IN THE MATTER OF MICHAEL PATRICK NASH, Applicant for the Iowa
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IN THE SUPREME COURT OF IOWA
No. 102 / 07-0286
Filed September 21, 2007
IN THE MATTER OF
MICHAEL PATRICK NASH,
Applicant for the Iowa Bar Examination.
On review of the decision of the Iowa Board of Law Examiners.
Petitioner seeking permission to take the Iowa bar examination
requests judicial review of Iowa Board of Law Examiners’ adverse decision.
PETITION FOR PERMISSION TO TAKE BAR EXAMINATION GRANTED.
Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C.,
Des Moines, for applicant.
Thomas J. Miller, Attorney General, and Jeanie Kunkle Vaudt,
Assistant Attorney General, for Iowa Board of Law Examiners.
2
HECHT, Justice.
Michael Nash seeks review of the Iowa board of law examiners’ denial
of his application to take the Iowa bar examination.
After holding an
evidentiary hearing on the question whether Nash possesses the requisite
character and fitness to practice law, the board denied Nash’s application.
We conclude Nash has satisfied his burden to demonstrate his good moral
character and fitness to practice law. We therefore reverse the board’s
denial of his application and grant his petition for permission to take the
bar examination.
I. Background Facts and Proceedings.
On February 24, 2006, Michael Nash, a third-year law student at
Creighton University School of Law, submitted an application to take the
July 2006 Iowa bar exam.
Question 32(h) of the application inquired
whether Nash had ever been “formally or informally investigated,
reprimanded, disciplined, discharged or asked to resign by an employer or
educational institution for misconduct, including . . . actions in disregard
for health, safety and welfare of others.” Nash responded in the affirmative,
disclosing in 2002 he was accused of sexually abusing a minor
approximately twenty years earlier while he was employed as a Roman
Catholic priest in Juneau, Alaska.
Upon receipt of Nash’s application, the board initiated an
investigation of his moral character and fitness to practice law. See Iowa
Ct. R. 31.9(1) (2006)1 (“The Iowa board of law examiners shall make an
investigation of the moral character and fitness of any applicant and may
procure the services of any bar association, agency, organization, or
1All references are to the Iowa Court Rules that were in effect at the time Nash filed
his application in 2006.
3
individual qualified to make a moral character or fitness report.”). After
completing its initial investigation into the sexual abuse allegations, the
board notified Nash that his application to take the bar examination had
been denied. See Iowa Ct. R. 31.11(3).
Nash filed a timely written request for a hearing before the board. He
also requested, and the board granted, leave to take the bar examination
pending the hearing.2 The board set a hearing date and appointed one of its
attorney-members as the hearing officer.
See Iowa Ct. R. 31.11(3)(d).
Following the hearing, the hearing officer prepared a summary of the
testimony and exhibits which he provided for consideration by the other
members of the board. See Iowa Ct. R. 31.11(3)(h). The following is a brief
summary of the relevant hearing evidence.
Nash was ordained a Roman Catholic priest in May 1980 and
assigned to a church in Juneau, Alaska. During his early years as a priest,
Nash was primarily involved in youth ministry in the Juneau diocese. In
that capacity, Nash organized and led trips outside of Alaska for children in
the diocese during the 1980s. Nash arranged the trips to occur during his
personal summer vacation time, when he would be traveling to visit friends
in the lower forty-eight states. While on the trips, the groups visited tourist
sites, cathedrals, amusement parks, and an occasional play or show. Nash
used the trips to give the children, many of whom hailed from logging
camps, a “crash course” in basic manners, a broader world view, and a
larger sense of the church. Nash invited only teenagers on these trips
because they were able to take care of their own basic needs. On occasion,
Nash piloted an airplane owned by the diocese to facilitate the trips.
2Nash
took the Iowa bar examination in July 2006, but the result has not been
published pending our determination of his character and fitness to be a member of the
Iowa bar.
4
Nash admitted he used spanking, tickling, push-ups, and sit-ups as
disciplinary techniques during the trips.
Nash further conceded he
sometimes required the boys to remove their trousers prior to the spanking,
tickling, or calisthenics. Nash denied he was sexually motivated in his
choices of these disciplinary techniques, but stated he intended the
experience to humiliate the children and encourage them to modify the
behaviors for which they were disciplined. Nash employed the spankings
and calisthenics as disciplinary techniques because as an adolescent he
had experienced similar forms of punishment at a Catholic summer camp.
Nash also admitted that from 1981 to 2002 he often requested or
“cajoled” boys under his watch to massage his feet and neck. He typically
requested the massages when he was tired from flying, driving, or walking
for a long period of time. Nash admitted the massages occasionally may
have occurred behind closed doors with only one boy present, but denied
any sexual motivation for such conduct. Nash remained clothed at all times
during the massages.
The board presented other evidence of alleged improprieties that were
denied by Nash. One witness, Tracy Mettler, alleged Nash disciplined him
on at least three occasions by spanking his bare buttocks. Mettler claimed
his genitals were touched by Nash during these spankings which allegedly
occurred in the late 1970s or early 1980s. Nash denies recollection of any
contact with Mettler, but admits he occasionally issued bare-bottom
spankings to children during that time period. Nash denies ever touching a
boy’s genitals while administering a spanking.3
3In
2002 a former youth parishioner in Juneau, Joel Post, reported to the Juneau
Diocese that Nash sexually abused him repeatedly in the early 1980s. Nash steadfastly
denied the accusation. The allegations made by Post were investigated by the Juneau
Diocesan Review Board over a period of five months. The review board found Post’s
allegations were lacking in credibility and did not communicate them to the Vatican as part
5
In 1989, after receiving a complaint by a parent upset about the
disciplinary techniques used on her child during a summer trip, the bishop
of the Juneau Diocese met with Nash.
Nash told the bishop he was
experiencing “burn-out” and was considering leaving the priesthood. In lieu
of resignation, the bishop and Nash agreed that Nash would undergo an
evaluation at a voluntary, long-term, custodial care residential center for
Roman Catholic priests. Nash entered, and completed in 1990, a fivemonth residential holistic health program recommended in the evaluation
report.
The later stages of Nash’s therapy sessions focused on the
appropriateness of his disciplinary techniques and the parameters of
appropriate pastoral boundaries. The therapist recommended Nash redirect
the focus of his ministry in order to become less closely involved with
children.
The
record
evidences
that
Nash
complied
with
this
recommendation when he resumed his parish responsibilities.
There are no allegations of improper conduct by Nash after the
summer of 1989. In 1995, he was named diocese administrator by his
fellow priests.
Nash served in this capacity managing the day-to-day
activities of the diocese until a permanent bishop was selected and installed
in 1996. In July 1999, after taking a two-year sabbatical to earn a Master’s
degree in theology with an emphasis in Christian ethics from the University
of Louvain in Belgium, Nash returned to pastor a parish in Juneau. In
2001, he was appointed vicar general of the diocese and was authorized to
take certain administrative actions in the Bishop’s absence.
______________________________
of the review board’s report that later led to Nash’s separation from the priesthood. The
board of law examiners does not rely on the Post allegations to support its determination
that Nash presently lacks the moral character to practice law in Iowa. Upon our de novo
review, we find Post’s allegations are not supported in the record, and therefore we assign
no weight to them.
6
In 2002, the Juneau Diocese investigated allegations that Nash
engaged in inappropriate conduct with parish youths in the 1980s. The
bishop appointed a review board consisting of parishioners to investigate
the allegations. Before the review board, as he later did before the Iowa
board of law examiners, Nash admitted using the disciplinary techniques
described above.
Although Nash steadfastly denied his conduct was
sexually motivated, the information developed during the investigation was
forwarded to the Vatican. On November 18, 2005, Nash was dismissed
from the clerical state ex officio et pro bono Ecclesiae (for the good of the
church).
At the hearing before the board of law examiners, Nash offered
testimony of twelve individuals who attested to his good moral character.
These witnesses included adults from the Juneau diocese, individuals who
went on trips with Nash as youths during the 1980s, the dean and another
faculty member from the Creighton University School of Law, and a law
school classmate. In addition to the live testimony at the hearing, the board
received nearly eighty letters of support for Nash’s application.
At the conclusion of the board hearing, counsel for the board of law
examiners requested Nash be required to undergo a full sexual abuse
evaluation. The hearing officer declined that request, but allowed Nash to
supplement the hearing record with an evaluation from a Des Moines
psychiatrist, Dr. Michael Taylor. The evaluation was performed and Dr.
Taylor opined:
I find no evidence that Mr. Nash suffers from any diagnosable
psychiatric disorder of any sort. Further, I find no evidence
that Mr. Nash presents a risk of perpetrating abuse of any type
upon any individual, minor or adult. Finally, I find no evidence
that Mr. Nash possesses any mental disorder or personality
7
traits which would, in any way, impair his ability to maintain
the moral character and honesty expected of an Iowa lawyer.
After considering the hearing evidence, three members of the board
voted in favor of Nash’s admission, and three members voted against it.4
Because the vote was evenly divided, the board declared its earlier decision
affirmed by operation of law. Nash has requested our review of the board’s
determination.
II. Scope of Review.
This court has exclusive authority to admit persons to the practice of
law. Iowa Ct. R. 31.9(1). We therefore review the record de novo. In re
Hanus, 627 N.W.2d 223, 225 (Iowa 2001).
III. Discussion.
An applicant for admission to the Iowa bar has the burden to
demonstrate he or she “is a person of honesty, integrity and
trustworthiness, and one who appreciates and will adhere to the Iowa Rules
of Professional Conduct . . . .”
Iowa Ct. R. 31.5.
The board of law
examiners makes an initial determination of the applicant’s moral character
and fitness, but we have the authority to review the board’s decision. Iowa
Ct. R. 31.9(1).
We have previously held a bar applicant must demonstrate the
requisite moral character and fitness by a convincing preponderance of the
evidence. Hanus, 627 N.W.2d at 224 (citing In re Peterson, 439 N.W.2d 165,
166 (Iowa 1989)).
Although we queried in Hanus whether it is the
applicant’s burden to prove character and fitness by a convincing
preponderance standard or by a mere preponderance of the evidence, we
concluded the burden of proof did not control the outcome in that case
4The
hearing officer and two other attorney-members of the board voted for
admission; two lay-members and another attorney-member voted against admission. One
member abstained.
8
because the applicant failed to establish his good moral character even
under a preponderance of the evidence standard. Id. We conclude a more
precise enunciation of the burden of proof is also unnecessary in this case
because Nash’s proof of his character and fitness satisfies the more exacting
convincing preponderance standard.
Those who apply for admission to the bar must demonstrate their
honesty, integrity, and trustworthiness. Iowa Ct. R. 31.5(1). We require
these character traits of bar applicants because attorneys are put in a
position of considerable influence over their clients, whose trust in them
must remain inviolate. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct
v. Hill, 540 N.W.2d 43, 44 (Iowa 1995) (“A person acting in a professional
role can have a disproportionate influence on those they serve. They owe to
the public a solemn duty to use their considerable influence with utmost
discrimination. The metes and bounds of propriety in any professional
relationship must be observed scrupulously because the professional role is
held in trust.”) (quoting Fisher v. Bd. of Optometry Exam’rs, 510 N.W.2d 873,
878 (Iowa 1994)); State v. Johnson, 128 N.W. 837, 839 (Iowa 1910) (“The
relation between an attorney and his client must necessarily be one of great
confidence, and an attorney who knowingly abuses the trust and confidence
placed in him by his client is unfit for the profession and unworthy of a
place therein.”).
Nash’s admitted use of questionable disciplinary
techniques was deemed by clerical authorities an abuse of his parishioners’
trust that led to his removal from the priesthood. The board contends these
abuses of trust were so serious that Nash remains unfit to practice law
notwithstanding his completion of a treatment program, his many
subsequent years of appropriate priest-parishioner trust relationships, and
his apology to those harmed by his earlier actions. We disagree.
9
While we certainly do not condone Nash’s disciplinary techniques, we
do not believe such noncriminal acts from seventeen (or more) years ago
reflect poorly on his present moral character and fitness to practice law.
Nash utilized the techniques when he was a relatively young and
inexperienced priest dealing with misbehaving teenagers in remote logging
camps of southeast Alaska in the 1980s. While those methods of discipline
would certainly be considered inappropriate by today’s standards, when
viewed in the social and historical context in which they were applied, they
appear significantly less sinister. Bill Chalmers, a high school teacher in
Juneau, testified he used similar techniques during the same era, and did
not consider Nash’s behavior extraordinary when placed in historical
context.
We believe Nash’s conduct over the past seventeen years is the best
indicator of his present moral character and fitness to practice law. While
passage of time between an act of misconduct and submission of an
application for admission to the bar alone will usually not be sufficient
evidence of present good moral character, see In re King, 136 P.3d 878, 885
(Ariz. 2006), we are convinced Nash came to understand certain disciplinary
techniques crossed appropriate pastoral boundaries.
Following his
treatment experience, Nash voluntarily avoided one-on-one interactions
with parish children to avoid the appearance of impropriety. In 2006, as
soon as the Catholic Church allowed him to speak with anyone involved in
its investigation, Nash issued a written apology to the children whom he
had improperly disciplined. He has earned and maintained the support,
admiration, and trust of nearly eighty individuals who testified and wrote
letters supporting his admission to the bar. Nash’s testimony at the board
hearing reflects sincere contrition for his actions in the 1980s.
When
10
compared with the considerable evidence of his good moral character during
the past seventeen years, the decades-old inappropriate but noncriminal
acts admitted by Nash are insufficient to support the board’s denial of
Nash’s application to become a member of the Iowa bar.
IV.
Conclusion.
We have a duty to the citizens of Iowa to ensure the practice of law is
reserved for individuals who will respect the trust inherent in the lawyerclient relationship.
We conclude Michael Nash has established by a
convincing preponderance of the evidence he possesses the requisite moral
character and fitness for admission to the Iowa bar. We therefore grant his
application to take the Iowa bar examination.
PETITION FOR PERMISSION TO TAKE BAR EXAMINATION
GRANTED.
All justices concur except Wiggins, J., who dissents.
11
#102/07-0286, In re Nash
WIGGINS, Justice (dissenting).
I respectfully dissent. As late as October 26, 2006, Nash filed a
signed document acknowledging the public could consider his prior actions
as sexual abuse. In this document, he stated:
I have come to realize that regardless of my intentions, these
forms of discipline were inappropriate; more recently, these
forms of discipline have even come to be considered by some to
be sexually abusive. Indeed, I have since learned that these
and other actions of mine were subjectively experienced as
sexually abusive by a few boys with whom I had interacted.
I agree the acts to which Nash admitted to doing can be characterized as
sexually abusive.
The majority bases its decision that Nash has the requisite moral
character and fitness for admission to the Iowa bar on Nash’s conduct over
the last seventeen years of his life. But as the majority notes, the last
seventeen years occurred after Nash entered a comprehensive five-month
inpatient treatment program for the complaints Nash acknowledged could
be construed as sexually abusive.
In another signed document, dated October 26, 2006, Nash opines
the treatment he received allowed him to understand his actions were
inappropriate. In discussing his treatment, he states:
You should know that some years ago, I participated in a
renewal program where I addressed, among many other topics,
my dealings with young people. I came to understand it was
inappropriate and wrong of me to treat them as I did. I assure
you I have not done such a thing for many, many years, nor
will I in the future.
Unfortunately, any records of the treatment, diagnosis, or prognosis from
that comprehensive inpatient program were unavailable to the board of law
examiners or us for review.
12
Due to the prior admitted allegations and the unavailability of the
prior treatment records, the board asked Nash to submit to a
comprehensive evaluation to determine if he presents a risk to perpetrate
sexual abuse.
Nash refused, but instead saw a local psychiatrist, Dr.
Michael Taylor, for an opinion on this subject. Although Dr. Taylor is a
board certified psychiatrist, the record does not establish that he has
special training or certification in the area of sexual abuse. Additionally,
Dr. Taylor reached his conclusions after a brief visit, rather than through a
comprehensive inpatient evaluation.
Under these circumstances, I do not feel Nash met his high burden to
prove by a convincing preponderance of evidence that he has the requisite
moral character and fitness for admission to the Iowa bar. However, I
would not reject Nash’s application at this time. Before making a final
decision, I would require Nash to complete the comprehensive inpatient
treatment as requested by the board.
Consequently, without such an
evaluation I am unwilling to take the same chance as the majority to admit
him as a member of the Iowa bar.
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