author: LARSON, Justice.

text:
    MICHAEL EBERHART CONSTRUCTION and United Fire and Casualty, Appellants, v. Trampes CURTIN, Appellee.
    No. 02-2083.
    Supreme Court of Iowa.
    Jan. 22, 2004.
    J. Richard Johnson of White & Johnson, P.C., Cedar Rapids, for appellants.

      David L. Baker and Timothy Semelroth of Riccolo & Baker, P.C., Cedar Rapids, for appellee.
   LARSON, Justice.

Iowa’s workers’ compensation commissioner awarded compensation benefits to Trampes Curtin, a former employee of Michael Eberhart Construction. The district court affirmed the award, and Eberhart and its insurance carrier, United Fire and Casualty (collectively the employer), appealed. The principal issues on appeal involve the commissioner’s (1) application of the “odd-lot doctrine,” (2) finding the claimant to be permanently and totally disabled, and (3) the district court’s denial of a lien to Eberhart on Curtin’s proceeds under an underinsured-motorist insurance policy. We affirm in part, reverse in part, and remand.

I. Facts and Prior Proceedings.

Trampes Curtin, foreman of Eberhart’s concrete crew, was traveling on the job when the hood of the company truck flew open, and Curtin got out to fix it. While he was standing in front of the truck, a vehicle driven by a Karen Cooper struck the truck, causing both the truck and the Cooper vehicle to run over Curtin. As a result of Curtin’s injuries, his doctor imposed these restrictions on his activities: no prolonged standing or sitting, no lifting over twenty pounds on a one-lift basis, no lifting over ten pounds on a frequent-lift basis, no work with his arms in front of him or over his head, no repetitive bending or stooping, and no work on scaffolds, ladders, or roofs.

These restrictions rendered Curtin a poor prospect for any employment requiring stringent physical activity, and this was the consensus of opinion among these parties and their witnesses. Curtin considered becoming a car salesman and hoped someday to own his own car lot. He decided to go back to school, despite his poor academic performance in the past and his limited intellectual level. (He had a D average in high school and an IQ of 94. In twelfth grade, he was considered learning disabled, and he was referred to the Iowa Division of Vocational Rehabilitation.) According to Curtin’s testimony, his main problem is reading comprehension.

Despite these learning handicaps, Curtin was accepted as a student at Northeast Iowa Community College at its Calmar campus and performed well. He attended college for thirty hours, earning a cumulative grade point of 2.94. In Curtin’s first semester, his courses included Principles of Management and Introduction to Business. His instructors rated his work from average to excellent, giving Curtin a combined grade point average (GPA) of 2.835. In the next semester, Curtin took Psychology of Human Relations, Principles of Marketing, Business Ethics, and Business Law. His instructors rated his work from above average to excellent. His GPA that semester was 3.583. In the next semester, Curtin took General Psychology, Microeconomics, Mathematics Fundamentals, and Introduction to Microcomputers, earning a GPA of 2.223. His instructors rated his performance as average to above average. Curtin’s total combined GPA for the three semesters he attended college was 2.954, which was close to a B average. This was the picture portrayed in the discovery provided to the employer prior to the workers’ compensation hearing.

John Suter, a former certified rehabilitation counselor, and Dr. Karma Gibson, a vocational case manager with Job Search, expressed opinions, based on Cur-tin’s academic performance, that he had potential as a salesman, fast-food worker, management trainee, assistant manager, or electronics assembler. As the workers’ compensation commissioner noted in his ruling, these experts “placed great emphasis on the claimant’s success in community college in their opinion[s] that the claimant could be retrained and become employable.” However, according to the commissioner’s ruling, the true picture of Curtin’s academic abilities was quite different. At the workers’ compensation hearing, Curtin and his girlfriend, Lisa Eberhart (daughter of Curtin’s employer), testified that Curtin’s grades were misleading; they were based on take-home tests, some of which Lisa had taken for him, and Lisa had provided help on virtually all of his college work. In fact, Lisa testified Curtin’s reliance on her help was so substantial he quit college when she started to go to college herself full-time and did not have the time to spend on Curtin’s courses. This was in stark contrast to Curtin’s deposition testimony in which he said he quit college because his back hurt him in class, he was tired of the commute to class, and he decided he did not like college after all. The truth, it appears, is that Curtin does not have the intellectual skills or intelligence he had claimed prior to the arbitration hearing. The effect of this evidence presented at the hearing cast serious doubt on Curtin’s future em-ployability based on additional education.

The employer understandably claims it was surprised by the change in Curtin’s evidence. In his deposition, Curtin had stated that Lisa had encouraged him to answer the open-book tests and that she had suggested sources he could consider to answer the questions. He denied that she actually did the work for him. At the arbitration hearing, however, the evidence was quite clear she actually took some of the tests for him.

In addition to confronting this surprise development, the employer faced a request by Curtin, after the record was closed, to amend his petition to assert the “odd lot” doctrine. The employer resisted the amendment, unsuccessfully, and it now raises the amendment as an issue on appeal.

II. The Odd-Lot Amendment.

Under [the odd-lot] doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.”

Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985) (quoting Lee v. Minneapolis St. Ry., 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950)). In adopting the doctrine, we noted that

[ b]efore today we were not required to decide whether a presumption exists that suitable work is available to an odd-lot employee or whether evidence must be adduced on that subject.
We adopt the burden of proof allocation enunciated in [a workers’ compensation authority] statement of the general rule. We emphasize that this rule merely allocates the burden of production of evidence. It is triggered only when the worker makes a prima facie case for inclusion in the odd-lot category:
It is normally incumbent upon an injured [worker], at a hearing to determine loss of earning capacity, to demonstrate a reasonable effort to secure employment in the area of ... residence. Where testimony discloses that a reasonable effort was made, the burden of going forward with evidence to show the availability of suitable employment is on the employer and carrier.

Id. (quoting Employers Mut. Liability Ins. Co. v. Indus. Comm’n, 25 Ariz.App. 117, 119, 541 P.2d 580, 582 (1975)).

Guyton stated the rationale for this burden-shifting rule:

[ T]he employer ordinarily is in a better position than the worker to determine whether the labor market offers opportunities to persons in the odd-lot category. The overriding reason for requiring evidence of employment opportunities is because there is no presumption that merely because the worker is physically able to do certain work such work is available.

373 N.W.2d at 106 (citations omitted).

The practical effect of this burden-shifting rule is that when a claimant is an odd-lot employee, we presume that no jobs are available unless the employer introduces evidence of such work. Nevertheless, the ultimate burden of persuasion on the issue of industrial disability always remains on the employee.

Second Injury Fund v. Nelson, 544 N.W.2d 258, 267 (Iowa 1995) (citing Guyton, 373 N.W.2d at 105). The Idaho court explained the odd-lot doctrine by contrasting it with proof of industrial disability in other cases:

There are two methods by which a claimant may establish a permanent disability. First, a claimant may prove a total and permanent disability if his or her medical impairment together with the nonmedical factors total 100%. If the Commission finds that a claimant has met his or her burden of proving 100% disability via the claimant’s medical impairment and permanent nonmedical factors, there is no need for the Commission to continue. The total and permanent disability has been established at that stage.
The second method by which a claimant may prove total and permanent disability is for the claimant to demonstrate that he fits within the definition of an odd-lot worker. The odd-lot doctrine comes into play when the claimant has proved something less than 100% disability. The odd-lot category exists for those persons who are so injured as to be unable to perform services other than “those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist.”

Boley v. Indus. Special Indem. Fund, 130 Idaho 278, 281, 939 P.2d 854, 857 (1997) (quoting Dehlbom v. Indus. Special Indem. Fund, 129 Idaho 579, 582, 930 P.2d 1021, 1024 (1997)) (other citations omitted).

Curtin argues that it did not matter that the deputy allowed the odd-lot amendment because his evidence established total and permanent disability with or without application of the odd-lot doctrine. While this argument might have merit if the arbitration decision were based on both theories, the fact is that it was not; the deputy based his ruling solely on the odd-lot doctrine. The deputy stated in his ruling:

The claimant’s undisputed impairment and work restrictions preclude him from returning to those jobs for which he is suited based upon his skills, education, and experience. The claimant’s remaining physical abilities are limited to light duty to sedentary work. However, given his current level of education, it is unlikely that he will be able to find such a position without substantial training. Thus, the claimant has made a prima facie showing that he is in the odd-lot category.
Defendants place emphasis on the claimant’s success in community college; however, such emphasis is misplaced where that success was due at least in part to the assistance he received from Ms. Eberhart. There is no doubt that such assistance was critical to the claimant obtaining better than a C average given the claimant’s learning disability, grades and test scores in high school. The defendants speculate that if claimant were to continue in community college with substantial assistance from the college or other sources, that the claimant would be able to complete that program and acquire skills that would make him employable again. Such speculation cannot be relied upon to meet the defendants’ burden of showing that suitable employment exists that the claimant can do.

(Emphasis added.)

The emphasized language is clearly odd-lot language, and it makes it clear this was the basis for the arbitration ruling. In fact, on the intra-agency appeal to the commissioner, the commissioner identified the disability issues as only (1) whether the claimant should have been allowed to amend his petition to assert the odd-lot doctrine and (2) whether the claimant is an odd-lot employee. (The commissioner noted a third issue, regarding the employer’s right to subrogation, which we discuss later.)

Curtin argues the amendment could not reasonably have been a surprise to the employer because the state of the prehear-ing record was such that the employer should have expected the odd-lot argument to be made, based on Curtin’s poor performance in high school and his mental limitations. This, of course, is subject to some doubt because Curtin’s performance in college was ostensibly good, and the employer relied on it. In any event, the odd-lot doctrine was not injected into the case until the evidence was closed. If the potential reliance on the odd-lot doctrine was apparent to the employer, as Curtin claims, it certainly should have been apparent to Curtin, who had the responsibility to raise it.

The petition did not raise the odd-lot issue, and the prehearing conference report did not raise it. The hearing assignment order, which was entered prior to the hearing, specifically provided that the only issues to be considered at the hearing would be those identified in the prehearing conference report, which did not mention the odd-lot doctrine. The parties pursued mediation, but the theory was not mentioned.

Under the odd-lot doctrine, once the claimant establishes a prima facie case of entitlement, the burden of going forward with evidence that jobs are available shifts to the employer. Guyton, 373 N.W.2d at 106. Here, Curtin faults the employer for not making such a showing, despite the fact the employer did not know it would be bound to carry the burden of production until after the record was closed.

Weishaar v. Snap-On Tools Corp., 506 N.W.2d 786 (Iowa Ct.App.1993), is a very similar case. In that case, the claimant attempted to amend her petition to assert the odd-lot doctrine in her posthearing brief. The commissioner ruled the amendment was not timely, and the district court affirmed. The court of appeals stated:

We find that the commissioner and the district court correctly concluded the odd-lot doctrine issue was not timely raised and therefore could not be considered on appeal. Weishaar raised the issue in her post-hearing brief to the deputy commissioner. This did not afford her employer a fair opportunity to meet and rebut any evidence Weishaar might have presented to the deputy on this issue.

Weishaar, 506 N.W.2d at 790-91 (citations omitted).

It is interesting that, even in the present case, the workers’ compensation commissioner stated “amendments at the time of the hearing are not condoned.” (Emphasis added.) The commissioner justified the deputy’s allowance of the amendment on the grounds that “[the][d]efendants do not argue they were prejudiced by the addition of this [odd-lot] allegation, nor do they offer what other steps would have been taken in the case to prove that claimant was employable.” The record does not support those conclusions. First, the employer claimed prejudice from the outset. It filed a resistance to the amendment on the ground it would be prejudiced by it. It also asserted a claim of prejudice in its brief to the commissioner in the intra-agency appeal. As to the second ground, the commissioner gave for approving the late amendment, the employer did state what it would do to meet its burden of production under the odd-lot doctrine: it would conduct additional discovery to ameliorate the effect of Curtin’s change of testimony. We need not speculate about what that evidence might be. We say only that basic fairness requires that the employer be given a chance to produce it.

We conclude that the deputy abused his discretion in allowing the amendment under these circumstances and agree with the commissioner’s observation that such amendments cannot be condoned. We therefore reverse the district court and the commissioner’s ruling and remand for additional discovery, if necessary, a new hearing, and an opportunity for the employer to meet the odd-lot claim.

III. The Subrogation Issue.

Curtin recovered underinsured-mo-torist benefits under an insurance policy provided by his employer. The employer and its workers’ compensation carrier, United Fire and Casualty, filed a lien against the underinsured-motorist proceeds under Iowa Code section 85.22 (1997). That section, entitled “Liability of Others' — Subrogation,” provides in relevant part:

When an employee receives an injury ... for which compensation is payable under this chapter, ... and which injury ... is caused under circumstances creating a legal liability against some person, other than the employee’s employer or any employee of such employer as provided in section 85.20 to pay damages, the employee ... may take proceedings against the employer for compensation, and the employee ... may also maintain an action against such third party for damages....
1. If compensation is paid the employee under this chapter, the employer by whom the same was paid, or the employer’s insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, ... and shall have a lien on the claim for such recovery and the judgment thereon for the compensation for which the employer or insurer is liable.

In this case, the employer and its insurer argue that they are entitled to a lien on Curtin’s underinsured-motorist proceeds to reimburse them for the workers’ compensation benefits they have paid to Cur-tin. Curtin responds that the underin-sured-motorist insurance carrier is not a “third party” which is obligated to pay “damages” to the worker as those terms are used in Iowa Code section 85.22. That was, in fact, our holding in March v. Pekin Insurance Co., 465 N.W.2d 852 (Iowa 1991). In March an injured worker received workers’ compensation benefits and also recovered against his own underin-sured-motorist policy. The workers’ compensation insurer in March attempted to recover subrogation against the underin-sured-motorist coverage. March, 465 N.W.2d at 852-53. We denied subrogation in March because section 85.22 provides for subrogation against a tortfeasor — not against a party obligated to pay under an insurance contract. Id.

In this case, the employer and its insurer contend that March must be distinguished because in that case the un-derinsured-motorist coverage had been purchased by the employee while in the present case the insurance was provided by the employer. We read nothing in March, however, that suggests that it makes any difference which party furnished insurance coverage; the right to subrogation turns on whether the fund against which subrogation is sought arose through an action for tort or breach of contract, and March controls; only a fund created through an action for tort may be the subject of subrogation under section 85.22. The fund at issue here was based on a contract recovery. We affirm the decision of the district court on this issue.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Mark S. BECKMAN, Respondent.
    No. 03-1101.
    Supreme Court of Iowa.
    Jan. 22, 2004.

      Norman G. Bastemeyer and David J. ' Grace, Des Moines, for complainant.
    Mark S. Beckman, Dubuque, pro se.
   TERNUS, Justice.

The Iowa Supreme Court Grievance Commission has filed a report with this court recommending that we revoke the respondent’s license to practice law based on the Commission’s finding that the respondent has again committed multiple violations of the Iowa Code of Professional Responsibility for Lawyers. We agree with this recommendation.

The respondent, Mark S. Beckman, has received ample warning — in the form of prior discipline — that his conduct must conform to the ethical standards governing his chosen profession. Despite these warnings, he has failed to modify his behavior. We surmise from his current infractions that he is unable or unwilling to do so. The respondent has demonstrated that he is unfit to serve as an attorney. Therefore, we revoke his license to practice law in this state.

I. Scope of Review.

This matter is before the court for review of the Commission’s report and for final disposition of the charges lodged against the respondent by the Iowa Supreme Court Board of Professional Ethics and Conduct. See Iowa Ct. Rs. 35.9, .10(1). The Board bears the burden to prove the alleged ethical violations by a convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 164 (Iowa 2003).

We review the Commission’s report de novo. See Iowa Ct. R. 35.10(1). Under this standard of review, we give weight to the factual findings of the Commission, especially with respect to witness credibility, but we find the facts anew. See Kallsen, 670 N.W.2d at 164. Similarly, while we give respectful consideration to the Commission’s recommended discipline, this court must decide upon the appropriate sanction. Id.

II. Factual Findings.

A. Background. Mark Beckman graduated from law school in 1976 and was admitted to practice law in Iowa that same year. In 1979 he settled in Dubuque, Iowa and has practiced law in that community ever since. His legal career has not been without blemish. In 1991, Beckman’s license was suspended because he failed to make the required annual filings with the Client Security and Attorney Disciplinary Commission and the Commission on Continuing Legal Education. See Iowa Ct. Rs. 39.8, 41.4. Although the required forms were eventually filed and Beckman’s license was reinstated, his disciplinary history was only in its infancy.

Beginning in 1992, Beckman accumulated no less than five public reprimands and another suspension. On April 10, 1992, he was reprimanded for distribution of a direct mail advertisement that violated the Iowa Code of Professional Responsibility for Lawyers in five different particulars. He was reprimanded for a similar type of infraction on July 13, 1995. On July 18, 1996, Beckman was reprimanded for failing to deposit a $500 cash advance in a trust account, for falsely stating on his Client Security Combined Statement and Questionnaire that he kept all funds of clients in trust accounts, and for permitting his trust account to incur a shortage. Later that year, in December 1996, we suspended Beckman’s license for three months because he violated the disciplinary rules governing lawyer advertising and made a false statement to the Iowa Supreme Court Grievance Commission. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 96-97 (Iowa 1996) (finding Beckman violated the attorney advertising rules by sending a marketing letter to nonclients without the required disclosure and then falsely told the Commission that the recipients were his current clients when the letter was sent). Not even a year later, he was publicly reprimanded on September 12, 1997, for two separate ethical violations: (1) he failed to notify a client with a pending legal matter of his suspension from the practice of law; and (2) he again deposited a $500 retainer into his office account rather than into his trust account. Beckman’s most recent public reprimand occurred in April 1999 when he was sanctioned for advertising that he practiced primarily in domestic relations and family law without having certified his eligibility to do so as required by our advertising rules.

That brings us to the current proceeding, which involves Beckman’s representation of four different clients. We will summarize our factual findings with respect to each matter separately and then briefly review Beckman’s explanations for his conduct.

B. Roling estate. Beckman was employed in September 1997 to assist Marjorie Roling in probating the estate of her deceased son. Beckman opened the estate that month and worked with Roling, who served as the estate administrator, to publish notice to creditors and pay debts owed by the estate. On November 3, 1997, less than two months after the estate had been opened, Beckman presented a bill for services rendered to Roling, who then issued a check to Beckman in the sum of $1282. Beckman deposited these funds in his office account.

After Beckman was paid, he did very little work on the estate for nearly three years. Roling became increasingly anxious to have the matter concluded. In May 2000, the clerk of court sent a notice of delinquency, prompting Roling to make numerous calls to Beckman in an effort to get him moving forward on the estate. Roling was finally able to meet with Beckman for several minutes in his office on June 8, 2000. At that time, she provided him with all the documentation and information she had. Thereafter, she continued to write and call Beckman, vainly urging him to wrap up the probate proceeding. On June 30, 2000, Beckman obtained an extension of the delinquency deadline to September 29, 2000. On the latter date, Beckman orally requested a second extension. In view of the prior extension, the court set the matter for hearing on October 11, 2000, stating that “[b]oth Attorney Beckman and Ms. Roling shall be present at that hearing.” The clerk sent a copy of the court’s order to Roling. Roling then wrote to the clerk of court, reviewing her dealings with Beck-man, including her payment of attorney fees, and complaining about his delay in finalizing the estate.

When the district court judge assigned to hear Beckman’s request for an extension reviewed the file in preparation for the hearing, she discovered Roling’s letter and learned that Beckman had already been paid more than $1200 for his work on the estate. The judge could find no application for compensation and no court order allowing attorney fees as required by the Iowa Code and our court rules. See Iowa Code § 633.198 (1999); Iowa Ct. R. 7.2. In addition, she verified that the inheritance tax return had not yet been filed, nor had a tax clearance been issued, such being a necessary predicate to the allowance of fees. See Iowa Ct. R. 7.2(4).

At the time for the scheduled hearing, Beckman and Roling were present. The court took the opportunity to ask Beckman how he had come to be paid already for his work. Beckman told the judge that he had taken the payment as a retainer, and he led .the court to believe he had deposited the funds in his trust account. The court ordered the immediate return of the payment to Roling, who indicated she preferred that Beckman put a check in the mail rather than hand deliver the refund to her. The court specifically instructed Beckman that he would have to make an application for his fees and secure a court order approving them, as required by statute. Subsequently, the judge reported Beckman’s misconduct to the Board of Professional Ethics and Conduct.

The next day Beckman personally delivered a check for $1282 to Roling. At the same time, he presented to her another statement for services rendered in the amount of $1970. Roling paid this sum to Beckman and he deposited the funds in his office account. Beckman had not made application to the court for authorization of this payment; he had not obtained a court order approving his fees; and he had not yet secured an inheritance tax clearance from the Iowa Department of Revenue.

In the written order entered after the October 11 hearing, the court scheduled a status review hearing for later that month. This order was sent to Beckman and Rol-ing, and stated: “The status of this case will be reviewed by the Court with the administrator and Attorney Beckman on the 27th day of October, 2000.” On October 17, Beckman sent Roling an affidavit to sign, verifying his return of the $1282 payment. The affidavit made no mention of Roling’s $1970 payment. After receiving this letter Roling spoke with Beckman by phone. He told her she did not need to attend the hearing on the 27th. When she pointed out that the notice specifically stated the matter would be reviewed with the “administrator,” Beckman told her that reference was to the court administrator, not the estate administrator. Roling was skeptical and attended the hearing anyway.

At the October 27 hearing, the presiding judge learned that Beckman had again taken advance fees. Noting Beckman was no more entitled to the second payment than he was to the first payment, the court ordered him to refund the $1970 payment to Roling within seven days. Once again Beckman was admonished that he was not to take fees “to be held in escrow” and that payment of attorney fees must await approval of the final report. In addition, the court pointed out that the amount of attorney fees had not been calculated correctly. Finally, the court noted several deficiencies remaining in the estate and he gave Beckman thirty days to complete the necessary tasks. Subsequently, the estate was closed and attorney fees in the amount of $1749 were approved.

C. Simon criminal matter. In August 2000, Beckman was retained by Carl Simon to represent Simon with respect to several criminal charges. On August 7, 2000, Simon turned himself in to the authorities and was jailed. At Beckman’s request, Simon’s wife paid Beckman a $2200 cash retainer that morning. Beck-man did not deposit these funds in his trust account. Beckman appeared at Simon’s initial appearance on the morning of August 7, and assisted Simon’s wife in arranging for Simon’s release on a $15,000 cash bond. Simon got out of jail shortly after 2:00 p.m. on August 7 and went to Beckman’s office later that day. Beckman had already left on vacation for the rest of the week and Simon was unable to reach him.

Simon employed another attorney, Dan McClean, on August 10. McClean wrote to Beckman that day, telling Beckman that he — McClean—was now representing Simon and asking Beckman to return any unused retainer. Nonetheless, Beckman appeared at Simon’s arraignment on August 21, 2000, claiming he thought he still represented Simon. With McClean’s assistance, Simon eventually pled guilty to reduced charges.

Beckman did not return any portion of the retainer, despite a second written request from McClean on February 7, 2001. Simon finally sued Beckman in small claims court. At the trial of that action, Beckman produced an accounting that showed he had spent enough time on Simon’s case to justify a $2200 fee. He claimed he had mailed this statement to Simon on August 26, 2000, but Simon denied having received it. Beckman’s fee statement included numerous entries for August 7, 2000, which added up to nearly twelve hours of work on that day alone. The magistrate hearing the case rejected Beckman’s fee statement, finding it “incredulous ... that $2200 could be spent between the time [Simon] was incarcerated, released and arraigned.” She concluded Beckman was entitled to be paid for only two hours of work. She entered a judgment against Beckman for all but $250 of the retainer.

Simon also reported his complaints concerning Beckman to the local bar association on October 11, 2000. The chair of the local ethics committee wrote to Beckman on two occasions, asking that he respond to Simon’s complaint. Beckman did not make a timely reply to either request.

D. Kilby estate. In September 2000, Beckman was retained by Jean Kilby to assist her in probating her husband’s estate. As in the Roling estate, Beckman collected $2500 in fees without court approval shortly after opening the estate. He then deposited these unearned fees in his office account. Thereafter, Beckman did little work on the estate, causing Kilby, the executor, to seek other representation.

In January 2001, Kilby hired another lawyer, John C. O’Connor, to complete the necessary work. O’Connor wrote to Beck-man in late January, informing Beckman that O’Connor was now representing Kil-by. In response, Beckman wrote to O’Connor, enclosing a letter dated October 12, 2000, addressed to Kilby, in which Beckman returned the $2500 retainer. In addition, Beckman enclosed a check for $2500 that also bore an October 12, 2000, date. In the cover letter to O’Connor, Beckman explained that he had written the letter to Kilby in October, but had inadvertently failed to mail .it. (TConnor gave the enclosed check to Kilby on February 9, 2001.

Despite the fact the estate was uncomplicated, O’Connor found that Beckman had not filed anything in the probate proceeding after the estate was opened. When O’Connor obtained Beckman’s file, he discovered that an inventory prepared by Beckman included real estate that was owned by the executor, not the decedent. This error had a significant inflationary effect on the maximum statutory attorney fees that would be allowable. In addition, Beckman had prepared a federal tax return showing attorney fees of $2077 and fiduciary fees of $2077. Of course, the attorney fee figure was incorrect, as Beck-man had already been paid $2500. In addition, it was inappropriate to have Kil-by take a fiduciary fee, upon which she would have to pay income tax, when she was the only beneficiary of the estate and would have received the estate assets in any event. O’Connor finally closed the Kilby estate in early June 2001, and received fees at the statutory rate of $782 plus expenses.

E. Clyde Harper dissolution. Beck-man represented Clyde Harper in a dissolution action in 1999. Harper paid Beckman a $1000 retainer and then paid Beckman’s later bills of $320, $664, and $224. In August 1999, just before trial, Harper paid Beckman another $800 by check, with a notation “attorney fees in full.”

Harper was dissatisfied with the court’s subsequent judgment, and on September 15, 1999, he paid Beckman an additional $2700 to pursue an appeal. This check included a notation, “fees in full,” indicating the $2700 payment was to fully compensate Beckman for his time on the appeal. Beckman did not place these funds in his trust account.

Thereafter, Beckman filed a notice of appeal but never prepared an appendix or a brief. For a short period of time after the notice of appeal was filed, Harper attempted to negotiate a settlement with his former wife. These efforts proved unsuccessful, however, and Harper then wanted the appeal pushed forward.

Harper eventually became frustrated with Beckman’s lack of work on his case and in January 2000 hired different counsel to pursue the appeal. At that time, Beckman had not sent any statements to Harper showing any services rendered on the appeal. Harper called Beckman on January 20, 2000, to inform him that his services were no longer needed. The same day Beckman wrote a letter to Harper, with a copy to Harper’s new attorney, painting Harper as an uncooperative client. He closed the letter with the following statement: “Thank you for the compliment that you gave me on January 20, 2000 that you’re [sic] seeking a change of attorneys relative to this appeal had nothing to do with my handling of the case. Such is greatly appreciated.”

This letter was very upsetting to Harper, who felt compelled to respond. He wrote a letter to Beckman on February 2, 2000, expressing his resentment at Beck-man’s inaccurate characterization of what had occurred. He also corrected Beck-man’s false portrayal of the reason Harper sought other counsel, asserting that it was precisely because of his dissatisfaction with Beckman that he changed attorneys. Finally, Harper requested an accounting and a refund of any unearned portion of the appeal retainer.

Harper received no response to his letter, so he called Beckman on April 14, 2000, asking about a refund. Despite assurances from Beckman that he would “take care of it,” he did not. Harper wrote to Beckman again on June 2, 2000, renewing his request for a refund of the unearned retainer.

When Harper still did not receive a refund, he contacted the local bar association to lodge a complaint against Beckman concerning Beckman’s refusal to provide an accounting and a refund. After being notified of Harper’s complaint, Beckman wrote to the bar representative looking into the matter, and enclosed an April 19, 2000, letter from Beckman to Harper. In the enclosed letter, Beckman purported to provide an accounting to Harper, showing unpaid charges totaling $4016, including time spent on the district court proceedings, against which Beckman credited the $2700 retainer. Beckman claimed that he did not owe Harper a refund. Harper adamantly denied receiving Beckman’s April 19, 2000, letter or the enclosed statement until the local bar forwarded copies to him. He also claimed all fees for Beck-man’s services in the district court proceeding had been fully paid prior to Beck-man’s receipt of the $2700 retainer.

Harper sued Beckman in small claims court, seeking to recover the unearned portion of the $2700 payment. This case eventually settled for a $1350 refund.

F. Beckman’s response to disciplinary charges. Beckman testified at the hearing on the Board’s complaint. The Commission found him “less than credible.” We have reviewed the transcript of the hearing and the numerous exhibits, and we conclude the Commission’s characterization is charitable. Beckman lied to his clients and the Commission to cover up his transgressions. He manufactured and backdated correspondence to justify his actions and hide his ethical violations. Because we find Beckman’s efforts to conceal and justify his actions reflect serious character flaws and indicate the unlikelihood of rehabilitation, we highlight some of the testimony given by Beckman at the hearing.

1. Roling estate. Despite a statement on the October 1997 bill to Roling that “[pjayment in full is due upon receipt of the statement,” Beckman claimed at the hearing that his first bill for $1282 was “an informational billing only.” He admitted, however, that when the payment came in, he intentionally deposited it, “honestly [thinking he] could take that money and keep it in the retainer and apply it towards attorney fees.” This assertion was undermined by evidence showing Beckman had handled two prior estates in the early 1990s and had properly requested fees at the conclusion of the matter. In addition, the Board introduced a letter from Beck-man to ethics counsel in the current proceeding wherein Beckman asserted “[t]he $1282 was inadvertently deposited upon receipt.” (Emphasis added.) When confronted with his letter at the hearing after having testified that he intended to deposit the check when he received it in 1997, he explained that he merely meant in his later letter that he had “no intention of keeping and cashing the funds.”

Beckman claims to have deposited the first payment of $1282 in his trust account in 1997, yet he had no documentation supporting this claim, explaining that he had discarded his old records. When remind-' ed that our rules require that such records be kept for six years, he denied knowing of such an obligation. During his testimony, he was confronted with trust account records from October 2000 showing a $1282 deposit just prior to his issuance of a refund check to Roling in that amount on October 13. He explained that he changed banking institutions for his trust account and the October 2000 deposit of $1282 must have been a transfer from his old trust account. When asked why he had no records from the old trust account covering October 2000, he theorized that he must have closed that account in October 2000, and thrown away the records.

Beckman characterized his later acceptance of the $1970 payment as an “act of stupidity.” He admitted he did not deposit this payment in his trust account. He asserted he “was not aware” that he was required to do so. This explanation rings hollow, however, in view of the fact Beck-man was disciplined in 1996 and again in 1997 for failing to deposit advance fees in his trust account.

Beckman also disputed the charge he did no work on the Roling estate after receiving the initial fee payment of $1282. When reminded that his later billing in October 2000 showed a substantial period of time with no time entries, he claimed “there’s a lot of times, I just don’t bill clients for time spent,” especially when, as here, he thought his time would exceed the allowable fees.

2. Simon criminal matter. Beckman claims he did not put Simon’s $2200 cash retainer in his trust account because he thought Simon might need some portion of the funds back, either to fund the $15,000 cash bond or to finance Simon’s farming operation. Beckman acknowledged that “[i]n retrospect,” he could have put the money in his trust account and written a check to Simon had Simon needed some of the funds later.

Beckman asserted that he had no knowledge that he had been fired as Simon’s attorney and that is why he allegedly continued to work on Simon’s case after returning from vacation. He said he did not receive attorney McClean’s letter notifying him that his representation had been terminated, probably because he had changed offices around this time and the letter was sent to his old address. Beckman admitted, however, that he had simply moved across the street, and McClean testified that the letter was never returned to him. In addition, Beckman does not dispute that he received McClean’s second letter of February 7, 2001, asking for a refund of the retainer, which had also been sent to Beckman’s old office address.

Beckman’s denial of any knowledge of McClean’s representation of Simon was also' challenged by Beckman’s possession of McClean’s appearance filed on August 14, 2000. When Beckman produced his office file during the ethics proceeding, it contained a copy of McClean’s appearance. When confronted with this document in his own file, Beckman claimed that he had understood ethics counsel’s request to be for the Simon court file, not Beckman’s office file. Consequently, Beckman said, he obtained the court file and included that in the documents produced. Again, Beck-man’s explanation is unpersuasive given that the request for production filed by ethics counsel in this disciplinary proceeding requested “[respondent’s file regarding State v. Carl Simon.” (Emphasis added.)

Beckman was also asked about the absence of any memorandums in his office file on the Simon matter, despite multiple references in his bill to the preparation of memorandums to the file. Beckman testified that the “memorandums” were actually detailed time slips explaining what he had done on the file. Once the bill was prepared, the time slips were discarded, Beckman explained, and that.was why no memorandums appeared in the file.

With respect to Beckman’s failure to respond to inquiries from the local ethics committee, Beckman testified that he prepared a response, but it was never mailed due to turnover in his office staff. He claimed he did not realize his response had not been sent until he found his letter to the local committee in the file two months later after the matter had been reported to the Board.

3. Kilby estate. Beckman claimed the $2500 “retainer” paid by Kilby was “inadvertently” deposited in his office account. He contended he attempted to refund this fee on October 12, 2000, once he learned in the Roling matter that such advance fees were improper. He claimed the letter and refund check from his trust account bearing that date were not sent then due to a change in secretaries. He explained that at that time he had recently separated from his prior firm and was experiencing difficulties in starting a solo practice.

Beckman confirmed that his bank statements at the time the refund check was allegedly written — October 2000 — showed a balance of less than $20. In addition, his bank records showed a deposit of $2500 just prior to his letter of February 9, 2001, to attorney O’Connor, in which he forwarded the “recently discovered” refund check in the same amount. Without the $2500 deposit, there would not have been sufficient funds in the account to cover the check to Kilby. The bank records also showed that the check number on the refund check — 1027-—corresponded to the numbers on checks written in February 2001, and was a higher number than checks written in October 2000, which were 1010 through 1012. Notwithstanding this evidence, Beckman steadfastly maintained that he had written the refund check and cover letter to Kilby in October 2000, as soon as his problems in the Roling estate arose.

4. Harper dissolution. Beckman admitted he did not deposit Harper’s $2700 retainer in his trust account, asserting that he had already earned it by the time he received the check. He disputed that this payment was intended to cover the entire appeal. He again attributed the tardiness of his accounting to “secretarial turnover.”

III. Ethical Violations.

With respect to Beckman’s handling of the Roling estate, we find he violated Iowa Code of Professional Responsibility DR 6-10Í(A)(3) (“A lawyer shall not ... [njeglect a client’s legal matter.”). We do not believe Beckman worked on the estate from November 1997 through October 2000, but simply did not bill his client for his time. To the contrary, we think Beckman failed to undertake the work necessary to close this estate until it was delinquent and his client had contacted the clerk of court. This neglect was made more egregious by his premature collection of fees. The $1282 and $1970 payments were received in violation of Iowa Code section 633.198 and Iowa Court Rule 7.2, and constituted a violation- of DR 2-106(A), which prohibits the collection of an illegal fee. The second payment was particularly blatant, given the district court’s prior admonition to Beckman that he must make application to the court and obtain an order approving his fees prior to payment. Moreover, Beckman sought to hide the second payment from the court by advising his client that she did not need to attend the status hearing and misrepresenting to her that the court intended to involve the court administrator, rather than the estate administrator, in the hearing. In addition, Beckman lied about his billing and collection of the $1282, trying to characterize his collection of the fees as accidental, when in fact it was not. He also lied about depositing this payment in his trust account. These actions violated DR 1-102(A)(1) (“A lawyer shall not ... [violate a disciplinary rule.”), (4) “A lawyer shall not ... [e]n-gage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”), (5) (“A lawyer shall not ... [ejngage in conduct that is prejudicial to the administration of justice.”), and (6) (“A lawyer shall not ... [ejngage in any other conduct that adversely reflects on the [attorney’s] fitness to practice law.”), as well as DR 9-102(A) (“All funds of clients paid to a lawyer ... shall be deposited in one or more identifiable interest-bearing trust accounts .... ”).

With respect to the Simon matter, Beckman again violated DR 9-102(A) by failing to deposit the $2200 retainer in his trust account. After being discharged by Simon, he failed to withdraw from the casé,- as required by DR 2-110(B)(4). Thereafter, he failed to render a timely accounting and did not return the unearned portion of the retainer until he was sued, all in violation of DR 9-102(B)(3) and (4). In addition, his billing was fraudulent and excessive, violating DR 1-102(A)(4) and DR 2-106(A). Finally, Beckman violated DR 1-102(A)(5) and (6) when he failed to cooperate with the local ethics committee investigating Simon’s complaint.

With respect to the Kilby estate, Beckman knowingly retained an illegal fee collected in violation of the Iowa Code and our court rules. This conduct violated DR 2-106(A). Again, Beckman did not keep these funds in his trust account, a violation of DR 9-102(A), and he later manufactured evidence in an attempt to document a refund of the illegal fee, a violation of DR 1-102(A)(4).

With respect to the Harper dissolution, Beckman did not deposit his client’s retainer in his trust account, contrary to DR 9-102(A). After his discharge, he failed to refund the unearned portion of the retainer until sued by his client in violation of DR 9-102(B)(4). .

IV. Appropriate.Discipline.

In determining the appropriate discipline, this court will consider the following factors:

the nature and extent of the respondent’s ethical infractions, his fitness to continue practicing law, our obligation to protect the public from further harm by the respondent, the need to deter other attorneys from engaging in similar misconduct, our desire to maintain the reputation of the bar as a whole, and any aggravating or mitigating circumstances.

Kallsen, 670 N.W.2d at 164. Our consideration of these factors leads to the inescapable conclusion that revocation of Beck-man’s license to practice law in this state is warranted.

Beckman’s ethical infractions are numerous and serious; Most problematic is the intentional and knowing nature of his violations. Beckman was reprimanded in 1996 and again in 1997 for failing to deposit client funds into his trust account, yet he continued this unethical practice in the matters before us here. Similarly, despite having handled estate matters in the past and taking fees only after court approval, he collected fees prematurely in the Roling and Kilby estates. The boldness of his second collection of fees in the Roling estate on the very day he refunded the first payment under court order is particularly reprehensible and leaves no doubt that his actions were knowingly wrong and not the product of mere oversight. This conclusion is strengthened by Beckman’s numerous acts of deceit in the matters at issue here, a trait we have documented previously. See Beckman, 557 N.W.2d at 96 (suspending Beckman’s license, in part, due to his making of a false statement to the Commission). Beckman’s pattern of misconduct and dishonesty demonstrates that he has no intention of complying with his legal and ethical obligations unless forced to do so.

Based on the serious and repetitive nature of Beckman’s ethical violations, we think he is not fit to practice law. Cf. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hill, 576 N.W.2d 91, 93-94 (Iowa 1998) (revoking license of attorney with extensive disciplinary record). For the same reason, we harbor no hope that he will understand and meet his ethical responsibilities in the future. Therefore, the only way in which the public can be protected is by revocation of his license. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 648 N.W.2d 127, 136 (Iowa 2002) (revoking license of attorney with “a pattern of serious ethical violations” because there was no reason to believe he would not continue to violate the rules in the future); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Leon, 602 N.W.2d 336, 339 (Iowa 1999) (revoking license of attorney with a pattern of misbehavior, noting “[s]uch a pattern of misconduct leads us to conclude that future misconduct is likely”). This sanction is necessary, not only to protect the public, but also to protect the reputation of the bar as a whole.

V. Disposition.

Mark Beckman has repeatedly and convincingly demonstrated his inability and unwillingness to abide by our canons of ethics. We agree with the Commission that he is unfit to be an attorney. Accordingly, we have no hesitation in revoking his license to practice law in this state.

Respondent shall comply with the requirements of Iowa Court Rule 35.21(1) in all respects, including sending the required notices to clients and opposing counsel within fifteen days and refunding any unearned fees within thirty days. Costs are assessed against the respondent as provided in Iowa Court Rule 35.25(1).

LICENSE REVOKED.

All justices concur except LARSON, J., who takes no part.


author: STREIT, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Stacie L. LETT, Respondent.
    No. 03-1646.
    Supreme Court of Iowa.
    Jan. 22, 2004.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Stacie L. Lett, Des Moines, pro se.
   STREIT, Justice.

The Grievance Commission recommends we permanently revoke Stacie L. Lett’s license to practice law in Iowa. The Commission determined Lett repeatedly violated mandatory provisions of the Iowa Code of Professional Responsibility for Lawyers. The Commission found Lett stole client funds, neglected duties owed to her clients, lied to her clients to cover up her misdeeds, failed to promptly return client property upon -withdrawal, disregarded court orders, and failed to cooperate with the investigation of the Iowa Supreme Court Board of Professional Ethics and Conduct. We agree with the findings and recommendation of the Commission and revoke Lett’s license to practice law.

I. Prior Proceedings

In 1998, Stacie L. Lett was licensed to practice law in Iowa. Since then, she has spent much of her time in private practice in Des Moines.

In November 2002, Lett pled guilty to theft in the second degree, a class “D” felony, for stealing approximately $5000 in client funds. See Iowa Code §§ 714.1(2), .2(2) (2001) (theft in excess of $1000 but not more than $10,000 is theft in the second degree, a class “D” felony). In January 2003, the district court deferred judgment and placed Lett on two years’ probation.

Upon learning of Lett’s plea, we ordered Lett to appear and show cause why her license to practice law should not temporarily be suspended. See Iowa Ct. R. 35.14(1) (“Upon receipt by the supreme court of satisfactory evidence that an attorney had pled guilty to ... a crime which would be grounds for license suspension or revocation, such attorney may be temporarily suspended from the practice of law by the supreme court ... the attorney concerned shall be notified ... that the attorney has a right to appear before one or more justices of the supreme court ... and show cause why such suspension should not take place.”). Following a hearing in February 2003, we temporarily suspended Lett’s license to practice law. See id.

In March 2003, the Iowa Supreme Court Board of Professional Ethics and Conduct filed a formal complaint against Lett. The complaint alleged Lett had repeatedly violated several mandatory provisions of the Iowa Code of Professional Responsibility for Lawyers, including the theft to which Lett pled guilty in the district court.

Lett did not answer the Board’s complaint. Lett’s failure to answer constituted an admission of the allegations in the complaint. Iowa Ct. R. 36.7; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Reese, 657 N.W.2d 457, 458 (Iowa 2003). Lett also failed to respond to the Board’s written requests for admissions. Lett’s failure to respond to the Board’s requests for admissions was also an admission of the allegations therein. Iowa Ct. R. 35.6; Iowa R. Civ. P. 1.510; Reese, 657 N.W.2d at 459.

In June 2003, the Grievance Commission held a hearing regarding Lett’s conduct. At the hearing, Lett did not attempt to deny her actions. Lett’s counsel stated:

[ Wje’re not denying the allegations. We’re not going to attempt to mitigate those allegations. We’re not going to try to justify the allegations. What we would like to do ... is to try to explain the circumstances surrounding the allegations with the same desire as opposing counsel ... for an appropriate sanction. Ms. Lett fully expects her license to be, at a minimum, suspended, if not disbarred.

Lett pointed out circumstances in her life which, she contended, warranted a three-year suspension of her license to practice law in Iowa. To this end, Lett testified at the hearing and offered into evidence six letters in which she belatedly attempted to respond to some of the Board’s notices of complaint.

The Grievance Commission found Lett had repeatedly violated mandatory provisions of the Iowa Code of Professional Responsibility for Lawyers. In particular, the Commission found Lett stole client funds, neglected duties owed to her clients, lied to her clients to cover up her misdeeds, failed to promptly return client property upon withdrawal, disregarded court orders, and failed to cooperate with the investigation of the Iowa Supreme Court Board of Professional Ethics and Conduct. The Commission recommended we permanently revoke Lett’s license.

Lett does not appeal the report of the Grievance. Commission. Our de novo review is nonetheless required. Iowa Ct. R. 35.10(1).

II. Scope of Review

Where “no appeal is taken or application for permission to appeal is filed ... [we] proceed to review de novo the record made before the commission and determine the matter without oral argument or further notice to the parties.” Iowa Ct. R. 35.10(1). “We give respectful consideration to the Grievance Commission’s findings and recommendations, but are not bound by them.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 130-31 (Iowa 2003).

The Board must prove attorney misconduct by a convincing preponderance of the evidence. Id. at 131. This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D’Angelo, 619 N.W.2d 333, 337 (Iowa 2000). Once misconduct is proven, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.” Iowa Ct. R. 35.10(1); see, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 650 (Iowa 2002) (revoking license even though Commission recommended five-year suspension).

III. Factual Findings

Based upon Lett’s admissions and the evidence presented to the Grievance Commission, we make the following factual findings:

A. The Steim-Tudor Transaction

In March 2002, Barry and Denise Steim hired Lett to prepare a contract for the sale of their house to Scott Tudor. The parties agreed Tudor would take possession on May 1, 2002. Lett told the Steims the contract would be completed before this date.

Janelle Jacobsen, Tudor’s ex-wife, gave Lett a check for $5150. Of this sum, $5000 was given in trust to Lett as a down payment for the house; the remaining $150 would be applied to Lett’s fee once she completed the sale. Lett told the Steims she would hold the $5150 in her trust account, in order to pay necessary expenses for the sale on their behalf.

Lett never prepared the contract. Instead, she removed the Steims’ money firom the trust account and kept it in a jar in her house. Lett claimed she stole the Steims’ money to pay for her burial expenses. Lett reasoned she needed the money because if she decided to commit suicide her parents would not have enough money to bury her.

As the closing date approached, the Steims repeatedly attempted to contact Lett, asking her to apprise them of the status of the contract and, eventually, to return their abstract. For the most part, Lett ignored the Steims’ requests. When Lett did respond to the Steims, she lied about the reason for the delay. The closing date passed.

The Steims filed a complaint with the Iowa.Supreme Court Board of Professional Ethics and Conduct. The Steims also called the police. To draw up the contract, the Steims had to hire another attorney.

Lett pled guilty to theft in the second degree, a class “D” felony. See Iowa Code §§ 714.1(2), .2(2). The district court deferred judgment and placed Lett on two years’ probation, ordered her to pay restitution, and mandated she undergo “a Gambling and Psychological Evaluation.”

B. The Smith-Cleveland Transaction

In 2002, Miriam Cleveland asked Lett to help her purchase a mobile home from Jason Smith. Cleveland gave Lett two checks totaling $25,300 for the purchase of the home. Of this sum, Lett agreed to hold $24,900 in trust for Smith and the remaining $400 as her fee, which she would collect once she completed the sale. Lett said she would finish the transaction within a few days.

Lett did not complete the closing as promised. Instead, Lett stole $13,300 of the funds entrusted to her. Lett testified she “in large part” gambled the money away.

Cleveland and Smith made dozens of unsuccessful attempts to contact Lett. They eventually filed complaints with the Board and called the police.

Lett returned $12,000 (which never left her trust account) to Smith, but did not make restitution for the $13,300 she stole. Lett claims she could not make restitution because Smith moved and did not leave his forwarding address. Lett has not been criminally charged for stealing from Smith.

C. Other Client Matters

Four other clients encountered Lett. Jeffrey Enos hired Lett to defend him in a lawsuit. Lett did very little work on Enos’ behalf, failed to keep Enos informed about his case, and disobeyed the district court’s discovery orders. The court ultimately entered judgment against Enos in the amount of $34,946.46 plus interest and court costs. Enos did not learn about his trial or the judgment against him until months later. Lett kept $600 Enos advanced to her, but failed to account for its use.

Debra Kissell, Lett’s next-door neighbor, hired Lett to handle her divorce. Kis-sell gave Lett a $900 advance, and entrusted her with several important documents. Lett neglected to file Kissell’s dissolution in a timely manner and repeatedly ignored Kissell’s phone calls. When Kissell terminated Lett’s representation, Lett failed to refund the advance, provide an accounting, or return the documents. Lett treated Raymond and Stephanie Estes, who had asked Lett to investigate a dispute with their mortgagee, in a similar fashion.

Lett also neglected to bring a modification of dissolution action on behalf of Eugene Scott. Lett kept her advance but failed to provide an accounting.

As previously indicated, Lett failed to respond in a timely manner to multiple notices of complaint from the Board of Professional Ethics and Conduct, as well as its requests for admissions.

III. Ethical Violations

The Grievance Commission found the Board sufficiently proved Lett violated nine distinct disciplinary rules. The disciplinary rules are mandatory provisions of our code of ethics, the Iowa Code of Professional Responsibility for Lawyers. See Iowa Code of Prof 1 Responsibility at Preliminary Statement (“The Disciplinary Rules ... are mandatory in character.”). The Commission determined Lett violated the Iowa Code of Professional Responsibility for Lawyers in eight respects: (1) Lett stole funds entrusted to her by her clients, in violation of DR 1-102(A)(3) (“A lawyer shall not ... [e]ngage in illegal conduct involving moral turpitude”), DR 1-102(A)(4) (“A lawyer shall not ... [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation”), and DR 1-102(A)(6) (“A lawyer shall not ... [e]ngage in any other conduct that adversely reflects on the fitness to practice law”); (2) Lett did not return retainers to her clients after abandoning their cases, in violation of DR 1-102(A)(4) and DR 9-102(B)(3) (“A lawyer shall ... [mjaintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts regarding them”), as well as DR 9-102(B)(4) (“A lawyer shall ... [pjromptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive”); (3) Lett failed to provide account-ings to clients, in violation of DR 9-102(B)(3); (4) Lett neglected client matters, in violation of DR 6-102(A)(3) (“A lawyer shall not ... [n]egleet a client’s legal matter”) and DR 7-101(A) (A lawyer must seek the lawful objectives of a client, carry out her contract of employment, and shall not prejudice or damage a client); (5) Lett failed to appear for scheduled court proceedings, in violation of DR 1-102(A)(5) (“A lawyer shall not ... engage in conduct that is prejudicial to the administration of justice”); (6) Lett failed to promptly return all client papers and property, in violation of DR 2-110(A)(2) (“[A] lawyer shall not withdraw from employment until reasonable steps have been taken to avoid foreseeable prejudice to the rights of the client”); (7) Lett disregarded court orders, in violation of DR 7-106(A) (“A lawyer shall not disregard ... a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding”) and DR 1-102(A)(5); and (8) Lett failed to cooperate with the Board’s investigation, in violation of DR 1-102(A)(5) and DR 1-102(A)(6).

In light of the factual findings set forth above, we agree with the Commission: the Board has proved, by a convincing preponderance of the evidence, Lett violated each of the foregoing disciplinary rules. In several instances, the Board established Lett had violated a given disciplinary rule more than once. We now turn to determine the appropriate sanction.

IV. Sanction

The Grievance Commission recommended we permanently revoke Lett’s license to practice law in Iowa. Although Lett does not appeal the Commission’s decision, at her hearing she requested a three-year suspension. We agree with the Commission and revoke Lett’s license.

In reaching our decision, we recognize the appropriate sanction must be determined in light of the particular circumstances of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Schatz, 595 N.W.2d 794, 796 (Iowa 1999). “Factors which help guide our determination include 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.’ ” Id. (quoting Comm. on Prof'l Ethics Conduct v. Blomker, 379 N.W.2d 19, 21 (Iowa 1985)).

Lett’s actions clearly warrant revocation of her license. Although not convicted, having received a deferred judgment, Lett stole client funds. “There is no place in our profession for lawyers who convert funds entrusted to them. It is almost axiomatic that we revoke licenses of lawyers who do so.” Comm. on Prof'l Ethics Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994); see Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Allen, 586 N.W.2d 383, 389-90 (Iowa 1998) (cata-loguing cases where we have revoked an attorney’s license for theft of entrusted funds). But see D’Angelo, 619 N.W.2d at 338-39 (only a lengthy suspension warranted where attorney did not intentionally misappropriate funds). Moreover, Lett’s thefts were sizeable and could have resulted in felony convictions for conduct involving dishonesty. See Iowa Code 714.2 (theft of $13,000 and $5000 are class “C” and “D” felonies, respectively); id. 602.10122 (providing that attorney’s conviction of a felony is a sufficient cause for revocation or suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Sylvester, 548 N.W.2d 144, 147 (Iowa 1996) (holding attorney’s “conviction of a felony [was] conclusive evidence that the ultimate form of discipline [i.e. revocation of the attorneys license] must be imposed”). The mere fact Lett received a deferred judgment in a corresponding criminal case is, in itself, irrelevant to our analysis in an attorney disciplinary proceeding. See Comm. on Prof'l Ethics Conduct v. Cody, 412 N.W.2d 637, 640-41 (Iowa 1987) (standards for determining appropriateness of a sanction in an attorney discipline proceeding and the punishment in a criminal case are different). A record of a conviction in this case would amount to nothing more than evidentiary surplusage. Through her admissions, plea of guilty, and the testimonial and documentary evidence presented against her at the hearing, the Board has conclusively established Lett stole large sums of entrusted funds from her clients. Lett’s thefts, of course, are not confined to her outright misappropriation of client funds. Failing to return an unearned retainer is also theft. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Winkel, 599 N.W.2d 456, 459 (Iowa 1999) (“A lawyer who takes a fee before it is earned effectively misappropriates the client’s funds.”). Examining Lett’s conduct, one is reminded of President Abraham Lincoln’s admonition regarding advance fees:

As a general rule, never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case as if something was still in prospect for you as well as for your client.

Frederick Trevor Hill, Lincoln the Lawyer 242 (1906).

In addition to stealing entrusted client funds, Lett repeatedly violated other provisions of the Iowa Code of Professional Responsibility for Lawyers. Multiple violations of our disciplinary rules ... call for enhanced disciplinary sanctions. Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Lesyshen, 585 N.W.2d 281, 288 (Iowa 1998); see Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Leon, 602 N.W.2d 336, 339 (Iowa 1999) (“a pattern of misconduct leads us to conclude that future misconduct is likely” and revocation necessary to protect the public). Not only did Lett fail to cooperate with the Board’s investigation, she neglected duties owed to her clients, lied to her clients to cover up her misdeeds, failed to promptly return client property upon withdrawal, and disregarded court orders. Lett inflicted grave harm upon her clients — particularly Enos, whom Lett effectively deprived of a legal defense. Comm. on Prof'l Ethics Conduct v. Freed, 341 N.W.2d 757, 759 (Iowa 1983) (neglect of duties to client is like “a surgeon who, without transferring responsibility, drops his scalpel and abandons his patient in the course of an operation”). Further exacerbating the critical condition in which she put or left her clients, Lett has made little effort to reimburse her victims. See Comm. on Prof'l Ethics Conduct v. Martin, 375 N.W.2d 235, 238-39 (Iowa 1985) (failure to make restitution an aggravating factor).

It is also troubling that Lett has continually shifted the blame for her misdeeds upon others. See Iowa Supreme Ct Bd. of Prof'l Ethics Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa 1999) (“attempt to shift the blame elsewhere and ignore inquiries by the board reflects poorly on [a lawyer’s] fitness to practice law”). Although Lett apologized for her actions, she shifted blame to other members of the bar, the Board’s process server, the Iowa Lawyers Assistance Program of the Iowa State Bar Association, and even the terrorist attacks of September 11, 2001. The Commission concluded “the main theme that ran through her testimony and written responses ... is that others are to blame for her predicament.” We agree with this assessment. Revocation is the proper sanction.

We are mindful of several factors which might otherwise tend to mitigate the sanction we impose: Lett’s alleged health problems, personal tragedies, financial difficulties, gambling addiction, relative inexperience in the practice of law, as well as a lack of a record of prior discipline. Nevertheless, given the severity of Lett’s transgressions, we conclude Lett is not a suitable candidate for rehabilitation and reinstatement of her license to practice law.

In a letter to the Board, Lett insisted revocation would result in “letfting] this tragedy be for nothing.” We disagree. Revoking Lett’s license will deter others, protect the public, and uphold the reputation of the bar as a whole. See Schatz, 595 N.W.2d at 796 (citing Blomker, 379 N.W.2d at 21). To permit Lett to practice law again would simply risk too much. For in reaching our decision, we recognize

Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct ... in the last analysis it is the desire for the respect and confidence of the members of the profession and of the society which the profession serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permits of no compromise.

Iowa Code of Prof'l Responsibility at Preamble. Lett’s actions have not only harmed others, but also diminished the public’s respect for the legal profession. To permit Lett to practice again would risk further harm to the public and the profession. This risk, and the attendant costs, prove too great. We must, therefore, revoke Stacie L. Lett’s license to practice law. Costs are taxed to Lett pursuant to Iowa Court Rule 35.25(1).

LICENSE REVOKED.

All justices concur except LAVORATO, C.J., and WIGGINS, J., who take no part.

      . In addition to complaints regarding matters set forth in the body of this opinion, Lett failed to respond to a notice regarding a complaint filed by her former partner, Laurie Ristau. The facts which led to the Ristau's complaint, however, were not part of the Board's formal complaint.


author: HANSON, Justice.

text:
    BANK MIDWEST, MINNESOTA, IOWA, N.A., Respondent, v. Jerome LIPETZKY, et al., Appellants, James Lipetzky, et al., Respondents.
    No. C1-02-1747.
    Supreme Court of Minnesota.
    Jan. 15, 2004.

      Michael S. Dove, Peter D. Favorite, Gis-lason & Hunter LLP, New Ulm, MN, for Respondent Bank Midwest, Minnesota, Iowa, N.A.
    Thomas W. Van Hon, Fairfax, MN, for Respondent James Lipetzky, et al.
    John H. Schnobrich, Jennifer L.J. Gilk, Redwood Falls, MN, for Appellant Jerome Lipetzky, et al.
   OPINION

HANSON, Justice.

The question presented in this appeal is whether the grant of a mortgage by a contract for deed vendee without the consent of the contract for deed vendor is a breach of a consent clause that provides “Buyer agrees they cannot sell, transfer or assign this property without written permission or consent of seller.” The district court concluded that it is, but the court of appeals disagreed, holding that the grant of a mortgage is not a “transfer.” We reverse the court of appeals and reinstate the decision of the district court.

On November 9, 1993, James and Tamara Lipetzky entered into a contract for deed with James’ parents, Jerome and Marion Lipetzky, for the purchase of a portion of the family farm located in Redwood County, Minnesota. The farm had been in Jerome’s family for over 80 years. The contract provided a purchase price of $72,000, which was less than half of the Assessor’s Estimated Market Value of $184,300. The contract contained the consent clause quoted above.

In January 1994, Jerome and Marion conveyed fee title to the property and their vendor’s interests in the contract for deed to their respective revocable trusts, the trustees of which have joined as appellants in this proceeding (hereinafter referred to collectively as the “Trusts.”).

Almost 4 years after they acquired their vendees’ interests, James and Tamara granted a mortgage on those interests to respondent Bank Midwest in the amount of $110,000. Eighteen months later, they granted a substitute mortgage in the increased amount of $215,000. At the time of the substitute mortgage, James and Tamara also assigned their rights in the contract for deed to the Bank as additional security. James and Tamara did not obtain written consent from Jerome and Marion or their Trusts for any of these transactions. At the time of the substituted mortgage and assignment, James and Tamara were still subject to a prepayment restriction in the contract for deed that precluded prepayment “for the first seven (7) years of the contract without the written consent of the seller.”

When James and Tamara defaulted on their loan to the Bank, the Bank commenced foreclosure proceedings. Jerome and Marion deny that they had any knowledge of the mortgages or the assignment until they were made aware of them by the foreclosure proceedings. In March 2001, the Trusts served a Notice of Cancellation of Contract for Deed, pursuant to Minn. Stat. § 559.21, subd. 2a (2002), on James and Tamara and the Bank. The notice described the event of default as the breach of the contract for deed by granting the assignment and the mortgages. The Bank then brought this action to enjoin the cancellation of the contract for deed and for a declaratory judgment that the mortgage and assignment are valid and enforceable.

Both parties filed cross-motions for summary judgment, agreeing that the critical issue was whether the consent clause prohibited the mortgage and assignment without the consent of the vendors. The district court granted the Trusts’ motion for summary judgment, holding that the consent clause prohibited the grant of the mortgage and the assignment without the consent of the vendors and that the mortgage and assignment to the Bank were invalid.

The court of appeals affirmed in part and reversed in part, holding that the consent clause prohibited the assignment but not the mortgage. Bank Midwest, Minnesota, Iowa, N.A. v. Lipetzky, 661 N.W.2d 290, 294 (Minn.App.2003). The court remanded the case for further proceedings, expressly declining to “speculate on the parties’ future positions that may or may not result from our holding.” Id. at 294, n. 7. We granted the Trusts’ petition for further review on the issue whether the mortgage is valid but denied the Bank’s cross-petition on the issue whether the assignment is valid.

On appeal from the grant of summary judgment, we must review the record to determine whether there are any genuine issues of material fact and the trial court erred in the application of the law. Hermeling v. Minnesota Fire and Cas. Co., 548 N.W.2d 270, 273 (Minn.1996). Summary judgment is inappropriate where terms of a contract are at issue and those terms are ambiguous or uncertain. Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966). If, however, terms of the contract may be given their plain and ordinary meaning, construction of the contract is a matter for the court and summary judgment may be appropriate. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346-47 (Minn.2003).

As a preliminary matter, we note that we have held that similar consent clauses in contracts for deed are valid and enforceable and can defeat the rights of third parties who deal with the contract vendee. Larson v. Johnson, 175 Minn. 502, 505-06, 221 N.W. 871, 873 (1928). We have also held that a contract vendor may cancel the contract for deed based upon the breach of such a consent clause. Karim v. Werner, 333 N.W.2d 877, 879 (Minn.1983); see also 25 Eileen Roberts, Minnesota Practice— Real Estate Law § 6.08(b) (2003).

I.

The Trusts argue that the consent clause is not ambiguous and that the plain meaning of the word “transfer” includes a mortgage. The determination of whether a contract is ambiguous is a question of law and is reviewed de novo. Republic Nat’l. Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn.1979). “If a contract is unambiguous, then the language must be given its plain and ordinary meaning and will be enforced by the courts even if the results are harsh.” Denelsbeck, 666 N.W.2d at 346-47.

The Bank likewise argues that the clause is not ambiguous but proposes the opposite interpretation, that the plain and ordinary meaning of the word “transfer” does not include a mortgage. The district court and the court of appeals each determined that the clause was not ambiguous, but came to different conclusions on its plain and ordinary meaning. These differing interpretations might support an argument that reasonable minds may differ on the plain and ordinary meaning and that the clause is thus ambiguous. But the mere fact that a court has disagreed on the interpretation of contract language is not determinative that the contract language is ambiguous. Republic Nat’l Life Ins. Co., 279 N.W.2d at 354.

One reason why the parties and the courts found support for opposite interpretations is that each focused unduly on the word “conveyance.” Thus, the district court looked to the language in the mortgage that the “mortgagee shall convey to the lender all right, title and interest in [the property]” and determined that the term “transfer” in the consent clause was synonymous with the word “convey.” The court of appeals also focused on the word “convey” . but, relying on Minn.Stat. § 559.17, subd. 1 (2002), determined that a mortgage is not a conveyance. Section 559.17 reads in part: “A mortgage of real property is not to be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure, except as permitted in subdivision 2.” Minn.Stat. § 559.17, subd. 1 (2002). The court of appeals dissent disagreed with the majority’s reliance on section 559.17 as being misplaced because the consent clause does not use the word “convey.” Further, the dissent concluded that section 559.17 cannot reasonably be read to mean that a mortgage is not a conveyance of any kind, but only that it is not the type of conveyance that enables the holder of the mortgage to recover immediate possession. Lipetzky, 661 N.W.2d at 295-96.

We agree with the court of appeals dissent that the word “convey” is not controlling. Our task, instead, is to interpret the word “transfer” and, in that context, the meaning of “convey” is only helpful by analogy or comparison. In fact, we conclude that, in common usage, the term “transfer” is understood to be broader than the more technical term “convey,” and the broader term should not be limited by the narrower one.

The Trusts refer us to the Black’s Law Dictionary definition of “transfer,” when used as a noun, to include:

The sale and every other method, direct or indirect, of disposing of or parting with property or with an interest therein, or with the possession thereof, or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, payment, pledge, mortgage, lien, encumbrance, gift, security or otherwise * * ⅜.

Black’s Law Dictionary 1497 (6th ed.1990) (emphasis added). This definition conceptually and expressly includes a mortgage.

In addition, the Trusts refer by analogy to the definition of “transfer” under Minn. Stat. § 513.41(12) (2002) (with respect to fraudulent transfers): “ ‘Transfer’ means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.”

The Bank counters that some of these definitions of transfer are for its use as a noun and the consent clause uses it as a verb. The Bank suggests that the definition of the word as a verb is: “[t]o convey or remove from one place or one person to another; to pass or hand over from one to another, esp. to change over the possession or control of.” Black’s Law Dictionary 1504 (7th ed.1999). The Bank argues that a mortgage does not meet this definition because the grant of a mortgage does not produce an immediate change in possession, which can only occur after default and foreclosure. But even this definition of “transfer” does not expressly state that the change of possession must be immediate or be effective upon the mere grant of the mortgage. The grant of the mortgage does confer upon the mortgagee the power to obtain possession, albeit a conditional power that requires default and foreclosure.

The Bank argues that other language in the contract for deed demonstrates that the consent clause does not apply to a mortgage. The contract for deed states that Jerome and Marion will convey a warranty deed for marketable title to James and Tamara when full performance of the contract for deed is complete, but excepts from the requirement of marketable title, those “liens arid encumbrances * * * which Purchasers have created, suffered or permitted to accrue after the date of this contract * * The Bank argues that this language implies that the vendee may place liens and encumbrances, such as a mortgage, on the property. But this exception does not specifically refer to hens and encumbrances that have not been consented to by the vendors. It can reasonably be read to only apply to liens or encumbrances for which consent was obtained.

Finally, the Bank argues that to interpret “transfer” to include a mortgage would be redundant in light of the definition of property dispositions included in MinmStat. § 462.391, subd. 13 (2002), which states: “A commission may sell, convey, mortgage, create a security interest in, lease, exchange, transfer, or dispose of all or part of its real or personal property or an interest in property, wherever located in the state.” But there is no rule of construction that precludes redundancy in a statute. And, because “selling” includes “conveying,” and creating a “security interest” includes a “mortgage,” redundancy appears to be a part of this statutory language.

We hold that the plain and ordinary meaning of “transfer” includes the grant of a mortgage. Accordingly, we conclude that the grant of the mortgages by James and Tamara to the Bank was in breach of the consent clause.

II.

The conclusion that the grant of the mortgages was in breach of the consent clause does not necessarily mean that the mortgages are invalid. In Minnesota Central Railroad Co. v. MCI Telecommunications Corp., 595 N.W.2d 533, 538 (Minn.App.1999), the court of appeals held that a grant of an easement contrary to a consent clause was ineffective where the recipient of the easement had constructive notice of the consent clause through the recording of the contract for deed. We have likewise held that a vendor in a contract for deed, who retook the' property from the vendee, retook free of an assignment of the vendee’s interest of which the vendor had no notice and for which the vendor gave no consent. Larson, 175 Minn. at 506, 221 N.W. at 873. We explained that the assignee who took an assignment of the contract for deed must be charged with knowledge of the terms of the contract, including specifically the provision requiring consent to any assignment. Id. at 506, 221 N.W. at 873.

In this case, the Bank took the mortgage with constructive knowledge of the consent clause because the contract for deed was recorded. The title opinion provided to the Bank referred to the recording of the contract and the specific language of the consent clause was included in the abstract of title. Further, because the Bank also took an assignment of the vendee’s interest in the contract, it may be charged with knowledge of the terms of the contract, independent of recording.

Because the bank had constructive notice of the consent clause, the mortgage is invalid. Accordingly, we reverse the court of appeals and reinstate the district court’s grant of summary judgment.

Reversed.

      . This case involves several members of the Lipetzky family. After initial introduction, members of the Lipetzky family will be referred to by their first names.

      . The initial mortgage ran to Southwest State Bank, which was purchased by Bank Midwest. Bank Midwest is currently the holder of the mortgage and will be referred to as the "Bank.”

      . Although James was a co-trustee of the Trusts, the trust documents provide that the power of the trustees "shall be exercisable by a majority of the trustees * * Thus, no single trustee could have consented to the mortgage. There is no evidence that the other co-trustee consented to or was aware of the mortgages or the assignment.

      .At oral argument, the Bank argued that after November 9, 2000, James and Tamara could have avoided the restriction of the consent clause by prepaying the balance due on the contract. Because James and Tamara did not offer or attempt to prepay, we do not reach the issue whether such prepayment would have relieved them of the restriction of the consent clause.

      . In Larson, 175 Minn. at 505, 221 N.W. at 872, we recognized that the power of alienation was not unlawfully suspended by a clause in a contract for deed prohibiting assignment without the consent of the vendor. We compared the consent clause to provisions in leases prohibiting subletting. Id. We noted that, just as the lessor had an interest in the caretaker of the property, the vendor has an interest in the vendee. Id. at 506, 221 N.W. at 873. Thus, we held that the type of restraint imposed by the consent clause was not unreasonable.

      . Support for the dissent's interpretation can be found in Morrison v. Mendenhall, 18 Minn. 232 (Gil.212) (1872), where we said a mortgage is "a conveyance of an estate or interest in land.” A commentator has likewise said "[a] mortgage is included within the definition of a conveyance.” 6A Steven J. Kirsch, Minnesota Practice — Methods of Practice § 48.17 (3d ed.1990). And the Restatement states "[a] mortgage is a conveyance or retention of an interest in real property to secure the obligation.” Restatement (Third) of Property § 1.1 (1997).

      . The Bank cites Hatlestad v. Mutual Trust Life Ins. Co., 197 Minn. 640, 643, 268 N.W. 665, 666 (1936), to support the contention that a mortgage is not a "conveyance.” Although Hatlestad discusses the concept that a modem mortgage is a "mere lien or security,” it continues by stating that "[t]he mortgagee may pass title upon condition broken and in default of redemption. That is no less than a power, upon condition subsequent, to convey, not only a mere interest, but also title in fee.” Hatlestad, 197 Minn. at 643, 268 N.W. at 666-67. See also Land O'Lakes Dairy Co. v. Wadena County, 229 Minn. 263, 271, 39 N.W.2d 164, 169-70 (1949) (stating that "[a] mortgage of realty is a conveyance of really intended as security for the payment of money”); Petition of S.R.A., 213 Minn. 487, 494, 7 N.W.2d 484, 488 (1942) (stating that a mortgage is "in form a conveyance.”).

      . Further, if we were to conclude that this exception conflicts with the language in the consent clause, contract construction compels us to determine that the more specific language takes precedence over the more general language, and we would defer to the language in the consent clause. See, e.g., Employers Liability Assur. Corp. v. Morse, 261 Minn. 259, 264, 111 N.W.2d 620, 624-25 (1961).


author: /s/James H. Gilbert Associate Justice

text:
    Jean O. KUISLE, Relator, v. SUNRISE ASSISTED LIVING, a/k/a Karrington Assisted Living and Royal & Sun Alliance Insurance Co., Respondents, and Minnesota Department of Human Services, Intervenor.
    No. A03-1178.
    Supreme Court of Minnesota.
    Jan. 28, 2004.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers Compensation Court of Appeals filed July 23, 2003, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

BY THE COURT:

/s/James H. Gilbert

Associate Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Steven Mark GALE, a Minnesota Attorney, Registration No. 223645.
    No. A03-59.
    Supreme Court of Minnesota.
    Jan. 28, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Steven Mark Gale on March 11, 2003. On October 3, 2003, the parties filed a stipulation for discipline. On December 30, 2003, this court issued an order directing the Director to file an explanation of the reasons he believes dismissal is appropriate and allowing respondent to file a written response as well.

The Director filed his memorandum on January 9, 2004. In the memorandum, the Director states that he concluded that no public discipline of respondent was warranted because of doubts about the Directors ability to present proof of misconduct and the absence of any prior disciplinary action against respondent. On January 13, 2004, respondent filed his response and a motion to seal the response due to confidential information contained in the response.

This court has independently reviewed the file and approves of the recommended disposition of dismissal. The court has further concluded that respondent’s response should be sealed.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for disciplinary action against Steven Mark Gale in the above-entitled matter be, and the same is, dismissed and that Steven Mark Gale’s motion to seal his response be, and the same is, granted.

BY THE COURT:

/s/ Paul H. Anderson

Associate Justice

BLATZ, C.J., took no part in the consideration or decision of this case.


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Stuart E. GALE, a Minnesota Attorney, Registration No. 33054.
    No. A03-58.
    Supreme Court of Minnesota.
    Jan. 28, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Stuart E. Gale has committed professional misconduct warranting public discipline, namely, respondent improperly notarized the signature of his daughter-in-law on a mortgage document based upon his son’s representation that she had authorized him to sign on her behalf. This conduct violated Minn. R. Prof. Conduct 8.4(c).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and a 30-day suspension, stayed for two years, and payment of $900 in costs and $757 in disbursements under Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Stuart E. Gale is publicly reprimanded and suspended for 30 days stayed upon the condition that respondent not engage in similar misconduct or otherwise violate the Minnesota Rules of Professional Conduct for two years from the date of this order. Respondent shall pay $900 in costs and $757 in disbursements under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson

Associate Justice

BLATZ, C.J., took no part in the consideration or decision of this case.


text:
    Richard PARKER, Respondent, v. UNIVERSITY OF MINNESOTA, Self-Insured, Relator, and Askew Rehabilitation Services, Intervener.
    No. A03-1553.
    Supreme Court of Minnesota.
    Jan. 28, 2004.
    Rehearing Denied Feb. 19, 2004.
    Roderick C. Cosgriff (# 123377), Hea-cox, Hartman, Koshmrl, Cosgriff & Johnson, P.A., St. Paul, MN, for Relator.
    Lawrence C. Miller (# 203506), Miller & Hipp, P.L.L.P., Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers Compensation Court of Appeals filed September 16, 2003, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01. BY THE COURT:

/s/Russell A. Anderson

Associate Justice

PAGE, J., took no part in the consideration or decision of this case.