Shoplifting Draws Proposed Suspension

The Iowa Supreme Court Disciplinary Board has recommended a six-month suspension of an attorney charged with felony theft who had filed an affidavit that admitted the offenses and consented to suspension up to nine months.

The Templeton court noted that not every crime reflects adversely on a lawyer’s fitness to practice law:

Each case must be decided on its own facts. There must be some rational connection other than the criminality of the act between the conduct and the actor’s fitness to practice law. Pertinent considerations include the lawyer’s mental state; the extent to which the act demonstrates disrespect for the law or law enforcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; and the presence or absence of a pattern of criminal conduct.

Wigington’s illegal conduct clearly satisfies the Templeton factors. Wigington repeatedly shoplifted items from Hy-Vee over the course of more than a month. Her actions, in intentionally failing to scan some items and attempting to make it appear she was scanning other items, demonstrate dishonesty and reflect poorly on her fitness to practice law. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Aeilts, 974 N.W.2d 119, 125–26 (Iowa 2022) (finding attorney’s malicious prosecution conviction “easily” met the Templeton factors and “display[ed] his lack of honesty and reflects adversely on his fitness as a lawyer”); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Weaver, 812 N.W.2d 4, 11–12 (Iowa 2012) (finding a nexus between the criminal misconduct of an attorney’s third OWI offense and his fitness to practice law based in part on a pattern of  criminal misconduct). In addition, Hy-Vee suffered a financial loss as the result of Wigington’s crimes.

Each of the Templeton factors supports a violation of rule 32:8.4(b) for Wigington’s multiple instances of shoplifting. A convincing preponderance of the evidence demonstrates that Wigington violated Iowa Rule of Professional Conduct 32:8.4(b).

Wigington’s commission of theft also violated Iowa Rule of Professional Conduct 32:8.4(c), which states, “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” To find a violation of that rule, the court “must find ‘a level of scienter that is more than negligent behavior or incompetence.’ ” Noel, 923 N.W.2d at 587 (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Suarez-Quilty, 912 N.W.2d 150, 158 (Iowa 2018) (citation omitted)). The court must determine “the attorney acted knowingly, intentionally, or with the aim to mislead.” Id. at 588 (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 498 (Iowa 2017)). In Iowa Supreme Court Attorney Disciplinary Board v. Noel, the court found attorney Noel “acted knowingly, intentionally, or with the aim to mislead” when he claimed “mileage he did not incur.” Id. This spoke to his “intention ‘to mislead rather than to inform.’ ” Id. (quoting Suarez-Quilty, 912 N.W.2d at 158). Wigington’s multiple acts of shoplifting were intentional and demonstrated an  “aim to mislead.” See id. She deliberately left items inside and underneath her cart without attempting to scan them, she purposefully moved items directly from the conveyor belt into her cart without scanning, and she manipulated items as she passed them over the scanner so the bar code would not scan them. (Aff. 2). Wigington’s acts of shoplifting from Hy-Vee on numerous occasions violated rule 32:8.4(c).

Mitigation

Wigington’s representation of indigent criminal defendants is mitigating. See Leitner, 998 N.W.2d at 647. Two judges in the Third Judicial District have provided affidavits noting the importance of Wigington’s work to the area. However, Wigington’s service to an underserved community does not negate the severity of her misconduct.

Sanction

A six-month suspension is appropriate here. While there are not any past Iowa disciplinary cases directly on point, there are past disciplinary cases in Iowa involving shoplifting. Those shoplifting cases resulted in sanctions exceeding a six-month suspension; however, they are distinct from the present matter because they also included additional egregious misconduct. For instance, in Iowa Supreme Court Board of Professional Ethics & Conduct v. Lyzenga, the court revoked attorney Lyzenga’s law license following her convictions of numerous crimes over the course of a three-year period: three prostitution charges, three aggravated misdemeanor thefts, four simple misdemeanor thefts, trespass, deceptive practices, and felony forgery. 

The case is In re Cassi Wigington; the pleadings can be accessed here. (Mike Frisch)