That’s What They Said

The Iowa Supreme Court has reprimanded the Wapello County Attorney for inappropriate comments in the workplace

Wapello County Attorney Reuben Neff made inappropriate statements at work. The Iowa Supreme Court Attorney Disciplinary Board was made aware of these statements and charged Neff with violating Iowa Rule of Professional Conduct 32:8.4(g), which provides it is professional misconduct for a lawyer to “engage in sexual harassment or other unlawful discrimination in the practice of law.” Based on a stipulated record, the grievance commission found Neff violated rule 32:8.4(g) and recommended his license be suspended for sixty days. Neff filed this appeal. In this appeal, Neff argues the Board failed to prove a violation of the rule. If the Board proved a violation of the rule, Neff contends, the rule violates the United States Constitution’s First Amendment right to free speech as applied to the facts of this case and on its face. Finally, Neff argues, if the board proved a violation of the rule and the rule is constitutional, the grievance commission’s recommended sanction is too severe. We conclude the Board proved a violation of the rule, the rule is constitutional as applied and on its face, and Neff should be reprimanded.

The statements at issue

Neff made at least nine comments that are at issue in this disciplinary proceeding. At least some of his comments were made in front of his employees Tanvi Yenna and Carly Schoemaker. Three of Neff’s comments related to defendants in criminal cases pending at the county attorney’s office. While prosecuting a criminal defendant, Neff told Yenna that a criminal defendant’s “asshole” would be “this big” by the time the criminal defendant left prison. Neff formed a circular shape with his hands when he made the statement. Another time, while prosecuting a case involving sexual exploitation of a minor, Neff told Yenna that the defendant should “lube up” and “grab his ankles.” After losing a criminal sex abuse case, Neff told Yenna and Schoemaker that he wished the defendant would be “raped by antelopes and mauled by lions at the same time.”

Neff also made inappropriate comments about judges. Neff “occasionally” referred to judges as “bitches” following an unfavorable decision. Neff once referred to a particular judge as a “limp dick” because Neff was frustrated about how the judge presided over a sexual assault trial in which the defendant was acquitted.

Finally, Neff told several off-color stories and jokes in the workplace. While discussing false accusations in criminal cases, Neff relayed to Yenna and Schoemaker that he was falsely accused of sexual assault in college. In the fall of 2019 or spring of 2020, Neff told Yenna and Schoemaker about a college memory in which another student came to class wearing pajamas and no shirt. The student’s penis fell out of his pajama pants, and the professor yelled at the student that he “[did] not care how proud he was of his size, get out.” Sometime in early 2020, Neff made a joke. Upon arriving late to the office after snow-blowing his driveway, Neff remarked that he spent the morning blowing five inches, though he did not believe his wife minded. In response to a staff member’s smirk, Neff quipped, “[T]hat’s what she said.” This statement was a quotation from a running joke made on the TV show “The Office.” Yenna and Schoemaker frequently used the quote in the workplace.

The final statement relates to a telephone call Neff received from a member of the public. Neff related to Yenna that the caller referred to Neff’s predecessor as a “faggot.” After Yenna objected to Neff’s use of the word, Neff asserted his ability to say the word by repeating the epithet. Neff used this epithet knowing that Yenna identified as part of the LGBTQ+ community.

The court found the conduct violated Rule 8.4(g)

We have little trouble concluding the Board proved Neff violated rule 32:8.4(g) as interpreted and applied in these precedents. This case is most similar to Watkins. As in Watkins, Neff interjected comments of a sexual nature into the workplace. He made hyperbolic statements wishing prison rape and animal rape on criminal defendants. Those statements had no “legitimate place in a legal setting.” Stansberry, 922 N.W.2d at 597 (quoting Moothart, 860 N.W.2d at 604). Neff’s statements regarding criminal defendants were particularly egregious because a prosecutor’s duty is “to do justice, not only for the accusers, but also for the accused.” State v. Iowa Dist. Ct., 568 N.W.2d 505, 508 (Iowa 1997) (en banc). Wishing violence, harm, and rape on the criminally accused was contrary to Neff’s duties as a law enforcement officer. In addition to wishing sexual violence against accused persons, Neff sex-stereotyped judges with whom he disagreed. He “occasionally” called some judges “bitches,” and he called a male judge a “limp dick.” Neff told inappropriate stories about a man’s penis falling out of his pajamas. He made jokes with sexual innuendo. He used the word “faggot” in a conversation with Yenna and repeated the word to her face after her objection. See, e.g., People v. Abrams, 459 P.3d 1228, 1239–41 (Colo. O.P.D.J. 2020) (holding that use of the words “faggot” and “homo” were in violation of a similar provision of Colorado’s rules). Neff’s employees informed him of the impropriety of his statements, but he was not successful in changing his conduct. Two of Neff’s employees resigned their employment with the county attorney’s office due, in part, to Neff’s statements and conduct in the workplace.

We cannot say that any one of these statements, standing alone, would be sufficient evidence to violate rule 32:8.4(g), but Neff’s conduct, when taken as a whole, objectively interfered with and caused harm in the workplace. While Neff’s conduct is not as severe as pervasive or as explicitly sexual as that in Watkins, that distinction makes this case only lesser in degree but not different in kind. We thus conclude that the Board proved Neff violated rule 32:8.4(g).

The court rejected Respondent’s claim of protection under the First Amendment

we cannot conclude that application of rule 32:8.4(g) in this case runs afoul of the Supreme Court’s First Amendment jurisprudence. We have already concluded the board established by a convincing preponderance of the evidence that Neff violated rule 32:8.4(g). There is ample evidence, even on this stipulated record, that Neff’s speech caused harm in the workplace when viewed from the vantage point of a reasonable person. His employees complained to him about his conduct, and Neff conceded that he had not always successfully addressed those complaints. He said the word “faggot” in a conversation with Yenna. After she objected to his use of the word and told him it offended her, he repeated the word to her face.

And also rejected contentions that the rule is overbroad or void for vagueness.

Sanction

On balance, we conclude that a public reprimand is the appropriate sanction for Neff’s improper statements here. Neff should have realized that his statements were outside the bounds expected of Iowa lawyers. Membership in the bar is a privilege with conditions. See Gentile, 501 U.S. at 1062–63. One of those conditions is that an attorney conduct himself with professionalism in the workplace and not engage in conduct that constitutes sexual harassment, even if the conduct falls short of that creating civil liability in the employment law context. Neff failed to meet the standard of conduct required of Iowa lawyers, and we publicly reprimand him for his violation of rule 32:8.4(g).

Oral argument is linked here.  (Mike Frisch)