author: WIGGINS, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Rodney H. POWELL, Respondent.
    No. 06-1394.
    Supreme Court of Iowa.
    Jan. 19, 2007.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, A Professional Corporation, Des Moines, for respondent.
   WIGGINS, Justice.

On July 28, 2005, the Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Rodney H. Powell with the Grievance Commission of the Iowa Supreme Court alleging Powell committed various violations of the Iowa Code of Professional Responsibility for Lawyers. The complaint contained three counts arising out of Powell’s representation of three different clients. The Board amended the complaint to include a fourth count involving an additional client. The Commission found Powell’s conduct violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers and recommended we suspend Powell’s license to practice law with no possibility of reinstatement for a period of six months. The Commission also recommended as a condition of reinstatement that Powell release the liens he acquired in properties owned by one of his clients.

Because we agree with the Commission’s finding that Powell’s conduct violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers and its recommendations regarding Powell’s sanction, we suspend Powell’s license to practice law indefinitely with no possibility of reinstatement for a period of six months. •

I. Scope of Review.

We review attorney disciplinary proceedings of the Commission de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). The Board must prove ethical violations by a convincing preponderance of the evidence. Id. “Although we consider the Commission’s factual findings and discipline recommendations, they do not bind us.” Id.

II. Findings of Fact.

On our de novo review of the record, we make the following findings of fact. We admitted Powell to the Iowa bar in 1973. After graduation from law school, he entered the Air Force as a JAG officer. There he primarily prosecuted and defended courts-martial. Powell served as a JAG officer until 1977. During that period, Powell was admitted to practice in front of the Air Force courts, as well as the United States Court for Military Appeals.

In 1977 Powell separated from active duty and moved to St. Louis, Missouri. Powell began working for Missouri Legal Services and was admitted to the Missouri bar in 1978. Powell was a managing attorney for the St. Louis County Office for Legal Aid from 1980 to 1988. Powell held a supervisory position, overseeing the clinical program between legal services and Washington University in St. Louis School of Law, the family law department, and the volunteer lawyer program. In addition, Powell created an ecumenical legal assistance ministry that reached out to impoverished areas of St. Louis.

Powell left legal services in 1988 to return to Iowa. He entered the private practice of law as an associate with a Des Moines law firm. He eventually became a partner in the firm. The firm practiced primarily as a labor and employment law firm. Powell was hired to handle the firm’s other caseload. For example, if a client had a family law problem, Powell would handle the case.

When the firm dissolved in 1996, Powell opened a solo practice in Norwalk. As his practice grew, Powell hired two additional attorneys to join his firm. The firm’s practice is a general one; however, Powell has centered his practice on wills, probate, and real estate matters.

A. Walton Matter. In November 1991 Malissa Walton hired Powell to represent her in a dissolution of marriage. Walton’s parents suggested she retain Powell. Powell and Walton’s parents, the Hin-shaws, knew each other from community activities. Mrs. Hinshaw called Powell and arranged for a meeting. She and her daughter saw Powell at the Des Moines law firm.

Although a fee arrangement was discussed, nothing was put in writing. It was understood by both Walton and Powell that Walton’s mother, Mrs. Hinshaw, would pay for Powell’s services. However, Powell sent every bill to Walton’s address. Walton claims she only sometimes saw the billing statements. Mrs. Hinshaw paid Powell approximately $300 from 1991 until 1993. However, both Walton and Powell agree after Walton’s father passed away in 1996, Mrs. Hinshaw no longer agreed to be responsible for Powell’s fees.

The court finalized Walton’s marriage dissolution in August 1992. Powell obtained a favorable outcome for Walton. The total legal fees generated for' the dissolution amounted to $2850. Walton or her mother made small payments toward the bill, totaling a little over $850. Walton did not pay the balance of her bill. Powell knew from the dissolution, Walton had three young children, had over $10,000 in debt, and was living on a limited income.

On almost every billing cycle, Powell charged Walton a finance charge. From December 13, 1991, until February 17, 1995, Powell charged Walton an interest rate of 18 percent or 1.5 percent per month on any unpaid balance. Powell never informed Walton that he would charge her compound interest. The interest rate then increased to 22 percent or 1.83 percent per month. He never informed Walton that he had the right to raise the interest rate. By March 31, 2003, Walton owed Powell $21,920.50. Of this, $18,691.27 was attributable to the finance charges.

Powell made several attempts to collect fees from Walton. From 1993 to 1996 Powell sent Walton several letters asking for any payment. In his first letter, Powell acknowledged Walton was on a very limited income, but still requested she make regular payments on her bill. He also stated if Walton made regular payments, he was willing to waive the finance charges for each month he received a payment.

In 1995 Powell notified Walton he would send her account to a collection agency if she did not start making payments on the bill. In 1996 Powell sent a letter to Walton encouraging her to work with him to “negotiate an arrangement which is acceptable to both [Walton] and [Powell].” After receiving phone calls from Powell’s office, Walton did pay $10 toward her bill.

By May 1997 now some six years after Powell first represented Walton, the account remained open and Powell was still sending monthly bills, but no other exchanges occurred between Powell and Walton. In 2000 Powell once again attempted to collect payment from Walton. This time his efforts were more aggressive.

On February 28, 2001, Powell sent a letter stating, unless Walton paid $3250 he would report the discharged debt to the Internal Revenue Service (IRS) as income and she would be responsible for more than $5000 in taxes because of this discharge. Walton did not pay Powell the $3250. From February 2000 to February 2002 Powell’s office made over 120 phone calls in an attempt to collect the debt from Walton.

On June 13, 2002, Powell sent Walton a right to cure notice stating $21,474.34 would be reported as a discharged debt to the IRS if some acceptable payment was not received in twenty days. Walton did not pay Powell. On November 13, 2002, Powell wrote to Walton and informed her the debt was discharged and indicated he would, be reporting the discharge as income to the IRS. The letter also included an IRS 1099-MISC form showing Walton had other income of $21,920.50.

Powell filed the 1099-MISC form with the IRS. Considering this discharge as other income, the IRS proposed Walton pay $2991 in taxes. However, after Walton provided further information to the IRS demonstrating she did not work for Powell, but rather that he discharged a debt, the IRS no longer required Walton to pay the taxes.

B. Hutchins-Carroll Matter. Sandra Hutchins and Marvin Carroll hired Powell in May 2000 for help in retrieving personal property Hutchins left at a home she just sold. Hutchins did not sign a written fee agreement when she retained Powell. Powell never advised Hutchins or Carroll that he would charge them finance charges. While Powell was investigating the property dispute, Hutchins hired him for another matter involving Hutchins’ daughter.

Hutchins generally received Powell’s bills on a monthly basis detailing her fees. In each bill, it stated, “the monthly finance charge will be at an ANNUAL PERCENTAGE RATE of 22% (1.83% per month).” Powell charged Hutchins a total of $2974 for the property matter and $4249 for the matter involving her daughter. The bill also reflected $1,655.66 in finance charges. These charges were offset by $858.50 in write-downs and payments of $1030. By March 2002 Hutchins owed Powell $8,028.29.

On two separate occasions, Hutchins wrote to Powell and complained about the finance charges. In her first letter, received by Powell on May 21, 2001, she stated, “you are charging a $100 a month finance charge. Now if I’m making payments of $40 how could I possibly ever get this paid.” In her second letter received by Powell on December 1, Hutchins again expressed her frustration at the finance charges.

Hutchins also met with Powell’s staff to discuss the growing bill. Powell gave her various payment options. However, Hutchins did not enter into any payment agreement at that time. Because no payment agreement could be reached, Hutch-ins filed a complaint with the Board.

C. Perkins Matter. Robert Perkins operated Perkins Electric, an electrical contracting business. Powell represented Perkins primarily for matters relating to Perkins Electric from 1998 to 2003. During Powell’s representation of Perkins, they never entered into a written fee agreement. Instead, Powell simply sent Perkins invoices detailing his charges. Perkins did not always pay his bill on time. Powell described Perkins as generally slow in paying his bills, but Powell attempted to be accommodating because of their ongoing relationship.

Over the period of time Powell represented Perkins, Powell charged Perkins $66,435 in fees, $1547 in costs, and $7,304.54 in finance charges. The finance charges included compound monthly interest at the rate of 1.83 percent or 22 percent per annum on all unpaid balances and a $15 late charge on any unpaid monthly balance. Perkins paid Powell $47,281.01.

Perkins and Powell spoke in November 2002 regarding several issues, including Perkins’ concerns about the billing arrangements and the finance charges. Powell followed up on these earlier discussions with a letter, which in part discussed the finance charges. In his letter, Powell stated:

You have also expressed concern at times relating to our interest charges. As I may have explained to you, we have great difficulty operating when we extend credit to clients. We are not in the lending business, and it is important that we be paid every month for the work performed for our clients. Our hourly rates do not contain any padding for “carrying charges.”

Perkins then wrote to Powell terminating their attorney-client relationship because of the finance charges. In his letter, Perkins stated, “[a]s I have tried to communicate to you on various occasions I will NOT agree to paying finance charges.”

Powell responded-to this letter and discussed the issues relating to the status of his legal representation, the billing invoice, the account history, the finance charges, and Perkins’ files. In discussing the finance charges, Powell described the Perkins account as “commercial” and stated, “there is no requirement that there be any more writing to evidence the agreement to pay interest charges.”

On January 28, 2004, Powell responded to a letter written by Perkins in which Perkins stated he considered his account with the Powell office to be paid in full and he would not be making any further payments on the account. In his response, Powell stated Perkins never questioned the accuracy of the invoices. Powell also contended the account was not paid in full. Further, Powell claimed if he discharged the unpaid balance in the account, the law required Powell to report the amount discharged to the IRS as income to Perkins. Unlike the Walton matter, where Powell made a similar statement, Powell did not file a 1099 form with the IRS.

In the letter, Powell also stated his office had a lien for unpaid fees against all papers and documents in Perkins’ files. However, Powell never pursued enforcement of a lien. Finally, Powell offered to negotiate a settlement of the attorney’s fees through binding arbitration, with the costs to be paid by the unsuccessful party. Perkins did not respond to this letter. Instead, Perkins filed a complaint with the Board.

Finally, Powell testified after this court made its decision in Iowa Supreme Court Board of Professional Ethics & Conduct v. McKittrick, 683 N.W.2d 554 (Iowa 2004), he “promptly recomputed the invoices from the beginning, and [he] gave [Perkins] a compound interest credit, taking off all compound interest amounts, so eventually converting it all to simple interest.” So, on September 8, 2004, Powell sent a letter and invoice to Perkins stating he was crediting the Perkins account $1,961.30 for the compound interest charges. -Powell never discharged Perkins of his remaining debt.

D. Jondall Matter. In fall 2004 Amy Jondall hired Powell to represent her in her marriage dissolution. At the onset of the representation, Jondall received the firm’s fee policy and agreement form. In part the agreement contained: (1) a provision acknowledging if Jondall’s nonpayment of fees resulted in Powell discharging the fees, he would report the discharge as income to the IRS; (2) a provision stating if Jondall does not challenge a charge within ten days from receiving the invoice, she waives any claim to the accuracy of the bill or the sufficiency of the work done; and (3) a provision containing an indemnity clause stating any costs arising out of any complaint made by Jondall against Powell would be paid by Jondall if the complaint is resolved favorably to Powell. Jondall paid a portion of Powell’s retainer in three installments.

Powell was responsible for drafting Jon-dall’s consent decree of dissolution of marriage. After drafting the decree, Powell gave it to Jondall for her to look over. She approved the decree. Powell then sent the decree to opposing counsel for Mr. Jondall’s signature.

Paragraph twenty-two of the decree contained a clause stating, “all said attorneys’ fees shall constitute a judgment herein.” Powell never explained to Jondall that this clause would create a lien on her property if her attorney’s fees were not paid. Neither Mr. Jondall’s attorney nor the judge, who signed the decree, raised any issue about paragraph twenty-two. The court filed the decree on January 31, 2005.

At the time of the dissolution action, Jondall and her soon-to-be ex-husband owned a home and an acreage. They planned to sell the home and the acreage. During the pendency of the dissolution proceeding, the Jondalls sold the acreage. The dissolution decree divided the proceeds from the acreage sale, awarding Jon-dall $20,000 of the proceeds, and her former husband $5000 of the proceeds.

On January 20, 2005, the buyer’s attorney prepared a title opinion concerning the sale of the acreage. The title opinion did not note the judgment for attorneys’ fees because the decree was not filed until January 31. The sale of the acreage closed on or about February 10. The buyer’s mortgage company distributed the settlement funds without requiring an updated title opinion. The Jondalls delivered a warranty deed to the buyer.

At the time the sale of the acreage closed, Jondall had not made any payments to Powell, other than the three initial payments used to retain Powell. The highest invoice in the record shows Jondall owed Powell $7,855.29 in fees. On April 8 Powell’s office contacted Jondall concerning the nonpayment of her bill. Jondall complained the fees were excessive.

After learning the Jondalls sold the acreage and the mortgage company disbursed funds to Jondall, Powell sent Jon-dall a letter requesting payment of his fees. The letter reaffirmed the existence of Powell’s lien in the property. The letter also requested that she pay her fees so Powell would not have to take action against the buyer.

After receiving this letter and speaking with the staff at the Powell Law Firm, Jondall took her home off the market because with the attorney’s lien on the property she felt there was not any way she could give a clean title to a buyer. Jondall filed a complaint with the Board and requested Powell release the judgment liens on her properties. As of September 6, 2006, Powell still had not released the liens.

III. Violations.

We have previously discussed the pitfalls an attorney faces when involved in a fee dispute with a client. McKittrick, 683 N.W.2d at 559-60. There we said,

Attorneys should avoid fee disputes with clients as much as possible because the collection of fees by attorneys from clients can give rise to a host of problems and pitfalls. Attorneys should aspire to resolve fee disputes amicably, and sue clients only when necessary “to prevent fraud or gross imposition by the client.”
While it is not unethical for a lawyer to engage in fee collection practices against a former client, the practices employed to enforce collection should be carefully scrutinized. Illegal, aggressive, and improper collection practices can lead to disciplinary actions against attorneys, as can the use of attorney liens and confessions of judgment. Additionally, an attorney who imposes an unlawful finance charge and improperly calculates the amount of interest on a fee can violate the rules of professional ethics.

Id. (internal citations omitted). Based on our review of the record, we find the Board met its burden and proved Powell violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers when he utilized the following practices in charging and collecting his fees.

A. Finance Charges. An attorney cannot assess' finance charges when the attorney collects a fee, unless the client agrees in writing in advance to the finance charges imposed. Id. at 561. Additionally, where the legislature authorizes a finance charge, the legislature does not allow compounding of the finance charge. Iowa Code § 535.11(6) (1991). In the Walton, Hutchins-Carroll, and Perkins matters, Powell charged interest without first entering into a written fee agreement that would allow him to do so. He also compounded the finance charges.

By charging illegal finance charges, Walton’s $2850 legal service bill became a $21,920.50 bill. Powell charged Hutchins $1655.66 in finance charges for $7223 in legal services. Further, Powell charged Perkins $7,304.54 in finance charges for $66,435.50 in legal services. These fees are clearly excessive.

Accordingly, Powell’s conduct in charging illegal finance charges resulting in excessive fees violated DR 1-102(A)(6) (stating “[a] lawyer shall not [ejngage in any other conduct that adversely reflects on the fitness to practice law”) and DR 2-106(A) (stating “[a] lawyer shall not [e]nter into an agreement for, charge, or collect an illegal or clearly excessive fee”).

B. Reporting Clients’ Discharged Debts to the IRS. Powell contends he relied on the advice of his accountant and his reading of the tax law before he reported Walton to the IRS, threatened to report Perkins to the IRS, and included a paragraph in the Jondall fee agreement requiring her to acknowledge that if her nonpayment of fees resulted in Powell discharging the fees, he would report the discharge of the fees as income to the IRS. We agree with the Commission that Powell’s testimony in this regard is not credible. Powell presented no evidence other than his statement that his accountant advised him this conduct was legal.

Under the United States Code, only “applicable entities” are required to report the discharge of a debt. 26 U.S.C. § 6050P(a) (1999). The only definition of an applicable entity that could apply to Powell is an organization whose significant trade or business is in the lending of money. Id. § 6050P(c)(2)(D). Powell acknowledged he was not in the business of lending money. Therefore, Powell misrepresented the requirements of the tax code when he threatened to report his clients if he discharged their debt for legal services and when he reported the discharge of Walton’s legal fees as income to the IRS.

Powell’s conduct in threatening to report Perkins and Jondall to the IRS if he discharged their debts and in reporting Walton to the IRS is conduct involving misrepresentation and adversely reflects on Powell’s fitness to practice law. See Walker, 712 N.W.2d at 685 (finding DR 1-102(A)(4), DR 1-102(A)(6), and DR 7-101(A)(3) are violated when an attorney misrepresents his compliance with the state and federal tax laws to his client); Office of Disciplinary Counsel v. Kissel, 497 Pa. 467, 442 A.2d 217, 220 (1982) (finding the “use of intimidation in an effort to collect [a] disputed bill” for services is a violation of the ethics rules, including DR 1-102(A)(4), DR 1-102(A)(6), and DR 7-101(A)(3)). Additionally, by reporting Walton to the IRS, Powell intentionally damaged a client during the course of his professional relationship.

Accordingly, Powell’s conduct in threatening to report and reporting his clients to the IRS violated DR 1-102(A)(4) (stating “[a] lawyer shall not [ejngage in conduct involving, dishonesty, fraud, deceit, or misrepresentation”), DR 1-102(A)(6), and DR 7-101(A)(3) (stating “[a] lawyer shall not intentionally [prejudice or damage a client during the course of the professional relationship”).

C. Using a Judgment Lien for his Attorney’s Fees. Our rules provide an attorney may “[a]equire a lien granted by law to secure a fee.” Iowa Code of Prof 1 Responsibility DR 5 — 103(A)(1). This rule only applies to liens “ ‘granted by law.’ ” McKittrick, 683 N.W.2d at 561 (citation omitted). Iowa Code section 602.10116 governs liens an attorney may impose for unpaid fees. Iowa Code § 602.10116. Although section 602.10116 authorizes placing an attorney’s lien on a judgment, it does not authorize the lien to attach to real property that was the subject of the litigation. McKittrick, 683 N.W.2d at 561-62. One rationale for not allowing the lien to attach to the real property is that a lien based on unliquidated and unadjudicated claims results in a form of economic coercion when the attorney attempts to enforce the lien to collect the attorney’s fees. Id. at 562.

By placing the unauthorized lien on Jon-dall’s property, Powell obtained a proprietary interest in the subject matter of the dissolution litigation he was conducting for Jondall. See People v. Smith, 830 P.2d 1003, 1005 (Colo.1992) (finding “[the attorney’s] recordation and subsequent failure to release the lien violated ... DR 5-103(A)(1)”). Powell also engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by placing the lien on the property without first disclosing this fact to Jondall. Additionally, this conduct is prejudicial to the administration of justice and adversely reflects on his fitness to practice law. McKittrick, 683 N.W.2d at 562. Moreover, the unauthorized lien on Jondall’s property intentionally prejudiced and damaged Jondall during the course of their professional relationship. Jondall was unable to give clear title on the acreage to her buyer and was forced to remove her home from the market because of the lien.

Accordingly, Powell’s conduct in placing the lien in the dissolution decree on property his client was awarded under the decree violated DR 1-102(A)(4), DR 1-102(A)(5) (stating “[a] lawyer shall not [ejngage in conduct that is prejudicial to the administration of justice”), DR 1-102(A)(6), DR 5-103(A) (stating “[a] lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation being conducted for a client,” except in a few limited circumstances) and DR 7-101(A)(3).

D. Fee Agreement Provisions. Jondall’s fee agreement contained the following provisions:

9. MONTHLY INVOICE.
If you have any questions concerning the monthly invoice, you agree to contact the finance manager for The POWELL LAW FIRM, P.C. within ten (10) days of the date of the invoice. If you do not contact the finance manager within ten (10) days, you will be deemed to have agreed that the invoice is accurate and valid, and to have waived any claims as to the accuracy or sufficiency of the work performed on your behalf.
15. COLLECTION EXPENSES.
You agree to pay all expenses and attorney’s fees, including those of The Powell Law Firm, P.C. proceeding pro se, relating to collection of amounts due under this agreement. Such collection shall include any and all judicial proceedings, arbitrations, and mediations as may be necessary to enforce or defend payment of amounts due hereunder. Said collection expenses shall also include any and all'attorneys fees and expenses relating to the defense by The Powell Law Firm, P.C., of any complaints caused by client relating to the services performed by The Powell Law Firm, P.C. before any agency, department, court or branch of any government, or any bar association which renders a decision favorable to The Powell Law Firm, P.C.

The Iowa Code of Professional Responsibility for Lawyers prohibits a lawyer from limiting the attorney’s liability to a client for legal negligence. Iowa Code of Profl Responsibility DR 6-102(A). The reason for the rule is that

[a] lawyer who handles the affairs of a client properly has no need to attempt to limit liability for professional activities and one who does not handle the affairs of a client properly should not be permitted to do so.

Iowa Code of Profl Responsibility EC 6-6. DR 6-102(A) applies to any agreement that would limit an attorney’s future liability. See Comm. on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 36 (Iowa 1990) (holding an agreement containing a provision releasing the attorney and his law firm from any and all claims the client might pursue in the future against the attorney or his law firm violated DR 6-102(A)). Both provisions included in Jon-dall’s fee agreement attempted to limit Powell’s liability for future legal negligence.

The ten-day provision substantially limits the time in which a client can bring a legal negligence action against Powell. We have found, normally, when the relationship between the attorney and the client is “ ‘founded on unwritten contracts’ ” or if it is an action “ ‘brought for injuries to property,’ ” Iowa Code section 614.1(4) governs the statute of limitations for legal negligence claims. Venard v. Winter, 524 N.W.2d 163, 166 (Iowa 1994) (citation omitted); see also Iowa Code § 614.1(4) (setting the statute of limitations at five years). Additionally, the discovery rule applies to statute of limitations questions in legal negligence actions. Millwright v. Romer, 322 N.W.2d 30, 32-33 (Iowa 1982). Our rules do not allow Powell to limit his future liability by reducing the time within which his clients can file a legal negligence claim against him.

The indemnity provision contained in the contract also limits a client’s ability to bring an action by exposing the client to a substantial financial burden if a client brings a legal negligence claim and loses. The law in this jurisdiction is well settled; unless authorized by statute or contract, a court does not have the inherent power to include the expenses of litigation and attorney’s fees in a damage award. Harris v. Short, 253 Iowa 1206, 1208-09, 115 N.W.2d 865, 866-67 (1962). One of the reasons’ for the rule is that “[people] might be unjustly discouraged from instituting an action to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475, 478 (1967). By shifting the burden of litigation costs and attorney’s fees to his clients, Powell limited his future liability to only those clients who can afford to bear these costs if they bring suit and lose.

Accordingly, Powell’s conduct in placing provisions in his attorney fee contract requiring a client to contest the sufficiency of his work within ten days and providing him indemnity when a client loses a legal negligence claim the client might bring because of his representation violated DR 1-102(A)(5), DR 1-102(A)(6), DR 2-106(A), and DR 6-102(A) (stating “[a] lawyer shall not attempt to be exonerated from or limit liability to a client for personal malprac-ticé”).

IV. Sanction.

In determining the sanction a lawyer must face as a result of his or her misconduct, we have stated:

“The goal of the Code of Professional Responsibility is ‘to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering.’ When deciding on an appropriate sanction for an attorney’s misconduct, we consider ‘the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and [the court’s] duty to uphold the integrity of the profession in the eyes of the public.’ We also consider aggravating and mitigating circumstances present in the disciplinary action.”

Iowa Supreme. Ct. Att’y Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006) (citation omitted) (alterations in original).

Powell’s conduct in causing actual harm to his clients is an aggravating factor. In the Walton matter, he harmed his client by filing the 1099 form with the IRS. In the Jondall matter, he harmed his client by attaching a lien to her real property in the dissolution decree. Another aggravating factor to consider is that Powell’s conduct was not an isolated incident. Powell admitted to sending ten to fifteen 1099 forms to other clients. He also admitted he obtained the same type of judgment lien as he used in the Jondall matter with an additional ten to fifteen clients.

Powell’s lack of prior disciplinary violations is a mitigating factor. Additionally, the affidavits filed on his behalf indicate he is a highly respected member of the bar and the community. Another mitigating factor is that none of his clients complained about the quality of his representation. The complaints only concerned the manner in which he billed and collected his fees.

We have previously suspended an attorney’s license for three months for compounding interest, imposing an unauthorized lien on her client’s property for her attorney’s fees, and neglecting a client’s case leading to potential prejudice to a client. McKittrick, 683 N.W.2d at 563-64. Although Powell’s conduct did not involve neglect, Powell’s violations are more serious than McKittriek’s because of the deceit involved when he did not disclose to Jon-dall the lien he inserted in her dissolution decree and the intimidation he used by threatening to file the 1099 forms. Another difference between McKittriek’s conduct and Powell’s conduct is that Powell directed his actions against multiple clients, while McKittrick’s conduct only involved one client.

Considering the nature of the violations, the protection of the public, deterrence of similar misconduct by others, Powell’s fitness to practice, our duty to uphold the integrity of the profession in the eyes of the public, aggravating circumstances, mitigating circumstances, and the sanction we have given in a similar case, we agree with the Commission that the appropriate sanction for Powell’s- conduct is a six-month suspension of his license to practice law.

V. Disposition.

In light of the above facts and circumstances surrounding Powell’s conduct, we suspend Powell’s license to practice law in this state indefinitely with no possibility of reinstatement for six months. Upon any application for reinstatement, Powell must establish he has not practiced law during the suspension period and he has complied in all ways with the requirements of Iowa Court Rule 35.13. Powell also must comply with the notification requirements of Iowa Court Rule 35.21. Additionally, Powell must provide satisfactory evidence that he released the liens he acquired against Jondall’s real property. Finally, we tax the costs of this action against Powell pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.

      . Powell also testified, in light of McKittrick, he made an appropriate credit to all of his active accounts where he charged compound interest.


source: Caselaw Access Project

author: /s/Helen M. Meyer Associate Justice

license: Public Domain

text:
    Howard P. WILLIAMS, Relator, v. GRAND RAPIDS BAPTIST CHURCH, Uninsured, Respondent, and Calvary Pines Baptist Church, Uninsured, Respondent, and SMDC Health System, MN. Dept. of Labor & Industry/VRU, Arrowhead Consultation Services, Intervenors, and Special Compensation Fund.
    No. A06-1875.
    Supreme Court of Minnesota.
    Jan. 24, 2007.
    Hon. Thomas L. Johnson, Workers Compensation Court of Appeals.
    James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for Relator.
    James A. Wade, Johnson, Killen & Seiler, PA, Duluth, MN, for respondent Grand Rapids Baptist Church.
    Lori Swanson, Attorney General, Rory H. Foley, Asst. Attorney General, St. Paul, MN, for respondent MN Dept, of Labor and Industry, Special Compensation Fund.
   ORDER

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 12, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 817 N.W.2d 361, 866 (Minn.1982) (explaining that, “[sjummary affirmances have no prece-dential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: /s/Russell A. Anderson Chief Justice

text:
    Betty A. ZADROZNY, Respondent, v. NORTHWEST AIRLINES, and Liberty Mutual Insurance Company, Relators.
    No. A06-2037.
    Supreme Court of Minnesota.
    Jan. 24, 2007.
    Brad Mitchell Delger, Aafedt Forde Gray Monson & Hager PA, Minneapolis MN, for Relators.
    James Andrew Batchelor, Batchelor Law Firm, Minneapolis MN, for Respondent, Zadrozny.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 17, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[sjummary affirmances have no precedential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Russell A. Anderson Chief Justice


author: /s/Lorie S. Gildea Associate Justice

text:
    Charles BALL, by Diana MANCINO, Respondent, v. PEAR ONE, INC./Craig REBERS, and Uninsured, Relator, and Special Compensation Fund.
    No. A06-1980.
    Supreme Court of Minnesota.
    Jan. 24, 2007.
    Joseph J. Dudley, Jr., Dudley and Smith, St. Paul, MN, for Relator.
    Lorelie M. Hoyer, St. Paul, MN, for Special Compensation Fund.
    Todd J. Thun, Bassford Remele, Minneapolis, MN, for Respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 18, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that, “[sjummary affirmances have no prece-dential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case). We further conclude that relator has not overcome the presumption that Minn.Stat. § 176.183 (2004) is constitutional.

Respondent is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Lorie S. Gildea Associate Justice


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Frederick Kemond JACKSON, Appellant.
    No. A05-1882.
    Supreme Court of Minnesota.
    Jan. 25, 2007.

      Lori Swanson, Minnesota Attorney General, Saint Paul, MN, Mike Freeman, Hen-nepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
    Frederick Kemond Jackson, Appellant Pro Se, Stillwater, MN.
    Suzanne Marie-Seneeal-Hill, Assistant State Public Defender, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

Appellant Frederick Kemond Jackson appeals his conviction for first-degree murder while attempting to commit aggravated robbery. Jackson, who served as a look-out during the attempted robbery, argues that the evidence was insufficient to establish his liability as an accomplice and to demonstrate that the victim’s death was reasonably foreseeable. Jackson claims that the omission of an instruction regarding corroboration of accomplice testimony was erroneous and prejudicial. Jackson also asserts that he was prejudiced by erroneous admission of certain evidence and by ineffective assistance of his trial counsel. We affirm. .•

At about 10:30 p.m. on October 21, 2004, KW. borrowed a van owned by N.P. K.W. left N.P.’s house in North Minneapolis and drove one or two blocks to an intersection about one block from a Super USA convenience store. Jackson, Dominique Jefferson (a/k/a B-bay), James Bell, W.D., and D.P., NJP.’s daughter, were passengers. At the intersection, Jackson, Jefferson, and Bell exited the van and walked off toward a nearby house.

At about 10:51 p.m., Jefferson and Bell entered the Super USA store. The two men wore dark clothing, and their faces were covered with bandanas. Bell carried an AX-47 assault rifle. After demanding money from the clerks, Jefferson grabbed the rifle from Bell and shot one clerk, Mohamed Moulay El-Boudknili, in the chest. The bullet pierced El-Boudknili’s heart and exited through his back, causing his death. The events in the store lasted about 16 seconds and were captured by the store surveillance cameras.

Several days later, after hinting at his knowledge of the murder in a conversation while on a bus to Arkansas, Jefferson was interviewed by police officers. Jefferson directed the police to N.P.’s house. The police executed a search warrant for that address, and N.P., D.P., and K.W. were interviewed. Based on information from these interviews, the police focused their investigation on Jefferson, Jackson, and Bell.

In an attempt to locate Bell and Jackson, several police officers went to Bell’s home. While several officers spoke with Bell, another officer saw Jackson run out onto a rear second-floor balcony and then, after noticing the police presence, return inside. Both Bell and Jackson were arrested and driven to the homicide unit’s headquarters, and a search warrant was executed for Bell’s home. In Bell’s bedroom, the officers found a bullet proof vest hidden under a mattress and an AX-47 assault rifle hidden under a floor vent and wrapped in a shirt. They also found a .banana clip for an assault rifle and a-Rug-er pistol wrapped in a blanket and stuffed in a laundry chute.

Bell initially denied participating in the shooting and denied that Jackson had any role in the robbery. Eventually he admitted that he and Jefferson had entered the store to rob it while Jackson acted as a look-out. On December 16, 2004, Jackson, Jefferson, and Bell were indicted by a grand jury for first-degree murder while attempting to commit aggravated robbery for the shooting death of El-Boudknili.

Because Jackson argues that the evidence was insufficient to support his conviction, we will describe the trial testimony in some detail.

Bell testified for the prosecution and provided this description of events. Between 9 and 10 p.m. on October 21, Jackson and J.B. were at Bell’s home. The three discussed the possibility of robbing the Super USA store. They discussed finding a “send-off man” — someone crazy enough, to do anything — and J.B. suggested Jefferson. Bell, J.B., and Jackson then went to N.P.’s house at around 10:30 or 10:40 p.m. to talk to Jefferson. Later Bell got into the van with Jackson, Jefferson, X.W., D.P. and W.D.

Bell, Jackson, and Jefferson got out of the van at an intersection near the store. Jefferson told X.W. to wait for them. Jefferson produced a gun from his pants leg and said “we’re going to rob it,” in reference to the Super USA store. Jefferson handed Bell the rifle and ordered Jackson to stay in the alley to serve as a look-out while Jefferson and Bell entered the store.

Bell described entering the store at about 10:50 p.m. and stated that Jefferson demanded money from the clerks. Bell had been carrying the rifle and, after a couple of seconds, Jefferson took the rifle from him and shot a clerk. Bell then fled back to where the van had been parked, discarding the rifle under a tree on the way. The van had moved, but Bell and Jefferson found it quickly and jumped in, joining Jackson who was already inside.

Once the three were back in the van, an argument ensued. Bell was upset with Jackson because he believed Jackson had not been properly acting as a look-out. Bell argued with Jefferson because-he was upset that Jefferson had shot the clerk, and Jefferson responded by saying that he thought the clerk was reaching for something. Bell and Jackson left the van after just a few blocks. Bell then went back to his house, but left again later to retrieve the rifle, which he gave to Jackson.

Bell acknowledged that he had entered a plea agreement with the state, under which he was required to plead guilty to intentional second-degree murder and to testify against Jefferson and Jackson. In exchange for his plea and his testimony, Bell was to receive a 306-month prison sentence instead of facing a trial on a first-degree murder charge and a potential life sentence. Bell also indicated that he was suffering symptoms of mental illness. He explained that he has heard voices his entire life.

A psychiatrist examined Bell. She testified that he reported auditory and visual hallucinations and exhibited symptoms consistent with schizophrenia. She testified that Bell told her that the voices had not recently been commanding him to do anything and that they had nothing to do with the robbery. She stated her opinion that Bell understood his plea agreement, the meaning of the oath, and the difference between the truth and falsehoods. While she believed Bell was schizophrenic, she stated that it did not negatively impact his competency to testify. She testified that Bell’s mental illness had nothing to do with his participation in the robbery, his subsequent confession, and his decision to testify against Jefferson and Jackson.

Bell’s testimony was corroborated by the testimony of several other witnesses. K.W. testified to the following events. Shortly before 10:30 p.m., Bell and Jackson arrived at N.P.’s house, went upstairs, and had a conversation with Jefferson. K.W. drove a van containing Jefferson, Bell, Jackson, W.D., and D.P. to an intersection about one block from the Super USA store. At that intersection, Jefferson told K.W. to stop the van and Jefferson, Bell, and Jackson got out. Jefferson told K.W. that they would be back shortly, and K.W. saw the three men walk toward one of the nearby houses. After waiting for five to ten minutes, K.W. heard a “big boom,” and she saw Jackson running. Jackson got in the van and told her to drive. After driving a short distance farther, Jefferson and Bell jumped in the van. Bell and Jackson got out a short while later and left on foot. K.W. claimed she did not know that a robbery had been planned and stated that she never saw anyone in possession of a gun.

D.P. testified that she rode in the van with Jefferson, Jackson, Bell, K.W. and W.D. on the night of October 21, 2004. Her testimony regarding the van ride and the departure of the three men from the van was largely consistent with that of Bell and K.W. D.P. testified that she waited in the van and, after 10 or 15 minutes, she heard a gunshot. After the gunshot, Jefferson, Bell, and Jackson came running back to the van at approximately the same time. After the three men returned to the van, Jackson said he wanted to go back and get his gun. D.P. told Jefferson that they were not going to pick up anybody’s gun using her mother’s van. A minor argument ensued, and Jackson and Bell got out of the van when D.P. told them to leave.

Despite its similarity to the testimony of K.W. and Bell, D.P.’s testimony did exhibit some inconsistencies. D.P. revealed that she had failed to mention Jackson’s name during a one- to two-hour police interview conducted a week after the murder. Instead, she told the police that only Bell and Jefferson were involved. In addition, D.P. admitted that she did not tell the grand jury that Jackson wanted to go back to get a gun. On cross-examination, D.P. testified that she did not recall whether the three men returned to the van at the same time. Furthermore, there was evidence that D.P. may have had trouble perceiving or recalling the events in question. D.P. admitted to having smoked marijuana and taken an ecstasy pill sometime before getting in the van.

D.M. also testified for the prosecution and corroborated much of Bell’s testimony. D.M. was arrested for possession of crack cocaine in February of 2004. D.M. admitted prior convictions for second-degree assault in 1995, second-degree drug possession in 2000, and third-degree assault in 2000. While in jail, D.M. was housed near Jackson from February 24 to March 29, 2005, and then near Jefferson from April 6 to April 25, 2005. D.M. testified that he spoke with Jackson several times and that they got to know each other. D.M. testified that he learned private details from Jackson.

D.M. corroborated Bell’s testimony as to Jackson’s intent to participate in the robbery. Jackson admitted to planning the robbery and referred to Bell and Jefferson as his “crew.” Jackson gave D.M. a detailed account of the events on the night the robbery, including his participation as a look-out, his plan to fire a warning shot from a pistol if anything went wrong, and the argument that occurred when Jackson, Bell, and Jefferson arrived back at the van. Jackson also related the events surrounding his arrest, including how he stepped out onto the second-story porch and how he ran back in to hide his pistol in a laundry chute. Jackson told D.M. that the AK-47 used in the robbery had been hidden under a floorboard in Bell’s room, which also contained “a vest and some ammunition.” One day when D.M. and Jackson were watching TV and a Ruger pistol was shown, Jackson told D.M. that he had a gun like that and that he carried the gun during the robbery at the store.

D.M. testified that Jefferson told him about the robbery as well. Jefferson told D.M. that Jackson had waited outside to act as a look-out while the others entered the store. Jefferson told D.M. about the two clerks, how he and Bell were dressed, and that when one clerk fumbled for something, Jefferson took the gun and shot the clerk when Bell hesitated.

In exchange for his testimony against Jackson and Jefferson, D.M. pleaded guilty to second-degree possession of narcotics and agreed to a sentence of one year in jail and five years probation. Without the plea agreement, D.M. faced either a plea bargain for a 49- or 50-month prison sentence or a trial and a potential presumptive guidelines sentence of 98 months in prison.

Jackson did not testify. The court neglected to give and Jackson failed to request an instruction that a conviction may not be based on uncorroborated accomplice testimony. The jury found Jackson guilty of murder in the first degree while attempting to commit aggravated robbery, and he received a sentence of life imprisonment.

I.

Jackson challenges the sufficiency of the evidence supporting the verdict against him. When reviewing the sufficiency of the evidence, we draw reasonable inferences in favor of the state and assume that the jury credited the state’s witnesses and rejected any contrary evidence. State v. Pippitt, 645 N.W.2d 87, 92 (Minn.2002). Accomplice testimony alone, without corroboration, cannot support a guilty verdict. Minn.Stat. § 634.04 (2006). But this court “view[s] corroborative evidence in the light most favorable to the verdict and do[es] not require it to establish a prima facie case of the defendant’s guilt.” Pippitt, 645 N.W.2d at 93.

In finding Jackson guilty, the jury was first required to find that Jackson intentionally aided, advised, hired, counseled, or conspired with or otherwise procured Bell and Jefferson to commit the crime of aggravated robbery or attempted aggravated robbery. See MinmStat. § 609.05, subd. 1 (2006). A criminal defendant’s intent may be inferred from “factors such as defendant’s presence at the scene of the crime, defendant’s close association with the principal before and after the crime, defendant’s lack of objection or surprise under the circumstances, and defendant’s flight 'from the scene of the, crime.” State v. Pierson, 530 N.W.2d 784, 788 (Minn.1995). We conclude that the evidence was sufficient to show the requisite intent.

Bell and D.M. testified about Jackson’s intent to commit the robbery. Multiple witnesses placed Jackson in the company of Jefferson and Bell before getting into the van. Multiple witnesses testified that, before the shooting, Jackson left the van and walked towards the store with Jefferson and Bell. Multiple witnesses testified that Jackson fled the scene in the van with Bell and Jefferson and that Jackson then left the van with Bell. Jackson was arrested with Bell at Bell’s home and in the vicinity of the murder weapon. Even without Bell’s testimony, ample evidence supports a finding that Jackson intended to aid in commission of the robbery. Jackson’s primary complaint is that the witnesses against him are not credible, but, when reviewing for sufficiency of the evidence, we assume that the jury resolved judgments about credibility against Jackson.

The jury was also required to find that the murder of El-Boudknili was “reasonably foreseeable by [Jackson] as a probable consequence of committing or attempting to commit [aggravated robbery].” See Minn.Stat. § 609.05, subd. 2 (2006). “Whether the defendant could reasonably foresee that the victim would be murdered is a question of fact for the jury.” Pierson, 530 N.W.2d at 789. We conclude that the evidence was sufficient to prove that the murder was foreseeable. Bell and Jefferson entered the store armed with a high-powered assault rifle. Bell testified that he and Jackson sought out Jefferson because he was “crazy enough” to do anything. Jackson, as an accomplice to the attempted robbery, was aware of the basic details of the plan to use force or to threaten the use of force.

Accordingly, we hold that the jury’s verdict is supported by sufficient evidence.

n.

Jackson argues that the district court’s failure to instruct the jury that accomplice testimony must be corroborated was prejudicial error. A criminal conviction may not be based “upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission . of the offense.” Minn.Stat. § 634.04; see also 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.18 (5th ed.2006). “[Tjrial courts have a duty to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice.” State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002). In the absence of an instruction on accomplice testimony, this court should be' concerned with the possibility that the jury rejected the corroborating evidence and convicted solely on the basis of the accomplice testimony. Id.

The state concedes that the jury should have been instructed that Bell’s testimony, without adequate corroboration, is not sufficient to support a conviction. The parties also agree that, even though Jackson did not request such an instruction, we should determine whether omission of an accomplice' corroboration instruction was harmless beyond a reasonable doubt. We have applied the harmless error standard in this context. See, e.g., State v. Lee, 683 N.W.2d 309, 316 (Minn.2004) (reviewing for harmless error without discussion of whether that standard is appropriate). But we have also indicated that the matter of the proper standard of review is not settled. See State v. Gail, 713 N.W.2d 851, 863 n. 9 (Minn.2006) (noting the meager analysis in Lee and applying the harmless error standard because the claim failed under both the harmless error standard and the plain error standard). Because the parties are in agreement and because we would reach the same result under either a harmless error standard or a plain error standard, we review the record in this case to determine whether omission of the accomplice testimony corroboration instruction was harmless beyond a reasonable doubt.

We have typically considered several factors in determining whether a failure to instruct on corroboration of accomplice testimony constitutes reversible error, including whether the accomplice testified in exchange for leniency, whether the accomplice’s testimony was emphasized in the prosecution’s closing argument, and whether the accomplice’s testimony was corroborated by significant evidence. See Gail, 713 N.W.2d at 864. We have also noted that “general instructions on witness credibility [may serve to alert] the jury to the potential for conflicting motivations behind certain testimony.” Lee, 683 N.W.2d at 317.-

In this case, the prosecutor did emphasize Bell’s testimony during closing argument. And Bell received a reduced sentence as part of his plea agreement. But Bell’s statements to police about Jackson’s role were made long before the plea agreement and were based on vague promises regarding allowing Bell to see his family. Moreover, the jury was given an adequate general instruction on the credibility of witnesses. Finally, while many of the corroborating witnesses were impeached to varying degrees, the evidence corroborating Bell’s testimony is quite strong. Jackson was arrested in the company of Bell and in close proximity to the murder weapon. . Bell’s testimony was extensively corroborated by the testimony of D.M. and, to a lesser extent, by surveillance footage and the testimony of K.W. and D.P. Significantly, all witnesses agreed on the basic facts of the crime. Given the strength of the corroborating evidence, we hold that omission of the accomplice liability instruction was harmless beyond a reasonable doubt.

III.

Jackson’s pro se supplemental brief raises several evidentiary issues. Jackson argues that the district court erred and the prosecutor committed misconduct when the state was permitted to present evidence that portrayed Jackson in a bad light.

For example, the state gave notice that it might seek to elicit certain evidence from D.M. that, by virtue of its specificity and private nature, tended to confirm that Jackson had confided in D.M. In particular, the state wanted D.M. to testify that Jackson told him that Jackson and someone known as Junior were in “the murder mob” and that Jackson had a murder-mob-related tattoo. ' The state also wanted D.M. to testify that Jackson told him that he had been shot by a man named B-bay. Jackson asked that this testimony be excluded on the grounds that it is more prejudicial than probative.

In addition, in order to show the relationship between Jackson and Jefferson, the state wanted D.M. to testify that Jackson told him that Jefferson was enlisted to help in the robbery because Jefferson owed Jackson a favor. The state wanted D.M. to testify about the reason Jefferson owed Jackson this favor, which was related to delivery of guns by Jackson to Jefferson in order to permit Jefferson and his brother to “retaliate to some people who shot them.” Jackson asked that this testimony be excluded because it was prejudicial and because Jackson was not given proper Spreigl notice.

The district court ruled that D.M. could testify that he learned that Jackson had a tattoo so long as he did not make reference to gang affiliation, and D.M. was also allowed to testify that Jackson had previously been shot provided that he did not discuss the details of the incident. Finally, the court ruled that D.M. was not permitted to testify about “B-bay owing him a favor because of the transfer of guns.” Jackson’s counsel objected to the testimony regarding Jackson having been shot and assented to the ruling regarding the tattoo.

Jackson claims that the prosecutor’s question to D.M. about Jackson’s tattoo implied that Jackson was in a gang. Jackson also claims that D.M.’s testimony about Jackson having been shot by B-bay was improper and prejudicial because it implied both that Jackson was in a gang and that he was a bad person. Finally, Jackson asserts that D.M.’s testimony that Jackson contacted Jefferson about the robbery because Jefferson owed Jackson a favor constituted improper use of Spreigl evidence. Jackson claims that inadequate notice was given, that the evidence was not clear and convincing, and that the testimony was highly prejudicial because it implied that Jackson was involved with a gang and with criminal activities.

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). Evidence should not be admitted if it is irrelevant or if its probative value is substantially outweighed by the potential of the evidence to prejudice the jury. Minn. R. Evid. 402, 403; State v. Harris, 521 N.W.2d 348, 353 (Minn.1994). The appellant bears the burden of proving that the trial court abused its discretion and that admission of the evidence was prejudicial. Amos, 658 N.W.2d at 203. In addition, Minn. R. Evid. 404(b) includes a notice requirement for admission of evidence of a defendant’s other crimes or acts in a criminal prosecution. See also Minn. R.Crim. P. 7.02.

While gratuitous testimony about a defendant’s gang membership or bad character may be unduly prejudicial, see Harris, 521 N.W.2d at 353, there was no actual mention of gang membership in this case. Moreover, the court excised the most prejudicial parts of D.M.’s proposed testimony. And, because the district court precluded any testimony about the specific reason why Jefferson owed Jackson a favor, no acts related to the favor were described to the jury and thus the requirements of Minn. R. Evid. 404(b) and of a Spreigl notice were not applicable. Accordingly, we hold that the district court did not abuse its discretion in making these evi-dentiary rulings.

IV.

Jackson raises a claim of ineffective assistance of counsel, arguing that, first, his counsel failed to contact certain witnesses who would have been helpful to his case, and, second, that his counsel failed to request the accomplice instruction.

To prevail on an ineffective assistance of counsel claim, an appellant must demonstrate that “representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Martin, 695 N.W.2d 578, 587 (Minn.2005) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (quotation marks omitted). An appellant asserting a claim of ineffective assistance of counsel bears the burden of proof on that claim. Id. Finally, “a claim of ineffective assistance of trial counsel that cannot be decided on the district court record because it requires additional evidence need not be brought on direct appeal and may be brought in a postconviction petition.” Torres v. State, 688 N.W.2d 569, 572 (Minn.2004); see also State v. Gustafson, 610 N.W.2d 314, 321 (Minn.2000) (indicating that, when the existing record is insufficient to evaluate counsel’s decisions, a claim of ineffective assistance is properly raised in a postconviction proceeding).

Jackson’s claims about his counsel’s investigation and witness contacts require consideration of facts not in the trial record. Accordingly, we deny those claims without prejudice to Jackson’s right to raise them in a postconviction proceeding.

We reject Jackson’s claim regarding his counsel’s failure to request the accomplice instruction. Because we have ruled that the error in failing to give the accomplice corroboration instruction was harmless, under a standard more favorable to Jackson, we likewise hold that Jackson cannot prove an ineffective assistance of counsel claim based on the failure to request the jury instruction.

Affirmed.

      . The statute on aggravated robbery, Minn. Stat. § 609.245, subd. 1 (2006), reads:
      Whoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both.