author: LAVORATO, Chief Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Cynthia L. TOFFLEMIRE, Respondent.
    No. 04-0803.
    Supreme Court of Iowa.
    Oct. 6, 2004.
    Rehearing Denied Nov. 30, 2004.

      Charles L. Harrington and Mark Schouten, Des Moines, for complainant.
    Roger J. Kuhle, West Des Moines, and Michael S. Carroll, Des Moines for respondent.
   LAVORATO, Chief Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct (Board) filed a complaint against the respondent, Cynthia L. Tofflemire, alleging several violations of the Iowa Code of Professional Responsibility arising out of her employment with the Labor Division of Iowa Workforce Development (IWD) and her services for the State Public Defender (SPD).

Specifically, the complaint alleged that during a nine-month period Tofflemire (1) claimed sick leave from IWD on days she also certified she was engaged in indigent criminal and juvenile defense on claims she filed with the SPD, (2) filed payroll time-sheets with IWD and certified indigent fee claims with the SPD claiming she regularly worked days in excess of twelve hours and as great as twenty-nine hours for both agencies combined, and (3) made false claims for payment to the SPD and false timesheets to IWD.

Finally, the complaint alleged this conduct violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(3) (lawyer shall not engage in illegal conduct involving moral turpitude), (4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), (5) (lawyer shall not engage in conduct prejudicial to the administration of justice), and (6) (lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). The complaint also alleged Tofflemire charged the SPD fees that violated DR 2-106(A) (lawyer shall not charge an excessive fee).

The Board filed an amendment to the complaint, expanding on the allegation that during the nine-month period in question Tofflemire made false claims for payment to the SPD and false timesheets to IWD, including the following: (1) she claimed to be working for IWD during the same period she claimed to render services for the SPD, (2) she double-billed the SPD for the same services rendered to multiple clients, (3) she billed the SPD for time that exceeded the time actually expended for services she rendered to indigent defendants, and (4) she submitted copies of altered checks in support of claims for reimbursement for expenses she filed with the SPD. The amendment alleged this conduct also violated the above-cited disciplinary rules.

The Grievance Commission (Commission) heard testimony from eight witnesses over a three-day period and considered the affidavits of two other individuals and over three hundred exhibits. The transcript of testimony exceeds seven hundred pages. The Commission found the Board had proved several of the allegations against Tofflemire and recommended that her license should be suspended without the possibility for reinstatement for a minimum of thirty days.

We likewise find that the Board proved several of the allegations of misconduct but conclude that the egregious nature of Tofflemire’s conduct warrants a longer suspension. We therefore suspend her license to practice law in this state indefinitely with no possibility of reinstatement for two years.

I. Scope of Review.

Although Tofflemire did not appeal from the Commission’s recommendation pursuant to Iowa Court Rule 35.11, she did file a statement at our request, as did the Board. Our review is de novo. See Iowa Ct. R. 35.10(1); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wickey, 679 N.W.2d 1, 2 (Iowa 2004). Because we decide what discipline is appropriate in each case, we may impose a lesser or greater sanction than the one the Commission recommended. Wickey, 679 N.W.2d at 2.

II. Facts.

Upon our de novo review, we find the following facts.

Tofflemire was admitted to practice law in Iowa in 1991. Following her admission to the bar, she worked for a small private law firm. When that firm closed its doors, she began her own practice. While on her own, she did some indigent criminal defense as well as family law work.

In August 1992 the Division of Labor of the Iowa Department of Employment Services hired Tofflemire as a temporary employee. Eventually, she became a full-time employee. The name of the agency was later changed from Department of Employment Services to Iowa Workforce Development. She worked out of the Des Moines office.

At the times material to these proceedings, Tofflemire was representing IWD in OSHA and child labor cases. She worked forty hours per week and was allowed to work ten hours per day, Tuesday through Friday. She also had sick leave benefits according to IWD rules and her union contract. During this same period, Toffle-mire was also engaged as a contract attorney with the SPD to represent indigent clients in Polk, Dallas, and Warren counties. Tofflemire accepted cases in adult criminal and juvenile court. She also had a limited private practice consisting of family law and guardianship cases.

IWD allowed employees to work a second job in addition to their IWD responsibilities provided they notified IWD of the nature of the outside employment and that such employment would not adversely affect their IWD job responsibilities. In 1992 Tofflemire obtained consent to maintain outside employment. That consent was renewed in 1994 and was effective throughout the times material to these proceedings.

Tofflemire’s performance review from IWD covering the period of July 1, 1998 through July 1, 1999 indicated that she met or exceeded expectations. During the next year, the relationship between Toffle-mire and the other attorneys in her office began to deteriorate. Other attorneys in the office felt compelled to report a potential ethical violation by a former deputy labor commissioner, but Tofflemire did not join in signing the letter to the Board because she did not feel there was such a violation.

Tofflemire’s performance review covering the period from August 1, 1999 to August 1, 2000 reflected a more negative tone than the year before. Comments in this review included the following: “Cindy is not always forthcoming to her supervisors,” “Cindy is not a good team player,” and “Cindy really needs to address her working relationship with co-workers.” However, this evaluation still stated that Tofflemire’s overall performance met or exceeded expectations.

In late 1999 Tofflemire began taking on more complicated cases as a SPD contract attorney. As early as March 2000, her supervisors were concerned that Toffle-mire’s outside work was taking time away from her full-time job with IWD.

In June, Commissioner of Labor Byron Orton learned that Tofflemire had earned nearly $50,000 for the first five months of 2000 for her SPD work. Orton became concerned that Tofflemire’s outside employment had become so substantial that it was not possible for her to give the time and attention that her job with IWD demanded. When Tofflemire’s supervisors suggested that she was not working full time for IWD, she assured them that she was out of the office on rare occasions, she always made sure IWD received its forty hours of work each week, and she did her indigent defense work at nights and on weekends.

In December an Iowa Department of Revenue and Finance representative notified IWD that Tofflemire had earned $97,438 in 2000 for work she claimed to have performed for the SPD. Her name had come up during a routine cross match that the revenue department performs when state employees are receiving 1099 income from more than one state agency. This amount was in addition to the $59,391.63 annual salary Tofflemire earned as an attorney with IWD. The revenue department’s disclosure caused Orton to initiate an investigation that ultimately led to the termination of Tofflemire’s employment with IWD.

The investigation covered the period from January 1, 2000 through September 15, 2000. For that period, Orton reviewed the hours Tofflemire had submitted to IWD to justify her forty-hour work requirement and the amount of sick leave she had taken. Orton also gained access to billing records Tofflemire had submitted to the SPD and reviewed those records. From that review, Orton found that on twenty-six occasions Tofflemire took sick leave from IWD while claiming to do indigent defense work for the SPD. Orton also found that Tofflemire had billed substantial hours of work to the SPD on days she claimed she had also worked eight-or ten-hour days for IWD. On some days the amount of hours Tofflemire claimed from IWD employment and SPD contract work exceeded twenty-four hours for a given date. On one occasion (June 27, 2000), Tofflemire took funeral leave because of a relative’s death and on that date actually performed work for the SPD.

Shortly after initiating his investigation, Orton enlisted the help of Thomas Becker, director of the SPD office. Becker conducted a spot audit of Tofflemire’s claim forms. He then asked an attorney who worked for him, Michelle Swanstrom, to review all of the claim forms Tofflemire had filed for 2000. Swanstrom then prepared a spreadsheet listing the services Tofflemire claimed to have performed on a day-to-day basis for 2000. Thereafter, Or-ton prepared his own spreadsheet incorporating the SPD data.

On January 9, 2001, Orton met with Tofflemire to discuss his findings. His review up to that time had focused on twenty-six dates in 2000 when Tofflemire had taken sick leave from IWD but also claimed to have done work for the SPD. He presented those dates to Tofflemire at this meeting and gave her an opportunity to explain why she had billed the SPD for the same days she had claimed sick leave from IWD.

Tofflemire tried to assure Orton that her work for the SPD was not interfering with her work obligations for IWD. She again claimed that she did the bulk of her SPD work on weekends and after hours. Orton also confronted Tofflemire about the days she had billed in excess of twenty-four hours. She responded by saying that there had to be some sort of mistake in her SPD billings. When Orton asked Tof-flemire about the days she claimed to have worked at the county jail or courthouse for SPD clients during work hours for IWD, she said the itemizations on her SPD claims were wrong.

Orton and Tofflemire met again on January 12 after Orton had given her a few days to come up with an explanation. On that date, Orton brought up the June 27, 2000 date when Tofflemire took funeral leave from IWD while also claiming to work 6.7 hours for SPD. Tofflemire said she had taken funeral leave and attended a funeral for a relative in Sioux Falls, South Dakota. When Orton asked her how she could have worked the 6.7 hours for SPD on that date, she said she did the work after returning from South Dakota.

Tofflemire’s explanations did not satisfy Orton so he terminated her employment with IWD that same day. His reasons for doing so included her abusing the IWD sick leave policy; deliberately falsifying timesheets, work sheets, production records, materials, or any other records related to work activities; and lying during his investigation. A short time later, Becker terminated Tofflemire’s contract with the SPD because of his concerns that she had submitted inaccurate billing itemizations and fee claims to the SPD.

At the hearing before the Commission, Orton testified in more detail about his investigation. From his testimony we find that the 26 sick days that Tofflemire took represented approximately 15% of the 180 workdays for the period reviewed. In addition, Tofflemire billed the SPD for 247 of 259 calendar days during the same period. Although Tofflemire consistently told Or-ton that she did SPD work on weekends, his spreadsheet showed otherwise. On a number of weekends she billed no time at all to the SPD.

Becker likewise testified in more detail about his investigation. From this testimony we find that the $97,438 that Toffle-mire earned in 2000 was almost as much as the senior supervisors working in Becker’s office were paid (senior supervisors were paid slightly over $100,000 per year). Her claims were also at the very top tier of claims paid to attorneys who had contracts with the SPD. In addition, the record reflects that in 1999 Tofflemire earned $49,208.19 in SPD work and $55,972.39 from her full-time job with IWD.

Becker marveled that Tofflemire was able to meticulously capture her time as she did. He believed she had to be very disciplined in writing down how much time she spent doing the work. When he was told that Tofflemire had used no system to record her time for the SPD work billed in 2000, he responded that would be inconsistent with the detail he saw.

Swanstrom told Becker that Tofflemire’s claims were in many instances at the outer edge of reasonableness. Nevertheless, Becker would not conclude that Tofflemire had not performed the services. Of course, that is not surprising because the record reflects that the SPD has no accurate way to determine whether the services were or were not performed. The SPD has to rely on attorneys being truthful in submitting claims.

Board investigator Elayne Sobel testified concerning her investigation. Sobel took information from Orton’s spreadsheet, which included information from the SPD, and incorporated that information into a database. From the database, Sobel prepared a detailed analysis, which shows the following. During the period in question, Tofflemire claimed to have worked more than twenty-four hours on five different dates between her IWD and SPD employment. On one of those dates, Friday, February 25, 2000, Tofflemire claimed to have worked over twenty-nine hours between the two agencies. On thirty occasions, Tofflemire claimed to have worked over eighteen hours per day between the two agencies. On 174 of the 259 calendar days, Tofflemire claimed to have worked over ten hours per day between the two agencies. In addition, the analysis shows that — contrary to Tofflemire’s claim — only a small portion of her work was done on weekends. Finally, consistent with Or-ton’s testimony, Tofflemire claimed to have done SPD work for 247 days of the 259 days during the nine-month period under investigation. Ten of the twelve days that Tofflemire did not bill the SPD fell on a Saturday or Sunday.

Sobel’s analysis also confirms that Tof-flemire billed the SPD for work on the twenty-six days of sick leave Tofflemire took from IWD. On one of those days, Tofflemire claimed she was forced to stay at home because of an infected fingernail. On that day she attended a pretrial conference, which appeared on her weekly tickler/calendar for three weeks prior to the conference, indicating this date was a planned absence. In addition, the analysis shows that Tofflemire claimed to have written 290 letters during the period under investigation. For 282 of those letters, Tofflemire charged one-half hour, and she charged one-half hour for each of four identical short letters.

Sobel also reviewed Tofflemire’s subpoenaed bank records and discovered that in eight instances duplicate check copies attached to claim forms filed with the SPD did not match actual checks written on Tofflemire’s checking account. For example, in one instance the original cheek was written to a Dave Nixon on February 14, 1999 in the amount of $5.00. However, the duplicate check copy attached to the particular indigent claim form was to Kinko’s in the amount of $65.42 and was purported to be written on September 30,1999.

Sobel also reviewed the summaries Tof-flemire submitted as exhibits to explain away apparent inaccuracies and inconsistencies within her timekeeping system during 1999 and 2000. Sobel found that over half of the summaries were inaccurate and the effect of each summary was to shift time from days with high SPD hours to days with low hours. Tofflemire prepared those summaries after she was given Orton’s spreadsheet.

III. Ethical Violations.

In her testimony, Tofflemire asserted that IWD and the SPD misconstrued her billing statements to the SPD, and therefore their action against her was unwarranted. She related that in 1999 and 2000 she began taking on more complicated cases for the SPD. As a result she was no longer able to keep contemporaneous billing records as she performed services for the SPD. She testified that she resorted to what she described as “block and summary” billing in which she would summarize letters, documents, motions, or briefs on the date they were completed or filed, even though her work on the documents may have been completed much earlier.

In effect, what Tofflemire was doing was to review the file after the case was concluded and then reconstruct time and billing records for the case. As a result, her block and summary billings had little relation to the dates when the billed work was actually done. This, she said, accounted for the erroneous conclusion that she was working more than twenty-four hours in a day.

As to her billing practices, the Commission found:

After reviewing the record in this matter, the Commission is very troubled by many inconsistencies and inaccuracies that are apparent in Respondent’s billing and recordkeeping process. The Commission is mindful of the fact that mere negligence is generally insufficient to sustain a finding of misrepresentation or conduct that is prejudicial to the administration of justice. However, a review of the entire record in this matter leads the Commission to conclude that the Respondent conducted herself with a significant and reckless disregard for the accuracy and truthfulness of her billing and timekeeping records.

We agree with and adopt these findings.

The Commission made these findings after reviewing ninety-eight separate indigent defense claims that Tofflemire had submitted to the SPD during 2000. As to these claims, the Commission was “quite frankly amazed” that the claims could contain as much detail and itemization as were found on the claims given that the itemiza-tions were not prepared or reconstructed until several months after the services were performed. Like the Commission, we do not believe that it is possible to reconstruct accurate billing records when such a substantial amount of time has passed after the completion of the services.

Without contemporaneous time records to support her billings, the Commission had little faith in the accuracy of the summaries Tofflemire produced to explain inconsistencies or impossibilities such as billing for more than twenty-four hours in a day. We likewise have little faith in the accuracy of those summaries.

One glaring example of the inaccuracy concerning Tofflemire’s summaries involved SPD client Anthony Lange. Toffle-mire claimed that a time entry for Lange was improperly typed in with a date of February 25, 2000, rather than January 14, 2000. According to Tofflemire, the work shown for Lange actually occurred a month earlier, and the incorrect date was a typographical error. However, at the hearing, Tofflemire was shown copies of district court filings which indicated that the services she performed for Lange actually did occur on February 25, 2000. She was unable to give a satisfactory explanation why her summary entry was inaccurate. The Commission noted that it was troubled during the course of the hearing with Tofflemire’s inability to provide succinct and direct answers to questions pertaining to her billing and recordkeeping practices.

Tofflemire insisted that the SPD administrative rules did not require dates to be included in a billing statement. The Commission however pointed out that Toffle-mire chose to designate dates for the various services itemized on her fee claims and found that it would be “disingenuous to assume that a party reviewing the fee claims would not reasonably believe that the services rendered corresponded with the dates shown on the fee claim itemiza-tions.” Moreover, when questioned about this matter, Tofflemire was unable to give a satisfactory example of how the billings themselves indicated they were summary billings rather than contemporaneous billings.

Tofflemire’s testimony that the SPD’s administrative rules did not require dates to be in the billing statement is misleading. The SPD’s written instructions for completing claims clearly provide that the claim form should have attached to it an “itemization detailing the dates, services provided and billable hours for each service.” We find incredible her testimony that because these instructions fail to define the term “services,” she did not know how to properly complete the form.

Describing Tofflemire’s billing method as a “recipe for disaster,” the Commission concluded that her timekeeping practices for her SPD work constituted conduct prejudicial to the administration of justice and conduct adversely reflecting on her fitness to practice law in violation of DR 1 — 102(A)(5) and DR 1-102(A)(6). The Commission further concluded that Tofflemire’s submission of itemized billings “with such a questionable level of accuracy rises to the level of reckless disregard for the truth.” The Commission therefore concluded that such conduct constituted misrepresentation in violation of DR 1-102(A)(4). We agree with and adopt all of these conclusions. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002) (concluding attorney’s reckless disregard for the truth constituted misrepresentation).

As to the check alteration issue, Tofflemire testified that all the expenditures were actually made and she therefore did nothing wrong in altering the original duplicate copies and attaching them to her claim forms. The Commission disagreed, concluding that such actions constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). We likewise agree with and adopt this conclusion and the Commission’s finding that such conduct is “bound to undermine public trust in the accuracy and validity of attorney expense reimbursements sought from public funds.” See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 123 (Iowa 1999) (noting that “there is no typical form of conduct that prejudices the administration of justice,” but a “common thread” in cases dealing with this violation is that “the attorney’s act hampered the efficient and proper operation of the courts or of ancillary systems upon which the courts rely”).

Turning to the sick leave issue, the Commission found that Tofflemire was correct in contending that IWD work rules and the collective bargaining agreement do not place any particular constraints on the use of sick leave. Nevertheless, the Commission frowned upon the practice, noting that “in the eyes of the public, moonlighting on a second job is not generally viewed as an acceptable practice during the time a person claims sick leave from their primary employer.”

We take issue with the Commission’s finding that the IWD work rules and the collective bargaining agreement do not place constraints on the use of sick leave. To the contrary, the collective bargaining agreement and the IWD work rules allow an employee to use accrued sick leave when personal illnesses or injuries would require the employee’s confinement, or render the employee unable to perform assigned duties, or when performance of assigned duties would jeopardize the employee’s health or recovery. The IWD work rules and collective bargaining agreement are clear that sick leave should not be used for any other reason. The IWD work rules provide that abuse of sick leave means an employee is claiming sick leave for purposes other than those provided for in the collective bargaining agreement. Clearly, working for the SPD while claiming sick leave from IWD constitutes an abuse of sick leave. Not only is this an abuse of sick leave, but it also constitutes a misuse of public funds.

The Commission was particularly concerned, as we are, about two incidents involving sick leave. One occurred on April 19, 2000 when Tofflemire claimed nine hours of sick leave because of an infected fingernail and billed six hours to the SPD. On that date Tofflemire attended a pretrial conference that had been on her calendar for three weeks, indicating that the date was a planned absence rather than a legitimate claim for sick leave. The other incident concerned the June 27, 2000 sick leave claim for a relative’s funeral. On that date, Tofflemire appeared in court on a plea and sentencing for one SPD client and on an arraignment for another. The arraignment had been on her calendar for some time before June 27. The Commission had difficulty believing that the timing of these leaves and the timing of the court appearances were merely coincidental. We think they were not coincidental, but planned.

The June 27 funeral incident is troubling for another reason. Tofflemire originally told Orton that she did indeed go to the funeral in Sioux Falls, South Dakota. In an answer to a Board interrogatory, she admitted that she had not gone to the funeral.

The Commission concluded that Toffle-mire’s “cavalier attitude towards taking IWI) sick leave while still performing SPD work constitutes conduct that is prejudicial to the administration of justice” in violation of DR 1-102(A)(5). We think so too. In addition, we think her actions were egregious enough to constitute illegal conduct involving moral turpitude in violation of DR 1-102(A)(3). Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 189 (Iowa 1997) (stating “ ‘[m]oral turpitude’ in the context of attorney misconduct means illegal conduct done with a fraudulent or dishonest intent”); Comm. on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 35 (Iowa 1990) (noting that for purposes of disciplinary proceedings in which moral turpitude is an issue, it is “immaterial that respondent was not charged or convicted of a crime”).

Concerning the Board’s charge of “over-billing,” the Commission had concerns that Tofflemire had repeatedly over-billed the SPD. However, because of the haphazard way that she kept time records, the Commission felt there was no way to prove this. However, the Commission did find that Tofflemire had overcharged for six letters. Four of those letters were brief identical letters to witnesses concerning their review and signing of proposed affidavits. Tofflemire billed .5 hours for each of the six letters. Because the Commission simply did not believe that Toffle-mire expended three full hours preparing the letters, it concluded that the billing constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5) and collection of an excessive fee in violation of DR 2-106(A). Although we agree with and adopt these findings and conclusions, we go one step further. We think there is ample evidence from this record to reasonably infer that Tofflemire repeatedly over-billed the SPD.

IV. Discipline.

We have consistently said that the appropriate discipline in a particular case turns on the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole, and the respondent’s fitness to continue in the practice of law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 329-30 (Iowa 2000). We also consider aggravating and mitigating circumstances when determining the appropriate sanction. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999).

Tofflemire offered mitigating evidence in the form of character testimony from judges, attorneys, and her daughter. These witnesses stated that Tofflemire is trustworthy, truthful, thorough, willing to take difficult cases and clients, works hard, and zealously advocates for her clients. But as the Commission pointed out, “the common denominator among all of [these witnesses] is the fact that none of them were intimately familiar with [Tofflemire’s] billing or timekeeping practices.” With the exception of one witness, none of these witnesses was “familiar with her former duties and job performance with [IWD].”

Tofflemire has no history of disciplinary action. We consider that in her favor.

However, giving evasive or untruthful testimony at a Commission hearing is an aggravating circumstance. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 546 N.W.2d 215, 218 (Iowa 1996). As mentioned, Tofflemire claimed she used block and summary billing. However, the billing claims she submitted to the SPD do not reflect that system. The claims make it appear that the detailed billings were contemporaneously made. Moreover, she was evasive and unresponsive in many of her answers, and her explanatory summaries were substantially inaccurate. Finally, although she used the language “block and summary” billing to describe her billing and recordkeeping system, we consider that system bogus.

A mitigating factor is the attorney’s recognition of some wrongdoing. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 302 (Iowa 2002). Conversely, the attorney’s failure to appreciate the wrongfulness of his or her actions is an aggravating circumstance. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 655 (Iowa 2002).

In her statement to this court, Tofflemire admits that she was sloppy in keeping time records, she should not have attempted to work privately when she was sick, and she mistakenly submitted several copies of carbon checks as proof of expenses that at times were the improper check carbon. At first blush, these statements appear to demonstrate an appreciation of wrongdoing, weighing in favor of mitigating the sanction. However, on closer examination, each of the statements is followed by an excuse, evidencing a lack of an actual appreciation of her wrongful conduct.

Moreover, during the hearing before the Commission, Tofflemire consistently maintained that she did nothing wrong and that any misrepresentations she made were the results of honest mistakes. For example, she claimed she used a calendar for 1999 when she was preparing her 2000 claim forms and incorrectly typed the wrong dates on the itemization. She also claimed she made errors in transcribing numbers from her handwritten notes, but she never produced the notes. Sometimes she claimed she simply mistyped the itemization — striking an adjacent key rather than the correct key when preparing her claim form. And although conceding her summary billing was misleading, she stated she was never asked about it, but would have explained if only she were asked. Concerning her actions in doing SPD work while claiming sick leave from IWD, she stated she was forced to do the work to avoid committing an ethical violation. She chose to ignore, however, that she could have done the work on her own time and avoid claiming pay for sick leave.

To justify her action in doing SPD work while claiming sick leave from IWD, Tof-flemire stated the IWD work rules did not properly define “abuse of sick leave” to guide her in deciding when sick leave was justified. To the contrary, we have already indicated the rules were very specific as to what constituted an abuse of sick leave.

Finally, she maintained that but for her refusal to sign the ethics complaint against the former deputy commissioner, her current ethical problems would never have happened, implying her fellow workers at IWD were conspiring against her.

Simply put, Tofflemire has steadfastly refused to take blame for her actions. Instead, she has sought to shift the blame from herself to other persons or things. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa 1999) (an attorney’s “attempt to shift the blame elsewhere ... reflects poorly on [the lawyer’s] fitness to practice law”).

No standard discipline is imposed for particular instances of attorney misconduct. Grotewold, 642 N.W.2d at 294. However, attorneys who have engaged in misrepresentation and deceit have received lengthy suspensions because such conduct “constitutes a grave and serious breach of professional ethics.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999). As we have said on several occasions:

Fundamental honesty is the base line and mandatory requirement to serve in the legal profession. The whole structure of ethical standards is derived from the paramount need for lawyers to be trustworthy. The court system and the public we serve are damaged when our officers play fast and loose with the truth. The damage occurs without regard to whether misleading conduct is motivated by the client’s interest or the lawyer’s own.

Comm, on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990).

What is troubling here is that instead of an isolated instance of misrepresentation, there was repeated deception. Each time Tofflemire prepared a claim form it appeared the services were performed contemporaneously when in fact they were not. Not once but eight times she attached false carbon copies of checks to her claim forms. Each time she claimed sick leave she was representing to her employer, IWD, that she was sick when in fact she was well enough to perform SPD work. The deception continued right into the hearing with her explanatory summaries.

In other instances of similar misconduct, lawyers have been suspended from three months to three years. See, e.g., Lane, 642 N.W.2d at 302 (lawyer suspended for six months for submitting an application to the court for attorney fees in the amount of $16,000 for a brief that was largely copied from an uncredited source; lawyer had a prior reprimand); Stein, 603 N.W.2d at 575-76 (lawyer suspended for two years for persistent course of deceit and misrepresentation in a case in which lawyer misrepresented that he had done work to clear title by performing a contract of forfeiture; lawyer previously had been reprimanded and his license had been suspended); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Romeo, 554 N.W.2d 552, 553-54 (Iowa 1996) (lawyer suspended for three years for falsifying written records to protect client; lawyer previously had been publicly reprimanded); Comm, on Prof'l Ethics & Conduct v. Ramey, 512 N.W.2d 569, 571-72 (Iowa 1994) (“lawyers cannot be excused for false statements on the basis of a sloppy, or even casual, unawareness of the truth”; lawyer suspended for three months for one false statement to a judge and his failure to disclose exculpatory evidence; lawyer had been suspended before for an income tax violation and false certification); Comm. on Prof'l Ethics & Conduct v. Zimmerman, 465 N.W.2d 288, 293 (Iowa 1991) (lawyer suspended for six months for filing a false fee application with the court that misrepresented the amount of work he and his wife, the conservator, had done in a conservatorship and for charging an excessive fee; lawyer had been involved in a prior disciplinary case); Comm. on Prof'l Ethics & Conduct v. Cody, 412 N.W.2d 637, 640-41 (Iowa 1987) (lawyer’s license suspended for two and one-half years for executing two insufficient fund checks when the behavior was not an isolated incident).

Finally, we ordered six-month suspensions in several cases involving excessive fees. See, e.g., Lane, 642 N.W.2d at 302; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hoffman, 572 N.W.2d 904, 909-10 (Iowa 1997).

Given the conduct here, we think a suspension lengthier than the one the Commission recommended is warranted. Accordingly, we think a two-year suspension is appropriate.

Y. Disposition.

We suspend Cynthia L. Tofflemire’s license to practice law in this state indefinitely with no possibility of reinstatement for two years. This suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12(3).

Upon any application for reinstatement, Tofflemire must establish that she has not practiced law during the suspension period and has in all other ways complied with the requirements of Iowa Court Rules 35.13 (procedure on application for reinstatement) and 35.21 (notification of clients and counsel). If Tofflemire intends to engage in the private practice of law upon any future reinstatement, she shall submit satisfactory evidence that she will have in place, use, and maintain billing practices that will ensure contemporaneous billing.

Costs of this action are taxed to Toffle-mire pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Douglas Donald FINTEL, Appellant.
    No. 03-0889.
    Supreme Court of Iowa.
    Nov. 10, 2004.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Douglas Fintel, appeals from his conviction and sentence for conspiracy to manufacture methamphetamine in violation of Iowa Code section 124.401(1)(6 )(7) (2001). He urges that (1) the jury instructions were confusing and led to an inconsistent verdict, (2) there was insufficient evidence of a conspiracy, (3) the sentencing enhancement imposed pursuant to Iowa Code section 124.401C was not applicable, and (4) his trial counsel provided ineffective assistance. After reviewing the record and considering the arguments presented, we agree that the sentencing enhancement contained in section 124.401C should not have been applied to defendant’s sentence. In all other respects, we affirm the judgment of the district court.

Shortly after midnight on December 5, 2002, the Waterloo Police Department dispatched several officers to an apartment complex located at 1308 West Fourth Street. The police officers were sent to investigate a complaint from a resident of the complex. The complaint concerned a strong smell of ammonia coming from an apartment within the complex.

Officers Allspach and Saunders were the first to arrive at the apartment complex. Officer Allspach testified that, when he opened the main entrance door to the apartment building, he was overwhelmed by the smell of ether. Officers Nemmers, Carter, Gehrke, Rulapaugh, and Sullivan were dispatched to assist Officers Allspach and Saunders. These officers arrived at the apartment complex approximately five minutes after Officers Allspach and Saunders.

The police officers decided to evacuate the residents of the apartment complex. The officers also determined that the ammonia and ether smells were coming from apartment number five. This determination was based on the observations of several officers who saw an individual sitting on a chair or stool surrounded by plastic jugs and glass jars with tubing coming out of a plastic jug in apartment number five. Specifically, Officers Allspach, Saunders, Nemmers, and Rulapaugh testified that they observed this individual through a basement window to apartment number five. Additionally, Officers Allspach, Saunders, and Nemmers testified that they believed the individual they observed was “cooking” methamphetamine. This individual was identified as Randy Corsi.

After determining that the ammonia and ether smells were coming from apartment five and that methamphetamine was likely being manufactured in the apartment, the officers decided to enter the apartment and remove its occupants. The officers broke through the door to the apartment and ordered its occupants to the ground. The individuals that occupied the apartment were taken into custody and removed from the apartment.

Officer Sullivan transported the defendant from the apartment complex to the Waterloo Police Department. The defendant waived his Miranda rights and spoke with Officer Sullivan. Defendant told Officer Sullivan that he lived at apartment number five and shared the rent with Cheryl Refshauge, who also lived in the apartment. Defendant also told Officer Sullivan that he knew methamphetamine was being produced in the apartment and that he knew it was wrong, but his drug addiction allowed it to happen. Defendant denied cooking the methamphetamine, procuring any of the ingredients, or being involved in any manner with the methamphetamine-making process.

Defendant also spoke with Officer Gehrke. Defendant told Officer Gehrke that he lived at apartment number five. He also told Officer Gehrke that he knew the reason for the police being at his apartment complex and that he knew what had been going on in his apartment before the police arrived. Defendant also acknowledged that he knew the substances that were in his apartment, including acid and anhydrous ammonia.

Cheryl Refshauge testified that both she and the defendant lived in apartment number five. She testified that the defendant had lived in her apartment, renting one of the two bedrooms, for three to four months. Refshauge also testified that she did not see the defendant in her bedroom where the methamphetamine was being manufactured or see him use methamphetamine that night. However, Refshauge testified that, in the months prior to December 4, 2002, she had witnessed the defendant use methamphetamine.

Defendant testified that, on the evening of December 4, 2002, he had dinner and hung out with Cheryl Refshauge, Randy Corsi, and Guy Fremont in his apartment. Sometime after 11 p.m., Refshauge and Corsi left the apartment to buy beer at Kwik Star, which is a ten-minute walk from the apartment. Approximately ten to fifteen minutes after Refshauge and Corsi left, Bruce Fuller and Joe McAhren came to the apartment.

Defendant testified that Fuller and McAhren walked into the apartment without knocking. Defendant further testified that Fuller was carrying a small plastic bowl and a duffle bag. Upon entering the apartment, Fuller asked, “Does anyone want to get high?” Fuller then went into the defendant’s bedroom. Defendant testified that he followed Fuller into his bedroom in order to get high.

While inside defendant’s bedroom, Fuller took something out of the duffle bag and began mixing it in the plastic bowl. Defendant stood by Fuller while he was mixing the contents of the bowl. Defendant testified that, when the fumes from the bowl became “really really bad,” he asked Fuller to take the mixture out of his room. Defendant further testified that, after being asked three times to leave, Fuller exited his bedroom and went to Refshauge’s bedroom with the plastic bowl.

Defendant testified that he wanted Fuller to take the bowl and its contents out of the apartment, so he went to Refshauge’s bedroom and asked Fuller to leave. Defendant further testified that he found the door to Refshauge’s bedroom locked. He pounded on the door and asked Fuller to leave the apartment. Around this time, Ms. Refshauge returned to the apartment from the Kwik Star and became upset when she learned what was happening in her bedroom. At this point, defendant testified that he returned to his room and told Ms. Refshauge to deal with the situation because the individuals involved were her friends and were in her bedroom. The defendant stayed in his room until the police entered the apartment and took everyone outside.

Bruce Fuller testified that he was at defendant’s apartment on December 4, 2002. He also testified that he went to the apartment in order to “bubble dope.” Fuller testified that he procured all the ingredients for the methamphetamine himself and that no one helped him in the process of making the methamphetamine.

I. Standard of Review.

Alleged errors in jury instructions are reviewed for corrections of errors at law. Iowa R.App. P. 6.4; State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Error in giving a jury instruction does not merit reversal unless it results in prejudice to the defendant. Kellogg, 542 N.W.2d at 516.

Challenges to the sufficiency of the evidence supporting a guilty verdict are reviewed for correction of errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). The verdict must be supported by substantial evidence. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. at 76. The evidence is reviewed in the light most favorable to the State and all of the evidence presented at trial, not just evidence that supports the verdict, is considered. Id. The State has the burden to prove every fact necessary to constitute the crime with which the defendant is charged, and the evidence presented must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture. Id.

Issues of statutory interpretation are also reviewed for errors at law. State v. Cartee, 577 N.W.2d 649, 652 (Iowa 1998). Review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).

II. Whether Jury Instructions 17 and 18 Created Confusion Among the Jurors Because They Acquitted the Defendant of Manufacturing Methamphetamine, but Convicted Him of Conspiracy to Manufacture Methamphetamine, Thereby Raising Issues of Double Jeopardy and Collateral Estoppel.

A. Arguments. Defendant argues jury Instructions 17 and 18 are cumulative, confusing, and prejudicial because alternative “A” in instruction 18 amounts to a restatement of Instruction 17. Defendant maintains jury confusion is apparent because he was acquitted of the manufacturing charge (Instruction 17), but convicted on the charge of conspiracy to manufacture methamphetamine (Instruction 18). Defendant contends that double jeopardy is at issue because, based on the confusing nature of Instructions 17 and 18, he was convicted of the same crime in which he was acquitted. Defendant further argues collateral estoppel is at issue because the prior proceeding (the trial) demonstrates that the jury acquitted him on the same basis and employing the same facts it used to convict him.

B. Analysis. Iowa Code section 124.401(1) provides in pertinent part:

[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance ... or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance.

Instruction 17 provided that, in order to prove defendant guilty of manufacturing a controlled substance, the State needed to show defendant: (1) “manufactured methamphetamine,” or (2) “aided and abetted another who manufactured methamphetamine,” or (3) “acted together with another who manufactured methamphetamine.”

Instruction 18 provided three alternative ways in which the State could prove defendant guilty of conspiracy to manufacture a controlled substance. Alternative “A” required proof that “the defendant knowingly acted with one or more persons to manufacture or attempt to manufacture methamphetamine.”

Alternative “B” required proof that “the defendant entered into a common scheme or design with one or more persons to manufacture or attempt to manufacture methamphetamine.” Alternative “C” required proof that “the defendant agreed with one or more persons that one or more of them would commit the offense of manufacturing or attempting to manufacture methamphetamine.”

In considering defendant’s argument, we have substantial doubt that inconsistent verdicts returned by the jury in the same trial can give rise to a double jeopardy violation or create a collateral estoppel. As the court of appeals has concluded, inconsistent verdicts on multiple counts in the same trial do not ordinarily taint the validity of a verdict of guilt. State v. Pearson, 547 N.W.2d 236, 241 (Iowa Ct.App.1996). Such inconsistencies may result from the jury’s exercise of its power of leniency. Id. In Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 359 (1932), the Supreme Court held that a criminal defendant could not challenge a conviction on one count of a multiple-count indictment solely because it may be inconsistent with an acquittal by the jury on another count. The court stated that “[cjonsistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.” Id.

If jury verdicts are to be examined for inconsistency, the test to be applied is whether the verdict is so logically and legally inconsistent as to be irreconcilable within the context of the case. Hoffman v. Nat’l Med. Enters., Inc., 442 N.W.2d 123, 126-27 (Iowa 1989). Under that test, defendant’s assertion of inconsistency fails. The same instructions that are challenged in the present case were considered by this court in the appeal of Fintel’s codefendant in State v. Corsi, 686 N.W.2d 215, 222 (Iowa 2004). In Corsi we recognized that, although all of the alternatives contained in Instruction 18 were not technically elements of a conspiracy, they did accurately instruct the jury as to the various methods in which a person could violate Iowa Code section 124.401(1) without actually completing a manufacture of a controlled substance. Corsi, 686 N.W.2d at 222.

In contrast, the elements set forth in Instruction 17 convey to the jury the various methods by which a person may violate that statute by causing the completed manufacture of a controlled substance. For this reason, there was no inconsistency or duplication in the instructions. Nor was there any inconsistency in the jury’s acquittal of defendant with respect to a completed manufacture of a controlled substance under the elements of Instruction 17 while convicting him based on the elements of this statutory crime that do not require a completed manufacture.

III. Whether There Was Sufficient Evidence to Find Defendant Participated in a Conspiracy to Manufacture Methamphetamine.

A. Arguments. Defendant argues the evidence does not establish that he entered into any agreement, plan, or conspiracy to manufacture methamphetamine. Defendant maintains there is no direct evidence that he participated in a conspiracy. Defendant points out that, at the trial, Bruce Fuller testified he acted alone in manufacturing the methamphetamine. Additionally, defendant points out no other witnesses testified that defendant took part in securing, delivering, or processing the chemicals used for manufacturing the methamphetamine. Defendant further argues the circumstantial evidence only shows his presence and knowledge as to the manufacturing of the methamphetamine.

B. Analysis. Iowa Code section 706.1 provides:

A person commits conspiracy with another if, with the intent to promote or facilitate the commission of a crime which is an aggravated misdemeanor or felony, the person does either of the following:
a. Agrees with another that they or one or more of them will engage in conduct constituting the crime or an attempt or solicitation to commit. the crime.
b. Agrees to aid another in the planning or commission of the crime or of an attempt or solicitation to commit the crime.

In order to find defendant conspired to manufacture methamphetamine, the State was required to show: (1) the defendant agreed with one or more persons that one or both of them would manufacture or attempt to manufacture methamphetamine, (2) the defendant entered into such an agreement with the intent to promote or facilitate the manufacture of methamphetamine, (3) one of the parties to the agreement committed an overt act to accomplish the manufacturing of methamphetamine, and (4) the alleged coconspirator(s) was not a law enforcement agent or assisting law enforcement when the conspiracy began. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001); see also Iowa Code § 706.1(l)-(4).

An agreement to form a conspiracy may be described as a “concert of free wills,” “union of the minds of at least two persons,” and “a mental confederation involving at least two persons.” Speicher, 625 N.W.2d at 741-42 (citing State v. Boyer, 342 N.W.2d 497, 499 (Iowa 1984)). The agreement may be proven through circumstantial evidence and inferences drawn from that evidence. State v. Casady, 597 N.W.2d 801, 804-05 (Iowa 1999). Furthermore,

“[a]n agreement that, because of its purpose or the means contemplated, amounts to a conspiracy need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.”

Id. at 805 (quoting State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998)). However, circumstantial evidence that proves mere presence at the scene of the crime or association with those involved in the crime is not sufficient to show an agreement. Speicher, 625 N.W.2d at 742^43.

Guided by the foregoing principles, we are convinced that the following circumstances, as shown by the evidence, are sufficient to support a jury’s finding that defendant conspired to manufacture methamphetamine: (1) defendant knew methamphetamine was being manufactured in his apartment, (2) he was present when the manufacturing process occurred, (3) he had knowledge of the presence of acid and anhydrous ammonia in his apartment, (4) he admitted to police officers that his addiction had driven him to allow the methamphetamine to be manufactured in his apartment, (5) when Bruce Fuller entered defendant’s apartment and asked “Does anybody want to get high?,” defendant followed him into the bedroom where the manufacturing commenced with the intention of getting high, and (6) defendant’s apartment was littered with the necessary ingredients and utensils for manufacturing methamphetamine. Defendant’s challenge to the sufficiency of the evidence is rejected.

IV. Whether the District Court Erred in Applying Iowa Code Section 124.401C at Defendant’s Sentencing.

A. Arguments. Essentially, defendant argues that this statute by its terms only applies to manufacturing methamphetamine, not conspiracy to manufacture methamphetamine. Because defendant was acquitted of the manufacturing charge, he argues the district court improperly enhanced his sentence. The State argues the enhancement provision does not require a particular amount of methamphetamine to be manufactured, and therefore, the statute encompasses a conspiracy to manufacture methamphetamine that is established by an overt act just short of production.

B. Analysis. The defendant’s sentence was increased pursuant to Iowa Code section 124.401C(1), which provides:

In addition to any other penalties provided in this chapter, a person who is eighteen years of age or older and who either directly or by extraction from natural substances, or independently by means of chemical processes, or both, unlawfully manufactures methamphetamine, its salts, isomers, and salts of its isomers in the presence of a minor shall be sentenced up to an additional term of confinement of five years.

Iowa Code section 124.101(16) defines “manufacturing” as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance.” We have recognized that this definition requires the actual production of the illegal material. Corsi, 686 N.W.2d at 224 (citing State v. Royer, 632 N.W.2d 905, 908 (Iowa 2001)); Casady, 597 N.W.2d at 807. Because the defendant was acquitted of those violations of section 124.401(1) that require a completed manufacture of a controlled substance, his sentence should not have been enhanced pursuant to Iowa Code section 124.401C.

V. Whether Defendant’s Trial Counsel Provided Ineffective Assistance of Counsel.

A. Arguments. Defendant argues his trial counsel was ineffective because he failed to object to jury Instructions 2, 4, and 5 as prejudicial misstatements of the law. Defendant maintains Instructions 2, 4, and 5 are improper because they instruct the jury to determine his guilt or innocence. Defendant contends the term “innocence” versus the term “guilty beyond a reasonable doubt” places an unconstitutional burden on him to prove his innocence rather than requiring the State to prove his guilt beyond a reasonable doubt.

The State argues defendant’s trial counsel was not ineffective because he had no duty to pursue any meritless claims. The State maintains Instructions 2, 4, and 5 were properly clarified by other instructions provided to the jury; specifically, Instructions 6 and 8, which explained the State had the burden to prove the defendant guilty beyond a reasonable doubt and defined reasonable doubt.

B. Analysis. Instruction 2 provides in pertinent part: “You must determine the defendant’s guilt or innocence from the evidence and the law in these instructions.” Instruction 4 provides in pertinent part: “If you find a defendant innocent or guilty on any one of the counts, you may not conclude guilt or innocence on the others.” Finally, Instruction 5 provides in pertinent part: “The guilt or innocence of each defendant must be determined solely upon individual participation in the crime.”

In order to establish ineffective assistance of counsel, it must be shown that the trial counsel failed to perform an essential duty, and his or her omission resulted in prejudice. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

Jury instructions are not considered separately; they should be considered as a whole. State v. Langlet, 283 N.W.2d 330, 337 (Iowa 1979).

In Langlet the defendant complained about the use of the word “innocence” in his jury instructions. Id. We determined that the other jury instructions which provided that the burden of proof was on the State and that the defendant had the presumption of innocence until proven guilty beyond a reasonable doubt were adequate clarifications of the challenged instructions. Id. Similar considerations exist in the present case. Instructions 6 and 8 clarify any issues involving the word “innocence” in Instructions 2, 4, and 5. Instruction 6 explains that the State has the burden to show the defendant was guilty beyond a reasonable doubt. Instruction 8 again provides that the burden is on the State to prove guilt beyond a reasonable doubt and also defines reasonable doubt for the jury.

Because Instructions 2, 4, and 5 were clarified by Instructions 6 and 8 and therefore were not prejudicial to the defendant, trial counsel was not ineffective for failing to object to the instructions. See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (holding trial counsel was not ineffective for failing to pursue a meritless issue).

We have considered all issues presented and conclude that defendant’s conviction should be affirmed. Because the sentencing enhancement contained in Iowa Code section 124.401C should not have been applied, we vacate defendant’s sentence and remand the case to the district court for resentencing.

JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED.

      . The information from the conversation between Officer Sullivan and the defendant comes from Officer Sullivan’s trial testimony.

      . The information from the conversation between Officer Gehrke and the defendant comes from Officer Gehrke’s trial testimony.

      . Defendant's testimony was as follows:
      Q. What happened when [Fuller] came in the apartment. A. I seen Bruce was cornin’ through first and Joe [McAhren] was right behind him and they were cornin’ down the little hallway right into the living room. He was carrying a small little plastic mixing bowl.
      Q. Okay. Did you see what was inside the bowl that he had? A. Not at that time, no. I was sitting down.
      Q. Okay, where did he go once he entered the apartment? A. He asked if — the first thing he said is, "Does anybody want to get high?” And he walked straight into my room and I walked in behind him.
      Q. You walked in behind him? A. Yeah.
      Q. Why did you do that? A. Because what he said I guess.
      Q. What he said, if you wanted to get high? A. Yes.
      Q. And you walking behind him indicated that, yes, you did; is that right? A. I guess, yes.
      Q. What happened when you go into the bedroom? A. He went and set the bowl down on my dresser. I don't know, my dresser is probably about 3 feet high, and threw the duffle bag on the bed and said that I — I got some meth in my pocket and we'll get high....


author: STREIT, Justice.

text:
    Pamela J. WALKER, Appellant, v. Charles E. GRIBBLE, Appellee, and Gribble & Prager, P.C., Intervenor-Appellee.
    No. 03-1380.
    Supreme Court of Iowa.
    Nov. 10, 2004.

      Mark D. Sherinian of Sherinian & Walker, P.C., Des Moines, for appellant.
    Mark J. Wiedenfeld and Joseph P. McLaughlin of Wiedenfeld & McLaughlin, L.L.P., Des Moines, for appellees.
   STREIT, Justice.

Breaking up is hard to do. Eight years after signing a settlement agreement that broke up their law firm, two lawyers are still fighting over how to divide the proceeds from four potentially lucrative cases they took long ago on a contingency-fee basis. In essence, one of the lawyers claims she violated the Iowa Code of Professional Responsibility for Lawyers when she signed the agreement and for this reason asks us to void it so she can recover a larger share of the proceeds. Because we find the agreement does not run afoul of the Code, we decline to interfere with the parties’ bargain. Therefore, we affirm the district court’s order granting the, defendant’s motion for summary judgment.

I. Facts and Prior Proceedings

As viewed in a light most favorable to the plaintiff, Pamela Walker, the facts are as follows:

Pamela Walker (f/k/a Pamela Prager) and Charles Gribble are lawyers in the Des Moines area. In 1994, several individuals asked Gribble if he would represent them in a lawsuit (Roper) against the State of Iowa for alleged overtime-pay violations. Walker- — who was working for Gribble as an independent contractor — researched the issues, prepared the complaint, and consulted with the plaintiffs. Gribble performed little work on the case.

In the summer of 1994, Whitfield & Eddy, a Des Moines law firm, took in Gribble as a shareholder and Walker as an associate. While at Whitfield & Eddy, Walker continued to work on Roper. A plaintiff in another overtime-pay case (Vomum) also contacted Walker while at Whitfield & Eddy. Because Walker could not attend the initial consultation she had arranged, Gribble held the first meeting with the clients and signed the fee agreement. Walker performed all subsequent work on Vamum.

In 1995, Gribble and Walker left Whitfield & Eddy and formed a partnership in a new firm, Gribble & Prager (“the firm”). Under the terms of their partnership, the two agreed to split their income seventy percent to Gribble and thirty percent to Walker. Whereas Gribble contributed $7000 to the capitalization of the firm, Walker contributed $3000, which she borrowed from Gribble. Gribble also loaned the firm $130,000.

During the time Gribble and Walker were practicing together at the firm, plaintiffs in two other overtime-pay cases (Phillips and Kennedy) contacted Walker. Although the parties admit the clients in Roper, Vamum, Phillips, and Kennedy (collectively referred to as “the overtime-pay cases”) were clients of the firm, Gribble, the majority shareholder, did little or no work on them.

In early 1996, a disagreement between Gribble and Walker over Gribble’s handling of the overtime-pay cases erupted. Walker complained Gribble had not done any work on them and was unwilling to get involved. Walker packed up her belongings, marched out of the firm, and took Gribble’s longtime secretary with her.

The parties resolved their disagreements through mediation. Both parties were represented by counsel. During mediation, Gribble insisted he remain involved in the overtime-pay cases; Walker wanted Gribble to submit the matter for client consideration. After meeting with Walker and Gribble, the clients decided they wanted Walker to represent them. See Phil Watson, P.C. v. Peterson, 650 N.W.2d 562, 565 n. 1 (Iowa 2002) (“[Clients do not ‘belong’ to [a] firm or its individual members; clients are free to choose their own attorney....”).

The mediation culminated in a “settlement agreement” signed in July 1996 by Gribble, Walker, and the firm. The agreement resolved a number of hotly contested issues. First and foremost, the parties formally agreed to end their partnership. Gribble forgave a personal loan to Walker in the amount of $1750. The parties promised to stop making derogatory comments about one another and to release and forever discharge each other from all claims they might have against one another.

The parties agreed to split all fees they might earn in the overtime-pay cases as follows: in Vamum, Phillips, and Kennedy, fees would “be divided proportionately based on the number of hours spent by [the firm], prior to the resignation of [Walker] and the number of hours spent by [Walker] and her associated attorneys after the termination.” The parties agreed the firm would receive a minimum of thirty-five percent and a maximum of fifty-five percent of any fee earned after the payment of expenses; Walker would control the remainder. In Raper, the parties agreed the firm would receive a fixed forty-five percent of any fee earned; Walker would retain the remaining fifty-five percent. Of the firm’s earnings on all the overtime-pay cases, it was further agreed that seventy percent would be given to Gribble and thirty percent to Walker in accordance with their respective shares in the partnership.

Gribble formally withdrew his representation in the overtime-pay cases after the settlement agreement was signed. The Secretary of State administratively dissolved the firm in September 1996.

At the time Walker signed the settlement agreement, she believed little work remained on the overtime-pay cases. She was wrong. Additional plaintiffs and claims were added to all four cases and other issues developed resulting in protracted litigation, including three appeals to this court. See Raper v. State, 688 N.W.2d 29 (Iowa 2004); Kennedy v. State, 688 N.W.2d 473 (Iowa 2004); Anthony v. State, 632 N.W.2d 897 (Iowa 2001), cert. denied, 534 U.S. 1129, 122 S.Ct. 1068, 151 L.Ed.2d 971 (2002). (For example, Walker claims she worked over 3000 hours on Raper — 2500 after she physically left the firm — whereas Gribble worked only eleven hours.) The parties subsequently agreed the firm should only receive the minimum percentage (thirty-five percent) under their agreement in Vamum, Phillips, and Kennedy.

Vamum and Phillips settled, and a substantial amount of attorney fees were earned. Pursuant to the terms of the settlement agreement, Walker received sixty-five percent of the total after expenses; the remaining amount was placed in escrow pending the outcome of this appeal. If the terms of the settlement agreement are enforced, Gribble will receive seventy percent of the remaining thirty-five percent; Walker will take the rest. The precise amount of attorney fees in Kennedy and Raper is not yet known.

Walker filed a petition for a declaratory ruling in the district court asking the court to void the terms of the deal. Walker claimed the parties’ contract was unenforceable because it ran afoul of two provisions of the Iowa Code of Professional Responsibility for Lawyers.

Gribble counterclaimed. Gribble asked the court to declare the agreement valid and enforceable. The firm intervened on Gribble’s behalf and counterclaimed. The district court granted the counterclaim-ants’ motion for summary judgment, and Walker appealed.

II. Standard of Review

Our review of a grant of a motion for summary judgment is for the correction of errors at law. Delaney v. Int’l Union UAW Local No. 94, 675 N.W.2d 832, 834 (Iowa 2004). Summary judgment is appropriate only if the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); see, e.g., Lloyd v. Drake, Univ., 686 N.W.2d 225, 228 (Iowa 2004); Coralville Hotel Assocs., L.C. v. City of Coralville, 684 N.W.2d 245, 247 (Iowa 2004). A factual issue is material when “the dispute is over facts that might affect the outcome of the suit, given the applicable law.” Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 35 (Iowa 1999) (citation omitted).

The moving party bears the burden of showing the nonexistence of an issue of fact, and when determining whether such an issue exists we view the record in a light most favorable to the nonmoving party. Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004); Coralville Hotel Assocs., 684 N.W.2d at 247. In other words, we will indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. Lloyd, 686 N.W.2d at 228. A fact question is generated if reasonable minds can differ on how the issue should be resolved. See McIlravy v. N. River Ins. Co., 653 N.W.2d 323, 328 (Iowa 2002).

III. The Merits: The Validity of the Settlement Agreement

As indicated, Walker’s primary complaint is that the district court erred in not finding the settlement agreement void insofar as it allegedly ran afoul of the Iowa Code of Professional Responsibility for Lawyers.

In Wright v. Scott, we expounded upon the wisdom, nature, and guiding principles of settlement agreements:

The law favors settlement of controversies. A settlement agreement is essentially contractual in nature. The typical settlement resolves uncertain claims and defenses, and the settlement obviates the necessity of further legal proceedings between the settling parties. We have long held that voluntary settlements of legal disputes should be encouraged, with the terms of settlements not inordinately scrutinized.

410 N.W.2d 247, 249-50 (Iowa 1987) (citations omitted); see also Shirley v. Pothast, 508 N.W.2d 712, 715 (Iowa 1993). In contingency-fee cases, settlement agreements generally benefit clients, insofar as they “simply seek[] to obviate time-consuming squabbles that formerly arose when [a lawyer’s] entitlement to [a] fair share of any fee generated by a departing client’s file was determined on a quantum meruit basis.” McCroskey, Feldman, Cochrane & Brock, P.C. v. Waters, 197 Mich.App. 282, 494 N.W.2d 826, 828 (1992); accord Phil Watson, 650 N.W.2d at 567-68 (adopting quantum-meruit theory to resolve squabble between departing associate and firm over contingency-fee cases associate “grabbed” from firm). We enforce a settlement agreement much like any other contract. See Phipps v. Winneshiek County, 593 N.W.2d 143, 146 (Iowa 1999) (“[L]ike a contract, we enforce a settlement agreement absent fraud, misrepresentation, or concealment.”).

A. Unfair Bargain

Against this backdrop, we may readily dismiss a running theme in Walker’s argument: namely, her complaint the settlement agreement she signed eight years ago is unfair because she ended up working more than she anticipated when she signed it. The district court concisely and correctly dismissed this argument when it found:

[W]hen these parties were negotiating, neither of them could know with any certainty how much time would be required to resolve the cases. The [settlement a]greement provides that the fees are to be divided based on a ratio of time spent before the split to total time spent. The parties also negotiated a range of percentages, obviously intended to protect both parties by providing some maximum and minimum division. In negotiating these provisions, the parties certainly brought to the bargaining table their best guesses about the cases and what would be required to resolve them. Both parties accepted the risk inherent in contingent fee cases that no fees would be payable. Both assumed the proportional division with protective maximum and minimum percentages would guard against an unfair result. The fact that one [(or both)] of the parties tuas wrong does not provide a basis for overturning a settlement agreement that was entered into as a result of arms-length negotiations by parties who are not only attorneys themselves but who were both also represented throughout the negotiations by other attorneys .... Walker must live with the bargain she freely entered into.
.... Walker wants now to renegotiate the [a]greement. This court will not entertain that effort. She made a bargain. Even if it was a bad bargain, under general principles of contract law, she lives with that bargain.

(Emphasis added.) We agree with this assessment. Uncertainty is a powerful incentive for parties to accept a compromise settlement agreement. See Wright, 410 N.W.2d at 249. Much was uncertain when the parties signed the settlement agreement; such is the very nature of cases taken on a contingency-fee basis. The parties in this case assessed the situation and made their choices regarding the time and effort Walker would have to expend in the future to bring the overtime-pay cases to a successful resolution. They also gave up other claims against each other and each received some benefits. We will not interfere with their agreement — fully performed with the exception of the payment of the fees — simply because one party got the better end of the bargain. “It is ... well settled that to vitiate a settlement, a mistake must be mutual, material, and concerned, with a present or past fact.” Id. (emphasis added, internal quotation omitted).

Parties to contracts should not look to courts to rescue them from their bad bargains. Smith v. Harrison, 825 N.W.2d 92, 94 (Iowa 1982).

Courts should ... support agreements which have for their object the amicable settlement of doubtful rights by parties .... [S]uch agreements are binding without regard to which party gets the best of the bargain or whether all the gain is in fact on one side and all the sacrifice on the other.

Id. (internal quotation omitted). “The courts can have no concern with the wisdom or folly of ... a contract.” Bjornstad v. Fish, 249 Iowa 269, 279, 87 N.W.2d 1, 7 (1957) (citations omitted). To the extent Walker’s claim should be understood as a complaint she received a bad bargain, we decline to void the contract as requested.

B. Public Policy

Walker more pointedly argues the settlement agreement she signed should not be enforced because it violates public policy. Specifically, Walker complains the agreement contravenes two provisions of the Iowa Code of Professional Responsibility for Lawyers, thus providing her an “equitable defense” against enforcement of its terms. (It is not clear, however, whether Walker seeks rescission of the entire contract or just nonenforcement of the fee-splitting clauses.) In support of her argument, Walker cites two cases in which we have refused to enforce a contract because it ran afoul of the Code and therefore violated public policy. See, e.g., Rogers v. Webb, 558 N.W.2d 155, 157 (Iowa 1997) (contingency fee contract in divorce violated public policy of preserving the marital relationship); Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980) (contingency fee for defense of defamation action violated public policy). Here, Walker claims the settlement agreement she signed violates (1) DR 2-107, insofar as it purports to divide fees between lawyers who are not in the same firm without client consent and in a fashion not proportional to the services performed and the responsibility assumed by each; and (2) DR 2-106, because enforcement of the agreement, she alleges, would allow Gribble to collect a “clearly excessive fee” in light of the work he performed on the project.

It is true that “contracts that contravene public policy will not be enforced.” Rogers, 558 N.W.2d at 156-57; see Walker v. Am. Family Mut. Ins. Co., 340 N.W.2d 599, 601 (Iowa 1983); Wun schel, 291 N.W.2d at 335. “[A] court ought not enforce a contract which tends to be injurious to the public or contrary to the public good.” Rogers, 558 N.W.2d at 157 (citation omitted). Nonetheless, we proceed cautiously and will invalidate a contract on public policy grounds “only in cases free from doubt.” DeVetter v. Principal Mut. Life Ins. Co., 516 N.W.2d 792, 794 (Iowa 1994). Walker bears the burden of proof. Cogley Clinic v. Martini, 253 Iowa 541, 550, 112 N.W.2d 678, 682 (1962); Richmond v. Dubuque & Sioux City R.R., 26 Iowa 191, 202 (1868); see Hariford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Ry., 62 F. 904, 908 (C.C.N.D.Iowa 1894), aff'd, 70 F. 201 (8th Cir.1895), aff'd, 175 U.S. 91, 20 S.Ct. 33, 44 L.Ed. 84 (1899). Before striking down a contract for public policy reasons, it must be shown that preservation of the general public welfare outweighs the weighty societal interest in the freedom of contract. Rogers, 558 N.W.2d at 158; see Bergantzel v. Mlynarik, 619 N.W.2d 309, 317 (Iowa 2000) (quoting Restatement (Second) of Contracts § 178(2)-(3), at 6-7 (1981) (setting forth factors for and against enforcement)).

1. DR 2-107

As indicated, Walker claims the settlement agreement offends public policy because it violates DR 2-107 and DR 2-106 of the Iowa Code of Professional Responsibility for Lawyers. The first of these two disciplinary rules provides as follows:

(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyer’s law firm or law office, unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
(B) This disciplinary rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.

Iowa Code of Profl Responsibility DR 2-107. The primary purpose of DR 2-107 is to guard against referral fees (sometimes called “brokering”), a practice other courts have long declared injurious to the public interest. See, e.g., Tomar, Seliger, Simonoff Adourian & O’Brien, P.C. v. Snyder, 601 A.2d 1056, 1058 (Del.Super.Ct.1990) (“DR 2-107 ... was formulated to prohibit brokering, to protect a client from clandestine payment and employment, and to prevent aggrandizement of fees.” (internal quotation omitted)); McCroskey, 494 N.W.2d at 828 (same); cf. Norton Frickey, P.C. v. James B. Turner, P.C., 94 P.3d 1266, 1268 (Colo.Ct.App.2004). Clients are not chattels to be bought and sold. See Phil Watson, 650 N.W.2d at 565 n. 1 (clients cannot be “owned”).

Walker’s argument is twofold. First, she claims the agreement she signed contravenes DR 2-107(A) because it divides fees without client consent and in a fashion not in proportion to the amount of work each did. She points out that at the time the agreement was reached, she had physically left the firm, and therefore she was no longer Gribble’s partner. Second, Walker claims the exception of DR 2-107(B) for separation agreements does not apply. Walker characterizes the settlement agreement between Walker and Gribble as a referral fee, not a separation agreement. Walker argues the agreement she signed is “in essence” a referral fee because when the bargain is viewed in hindsight it rewards Gribble heavily for simply bringing the overtime-pay cases into the firm. In support of this latter argument, Walker points out the agreement was tied to specific cases and “future fees” and Gribble had virtually no involvement in Kennedy, Phillips, and Var-num.

However, DR 2-107(A) does not apply because Walker and Gribble were members of the same firm at the time the agreement was signed for the purposes of the rule. The parties’ settlement agreement is plainly a separation agreement and hence falls under DR 2-107(B).

In a nearly identical case, the Texas Court of Appeals came to precisely the same conclusion. In Baron v. Mullinax, Wells, Mauzy & Baab, Inc., a law firm filed suit for a declaratory judgment that its written agreement with a former associate concerning the division of legal fees was valid and enforceable. 623 S.W.2d 457, 459 (Tex.App.1981). While a member of the firm, the former associate had worked on several lucrative asbestos cases. Id. Two weeks after he physically left the firm, the former associate and the firm signed a settlement agreement that allowed the former associate to retain responsibility for the eases and divided the fees and costs two thirds to the associate and one third to the firm. Id. at 460.

Later on, the former associate claimed the agreement was invalid as a matter of public policy because it violated DR 2-107 as a “contingent fee referral agreement” arranged without client consent. See id. The former associate unilaterally decided to continue to handle the cases but not to divide the fees as agreed. Id.

The Texas court readily disposed of the former associate’s claim. The court wrote:

This agreement does not violate any law, public policy, or the policy of Disciplinary Rule 2-107. At the outset the fee would be a division between a firm and its associate, and later would ripen into a payment to a former associate pursuant to the agreement reached on his separation.
.... Since this agreement was between a law firm and an associate of the firm during the overall process of his separation from that firm, there is no requirement that the clients either be informed or give their consent. The clients are in no manner affected by this agreement. Disciplinary Rule 2-107 should not be too readily construed as a license for attorneys to break a promise, go back on their word, or decline to fulfill an obligation, in the name of legal ethics.

Id. at 461-62 (emphasis added). Other courts concur. See, e.g., Norton Frickey, 94 P.3d at 1269-70; see also Tomar, 601 A.2d at 1059 (rule “has no application ... [because] there is obviously no issue with regard to the brokering of legal services, the activity which the rule seeks to prevent”); Romanek v. Connelly, 324 Ill.App.3d 393, 257 Ill.Dec. 436, 753 N.E.2d 1062, 1070-71 (2001) (same); Saltzberg v. Fishman, 123 Ill.App.3d 447, 78 Ill.Dec. 782, 462 N.E.2d 901, 907 (1984) (same); McCroskey, 494 N.W.2d at 828; cf. Hendler & Murray v. Lambert, 147 A.D.2d 444, 537 N.Y.S.2d 560, 563 (1989) (nothing in DR 2-107 prohibited firm from paying former partner, pursuant to partnership agreement, from cases that arose after the former partner’s departure from firm, even though former partner had done no work on case; plain language of DR 2-107(B) exempted such payments). “[L]aw firm members ... may distribute fees among members of a dissolved firm for postdissolution work arising from matters entrusted to the firm before its dissolution.” Restatement (Third) of the Law Governing Lawyers § 47 cmt. g, at 334-35 (2000).

The agreement between Walker and Gribble simply divided up firm assets; as indicated, both parties admit the overtime-pay fees were property of the firm. Because the agreement was signed during the overall process of Walker’s separation from the firm, there is nothing unethical about the parties’ agreement. The agreement does not violate DR 2-107.

Walker characterizes the settlement agreement as a referral fee. The agreement at issue is clearly a separation agreement and not a referral fee. The history of the cases bears out this proposition. Initially, the plaintiffs in Raper contacted Gribble. At that time, Gribble was a sole practitioner and Walker was working for him on a contract basis. When Raper and Varnum were filed, Gribble was a partner and Walker an associate at Whitfield & Eddy. Likewise, Gribble and Walker were partners in Gribble & Prager when the Phillips and Kennedy cases were filed. At no time did Gribble “refer” the overtime-pay cases to Walker in the sense contemplated by the rule. There was no “brokering” because neither Gribble nor Gribble & Prager ever referred the cases to Walker. Walker worked on them first at Gribble’s office as an independent contractor, later as an associate at Whitfield & Eddy, and lastly as a junior partner at the firm. Gribble may have assigned the overtime-pay cases to Walker as her supervisor, but he did not refer them as articulated in DR 2-107. The cases cited by Walker are inapposite for this very reason; all dealt with referral fees, which are plainly barred by the rule. As Walker’s counsel admitted at oral argument, they involve situations where the attorneys did not practice together. See, e.g., In re P & E Boat Rentals, Inc., 928 F.2d 662, 664-65 (5th Cir.1991); In re Estate of Katchatag, 907 P.2d 458, 463 (Alaska 1995); Christensen v. Eggen, 577 N.W.2d 221, 224-25 (Minn.1998); Londoff v. Vuylsteke, 996 S.W.2d 553, 557-58 (Mo.Ct.App.1999); Ford v. Albany Med. Ctr., 283 A.D.2d 843, 724 N.Y.S.2d 795, 797-98 (2001); see also Corti v. Fleisher, 93 Ill.App.3d 517, 49 Ill.Dec. 74, 417 N.E.2d 764, 774 (1981).

The fact that Walker did the majority of the work on the overtime-pay cases before she left the firm is not surprising but does not violate public policy. As her employer, supervising partner, or majority shareholder, Gribble had Walker do the bulk of the work on the claims. It is hardly uncommon and certainly not unethical for senior partners to bring in clients only to then turn the cases over to junior partners or associates to handle much of the work, even though the senior partner retains much of the fee. See, e.g., West v. Jayne, 484 N.W.2d 186, 190 (Iowa 1992) (“It is a common practice ... to afford the attorney who secures business ... a percentage of the eventual fee, regardless of whether that attorney performed the legal services or whether other members of the association completed the work”; “the attorney securing the client ... is entitled to a percentage of the eventual fee at the time he turns the client’s work over to another member of the association.”); Heninger & Heninger, P.C. v. Davenport Bank & Trust Co., 341 N.W.2d 43, 48-49 (Iowa 1983) (“substantial inefficiency” to the client results when “senior partner’s time [is used] to perform functions that could be done at about half the cost by use of other attorneys in the firm”). Nor does our ethics code prohibit one partner from dividing a fee with another partner or an associate. Heninger, 341 N.W.2d at 48-49. The division of a fee within a firm is plainly an ethical practice and does not violate public policy. See id.

As indicated, DR 2-107 protects against referral fees or “brokering.” See, e.g., Tomar, 601 A.2d at 1058 (citation omitted); McCroskey, 494 N.W.2d at 828. A separation agreement, on the other hand, only seeks to divide a fee the client has already agreed to pay. For this reason, DR 2-107

most commonly applies in disputes concerning the apportionment of a contingent fee between attorneys who separately represented the same client at different stages of a matter. Courts addressing those fee disputes require attorneys to abide by that [rule], and when they do not, courts have held that the fee agreement is void as contrary to public policy and unenforceable.
However, courts addressing an agreement to apportion fees upon the departure of an attorney from a law firm have concluded that such agreements are not subject to [the rule], and therefore such agreements are not void and unenforceable.

Norton Frickey, 94 P.3d at 1268 (emphasis added, citations omitted); see also Tomar, 601 A.2d at 1059 (“It is not uncommon for a law firm and a departing attorney to divide the fees resulting from contingent fee cases which the attorney has been handling and will continue to handle after he leaves.”).

DR 2-107 was not designed as a tool to upend settlement agreements once the terms of those agreements become unpalatable to one side. Indeed, were we to rule otherwise many settlement agreements between lawyers and their former firms would be invalid. Such a ruling would also encourage attorneys to leave firms when they receive lucrative contingency-fee cases. It would embolden associates to bolt their firms and claim that simply because they performed more hours of work on cases assigned to them by senior partners they should receive the bulk of the firm’s proceeds from those cases. Cf. Barna, Gruzy & Steffen, Ltd. v. Beens, 541 N.W.2d 354, 356 (Minn.Ct.App.1995); Groen, Laveson, Goldberg & Rubenstone v. Kancher, 362 N.J.Super. 350, 827 A.2d 1163, 1170-71 (Ct.App.Div.2003).

To conclude, we find the parties’ settlement agreement does not contravene DR 2-107. For the purposes of DR 2-107(A), Walker and Gribble were members of the same firm when the agreement was signed because it was signed during the overall process of Walker’s separation from that firm. Baron, 623 S.W.2d at 461-62. The plain text of DR 2-107(B) permits the division of fees without client consent and strict proportionality when the division occurs between partners or is a part of a separation agreement. We affirm the district court.

2. DR 2-106

Walker also claims DR 2-106 voids the settlement agreement because it results in a clearly excessive fee to Gribble given the amount of work he has expended on the cases. DR 2-106 provides:

A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

DR 2-106(A); cf Model Rules of Profl Conduct R. 1.5(a)(2003). The district court ruled the parties’ agreement did not contravene the rule. The court held DR 2-106 did not apply to disputes between lawyers regarding the division of a fee. Rather, the court pointed out that the purpose of the rule is to ensure that clients do not pay more than they should; so long as the total fee is reasonable, the court reasoned, the rule does not regulate how the lawyers may then divide that fee.

We agree with the district court. The purpose of the rule is to ensure that the client is not charged an excessive fee. If the total fee is reasonable, a lawyer may not use such a rule to upend a settlement agreement that later became a bad bargain. Cf. Joye v. Heuer, 813 F.Supp. 1171, 1174 (D.S.C.1993) (finding a related disciplinary rule did not apply to disputes amongst attorneys). Walker does not claim the entire fee charged to the client is excessive, just that the proportion of that fee given to Gribble would be excessive vis-a-vis his work on the project. (This analysis, however, ignores the fact that there was other consideration in the agreement.) The policy of the rule is to prevent attorneys from charging their clients excessive fees, not to guard against one attorney entering into a bad separation agreement that prevents her from getting her “fair share.” The agreement does not violate DR 2-106.

IV. Conclusion

Nothing in the parties’ settlement agreement runs afoul of the Iowa Code of Professional Responsibility for Lawyers. It does not violate public policy. It is enforceable. Summary judgment in favor of Gribble and the firm was proper.

AFFIRMED.

      . At times, Walker blames her troubles on an unexpected United States Supreme Court decision, Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The overtime-pay cases were originally filed in federal court, but Seminole Tribe divested the federal courts of jurisdiction and required Walker to refile them in state court. See Raper v. Iowa, 940 F.Supp. 1421 (S.D.Iowa 1996), aff'd, 115 F.3d 623 (8th Cir.1997). Although it is true Seminole Tribe was handed down after the mediation meeting, the parties did not sign the settlement agreement until after the cases were refiled in Iowa district court.

      . The American Bar Association’s Model Rules of Professional Conduct contain a provision that is similar to DR 2-107. The corresponding rule reads as follows:
      A division of a fee between lawyers who are not in the same firm may be made only if:
      (1)the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
      (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is 'confirmed in writing; and
      (3) the total fee is reasonable.
      Model Rules of Profl Conduct R. 1.5(e) (2003); see also id. R. 1.5(e) cmt. 8 (“Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.”).

      . Walker takes issue with a sentence in the district court opinion that rejected her argument that the fees were “future fees.” She characterizes this as an issue of fact wrongly decided in Gribble's favor. We agree summary judgment should be granted only if there is no genuine issue as to any material fact and those factual issues must be resolved in Walker’s favor where possible because she is the nonmoving party. Contrary to Walker's argument, however, how to best characterize these fees is not a factual matter for determination by a jury.

      . We share the Texas court’s concern about the propriety of a lawyer using the ethics rules as a tool to undo the lawyer’s own bad bargain. For in alleging the settlement agreement violates the Code, Walker admits she has committed an ethical violation in signing it. Cf. Cont’l & Comm. Trust & Sav. Bank v. Muscatine, Burlington & S. R.R., 202 Iowa 579, 584, 210 N.W. 787, 789 (1926) ("But if he calls upon a court of chancery to put forth its extraordinary powers and grant him purely equitable relief, he may with propriety be required to submit to the operation of a rule which always applies in such cases, and do equity in order to get equity." (Citation omitted.)).
      More troublingly, Walker offers a theoretical threat that if we do not rule in her favor she may not be inclined to zealously represent her clients' best interests. This argument is factually suspect and ethically dangerous. Contrary to Walker’s assertions, she still has powerful incentive to do her best for the client. She is, after all, still receiving a large percentage of the fee. And anything less than zealous representation would violate the ethics rules. See Iowa Code of Prof’l Responsibility EC 5-1.
      The "Preamble and Scope” to the ABA Model Rules is instructive with respect to Walker's arguments:
      Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.... The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted -when they are invoked by opposing parties as procedural weapons.

      (Emphasis added.) Cf. Iowa Code of Prof’l Responsibility at Preliminary Statement ("The Code ... [does not] undertake to define standards for civil liability of lawyers for professional conduct.”); Brody v. Ruby, 267 N.W.2d 902, 907-08 (Iowa 1978) (violation of ethics rule did not create cause of action for negligence). Other courts have expressed similar skepticism. See, e.g., Freeman v. Mayer, 95 F.3d 569, 574-76 (7th Cir.1996); Norton Frickey, 94 P.3d at 1270; Potter v. Peirce, 688 A.2d 894, 895-97 (Del.1997); Benjamin v. Koeppel, 85 N.Y.2d 549, 626 N.Y.S.2d 982, 650 N.E.2d 829, 831 (1995) (”[C]ourts are especially skeptical of efforts by clients or customers to use public policy as a sword for personal gain rather than a shield for the public good.”); Davies v. Grauer, 291 Ill.App.3d 863, 225 Ill.Dec. 933, 684 N.E.2d 924, 930 (1997) (recognizing one party "cannot invoke Disciplinary Rule 2-107 as a shield against living up to an allegedly substantively unobjectionable contract arrangement”). We are constrained to pass on these potential issues, however, because we find the settlement agreement plainly does not offend the ethics rules.

      . This is not to say the clients were property of the firm. See Phil Watson, 650 N.W.2d at 565 n. 1. When Walker physically left the firm, the clients were free to decide whether they wanted Walker, Gribble, or any other lawyer to represent them in the future. See id.

      . Walker also claims the agreement does not fall within the ambit of DR 2-107(B) because the agreement cannot authorize a "payment." Walker refers to the fees which are the subject of the agreement as "future fees" that cannot be "paid” because they did not exist at the time the agreement was signed. We do not find this argument persuasive. Nothing in DR 2-107(B) indicates that it only applies to fees previously earned and not fees to be earned in the future. (Comment 8 to Model Rule 1.5(e) expressly contemplates so-called future fees.) Even accepting this characterization of a contingency fee, Walker's argument must fail because it wrongly assumes that the “payment” authorized by DR 2-107(B) must take place at the time the agreement is signed. The rule contains no such constraint.