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IN THE SUPREME COURT OF IOWA No. 113 / 05-0575 Filed April 21, 2006 IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, vs. JAMES W. MCGRATH, Respondent.

Appeal from the report of the Grievance Commission.

Grievance Commission recommends suspension of respondent's license to practice law based on respondent's attempted exchange of legal services for sex. LICENSE SUSPENDED.

Charles L. Harrington and David J. Grace, Des Moines, for complainant.

David L. Brown and Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for respondent.

2 TERNUS, Justice. This case is one of troubling contrasts. The respondent, James W. McGrath, has practiced law for many years in this state and has a good reputation among the bench and bar. Former female clients have accused him of attempting to obtain and in fact accepting sexual favors in payment for his legal services. McGrath's testimony cannot be reconciled with those of the complaining witnesses. With no small measure of disappointment in this respected member of the bar, we are convinced he is guilty of the misconduct described by his former clients. Therefore, we suspend his license to practice law in this state indefinitely with no possibility of reinstatement for three years. I. Procedural Background. On December 22, 2003, the Iowa Supreme Court Board of Professional Ethics and Conduct (now the Iowa Supreme Court Attorney Disciplinary Board) filed a one-count complaint against the respondent alleging that on December 30, 2000, McGrath "made sexual advances toward Heather Williams[, his client,] by proposing an exchange of sex for fees." The board claimed this conduct violated the Iowa Code of

Professional Responsibility for Lawyers DR 1-102(A)(5), (6) and (7). Nearly a year later, on November 3, 2004, the board was allowed to amend its complaint to add a second count. In Count II, the board alleged that beginning in 2000, the respondent represented one "Jane Doe" in a marriage dissolution action. The board asserted that McGrath and Doe engaged in sexual relations in exchange for legal services. This conduct, the board alleged, violated DR 5-101(B) and DR 1-102(A)(1), (5) and (6). After a hearing before a division of the Iowa Supreme Court Grievance Commission, the commission issued its Findings of Fact, Conclusions of Law and Recommendations. Four of the five commissioners found the

3 testimony of Heather Williams "credible and compelling" and determined the board had proven that McGrath offered to represent Williams in a visitation dispute in exchange for sex, as alleged in count I. A one-year suspension was recommended. One commissioner dissented, notwithstanding his

conclusion that "Williams believed at the time, and believed as she testified in the hearing, that respondent made sexual advances to her in a proposed exchange for legal fees." This commissioner concluded the board had not met its burden of proof, however, "[i]n light of the denials of the respondent, and in light of the extensive and credible character evidence respondent . . . presented." With respect to count II, involving Jane Doe, four of the five commissioners concluded her testimony "was not sufficiently credible for the board to meet its burden of proof" in view of Doe's own admissions of having lied under oath and being a "compulsive liar." One commissioner dissented from this part of the commission's decision. (This commissioner was not the same one who had dissented from the commission's findings on count I of the complaint.) This dissenting commissioner found Doe to be a credible witness despite the respondent's attempts at impeachment. The dissenter gave numerous reasons for his credibility determination, stating in summary that Doe's "testimony rang true," and he "could find no reasonable motive for Jane Doe to have lied." II. Issues on Appeal. The respondent has appealed from the commission's report, raising several constitutional and evidentiary issues that we will address prior to considering the merits of the board's complaint. First, McGrath claims the commission erred in refusing to allow discovery of the board's investigative file and the medical and psychological records of the complaining witness in count I. He also argues the denial of this discovery violated his rights to

4 due process and equal protection of the laws. The respondent raises similar issues concerning the commission's refusal to allow him to depose the board's investigator. Finally, McGrath complains about the allowance of the amendment adding count II, the allowance of testimony from Doe and her former husband, and the general "unfairness" of the proceedings. 1 We will discuss each contention separately and then consider whether the board has proved the allegations made in its complaint. III. Discovery of Board's Work Product. A. Factual background. After the board filed its one-count complaint, the respondent requested production of the board's complete investigative file. The board produced 345 pages of documents, but objected to the production of "the work product of staff counsel, investigators or administrators of the board," pursuant to Iowa Court Rule 34.4. Rule 34.4(2) states that the board's files "shall be provided to the respondent within a reasonable time upon the respondent's request," "except for the work product of staff counsel, investigators, or administrators of the board." Iowa Ct. R. 34.4(2), para. 2. 2 In response to interrogatories filed by the
has also challenged the commission's decision to admit the testimony of Shannon Jackson, a former client who testified to prior similar acts by the respondent that occurred in 1994 when McGrath represented her in a custody dispute. Jackson, who was young and attractive, testified that when she was unable to pay the respondent's fees, McGrath repeatedly asked, "[I]f he did a favor for me, if I would do a favor for him." Jackson retained other counsel after McGrath called her prior to an evening appointment and asked her "to wear something easy to get off" and "don't bring a crowd." In addition, to Jackson's testimony, a transcript of a record of these incidents made before the judge hearing Jackson's dissolution action was also admitted. We do not decide whether this evidence of prior bad acts may properly be considered in this case to demonstrate that Williams did not misconstrue McGrath's statement that "since he was doing something nice for me that I could do something nice for him" as a reference to sexual favors. Even without the evidence of prior, similar acts by the respondent, we conclude the board has proven its allegations by a convincing preponderance of the evidence. See In re Interest of J.A.L., 694 N.W.2d 748, 753 (Iowa 2005) (declining to decide whether admission of prioracts evidence was harmless error because review was de novo and even without prior-acts evidence, delinquency charge had been established beyond a reasonable doubt). Subsequent to the hearing in this proceeding, the following sentence was added to rule 34.4(2): "For purposes of this rule, "work product" does not include a written statement signed or otherwise adopted or approved by the person making it or a
2 1McGrath

5 respondent, the board identified Elayne Sobel, the board's

paralegal/investigator, as a person involved in the board's investigation. After receiving the board's responses, the respondent sought to compel production of the withheld work-product materials, claiming the failure to produce these documents violated his due process right to "evidence favorable to the accused [that is] material to either guilt or punishment." He also claimed his rights under the federal and state Equal Protection Clauses were violated because similarly situated individuals-- judges subjected to disciplinary proceedings--are allowed to view all records and papers contained in the investigative file of the Commission on Judicial Qualifications. See Iowa Ct. R. 52.5(3) (prohibiting disclosure of "[a]ny records and papers contained in the commission's investigation file" other than to "the judicial officer, employee, the attorneys, or the attorneys' agents involved in the proceeding before the commission"). The respondent also noticed the deposition of Sobel, the board's investigator, but the board objected to the taking of her deposition, claiming her work product was confidential under court rule 34.4 and Iowa Rule of Civil Procedure 1.503. See generally Iowa Ct. R. 35.6 (stating discovery shall be permitted in a disciplinary action as provided in specified rules of civil procedure, including Iowa Rule of Civil Procedure 1.503). On April 13, 2004, the commission ruled on the respondent's motion to compel and the board's objections to Sobel's deposition. Although the commission ordered the board to furnish a list of persons interviewed by Sobel, it denied the remainder of McGrath's motion. The commission also refused to allow the deposition of Sobel. Both decisions were based on the protection of work product found in court rule 34.4(2).
__________________________________________ contemporaneous and substantially verbatim transcript or recording of a person's oral statement." Iowa Ct. R. 34.4(2), para. 2.

6 After the board amended its complaint on November 4, 2004, to add a second count involving Jane Doe, it amended its answers to interrogatories on December 8, 2004, to indicate that Doe and Doe's ex-husband would testify at the hearing and Sobel may be called as a witness "[i]f necessary" to "testify that on August 17, 2004, [Jane Doe] told her that [Doe] had sex with respondent in exchange for his legal services." The respondent then

renewed his request for the board's investigatory file and for Sobel's deposition. On the same day the respondent filed his discovery demands, the board obtained a signed affidavit from Doe admitting her sex-for-fees arrangement with McGrath, and so a few days later, the board withdrew Sobel from its witness list. Thereafter, the commission denied the

respondent's discovery requests, and the matter proceeded to hearing on January 11, 2005. As noted earlier, McGrath claims the commission's rulings protecting the board's work product from discovery were erroneous. He also asserts the limitations imposed on his discovery violated his due process and equal protection rights. B. Correctness of rulings. This court has held that Iowa Court Rule 34.4(2) protects from discovery the board's investigative reports and the work product of its counsel and staff. See Comm. on Prof'l Ethics & Conduct v. Hurd, 375 N.W.2d 239, 241-42 (Iowa 1985) (applying Rule of Procedure 2.1(d) of the Professional Ethics & Conduct Committee, now Iowa Court Rule 34.4(2)) (Hurd II); Comm. on Prof'l Ethics & Conduct v. Hurd, 360 N.W.2d 96, 100-01 (Iowa 1984) (same) (Hurd I). In essence, such materials "are made privileged" by the rule. Hurd I, 360 N.W.2d at 101. Because the board produced its entire file with the exception of work product materials, the commission properly denied McGrath's motion to compel. The

additional documents sought by the respondent were clearly privileged and

7 not subject to discovery. See Hurd II, 375 N.W.2d at 242 (holding

commission's denial of attorney's request for board's reports and investigation was proper because these documents were confidential); Hurd I, 360 N.W.2d at 101 (holding commission correctly denied respondent access to board's investigative report and staff counsel's work product because these materials were privileged). We are also convinced the testimony of the board's investigator is protected by the same rule. The privilege accorded the board's work

product by rule 34.4(2) would have little value if the person preparing that work product could be compelled to testify. This conclusion is not altered by the fact Sobel was briefly listed by the board as a potential witness. To the extent the board waived the protection afforded by rule 34.4(2) by its short-lived designation of Sobel as a witness, the board's removal of Sobel from its witness list prior to the hearing also constituted a withdrawal of any implied waiver of the work product privilege. See Squealer Feeds v. Pickering, 530 N.W.2d 678, 685 (Iowa 1995) (holding withdrawal of designation of prior attorney as an expert witness before the disclosure of any confidential communications constituted withdrawal of implied waiver of attorney-client privilege), abrogated in part on other grounds by Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 47-48 (Iowa 2004). Accordingly, we hold the commission did not err in denying

McGrath's request to depose investigator Sobel. C. Due process. Relying on criminal cases holding a defendant has a right to discover exculpatory evidence, McGrath claims his due process rights were violated here because the testimony of the board's investigator would have impeached Jane Doe. See generally Brady v. Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963) (holding prosecution's failure to produce exculpatory evidence was a violation of the

8 Due Process Clause of the Fourteenth Amendment); State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996) (holding "[e]vidence that may be used to impeach a witness's credibility is included in [Brady] rule"). It is not

entirely clear what exculpatory evidence McGrath sought from the board's investigatory file, but it appears he wanted, at a minimum, documentation of Sobel's communications with Doe. An attorney is entitled to procedural and substantive due process in disciplinary proceedings. Hurd I, 360 N.W.2d at 100. But a respondent in a disciplinary proceeding is not entitled "to the unique protections" afforded a criminal defendant. Hurd II, 375 N.W.2d at 246. We need not determine, for purposes of the case before us, the precise extent of an attorney's right to exculpatory materials. Even if we assume McGrath has the same right to exculpatory evidence that a criminal defendant has, his due process rights were not violated by the discovery rulings of the commission. We first observe that the Due Process Clause does not give the respondent "a right to rummage through the [board's] file to search for exculpatory material." Hurd I, 360 N.W.2d at 100. Therefore, the

commission's refusal to order the production of the board's complete file was not a due process violation. We focus, then, on the specific material McGrath apparently viewed as exculpatory: Sobel's conversations with Doe. To prove a Brady violation, McGrath must show (1) the board suppressed the requested evidence, (2) the evidence was favorable to McGrath, and (3) the evidence was material to whether he was guilty of the ethical charges. See Romeo, 542 N.W.2d at 551. We do not consider whether the first two elements are present because we are confident evidence of Sobel's conversations with Doe was not "material" as that term is used for purposes of the Brady rule.

9 Whether . . . evidence [is] material depends on whether "there is a reasonable probability that . . . the result of the proceeding would have been different." A "reasonable probability" of a different result is shown "when the [board's] evidentiary suppression `undermines confidence in the outcome of the [hearing].' " The [respondent] need not show that the disclosure of suppressed evidence would have resulted in [dismissal of the charges]. Id. (citations omitted). In Romeo, this court considered the effect of the prosecution's failure to disclose impeachment evidence. In that case, the prosecution did not reveal that the authorities had agreed to drop habitual-offender charges against a witness testifying against the defendant in exchange for the witness's cooperation in the defendant's prosecution. Id. We held this evidence was not material because the defendant's attorney knew the State's witness was "testifying under an agreement with the prosecuting authorities and he cross-examined [him] on this point at trial." Id. at 552. Thus, even if defense counsel had brought out the habitual-offender aspect of the witness's deal with the government, it was not reasonably probable that this fact would have changed the jury's evaluation of the witness's credibility. Id. The Romeo case illustrates the rule that there is no due process violation when the suppressed impeachment evidence is already, in substance, in the record or is merely cumulative to other admitted evidence. See Miller v. Dretke, 431 F.3d 241, 251 (5th Cir. 2005); United States v. Petrillo, 821 F.2d 85, 90 (2d Cir. 1987). When substantially the same evidence is already in the record, it can be reliably concluded that the suppressed impeachment evidence would have had no significant effect on the witness's credibility. See McHone v. Polk, 392 F.3d 691, 700 (4th Cir. 2004); Skinner v. Cardwell, 564 F.2d 1381, 1386 (9th Cir. 1977); Rowe v. Grizzard, 591 F. Supp. 389, 397 (E.D. Va. 1984). Because there is not a

10 reasonable probability that cumulative impeachment evidence would change the outcome of the proceeding, such evidence is not considered material. See Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989) (holding failure of prosecution to reveal complete details of star witness's grant of immunity was not a Brady violation in part because the evidence was not material). Applying these principles here, we conclude the evidence sought by the respondent was not material. Doe testified at the hearing that, at McGrath's request, she engaged in sexual relations with him in payment for his legal services. McGrath's counsel brought out in his cross-examination of Doe that she had denied such a relationship on several occasions in the past. Doe testified her fee arrangements with McGrath became an issue in the dissolution action in which McGrath was representing her. She

admitted she signed an affidavit that was filed in that matter in which she denied exchanging sex for fees. In addition, Doe testified that when

McGrath's attorney telephoned her prior to the hearing in the disciplinary case, she told him she had never had sex with the respondent. McGrath's counsel also brought out the fact that Doe did not want to be involved in the disciplinary proceedings and had initially refused to cooperate with the board. Doe admitted that after she had been subpoenaed for a deposition in the disciplinary case, she told the board's counsel that she would "say anything" and that she was a "compulsive liar." Finally, McGrath's counsel obtained admissions from Doe that she had alleged to him and to the respondent that the board's investigator harassed her with phone calls in an effort to obtain her testimony. Clearly, the respondent was able to use Doe's prior inconsistent statements and her perception of the board's communications with her to call into question the truth of her testimony as well as the voluntariness of it. We think any testimony by investigator

11 Sobel would have been merely cumulative and would not have added significantly to the impeachment potential of the evidence already in the record. Therefore, evidence from the board's file or from Sobel herself regarding Sobel's conversations with Doe was not material. McGrath's generalized assertions in his brief that the board's refusal to turn over its investigative materials "left McGrath in a situation where he was unable to fully prepare a defense" and "effectively blindsided" him at trial does not alter our conclusion. These allegations are unconvincing because the record shows McGrath undertook no discovery with respect to count II until less than a month before the hearing. Moreover, he vigorously resisted the board's attempt to take Doe's deposition, a deposition that would have given the respondent an opportunity for discovery as well. To the extent McGrath was unprepared for the hearing, he cannot fault the board for his predicament. McGrath's allegations of prejudice are also legally inadequate to establish the materiality of the evidence in question. "[G]eneralized assertions [that the defense was hindered] are insufficient to establish a reasonable probability of a different outcome." State v. Piper, 663 N.W.2d 894, 905 (Iowa 2003). For these reasons, we conclude the commission's refusal to order the production of the board's investigative file or to compel Sobel's deposition did not violate McGrath's due process rights. D. Equal protection. The respondent argues his right to equal

protection was violated because, with respect to the discovery of investigative materials, attorneys are treated differently in disciplinary cases than are judges subjected to similar proceedings. "Equal protection

requires only that those in similar positions be treated alike." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wherry, 569 N.W.2d 822, 827 (Iowa 1997). Assuming for purposes of our discussion that lawyers and judges who are the subject of disciplinary charges are similarly situated, we believe

12 they are treated the same--neither is allowed privileged work product from the investigation of the prosecuting authority. Iowa Court Rule 52.5(3) makes all records of the Iowa Commission on Judicial Qualifications "privileged and confidential," but with one exception discussed below, authorizes their release to "[t]he judicial officer . . . involved in the proceeding before the commission." Iowa Ct. R. 52.5(3). Although the broad discovery permitted by rule 52.5(3) appears at first blush to support McGrath's contention that attorneys are treated less favorably than similarly-situated judges, a closer examination of the disciplinary systems for attorneys and judicial officers reveals that lawyers and judges are actually treated in the same way. The commission on judicial qualifications receives complaints concerning judicial officers and eventually adjudicates the charges. See Iowa Code

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