay persons’ respect 

for the law.” 

 As lawyers we take an oath to uphold the law. When, 

as lawyers, we violate criminal statutes, we violate that oath. 

Id. at 134 (quoting Comm. on Prof’l Ethics & Conduct v. Patterson, 369 

N.W.2d 798, 801 (Iowa 1985)). 

 Turning to the present case, we agree with the Commission that 

Weaver’s commission of second-offense drunk driving reflected adversely 

on his fitness to practice law. Weaver was arrested shortly after noon on 

a Saturday after a motorist reported that he had nearly caused a 

collision. Weaver tested .185, more than twice the legal limit of .08. 

Notwithstanding the wide margin by which he exceeded the legal limit, he 

repeatedly denied to the arresting officer that he had been drinking. 

Moreover, Weaver again and again asked the officer to just let him go, 

and at one point asked, “Come on, isn’t there anything we can do to 

forget about this?” In summary, Weaver drove a vehicle after a morning 

of clearly excessive drinking, nearly caused an accident, disputed any 

responsibility for the near collision, repeatedly denied any drinking, and 

tried to wheedle his way out of an arrest. 

 We think Weaver’s conduct was a negative reflection on his 

character and his suitability to serve as an officer of the court. His 

actions would also tend to lessen public confidence in the legal 

profession. Consequently, we do not hesitate to agree with the 

Commission that Weaver’s actions constituted a violation of DR 1–

102(A)(6). 

IV. Count II—Statements Concerning Judge Dillard. 

 A. Controlling constitutional principles. Because sanctioning 

an attorney for statements he has made implicates the First Amendment, 

we begin with a discussion of the constitutional limitations that impact 
12

our consideration of this charge. Initially, we note that “attorneys may 

be sanctioned for impugning the integrity of a judge or the court only if 

their statements are false; truth is an absolute defense.” Standing 

Comm. on Discipline v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995) 

(citing Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 215, 13 

L. Ed. 2d 125, 132–33 (1964)). In general, even a false statement is 

protected by the First Amendment unless made with actual malice, 

which requires “knowledge that [the statement] was false or . . . reckless 

disregard of whether it was false or not.” New York Times Co. v. Sullivan, 

376 U.S. 254, 279–80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964) 

(holding First Amendment protects speech regarding a public official 

unless made with actual malice). The “reckless disregard” prong of the 

New York Times test “requires more than a departure from reasonably 

prudent conduct.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 

U.S. 657, 688, 109 S. Ct. 2678, 2696, 105 L. Ed. 2d 562, 589 (1989). 

“There must be sufficient evidence to permit the conclusion 

that the defendant in fact entertained serious doubts as to 

the truth of his publication” [or] . . . that the defendant 

actually had a “high degree of awareness of . . . probable 

falsity.” 

Id. (quoting St. Amant v. Thompson, 390 U.S. 727, 730–31, 88 S. Ct. 

1323, 1325, 20 L. Ed. 2d 262, 266–67 (1968)). 

 The Supreme Court has not applied the New York Times test to 

attorney disciplinary proceedings based on an attorney’s criticism of a 

judge. It appears a majority of jurisdictions addressing this issue has 

concluded the interests protected by the disciplinary system call for a 

test less stringent than the New York Times standard. See Yagman, 55 

F.3d at 1437 n.12; In re Cobb, 838 N.E.2d 1197, 1212-13 (Mass. 2005); 

Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 431 (Ohio 
13

2003). Courts in these jurisdictions have held that in disciplining an 

attorney for criticizing a judge, “the standard is whether the attorney had 

an objectively reasonable basis for making the statements.” Cobb, 838 

N.E.2d at 1212. 

 Interestingly, the Massachusetts Supreme Judicial Court has cited 

Iowa as one of the jurisdictions that apply an objective standard for 

malice rather than the subjective New York Times test. Id. (citing In re 

Citation of Frerichs, 238 N.W.2d 764, 767 (Iowa 1976)). This court did 

not discuss the New York Times test in Frerichs, but we did consider the 

attorney respondent’s argument that he did not intend by his statements 

“to allege the commission of any illegal actions on the part of the court.” 

Frerichs, 238 N.W.2d at 767. This court rejected any relevancy of the 

attorney’s subjective intent, stating: 

We do not believe respondent can avoid the impact of his 

assertions on the basis of his subjective intent. The [Iowa 

Code of Professional Responsibility for Lawyers] was not 

promulgated for the private intentions or feelings of judges or 

lawyers but to protect the integrity of, and public confidence 

in, our system of justice. Respondent’s assertions should be 

judged with a view to their likely effect on the public’s belief 

in the integrity of the court as an institution. The effect of 

the respondent’s remarks on the public’s belief is in no way 

related to his subjective intent. 

 Neither does respondent’s subjective intent relate to 

the question of whether his remarks were knowingly made. 

Respondent, as we have seen, expressly acknowledged his 

charges were “not made in haste or without appropriate 

consideration.” 

Id. It appears the present case is the first in which we have expressly 

considered the appropriate standard to apply in determining whether 

statements and accusations made by an attorney regarding a judicial 

officer enjoy constitutional protection. See, e.g., Iowa Supreme Ct. Bd. of 

Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 380–81 (Iowa 2001) 

(considering impact of First Amendment on attorney’s out-of-court 
14

statements regarding matters in litigation); Iowa Supreme Ct. Bd. of Prof’l 

Ethics & Conduct v. Wherry, 569 N.W.2d 822, 825 (Iowa 1997) 

(discussing limitations placed on regulation of attorney advertising by 

First Amendment). But see Iowa Supreme Ct. Bd. of Prof’l Ethics & 

Conduct v. Ronwin, 557 N.W.2d 515, 517–18 (Iowa 1996) (noting First 

Amendment test in case involving criticism of judge, but without any 

discussion of its applicability). 

 In reviewing cases from other jurisdictions, we find the rationale 

for using an objective standard in lieu of the New York Times test was 

convincingly expressed by the Minnesota Supreme Court in In re 

Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn. 1990), a case 

frequently cited for the proposition that an objective test should be used 

in attorney disciplinary proceedings. The Minnesota court said in that 

case: 

 This court certifies attorneys for practice to protect the 

public and the administration of justice. That certification 

implies that the individual admitted to practice law exhibits 

a sound capacity for judgment. Where an attorney criticizes 

the bench and bar, the issue is not simply whether the 

criticized individual has been harmed, but rather whether 

the criticism impugning the integrity of judge or legal officer 

adversely affects the administration of justice and adversely 

reflects on the accuser’s capacity for sound judgment. An 

attorney who makes critical statements regarding judges and 

legal officers with reckless disregard as to their truth or 

falsity and who brings frivolous actions against members of 

the bench and bar exhibits a lack of judgment that conflicts 

with his or her position as “an officer of the legal system and 

a public citizen having special responsibility for the quality of 

justice.” 

 . . . . 

 Because of the interest in protecting the public, the 

administration of justice and the profession, a purely 

subjective standard is inappropriate. The standard applied 

must reflect that level of competence, of sense of 

responsibility to the legal system, of understanding of legal 

rights and of legal procedures to be used only for legitimate 

purposes and not to harass or intimidate others, that is 
15

essential to the character of an attorney practicing in 

Minnesota. Thus, we hold that the standard must be an 

objective one dependent on what the reasonable attorney, 

considered in light of all his professional functions, would do 

in the same or similar circumstances. 

Graham, 453 N.W.2d at 322 (quoting Minn. R. Prof’l Conduct, Preamble). 

As another court has noted, 

an objective malice standard strikes a constitutionally 

permissible balance between an attorney’s right to criticize 

the judiciary and the public’s interest in preserving 

confidence in the judicial system: Lawyers may freely voice 

criticisms supported by a reasonable factual basis even if 

they turn out to be mistaken. 

Yagman, 55 F.3d at 1438. We are persuaded by the rationale given in 

support of applying an objective standard in cases involving criticism of 

judicial officers. Therefore, we will employ that standard in considering 

whether Weaver’s statements concerning Judge Dillard are sanctionable. 

 In deciding whether Weaver’s statements are protected by the First 

Amendment, we must also be aware of the “constitutional limits on the 

type of speech” that may be the subject of discipline. Milkovich v. Lorain 

Journal Co., 497 U.S. 1, 16, 110 S. Ct. 2695, 2704, 111 L. Ed. 2d 1, 16 

(1990) (considering this issue in the context of a defamation action 

brought against a newspaper and its reporter). Although statements of 

opinion are not automatically protected by the First Amendment, “a 

statement of opinion relating to matters of public concern which does not 

contain a provably false factual connotation will receive full 

constitutional protection.” Id. at 18, 20, 110 S. Ct. at 2705, 2706, 111 

L. Ed. 2d at 17–18. In addition, “statements that cannot ‘reasonably [be] 

interpreted as stating actual facts’ about an individual,” such as 

“rhetorical hyperbole,” will also be protected by the First Amendment. Id.

at 20, 110 S. Ct. at 2706, 111 L. Ed. 2d at 19 (quoting Hustler Magazine 

v. Falwell, 485 U.S. 46, 50, 108 S. Ct. 876, 879, 99 L. Ed. 2d 41, 48 
16

(1988)). But if the statement, even when couched as opinion, implies the 

assertion “of an objectively verifiable event,” “susceptible of being proved 

true or false,” only the limited protection provided by the malice 

requirement is demanded by the First Amendment. Id. at 21-22, 110 

S. Ct. at 2707, 111 L. Ed. 2d at 19-20. 

 As applied to the case before us, these authorities require that we 

first decide whether Weaver’s statements are “sufficiently factual to be 

susceptible of being proved true or false.” Id. at 21, 110 S. Ct. at 2707, 

111 L. Ed. 2d at 19. If so, the next step is to determine the truth or 

falsity of these statements. If we find Weaver’s statements were false, we 

must then decide whether Weaver had “an objectively reasonable basis 

for making the statements.” Cobb, 838 N.E.2d at 1212. If we conclude 

Weaver’s statements are not entitled to First Amendment protection, we 

may proceed to a determination of whether his statements violated our 

Code of Professional Responsibility. We will discuss each statement 

separately. 

 B. Statement Regarding Cancellation of the Hearing to 

Reconsider Sentence. 

1. Type of statement. As noted above, Weaver stated to a 

newspaper reporter that Judge Dillard canceled the hearing scheduled 

on Weaver’s motion to reconsider sentence in response to receiving 

Weaver’s treatment records. We think this assertion—the judge 

cancelled the hearing in response to receiving Weaver’s medical records—

is capable of being proved true or false. Therefore, it is the type of 

statement that does not enjoy full constitutional protection. 

 2. Falsity of statement. In his order of May 31, Judge Dillard 

expressly stated he was canceling the hearing “[f]or the reason that the 

Defendant [Weaver] has filed a Notice of Appeal in this matter,” which, in 
17

fact, Weaver had done. Judge Dillard’s subsequent order of June 1 

amplified this reason: 

The Defendant’s appeal of the judgment and sentence of the 

court and his posting of the appeal bond has stayed the 

execution of the sentence. The Defendant’s rejection of the 

court’s judgment makes it impossible for the court to 

evaluate the rehabilitative effect of the sentence. 

The judge’s announced reason for canceling the hearing was entirely 

consistent with the court’s May 6 order scheduling the hearing, in which 

the judge stated: “[T]he court believes that the Defendant’s sentence 

should commence and that any reconsideration of sentence would be 

based, in part, upon the progress of the Defendant in the treatment 

program pursuant to Iowa Code section 904.513.” 

 At the hearing on the Board’s complaint, Weaver was specifically 

asked why he believed “Judge Dillard canceled the hearing in response to 

the treatment records.” He answered, “I don’t know. I know that he did. 

I don’t know why.” Weaver then acknowledged that the only evidence he 

had to support his assertion was timing: the treatment records had been 

provided to the court in the last half of May, and on May 31, Judge 

Dillard canceled the hearing to reconsider Weaver’s sentence. Weaver 

suggested that the records “disrupt[ed] the reasoning that [Judge Dillard] 

gave on April 18th for the sentence pronounced.” Weaver also admitted, 

however, that the timing of these events could be a mere coincidence 

rather than a cause-effect sequence. 

 Based on our review of the record, we are convinced the Board has 

met its burden to prove Weaver’s statement that the judge canceled the 

June 3 hearing because the judge had received Weaver’s treatment 

records was false. The reason given in the judge’s orders with respect to 

the cancellation of the hearing was entirely consistent with the judge’s 
18

earlier statement that he wanted Weaver to commence his sentence 

before any reconsideration of that sentence. 

 In addition, we find unpersuasive Weaver’s argument that the 

judge was motivated to cancel the hearing because the records in some 

way undermined the reasons the judge had given for the selected 

sentence. Judge Dillard was aware at the time of sentencing that Weaver 

had successfully completed treatment through MARC. By the time 

Judge Dillard scheduled the June 3 hearing, which he did on May 6, 

2005, Weaver’s successful treatment at MARC had already been 

documented in the court file.3 The records the judge subsequently 

received later in May merely confirmed what the judge already knew and 

what was already contained in the record. Consequently, if in fact the 

MARC records undermined the judge’s sentencing decision, that “fact” 

existed at the time the judge set the hearing. The only circumstance that 

changed between May 6, when the hearing was set, and May 31, when it 

was cancelled, was the judge’s awareness that Weaver had filed a notice 

of appeal. The sequence of events simply does not support Weaver’s 

contention that the filing of the MARC records prompted the cancellation 

of the hearing. 

 3. Existence of objectively reasonable basis for making the 

statement. Weaver admitted that prior to his interview by the newspaper 

reporter he had seen the court’s May 31 order canceling the hearing, as 

well as the court’s June 1 order denying Weaver’s motion to reconsider 

the cancellation of the hearing. If there had been any question in 

 3When Weaver filed his motion to reopen the record on May 4, 2005, he attached 

four letters and reports, including his MARC discharge summary. These letters, 

reports, and records documented Weaver’s participation in and successful completion of 

the MARC program, as well as his ongoing recovery efforts. These attachments also 

included a letter from the department of correctional services stating that, if Weaver 

“had satisfied the need for primary treatment[,] he would be placed in Phase II [of the 

OWI program].” 
19

Weaver’s mind after the May 31 order as to why the notice of appeal 

would cause the judge to cancel the hearing, that question was answered 

by the judge’s second order. Consequently, it should have been apparent 

to a reasonable attorney having the information known to Weaver at the 

time Weaver spoke to the reporter that Judge Dillard did not cancel the 

hearing on Weaver’s motion to reconsider because the judge had received 

Weaver’s treatment records. To the contrary, the judge was clear in his 

May 6 order that he set the hearing far enough in the future to allow 

implementation of sentence—commencement of the treatment program—

and an evaluation of Weaver’s progress in the program prior to the 

court’s reconsideration of the sentence. The judge’s June 1 order was 

similarly clear: Because Weaver had appealed, sentence had been 

stayed, Weaver had not begun the treatment program, there was no way 

the judge could consider the rehabilitative effect of the program, and 

hence, there was no purpose in having the hearing. 

 As we have discussed, Weaver has not suggested a credible basis 

for his view that the judge cancelled the hearing for a reason other than 

that stated in the judge’s orders. We conclude Weaver did not have an 

objectively reasonable basis for his statement that Judge Dillard 

cancelled the hearing as a result of receiving Weaver’s treatment records. 

Consequently, Weaver acted in reckless disregard for the truth or falsity 

of his statement and thereby forfeited the protection of the First 

Amendment. 

 4. Ethical violation. Among other violations, the Commission 

concluded Weaver’s statement with respect to cancellation of the hearing 

was a misrepresentation of fact in violation of DR 1–102(A)(4) (a lawyer 

shall not “[e]ngage in conduct involving dishonesty, fraud, deceit or 

misrepresentation”). We have held that a “[n]egligent misrepresentation 
20

does not violate DR 1–102(A)(4).” Iowa Supreme Ct. Bd. of Prof’l Ethics & 

Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004); accord Comm. on 

Prof’l Ethics & Conduct v. Bitter, 279 N.W.2d 521, 526 (Iowa 1979) 

(stating the rule is not “violated by acts resulting from ‘haste’ or 

‘oversight’ ”). Proof of “an intent to deceive” is required. Moorman, 683 

N.W.2d at 553. Intent to deceive can be shown by an attorney’s reckless 

disregard for the truth, as well as by actual knowledge of falsity. Iowa 

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 

293 (Iowa 2002). Thus, to prove a violation of DR 1–102(A)(4), the Board 

must establish (1) that Weaver’s statement was not true, and (2) that he 

made the statement with actual knowledge of falsity or in reckless 

disregard for whether the statement was true or not. 

 We have already determined that Weaver’s statement was false. 

Based on our review of the record, we are also convinced Weaver either 

knowingly or recklessly misrepresented the judge’s reason for canceling 

the hearing. At the time Weaver commented on the judge’s decision to 

cancel the hearing, Weaver was upset that the judge would not 

reconsider his sentence unless he had served some portion of it. In an 

attempt to characterize himself as the victim of unfair treatment by the 

court, he publicly claimed the judge had cancelled the hearing upon 

receipt of Weaver’s records, implying the judge wanted to avoid a hearing 

on Weaver’s sentence because the records would have shown the 

sentence was not justified. In addition, Weaver did not make this 

statement in haste. To the contrary, he testified that he carefully 

thought about what he wanted to say to the reporter, as “[i]t was very 

important” for him—Weaver—“to communicate to the public.” We believe 

the Board has proved by a convincing preponderance of the evidence that 

Weaver intended to deceive the reporter and the public in making this 
21

statement, or at the least acted in reckless disregard for whether his 

statement was true or not. We hold, therefore, that Weaver violated 

DR 1–102(A)(4). 

 C. Statement Regarding Judge Dillard’s Reason for Sentencing 

Weaver to the Department of Corrections. 

1. Type of statement. As noted above, when Weaver was 

interviewed by the Muscatine Journal reporter, Weaver stated Judge 

Dillard was “not being honest about the reasons why he committed me to 

the Department of Corrections,” a statement repeated in the newspaper 

article. We think this statement “ ‘is an articulation of an objectively 

verifiable event.’ ” Milkovich, 497 U.S. at 21, 110 S. Ct. at 2707, 111 

L. Ed. 2d at 20 (quoting Scott v. News-Herald, 496 N.E.2d 699, 707 (Ohio 

1986)). 

 In Milkovich, the court considered a newspaper article, entitled 

“Maple beat the law with the ‘big lie.’ ” Id. at 4, 110 S. Ct. at 2698, 111 

L. Ed. 2d at 8. The article discussed a court decision overturning the 

disqualification of the Maple Heights High School wrestling team from 

the state tournament. Id. In the article, the reporter stated, among 

other things, “ ‘Anyone who attended the meet . . . knows in his heart 

that [wrestling coach] Milkovich and [superintendent] Scott lied at the 

hearing after each having given his solemn oath to tell the truth. But 

they got away with it.’ ” Id. at 5, 110 S. Ct. at 2698, 111 L. Ed. 2d at 9 

(quoting Milkovich v. News-Herald, 545 N.E.2d 1320, 1321–22 (Ohio 

1989)). In the subsequent defamation suit brought by Milkovich, an 

Ohio trial court granted the defendants a summary judgment “in part on 

the grounds that the article constituted an ‘opinion’ protected from the 

reach of state defamation law by the First Amendment.” Id. at 3, 110 
22

S. Ct. at 2698, 111 L. Ed. 2d at 8. The Supreme Court reversed with the 

following analysis: 

The dispositive question in the present case then becomes 

whether a reasonable factfinder could conclude that the 

statements in the [newspaper article] imply an assertion that 

petitioner Milkovich perjured himself in a judicial 

proceeding. We think this question must be answered in the 

affirmative. As the Ohio Supreme Court itself observed: 

“[T]he clear impact in some nine sentences and a caption is 

that [Milkovich] ‘lied at the hearing after . . . having given 

his solemn oath to tell the truth.’ ” This is not the sort of 

loose, figurative, or hyperbolic language which would negate 

the impression that the writer was seriously maintaining 

that petitioner committed the crime of perjury. Nor does the 

general tenor of the article negate this impression. 

Id. at 21, 110 S. Ct. at 2707, 111 L. Ed. 2d at 19 (quoting Scott, 496 

N.E.2d at 707). 

 The facts in Milkovich can be helpfully contrasted to the facts in 

Yagman. In the latter case, Yagman, an attorney, wrote a letter critical of 

one Judge Keller in which he stated, in part: 

It is an understatement to characterize the Judge as “the 

worst judge in the central district.” It would be fairer to say 

that he is ignorant, dishonest, ill-tempered, and a bully, and 

probably is one of the worst judges in the United States. 

55 F.3d at 1434 n.4. Yagman was subsequently disciplined by a federal 

district court for alleging that the judge was “dishonest.” Id. at 1440. 

On appeal, the circuit court reversed, concluding that when considered 

in context, Yagman’s statement “cannot reasonably be interpreted as 

accusing Judge Keller of criminal misconduct”: 

The term “dishonest” was one in a string of colorful 

adjectives Yagman used to convey the low esteem in which 

he held Judge Keller. The other terms he used—“ignorant,” 

“ill-tempered,” “buffoon,” “sub-standard human,” “right-wing 

fanatic,” “a bully,” “one of the worst judges in the United 

States”—all speak to competence and temperament rather 

than corruption; together they convey nothing more 

substantive than Yagman’s contempt for Judge Keller. 

Viewed in context of these “lusty and imaginative 
23

expression[s],” the word “dishonest” cannot reasonably be 

construed as suggesting that Judge Keller had committed 

specific illegal acts. Yagman’s remarks are thus statements 

of rhetorical hyperbole, incapable of being proved true or 

false. 

Id. (citations omitted) (emphasis added). 

 We think the facts of the present case more closely line up with 

those in Milkovich than with those in Yagman. Weaver was reported as 

having said “I can’t speculate about the reasons why he did this, . . . 

[b]ut he’s not being honest about the reasons why he committed me to 

the Department of Corrections.” “[T]he clear impact” of this statement is 

that Judge Dillard gave false reasons for the sentence he imposed. 

Milkovich, 497 U.S. at 21, 110 S. Ct. at 2707, 111 L. Ed. 2d at 19. 

Paraphrasing the Supreme Court, Weaver’s statement “is not the sort of 

loose, figurative, or hyperbolic language which would negate the 

impression that [Weaver] was seriously maintaining that [the judge had 

not been honest].” Id. Moreover, it was not an expression of opinion; it 

was a specific statement about specific wrongdoing by the judge, capable 

of being proved true or false. 

 Nor do we think Weaver’s statement is protected simply because he 

prefaced it with the remark that he couldn’t speculate on “the reasons 

why [the judge] did this.” This remark did not transform Weaver’s 

statement that the judge had not been honest into a protected opinion; it 

simply left the reader at liberty to assume that Weaver knew more than 

he was saying. Cf. Veilleux v. Nat’l Broad. Co., 206 F.3d 92, 115 (1st Cir. 

2000) (“Whether an opinion is protected hyperbole depends primarily 

upon whether a reasonable person would not interpret it as providing 

actual facts about the described individual.”); Yagman, 55 F.3d at 1439 

(discussing distinction between opinion statements “based on assumed 

or expressly stated facts, and those based on implied, undisclosed facts” 
24

and stating that when “[r]eaders of [the] statement will reasonably 

understand the author to be implying that he knows facts supporting his 

view,” the statement can be the subject of discipline). We conclude, 

therefore, that Weaver’s statement does not enjoy full constitutional 

protection and can properly be the subject of discipline. 

 2. Falsity of statement. To determine the truth or falsity of 

Weaver’s statement, it is necessary to more closely examine the 

circumstances leading up to it. When Judge Dillard scheduled the 

sentencing hearing, he ordered Weaver to complete an alcohol 

evaluation. At the sentencing hearing, Weaver offered his 2003 

evaluation at Rush as compliance with the court’s order. This evaluation 

was attached to the presentence report prepared by the Department of 

Correctional Services. Although the presentence report included no 

other medical records, Weaver stated to the court that he had no 

additions or corrections to make to the presentence report other than 

some minor corrections to some financial information. 

 Pursuant to the parties’ plea agreement, the State recommended a 

sentence of 180 days in jail, with all but seven days suspended; a fine of 

$1500, plus costs and surcharge; and evaluation and treatment for 

substance abuse, if deemed appropriate by the court. Weaver’s attorney 

asked the court to approve the plea agreement and requested that the 

court give Weaver credit against his jail time for his inpatient treatment 

after his arrest for second-offense OWI. Neither party presented any 

evidence, although given the opportunity to do so. Weaver was offered 

his right of allocution, which he exercised to detail the treatment he had 

received for his alcoholism and depression, as well as the efforts that he 

had taken to remain abstinent after the completion of his most recent 

inpatient treatment. He suggested to the court that jail would not be “a 
25

significant consequence” to him and that he had already undertaken 

sufficient rehabilitative measures. 

 The court then questioned Weaver extensively concerning the 

various treatment programs he had completed and also inquired about 

his relapses. Weaver acknowledged that he had been in denial of his 

problem for a long time, and that he had not always agreed that he 

needed treatment. Judge Dillard asked Weaver whether his current 

abstinence might not be just another chapter in a book of treatment 

followed by relapse. Weaver assured the judge that this time he had “a 

very different sense of well-being.” 

 Judge Dillard then discussed his sentencing considerations, 

stating his two primary concerns were “protection of the community and 

[Weaver’s] rehabilitation.” The judge expressly rejected the need for 

punishment and stated that the notion that Weaver should be held 

especially accountable because he was a judge at the time of his offense 

was not a legitimate consideration for sentencing. Judge Dillard noted, 

however, that Weaver’s judicial position did have some relevance in that 

it provided Weaver with information that should have alerted him to the 

seriousness of his condition and the options available to him to address 

that condition. The judge observed that, notwithstanding Weaver’s 

knowledge about the danger of drinking and driving and the fact that he 

was jeopardizing his career by such conduct, Weaver was unable to 

overcome his addiction. Judge Dillard expressed doubt that Weaver 

really had his addiction under control: 

I think that alcohol is a tremendously debilitating addiction 

and that because of the length of time that you’ve been 

drinking as much as you have over the years as reported in 

the [presentence] report, that it’s beyond your will power to 

deal with this subject, at least I’m not convinced that you 

can control it. 
26

 The judge then announced his decision. He expressly rejected the 

option of prison or the county jail, noting incarceration is “merely 

punitive” and “accomplishes nothing other than abstinence.” Invoking 

section 904.513 (the OWI continuum-of-treatment sentencing option), 

the judge sentenced Weaver to the Department of Corrections for an 

indeterminate term not to exceed two years and ordered that he be 

placed at an appropriate alcohol treatment correctional facility. Judge 

Dillard noted that, upon Weaver’s “achievement of the maximum benefits 

from the program, [Weaver] would be released on parole,” which in the 

judge’s view would occur in a significantly shorter period of time than for 

the “standard person” given the number of treatment programs in which 

Weaver had already participated. Judge Dillard summarized his 

thinking, stating: “But I think that another go around of intensive 

treatment is appropriate, and that’s the setting that I think is the best 

available that we can monitor and control.” 

 Weaver immediately requested that the court leave the record open 

so he could provide the judge with his records from MARC. Weaver 

stated his belief that the facility providing treatment for the Department 

of Corrections is the same facility that conducts the MARC program. He 

further asserted that he would have produced witnesses had he 

anticipated the court would have any concerns and that he considered 

the sentence punitive. 

 In response, Judge Dillard stated that he was “open to 

reconsideration,” noting “this is a sentence that can be reconsidered.” 

Nonetheless, he refused to do so at that time, stating, “I’m not going to 

change my mind today on the sentence.” Judge Dillard further noted 

that Weaver would have to file a motion to reconsider. The parties then 

agreed on a mittimus date of May 6. 
27

 As previously noted, Weaver subsequently filed a motion to 

reconsider, but the hearing on that motion was cancelled after Weaver’s 

sentence was stayed upon his filing of a notice of appeal. Weaver was 

then interviewed by a journalist who reported that Weaver stated Judge 

Dillard was “not being honest about the reasons why he committed me to 

the Department of Corrections.” 

 At the hearing before the Grievance Commission, Weaver was 

asked by the Board’s counsel to explain in what way Judge Dillard was 

not honest about the reasons for the sentence that was imposed. 

Weaver’s answer was far from concise, rambling for five pages of the 

transcript. Omitting repetitive and nonresponsive material, we quote 

Weaver’s answer: 

The primary objective that the Court identifies for the term of 

sentencing is to provide for my rehabilitation and to protect 

members of the public. I took that to be a consideration that 

the judge was concerned about my long-term recovery. 

Unfortunately, the judge, as do many persons, equate[s] 

treatment with recovery. . . . [T]reatment and recovery are 

not identical concepts. 

 Therefore, my view was that his primary objective was 

recovery. There’s also a part of the transcript . . . in which 

the judge and I specifically discuss the various components 

of the OWI treatment facility. And those two components . . . 

[were] the treatment component and the vocational antisocial 

component. 

 . . . I asked the judge if he felt it was necessary that I 

be involved in [the vocational antisocial] component, and he 

indicated that he did not. 

 So at that time on April 18th I considered that there 

were—the two primary objectives were recovery, protection of 

the public, with the caveat that I did not, in view of the 

Court, need those rehabilitative services. 

We fail to find in this testimony any clue of an alleged falsity in Judge 

Dillard’s announced reasons for sentencing Weaver to the Department of 

Corrections. 
28

 After Weaver’s testimony, Judge Dillard testified that he—the 

judge—sensed at the sentencing hearing that Weaver was attempting to 

manipulate the sentencing process. Weaver now seizes on this 

testimony, claiming it reveals a “significant” reason for the sentence that 

Judge Dillard did not disclose at the sentencing hearing. The judge’s 

perception of Weaver as manipulative cannot be divorced, however, from 

one of the announced reasons for the sentence—the need for treatment. 

Judge Dillard testified: 

But the strongest impression that I had that has stuck with 

me throughout and without reading that transcript again 

was that Mr. Weaver was trying to control the sentencing. 

He was trying, in my view, to manipulate the entire process 

to avoid any incarceration, to avoid being put under control 

of someone else. And to me that is a classic alcoholic 

characteristic.

(Emphasis added.) The judge also testified that Weaver’s controlling 

personality led the judge to believe that court-ordered treatment, 

supervised by the Department of Corrections, as opposed to voluntary 

treatment controlled by Weaver, would be advisable. Thus, Judge 

Dillard’s testimony that he viewed Weaver as manipulative was not an 

independent reason for the sentence. It merely supported the judge’s 

belief that another round of treatment—under state supervision—would 

be prudent to determine, as Judge Dillard stated at sentencing, “whether 

in fact [the treatment] has taken.” 

 After a careful review of the record, we are persuaded by a 

convincing preponderance of the evidence that Weaver’s statement that 

Judge Dillard was not being honest about why he sentenced Weaver to 

the Department of Corrections was false. Judge Dillard had serious 

doubts that Weaver was sufficiently rehabilitated such that he would not 

once again drink and drive. As the judge stated when explaining his 
29

sentence, “I’m concerned about this being the last time James Weaver is 

before a court for any reason, but certainly for operating while 

intoxicated.” We conclude Judge Dillard honestly stated his reasons for 

sentencing Weaver to the Department of Corrections. Weaver’s contrary 

accusation was false. 

 3. Existence of objectively reasonable basis for making the 

statement. We have failed to discover in the record any objectively 

reasonable basis for Weaver’s assertion that Judge Dillard was not 

honest in stating his reasons for the sentence. Weaver’s own testimony 

belies a factual basis for his statement. When asked at the disciplinary 

hearing to explain his decision to speak with a reporter, Weaver testified 

“[i]t was very important” for him “to communicate to the public” 

regarding “the general impression left by the judge from his sentence that 

[Weaver] was not fully participating in a treatment program.” He 

explained: 

The [newspaper] reporting was that the judge concluded that 

I continued to be in need of substance abuse treatment. I 

felt that the comments that appeared in the paper suggested 

that my prior representations in a public setting were not 

truthful in the sense that I continued to need further 

treatment. Therefore, I felt inclined, when the judge issued 

this ruling and it became public, to make a comment that it 

was my feeling that treatment was not the primary focus of 

his sentence, which I was convinced of then and I remain 

convinced of today.4

We agree with the finding of the Commission as to Weaver’s true 

motivation in talking to the press: 

As clearly reflected in his testimony, [Weaver] was concerned 

about how previous newspaper articles had characterized 

 4This testimony is an example of Weaver’s self-serving characterization of the 

facts. When Weaver spoke with the reporter, he did not merely state his belief “that 

treatment was not the primary focus of [the judge’s] sentence.” Weaver impugned the 

judge’s integrity by stating the judge was not honest. 
30

Judge Dillard’s sentencing order. Quite simply, [Weaver] felt 

that he was the recipient of some bad press, and he went on 

a public relations offensive. In order to counter an article 

that questioned his honesty, [Weaver] questioned Judge 

Dillard’s honesty. 

Weaver acted on the basis of his anger when he said Judge Dillard was 

dishonest, not because there was any basis to believe that the judge had 

not stated the true reasons for Weaver’s sentence. See In re Pyle, 156 

P.3d 1231, 1247 (Kan. 2007) (holding attorney’s criticism of members of 

disciplinary board was not protected by the First Amendment: “There is 

a line between just and unjust criticism. Respondent crossed it. This is 

evident from his plainly selfish motive. He displayed no desire to improve 

the disciplinary system, only to excuse its focus on him.”). 

 We conclude Weaver did not have an objectively reasonable basis 

for his statement that Judge Dillard was not honest when he stated his 

reasons for sentencing Weaver to the Department of Corrections. 

Therefore, Weaver’s conduct reflects a reckless disregard for the truth or 

falsity of his statement. Accordingly, this statement is not protected 

speech. 

 Our decision in this matter should not be construed as implying 

that a lawyer may be sanctioned merely for challenging or criticizing 

judicial acts. Judicial outcomes may be controversial and are often 

subject to robust public comment. Although it is well established that 

the speech of lawyers may be curtailed in order to avoid improper 

influence on pending cases, particularly when a jury is involved, or to 

otherwise prevent obstruction of justice, we recognize that the First 

Amendment generally protects lawyers who engage in fair commentary 

and expression of opinion regarding the state of the law. In re Sawyer, 

360 U.S. 622, 627–28, 79 S. Ct. 1376, 1378–79, 3 L. Ed. 2d 1473, 1478–

79 (1959) (Brennan, J., plurality opinion). Further, the mere assertion 
31

by a dissenting judge or by academics that a court commits an honest 

error is not the basis for ethical sanctions. W. Bradley Wendel, Free 

Speech for Lawyers, 28 Hastings Const. L.Q. 305, 331–32 (2001). 

 In this case, however, Weaver did not simply disagree with Judge 

Dillard’s reasoning or factual premises or argue that Judge Dillard’s 

decision was inconsistent with precedent, improperly balanced the 

interests involved, or was contrary to history, tradition, and common 

sense. Moreover, unlike in Yagman, Weaver did not claim he was 

expressing an opinion that Judge Dillard was “intellectually dishonest,” 

in the sense that Judge Dillard’s sentencing decision might have been 

based upon an unstated premise or hidden bias. See Yagman, 55 F.3d 

at 1441. Instead, Weaver accused a judge of a specific act of dishonesty 

which he characterized at the hearing before the Commission as a 

“knowing concealment” of the judge’s reasons for sentencing him. He 

was utterly unable to provide a reasonable basis for this charge at the 

hearing. Under these facts, we conclude that the First Amendment does 

not protect Weaver from being sanctioned for professional misconduct. 

 4. Ethical violation. Having determined Weaver falsely accused 

Judge Dillard of being dishonest in stating his reasons for the sentence 

imposed, we now consider whether this conduct violated the Iowa Code 

of Professional Responsibility for Lawyers. We conclude Weaver’s 

conduct violated DR 1–102(A)(5), which prohibits an attorney from 

“engag[ing] in conduct that is prejudicial to the administration of 

justice.”5 

 5Although the Board asserts Weaver violated additional disciplinary rules in 

stating Judge Dillard was not being honest, we do not discuss them, as they would be 

merely cumulative, would not change our decision with respect to an appropriate 

sanction, and would unnecessarily lengthen this opinion. 
32

 As we have observed in the past, “[f]alse accusations against 

judges harm the courts as institutions.” Comm. on Prof’l Ethics & 

Conduct v. Hurd, 360 N.W.2d 96, 104 (Iowa 1984). By falsely accusing 

Judge Dillard of not being honest concerning his sentencing decision, 

Weaver implied there was some improper or sinister motivation 

underlying the judge’s decision. See Frerichs, 238 N.W.2d at 767 (noting 

attorney’s statements attributed to the court “sinister, deceitful and 

unlawful motives and purposes”). That Weaver’s statement could be so 

interpreted is clearly illustrated by the reporter’s headline: “Bias on the 

bench. Ongoing court battle pits judge against retired judge as Weaver 

makes allegations of personal bias, dishonesty against presiding judge.” 

Clearly, Weaver’s statement left the impression that courts do not do 

justice, but rather make decisions for undisclosed and improper reasons. 

When the public loses confidence in the integrity of the courts, the 

administration of justice is prejudiced. See Notopoulos v. Statewide 

Grievance Comm., 890 A.2d 509, 521 (Conn. 2006) (holding attorney’s 

disparaging statements regarding judge violated rule prohibiting conduct 

prejudicial to the administration of justice); Pyle, 156 P.3d at 1247 

(stating the “administration of justice” rule seeks to protect the justice 

system in general from prejudice, not only a single trial or adjudicatory 

proceeding); Graham, 453 N.W.2d at 324 (holding statements impugning 

integrity of judge prejudiced the administration of justice). Thus, Weaver 

engaged in conduct prejudicial to the administration of justice in 

violation of DR 1–102(A)(5). 

V. Discipline. 

 The principles guiding our decision as to the proper discipline are 

well established: 
33

The appropriate sanction in a particular case depends upon 

several factors that reflect the broad purpose of our 

disciplinary system. The disciplinary process is intended to 

protect not only the public, but also our system of justice. 

Therefore, we consider the nature and extent of the 

respondent’s ethical violations not only to determine the 

respondent’s fitness to practice law, but also to assess the 

need to deter other lawyers from similar misconduct. Only 

by ensuring that such conduct does not become 

commonplace or acceptable can we maintain the reputation 

of the bar and safeguard the integrity of our system of justice 

and the public’s confidence in it. Because “sanctions must 

be tailored to the facts of each case,” we also consider any 

mitigating and aggravating circumstances. 

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648, 

652 (Iowa 2002) (citations omitted) (quoting Mulford, 625 N.W.2d at 684). 

In light of these considerations, the Grievance Commission recommended 

a three-month suspension. 

 We agree with the Commission’s assessment that Weaver’s ethical 

infractions warrant a period of suspension. Weaver’s misconduct 

brought shame upon attorneys, judges, and the court system in general. 

His violation of the criminal laws is sufficient standing alone to warrant a 

short suspension. See, e.g., Iowa Supreme Ct. Bd. of Prof’l Ethics & 

Conduct v. Sloan, 692 N.W.2d 831, 831 (Iowa 2005) (three-month 

suspension for two misdemeanor drug convictions); Comm. on Prof’l 

Ethics & Conduct v. Shuminsky, 359 N.W.2d 442, 443 (Iowa 1984) (threemonth suspension for two misdemeanor drug convictions). His 

intemperate statements to the press further support the propriety of a 

suspension. Our system of justice cannot maintain the respect of its 

citizens if disappointed attorneys are permitted to make false and 

reckless accusations against judges. Such conduct must be 

discouraged. Moreover, Weaver’s misconduct is aggravated by the fact 

he has considerable professional experience as an attorney and as a 

judge. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Vinyard, 
34

656 N.W.2d 127, 131 (Iowa 2003) (stating substantial experience is an 

aggravating circumstance). 

 Weaver contends there are mitigating circumstances that justify a 

less onerous sanction. He accurately notes he has no history of making 

disrespectful or false statements regarding other attorneys or judicial 

officers. Although he also points out that this proceeding presents his 

first ethical violation “as an attorney,” that factor has little mitigating 

effect in view of the fact he has previously been reprimanded for a 

violation of the Code of Judicial Conduct. Weaver also relies on the lack 

of harm to any client. Even though his conduct did not harm a client, it 

brought the courts into disrepute, and therefore we do not consider the 

lack of harm to clients as an important mitigating factor. 

 Finally, Weaver argues any sanction should be mitigated by the 

fact he made the unethical statements as a litigant, not in his capacity as 

an advocate. He acknowledges the principle that the ethics rules apply 

to attorneys even when they are not acting in their professional capacity. 

See Thompson, 595 N.W.2d at 133–34. Nonetheless, he implies the 

adverse consequences of statements made by an attorney/litigant are 

minimal because “the readers of written comments understand the 

relationship between the court and the speaker.” We are not persuaded 

readers of Weaver’s statements simply chalked them up to an unhappy 

litigant. To the contrary, readers would be more likely to believe that 

Weaver, as an attorney and former judge, spoke with more knowledge 

and credibility than the average litigant unknowledgeable about the legal 

system. Consequently, we do not find Weaver’s litigant status to be a 

mitigating circumstance under the facts of this case. See Notopoulos, 

890 A.2d at 518 (holding disciplinary rules applied to attorney who 

disparaged judge handling case in which attorney was a pro se litigant: 
35

disciplinary rules “apply to attorneys whether they are representing 

clients or acting as pro se litigants unless the language of the rule or its 

relevant commentary clearly suggests otherwise”). 

 In summary, we do not think there are sufficiently mitigating 

circumstances to justify the issuance of a public reprimand in lieu of a 

suspension. We agree with the Commission’s recommendation that 

Weaver’s misconduct warrants a three-month suspension. 

VI. Disposition. 

 We suspend James Weaver’s license to practice law indefinitely 

with no possibility of reinstatement for three months. This suspension 

shall apply to all aspects of the practice of law. See Iowa Ct. R. 35.12(3). 

Upon application for reinstatement, Weaver must establish that he has 

not practiced law during the period of his suspension and that he has in 

all other ways complied with Iowa Court Rule 35.21. Costs are taxed to 

Weaver. See Iowa Ct. R. 35.25(1). 

LICENSE SUSPENDED. 

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