author: VANDE WALLE, Chief Justice.

text:
    2008 ND 74
    STOCKMAN BANK OF MONTANA, a Montana banking corporation, Plaintiff and Appellant v. AGSCO, INC., a North Dakota corporation, Capital Harvest, Inc., d/b/a/ Capital Harvest Finance Company, a North Dakota corporation, individually and as agent for AGSCO, Inc., Defendants and Appellees and Farmers Union Oil Company of Williston, a North Dakota cooperative association, MON-KOTA, Inc., a Montana corporation, Betaseed, Inc., a Minnesota corporation, Central Insurance Agency, a North Dakota corporation, Steven D. Cayko, a/k/a Steve Cayko, Perry Elletson, a/k/a Perry E. Elletson, Ron Gross, a/k/a Ronnie Gross, Edward P. Ochs, a/k/a Eddie Ochs, Tom Ochs, Mark Brunelle, Kelly Brunelle, and Bill Sheldon, Defendants and Farmers Union Oil Company of Williston, a North Dakota cooperation association, Third-party Plaintiff v. Hardy Farm, Inc., and Jim Hardy, Third-party Defendants.
    No. 20070357.
    Supreme Court of North Dakota.
    April 18, 2008.

      Garth H. Sjue (argued) and Jennifer M. Nasner (on brief), Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Willi-ston, ND, for plaintiff and appellant.
    David J. Eilertson, Brown Corporations, Grand Forks, ND, for defendants and ap-pellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Stockman Bank of Montana (“Bank”) appealed a judgment awarding interest at a rate of 1.5 percent on money it received in repayment from AGSCO, Inc. (“AGSCO”). We reverse and remand for further proceedings in accordance with this opinion.

I.

[¶ 2] The Bank had deposited proceeds from the sale of a farmer’s crop with the district court, which was to determine the priority of several agricultural suppliers’ claims to the proceeds. In January 2006, a judgment against the Bank in favor of AGSCO was entered in the amount of $287,406.30. The amount was wired from the district court fund to AGSCO on January 27, 2006, in satisfaction of the judgment. In Stockman Bank of Montana v. AGSCO, Inc., 2007 ND 26, 728 N.W.2d 142, this Court reversed a portion of the district court judgment, holding that agricultural suppliers’ liens do not apply for supplies applied to crops in another state.

[¶ 3] On June 11, 2007, after remand, AGSCO returned to the Bank a stipulated amount of $127,810.27. The Bank brought a motion to determine whether AGSCO owed interest, and if so, the applicable interest rate. The district court awarded an interest rate of 1.5 percent, the rate earned on the funds while deposited with the district court, from the time the money was paid to AGSCO until it was repaid to the Bank.

II.

[¶ 4] The only issue on appeal is whether the rate of 1.5 percent is appropriate. The standard of review for issues of law is de novo. Preference Personnel, Inc. v. Peterson, 2006 ND 35, ¶ 6, 710 N.W.2d 383.

[¶ 5] The applicable interest rate when a judgment is paid but later reversed is a question of first impression in North Dakota. There is no statutory or case law in our jurisdiction regarding this issue. Comment d of Restatement of Restitution § 74 states, “upon reversal of the judgment the payor is entitled to receive from the creditor the amount thus paid with interest” but does not specify an applicable interest rate. Restatement of Restitution, § 74 cmt. d (1937).

[¶ 6] However, N.D.C.C. § 47-14-05 states that “[ijnterest for any legal indebtedness must be at the rate of six percent per annum unless a different rate ... is contracted for in writing.” In the absence of a specific contractual rate of interest, prejudgment interest must be calculated at the prescribed legal rate of interest in legal and equitable actions. Hirschkom v. Severson, 319 N.W.2d 475, 480 (N.D.1982). Prejudgment interest is calculated at the rate provided in N.D.C.C. § 47-14-05; after judgment, interest is calculated at the rate prescribed by N.D.C.C. § 28-20-34. Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 642 (N.D.1984).

[¶ 7] There were no other claims to the proceeds at the time the Bank paid the judgment to AGSCO and the Bank would have been entitled to the $127,810.27 if the district court had correctly determined the amount owed to AGSCO. The Bank argues it is entitled to interest at the judgment rate established under N.D.C.C. § 28-20-34. But there was no judgment entitling the Bank to the money or requiring AGSCO to repay the money until after the decision by this Court in 2007 in Stockman Bank of Montana v. AGSCO, Inc., and therefore there was no failure by AG-SCO to pay a judgment. AGSCO argues that had the trial court not distributed the funds to AGSCO, the funds would not have been in the possession of the Bank but on deposit with the trial court until the appeal was decided and therefore the 1.5 percent rate is appropriate. This ignores the fact the funds were distributed and AGSCO had use of the funds during the period in question. The interest is for AGSCO’s use of the Bank’s money based on an erroneous court order upon which AGSCO reasonably relied. We believe this is a legal indebtedness for which there is no other specified rate of interest, contractual or statutory, and the plain language of N.D.C.C. § 47-14-05 therefore applies.

[¶ 8] Thus, where a party is erroneously ordered to pay another, we conclude the party is entitled to interest at the legal rate prescribed by N.D.C.C. § 47-14-05 when the judgment is later reversed. Once a judgment has been entered, the judgment rate found in N.D.C.C. § 28-20-34 applies.

[¶ 9] We reverse and remand for further proceedings in accordance with this opinion.

[¶ 10] BRUCE E. BOHLMAN, S.J., and DALE V. SANDSTROM, CAROL RONNING KAPSNER, MARY MUEHLEN MARING, JJ., concur.

[¶ 11] The Honorable BRUCE E. BOHLMAN, S.J., sitting in place of CROTHERS, J., disqualified.


source: Caselaw Access Project

author: SANDSTROM, Justice. CROTHERS, Justice,

license: Public Domain

text:
    2008 ND 77
    Monte SANDVICK and Joedy Bragg, Plaintiffs and Appellants v. William R. LaCROSSE; Frank B. Haughton, Jr.; Empire Oil Company; Nisku Royalty, L.P.; FH Petroleum Corporation; and Tammy LaCrosse, Defendants and Appellees
    No. 20070146.
    Supreme Court of North Dakota.
    April 18, 2008.
    Rehearing Denied May 22, 2008.

      Michael T. Andrews (appeared), H. Patrick Weir (argued), and David L. Tilden (on brief), Vogel Law Firm, Bismarck, N.D., for plaintiffs and appellants.
    Patrick W. Durick (argued) and Larry L. Boschee (on brief), Pearce & Durick, Bismarck, N.D., for defendants and appel-lees.
   SANDSTROM, Justice.

[¶ 1] Monte Sandvick and Joedy Bragg appeal the district court judgment dismissing their lawsuit against William LaCrosse and Frank Haughton following a bench trial in which the court found neither a partnership nor a joint venture existed between the parties in regard to oil and gas leases held by the parties. We reverse and remand, concluding on the basis of the facts found by the district court that there was a joint venture and that LaCrosse and Haughton breached their fiduciary duties of loyalty to Sandvick and Bragg.

I

[¶ 2] In May 1996, Sandvick, Bragg, LaCrosse, and Haughton purchased three oil and gas leases in Golden Valley County, North Dakota. The leases were known as the Horn leases. The Horn leases were standard, paid-up leases with terms of five years and did not contain any provision for extending or renewing them. Empire Oil Company, owned by LaCrosse, held record title to the leases. The leases were purchased from the parties’ credits in the Empire Oil Company JV checking account. Sandvick testified the parties’ initial intent was to try to sell the leases during the five-year term.

[¶ 3] Aside from the Horn leases, the parties had previously owned other oil and gas leases together. Haughton had owned other leases with Sandvick, and LaCrosse was also involved in some of these other leases. Some of the leases were purchased before the Horn leases, and some were purchased after.

[¶ 4] In November 2000, Haughton and LaCrosse purchased three oil and gas leases on the Horn property. These leases were referred to as the “Horn Top Leases” and were set to begin at the expiration of the initial Horn Leases. The term “top lease” is defined in Howard R. Williams & Charles J. Meyers, Manual of Oil and Gas Terms 1285 (8th ed.1991), as a “lease granted by a landowner during the existence of a recorded mineral lease which is to become effective if and when the existing lease expires or is terminated.” The top leases covered the same acreage as the Horn Leases and had a five-year term, with the title in the name of Empire Oil Company. The top leases were not recorded until December 2001. Prior to purchasing the top leases, LaCrosse and Haughton twice offered to purchase Sand-vick’s and Bragg’s interests in the Horn leases, but Sandvick and Bragg refused. Haughton testified he did not inform either Sandvick or Bragg that he and LaCrosse had purchased the top leases.

[¶ 5] In 2004, Sandvick and Bragg sued LaCrosse and Haughton, claiming they breached their fiduciary duties by not offering Sandvick and Bragg an opportunity to purchase the top leases with them. The trial was limited to the issues regarding the existence, life span, and scope of a partnership or joint venture. Following the bench trial, the district court concluded no partnership or joint venture existed.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] On appeal, Sandvick and Bragg argue the district court erred in concluding the parties were not partners. In North Dakota, a partnership is “an association of two or more persons to carry on as co-owners a business for profit.” N.D.C.C. § 45-13-01(19). The crucial elements of a partnership are (1) an intention to be partners, (2) co-ownership of the business, and (3) a profit motive. Tarnavsky v. Tarnavsky, 2003 ND 110, ¶ 7, 666 N.W.2d 444. “The existence of a partnership is a mixed question of law and fact, and the ultimate determination of whether a partnership exists is a question of law.” Id. Questions of law are fully reviewable on appeal. J.P. v. Stark County Social Services Bd., 2007 ND 140, ¶ 9, 737 N.W.2d 627.

[¶ 8] The district court concluded a partnership did not exist between the parties. In its memorandum opinion following trial, it found the parties were not co-owners of a business. It found the parties’ undertaking was very limited and did not coincide with the definition of a business. It found that the parties entered into the leases for a set period of time and that their activity, rather than being a series of acts, was limited to that occurrence.

[¶ 9] Under comment 1 to § 202 of the Revised Uniform Partnership Act, a “business” is defined as “a series of acts directed toward an end,” and under N.D.C.C. § 45-13-01(4), “includes every trade, occupation, and profession.” North Dakota adopted the Revised Uniform Partnership Act in 1995, Ziegler v. Dahl, 2005 ND 10, ¶ 14, 691 N.W.2d 271, and it is codified in N.D.C.C. chapters 45-13 through 45-21. We interpret uniform laws in a uniform manner, N.D.G.C. § 1-02-13, and may also look to the drafters’ comments to interpret its provisions. See, e.g., Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594.

[¶ 10] In this case, the parties entered into the Horn leases for a specific period. The court found their intention was to try to sell the leases. The court also found the parties were involved in other oil- and gas-related undertakings with various other parties, including, in some instances, the parties involved in this case. Haughton testified that he had jointly owned other leases with LaCrosse and Sandvick. Bragg testified the Horn leases were a separate investment. The court found these other undertakings were separate and apart from the Horn leases. We conclude the purchase of the Horn leases was a separate act undertaken by the parties, not a series of acts. On the basis of the evidence in the record and the testimony at trial, we conclude the district court did not err in concluding a partnership did not exist.

Ill

[¶ 11] Sandvick and Bragg argue the district court erred in concluding a joint venture did not exist. A joint venture is similar to a partnership but is more limited in scope and duration, and principles of partnership law apply to the joint venture relationship. SPW Associates, LLP v. Anderson, 2006 ND 159, ¶ 8, 718 N.W.2d 580. “For a business enterprise to constitute a joint venture, the following four elements must be present: (1) contribution by the parties of money, property, time, or skill in some common undertaking, but the contributions need not be equal or of the same nature; (2) a proprietary interest and right of mutual control over the engaged property; (3) an express or implied agreement for the sharing of profits, and usually, but not necessarily, of losses; and (4) an express or implied contract showing a joint venture was formed.” Id. at ¶ 10 (citations omitted). There is, however, no fixed formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts. Id.

[¶ 12] The district court concluded the parties were not members of a joint venture when they acquired the Horn leases. It made the following findings of fact, which supported its conclusion:

7. Bragg never talked to Haughton about the investment in the Horn Leases and had no agreement with Haughton concerning the purchase of additional leases, the purchase of Horn minerals, or the purchase of leases on minerals adjacent to the Horn property. Sand-vick had no written or oral agreement with either Haughton or Lacrosse concerning the acquisition of a new lease following the expiration of the Horn Leases.
8. At the time of the acquisition of the Horn Leases, Bragg had no agreement with Lacrosse concerning the development of those leases. Lacrosse never agreed to make Sandvick and Bragg a part of any subsequent lease of the Horn minerals. If Bragg had any expectations concerning the development of the Horn Leases, they were not communicated to Haughton.
10. No agreement was entered into, express or implied, limiting the parties’ abilities to continue activity which did not include the other parties to these proceedings.
11. None of the parties intended to be exclusively involved in this undertaking, and they knew that the other parties would continue to do business which would not include them.
13. Under the circumstances, the parties had no expectations that the other parties would refrain from investing in the area without offering to the other parties an opportunity to join in the investment.

[¶ 13] The court, however, also made findings that reflected a joint venture; specifically, the court found: (1) LaCrosse opened a checking account under the name Empire Oil JV Account; (2) the leases were purchased from the parties’ credits in the Empire Oil Company JV account in equal shares; (3) title to the leases was held in Empire Oil Company’s name; and (4) the parties’ intent in acquiring the leases was to sell them. At trial, Bragg, LaCrosse, and Haughton testified that any profits would have been shared had the Horn leases been sold. This testimony, along with the court’s findings above, demonstrates the existence of a joint venture. We conclude a joint venture did exist in regard to the parties’ purchase of the Horn leases, because the leases were purchased out of the parties’ checking account funds in equal shares, they were titled in Empire Oil’s name rather than each of the parties’ names, and profits were going to be shared if the leases were sold.

IV

[¶ 14] Having concluded a joint venture exists, we look to the scope of the venture and decide whether any fiduciary duties were breached by LaCrosse and Haughton. “The existence and scope of a fiduciary duty depends upon the language of the parties’ agreement.” Grynberg v. Dome Petroleum Corp., 1999 ND 167, ¶ 21, 599 N.W.2d 261. “[Principles of partnership law apply to the joint venture relationship.” Anderson, 2006 ND 159, ¶ 8, 718 N.W.2d 580.

[¶ 15] Under N.D.C.C. § 45-16-04(1), a partner owes duties of loyalty and care to the other partners. The duty of loyalty is set forth in N.D.C.C. § 45-16-04(2):

a. To account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity;
b. To refrain from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an interest adverse to the partnership; and
c. To refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership.

[¶ 16] “Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty.” Svihl v. Gress, 216 N.W.2d 110, 115 (N.D.1974) (quoting Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928)); see also 2 Williams & Meyers, Oil and Gas Law § 437.1 (2007) (“Each party has the right to demand and expect from his associates full, fair, open, and honest disclosure of everything affecting the relationship. One party may not exclude his associates from an interest in properties which are the subject matter of the joint venture by purchasing it for his individual account, ... if he does acquire such antagonistic interest he must account to the other participants in the joint venture therefore.”).

[¶ 17] In this case, the scope of the venture was to purchase and then attempt to sell the Horn leases. Approximately six months prior to the expiration of the leases, LaCrosse and Haughton purchased oil and gas leases, known as top leases, that were set to begin upon the expiration of the Horn leases. The top leases were nearly identical in all respects to the original Horn leases. The top leases had the same duration and acreage and were titled in Empire Oil Company’s name. An important difference, however, between the original leases and the top leases was that Sandvick and Bragg were not informed of the acquisition of the top leases.

[¶ 18] Although the original Horn leases did not contain an extension or renewal provision, the top leases purchased by LaCrosse and Haughton were effectively extensions of the original Horn leases. See Reynolds-Rexwinkle Oil, Inc. v. Petex, Inc., 268 Kan. 840, 1 P.3d 909, 920-921 (2000) (holding a substantially identical top lease taken while the initial lease was still in effect to be an extension and renewal of the initial lease); 5 Eugene Kuntz, Oil and Gas § 68.2, at 280 (1991) (“It has been held that a new lease acquired from the lessor by the lessee while the old lease is in effect ... is an extension of the lease.... ”).

[¶ 19] LaCrosse and Haughton created a conflict of interest by purchasing the top leases prior to the expiration of the original leases without notifying Sandvick and Bragg. It was in LaCrosse’s and Haugh-ton’s best interest not to sell the original leases during the remaining six months of the original term. Having excluded Sand-vick and Bragg, LaCrosse and Haughton potentially stood to benefit more by waiting to sell the leases until after the original term expired. We conclude LaCrosse and Haughton breached their fiduciary duties of loyalty by taking advantage of a joint venture opportunity when they purchased the top leases without informing Bragg and Sandvick. See Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 548 (1928) (holding a co-venturer breached his duty of loyalty when he extended the lease on commercial property and excluded his co-venturer from the opportunity). Bragg and Sandvick should have had an opportunity to purchase the top leases with LaCrosse and Haughton.

V

[¶ 20] The district court did not address damages, because it found no joint venture. On remand, the court must consider the extent of damages owed to Sand-vick and Bragg. At trial, Haughton testified that oil is currently being produced on the Horn lease acreage. Damages should be limited to revenue generated from the oil production on the acreage covering the Horn leases.

VI

[¶ 21] The district court judgment is reversed and remanded for further proceedings consistent with this opinion.

[¶ 22] GERALD W. VANDE WALLE, C.J., and BRUCE E. BOHLMAN, S.J., and MARY MUEHLEN MARING, J., concur.

[¶ 23] The Honorable BRUCE E. BOHLMAN, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 24] I concur with Part II of the Majority Opinion affirming the district court’s findings and conclusion that the parties were not partners. I respectfully dissent from Parts III and IV where the Majority overlooks the district court’s findings of fact and, therefore, overtakes the district court’s fact-finding role.

[¶ 25] The hallmark of a joint venture is that parties pool financial resources and share control to accomplish a for-profit, limited-time event. See SPW Associates, LLP v. Anderson, 2006 ND 159, ¶ 10, 718 N.W.2d 580. This Court has recognized, “There is, however, no definite formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts.” Id.

[¶ 26] Overlooking this “no one size fits all” admonition, the Majority concludes a joint venture arose out of the Horn lease purchase based on facts the Majority found more persuasive. Majority Opinion at ¶ 13. In the process, the Majority lists, and then casts aside as apparently less persuasive, the district court’s findings which the Majority agreed supported the district court’s conclusion that no joint venture existed. Id. at ¶ 12. I submit the Majority’s actions ignore our “clearly erroneous” standard of review and usurp the district court’s fact-finding role. See Klein v. Larson, 2006 ND 236, ¶ 35, 724 N.W.2d 565 (Crothers, J., concurring in part and dissenting in part) (“[W]e will not retry the case or substitute our judgment for the district court’s if its determination is supported by evidence in the record.”).

[¶ 27] Even accepting that the present facts require the conclusion that a joint venture was created, the Majority’s ultimate decision that liability attaches to the “top leasing” activity is unpersuasive. Rather, North Dakota law allows partners (and therefore joint venturers) to limit the scope of their duty of loyalty to the remaining partners. N.D.C.C. § 45-13-03(2). This public policy is consistent with other jurisdictions examining the question in the context of mineral development. See Christopher Lane and Catherine J. Boggs, Duties of Operator or Manager to Its Joint Venturers, 29 Rocky Mountain Mineral Law Institute 199, 228-29 (1984). This also means that, under North Dakota law, the parties could have limited then-duty of loyalty. Nevertheless, the Majority presumes without question that the full duty of loyalty existed, and that it formed a basis for liability in this case. See Majority Opinion at ¶¶ 15-16.

[¶ 28] There was no written contract in this case. The parameters of the transaction were unclear. A full trial occurred, with many witnesses testifying about their understanding of the business arrangement. From this, the district court made specific findings regarding the nature of the parties’ enterprise, and the scope of their duties to each other:

“7. Bragg never talked to Haughton about the investment in the Horn Leases and had no agreement with Haughton concerning the purchase of additional leases, the purchase of Horn minerals, or the purchase of leases on minerals adjacent to the Horn property. Sand-vick had no written or oral agreement with either Haughton or LaCrosse concerning the acquisition of a new lease following the expiration of the Horn Leases.
“8. At the time of the acquisition of the Horn Leases, Bragg had no agreement with LaCrosse concerning the development of those leases. LaCrosse never agreed to make Sandvick and Bragg a part of any subsequent lease of the Horn minerals. If Bragg had any expectations concerning the development of the Horn Leases, they were not communicated to Haughton.
“9. The parties were all involved in other oil and gas related undertakings with various other parties, including, in some instances, the parties that are involved in these proceedings. These undertakings were separate and apart from the Horn Leases.
“10. No agreement was entered into, express or implied, limiting the parties’ abilities to continue activity which did not include the other parties to these proceedings.
“11. None of the parties intended to be exclusively involved in this undertaking, and they knew that the other parties would continue to do business which would not include them.
“12. Haughton was interested in the area surrounding the Horn Leases and had various leasehold and mineral interests in the area dating from 1991. Sandvick, Bragg, and LaCrosse were aware of these facts and had reason to believe that he would continue to invest in the area.
“13. Under the circumstances, the parties had no expectations that the other parties would refrain from investing in the area without offering to the other
parties an opportunity to join in the investment.”

Rather than ignoring the district court’s findings, our standard of review requires that we respect the trier of fact’s ability to see the witnesses, hear the testimony, and determine the scope of the obligations at issue in this case. I therefore would affirm the district court’s judgment.

[¶ 29] DANIEL J. CROTHERS, J.


author: APPEL, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Kenneth KRESS, Appellant.
    No. 07-0386.
    Supreme Court of Iowa.
    March 14, 2008.
    Rehearing Denied April 22, 2008.

      Leon F. Spies of Mellon & Spies, Iowa City, for appellant.
    Charles L. Harrington and David J. Grace, Des Moines, for appellee.
   APPEL, Justice.

This attorney disciplinary proceeding stems from allegations of academic impropriety by an Iowa lawyer. The Iowa Supreme Court Attorney Disciplinary Board (Board) charged former University of Iowa law professor Kenneth Kress with two violations of the Iowa Code of Professional Responsibility for Lawyers — DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law). The charges stem from allegations that Kress raised the scores on two student evaluations and manufactured three highly positive evaluations in order to improve markedly his teaching effectiveness score.

After an evidentiary hearing, the Iowa Supreme Court Grievance Commission (Commission) sustained the violations and recommended that Kress be suspended from the practice of law for a period not less than one year. Upon our de novo review, we find Kress violated DR 1-102(A)(4). We suspend Kress’s license indefinitely with no possibility of reinstatement for three months and impose conditions on his possible readmission.

I. Factual and Procedural Background.

A. Background of Kenneth Kress. Originally from California, Kress graduated from Boalt Hall School of Law at the University of California, Berkeley, in 1985. After graduating law school, Kress accepted a teaching position at the University of Iowa College of Law. Four years later, he earned a doctorate in jurisprudence and social policy from Boalt and was promoted from associate professor of law to full professor. Over his lengthy academic career, Kress has lectured on a multitude of topics, ranging from Torts to Jurisprudence to Mental Health Law. Nationally recognized scholars have glowingly praised Kress’s scholarship for its originality, incisiveness, and descriptive power. While Kress has published in a number of areas of law, he is particularly well-known as one of the leading scholars nationally in mental health law. Without question, Kress is an intellectually gifted lawyer.

Unfortunately, Kress has had a difficult medical history. He experienced depression as a child. In adolescence and as a young adult, he suffered two head injuries, one of which was quite severe. After a period of psychological difficulty, Kress was diagnosed in 1990 as having bipolar affective disorder. His mental health difficulties have been exacerbated by physical health complications. Among other things, Kress suffers from obstructive sleep apnea and diabetes mellitus. As a result of sleep apnea, Kress is often awake late into the night. Regulation of his diabetes requires Kress to monitor his blood sugar level regularly and inject insulin as needed. The combination of these mental and physical illnesses resulted in hospitalizations in 1990, 1994, and 2002. Hospital records reveal occasions when Kress was noncom-pliant with hospital rules, engaged in conflict with hospital staff, and refused to follow medical advice.

B. Events in April 2004. In early April, Kress exhausted his supply of Ris-perdal, a drug which his treating psychiatrist, Dr. Richard Michaelson, prescribed to treat his bipolar disorder. Kress’s significant other, Donna Meek, is a mental health advocate knowledgeable about psychological disorders. Meek noted that in the days preceding the incident in question Kress “just sort of wilted” and retreated to a bedroom in his basement for the weekend. Meek observed that Kress generally had an inability to track over the weekend and suffered from delusions. On Sunday, Meek questioned whether Kress should go to school the next day, but Kress indicated that he would go straight to school and come straight home afterward.

On Monday, April 19, the students in Kress’s classes were to complete faculty evaluations. Scores on student evaluations are a factor in determining who is appointed to faculty chairs at the law school. Kress believed that he had been treated badly by the law school because he deserved to be appointed to a faculty chair, but had not yet received one.

In order to protect the integrity of the student evaluation process, written university policy requires student evaluations to be confidential and completed without the presence of the faculty member. Faculty members are advised to have their secretary administer the evaluations, collect them, and present them to the administration in order to avoid all appearances of impropriety.

The evaluations for Kress’s first class in the afternoon were administered properly and without incident. The second class was a mental health law seminar consisting of ten students which met in the evening after his secretary had gone home for the day. Kress arrived at the seminar as scheduled.

At the evening seminar, Kress decided to pass out the evaluations himself. Prior to disseminating them, however, Kress gave a ten-to-fifteen-minute speech about the importance of the evaluations, stressing that his job was “on the line.” Kress attributed his problems at the law school to jealousy among the faculty. The only student who testified at the hearing indicated that Kress’s demeanor was normal, that he spoke at his normal rate, did not exhibit frenzied excitement or seem confused, his speech was not disordered or rambling, and that he seemed logical.

After handing out the evaluations, Kress remained in the classroom. His continued presence while students completed the evaluations was against university policy. His research assistant, however, urged him to leave the room, and Kress complied.

After Kress left, the students engaged in a discussion about his conduct. Several students indicated that they were going to fill out the evaluations honestly regardless of Kress’s comments. The students agreed that Kress’s research assistant should collect the finished evaluations and return them to the administration in the morning, a common practice when classes are held in the evening.

When the students left the classroom after completing the evaluations, they found Kress in the immediate area outside, giving rise to concern that Kress may have overheard their discussion about the propriety of his conduct. When Kress’s research assistant told Kress that he would drop off the evaluations with the secretary in the morning, Kress directed that he and his assistant would take the evaluations up to the secretary’s office that evening. This conversation took place in front of the other students, who exchanged concerned glances with each other. Kress then escorted his research assistant to his secretary’s office, where Kress unlocked the door, and instructed the research assistant to leave the evaluations inside. His research assistant hoped that Kress would leave the building with him, but Kress remained behind. When the research assistant left the building, he met classmates and a further discussion of their concerns over the evaluation process ensued.

The next day a student informed Associate Dean of Student Affairs Linda McGuire about Kress’s actions. Thereafter, the law school administration conducted a confidential investigation. The investigation determined that three neutral or unfavorable evaluations were discarded and replaced with favorable versions, two were altered in order to raise the scores, and two evaluations were unchanged. The effect of the changes was to raise Kress’s composite teaching effectiveness score on a five point scale from 2.86, a relatively low score that might attract the attention of law school administrators, to 4.86, a very high score that few members of the faculty were able to achieve. When confronted with the results of the investigation, Kress did not claim a medical or mental defense.

C. Defense of Diabetic and/or Psychotic Delirium.

1. Direct testimony by Kress. At the hearing, Kress admitted in light of the evidence that he must have tampered with the evaluations. Kress asserted, however, that at the time he suffered from mental and physical illnesses that excused or mitigated his conduct.

With respect to April 19, Kress recalled giving what he characterized as an “irrelevant speech” to the evening seminar about the law school conspiracy against him. He further testified that he recalled going to his secretary’s office with his research assistant after class.-

Kress noted that after going with his research assistant to his secretary’s office, he woke up in his own office, either from sleep or from a “delirious loss of consciousness” after hallucinating about two dogs. He told the Commission that he believed that conspirators had succeeded in sending rays into the students’ minds, changing their neurons, and altering their answers on the evaluations. Kress further testified that in light of the mind-changing rays, he believed that it was only fair for him to change the evaluations back, so they would be correct.

Kress believed he was confronted with a matter of life or death. He hallucinated about being in prison, where a medieval jury was laughing at him for failing to save the world from the parade of horribles that was coming. Changing the evaluations thus was transformed from a personal matter to a universal struggle between good and evil.

After recounting this delusionary experience, Kress maintained that he had no recollection of actually altering the evaluations. He did recall checking his blood sugar in his office at some time, which he asserts yielded a score of 565, the highest level Kress had ever personally recorded. Kress then administered thirty units of insulin to address the problem. Kress further recalled retrieving some reading materials from his secretary’s office and walking out of the building, but did not recall the trip home.

The records of the device used in his office to monitor his blood sugar were not available at the hearing, but Kress offered into evidence records from the machine he used at home. These records indicated that after he left the building and returned home at 11:00 p.m., Kress’s blood sugar reading was at 403. It then gradually rose to a high of 548 after midnight before receding.

2. Medical report offered by the Board. The Board submitted a report by Dr. Anna Lembke, a psychiatrist in the Department of Psychiatry and Behavioral Sciences at the Stanford University School of Medicine. While conceding that delirium was plausible, Lembke opined that it was “not probable that the incident in question was due to delirium.” Citing the Diagnostic and Statistical Manual of Mental Illness IV’s (DSM IV) definition of delirium, Lembke noted that Kress was able to converse intelligibly with a classroom of students, wait in a purposeful manner while the evaluations were being completed, accompany his research assistant to the office with the evaluations, read the evaluations, remove the ones that reflected poorly on him, and systematically manufacture or alter evaluations to produce a desired result. This sustained, purposeful, and concentrated effort “would not have been achievable by an individual with [the] waxing and waning of consciousness” normally associated with delirium. Further, Lembke noted that it was “not probable” that Kress would have been able to check his blood sugar after the lecture, administer insulin, and drive home, as he reported doing, if he was in a state of delirium.

Lembke also addressed more generally the role of mental illness in connection with the incident. She noted that Kress reported to her that his delusional thoughts were completely resolved the day after the incident. Lembke opined that such rapid resolution is not the natural pattern of psychosis, particularly manic psychosis, which ordinarily takes weeks to resolve. Additionally, she also noted that while Kress described himself as someone who immediately seeks treatment when he knows he is medically ill, Kress did not do so on April 19 notwithstanding his self-reported severe and dramatic psychotic symptoms.

Lembke did, however, allow that mental illness might have played a minor contributing role in the events on April 19. She theorized that narcissistic personality traits, which made negative reviews of any kind intolerable to Kress’s fragile ego, possibly combined with hypomania, may have contributed to Kress’s conduct.

3. Medical reports and testimony submitted by Kress. In response to Lembke’s report, Kress offered several expert medical reports and live testimony from Mi-chaelson. Michaelson believed that high levels of blood sugar can cause delirium, which he defined as an acute, confused state consisting of a waxing and waning state of consciousness and impaired attention, often accompanied by delusions or hallucinations and marked distractibility. A person suffering from delirium would probably appear disturbing, troubling, unusual, and erratic. Michaelson further noted that Kress had a minor history of delusions.

Assuming the accuracy of Kress’s rendition of the facts, Michaelson concluded that Kress was suffering from delirium on the night in question, was not able to know what he was doing, and did not know the difference between right and wrong.

Kress also offered into evidence a letter from his treating therapist, Dr. Charles Fisher. Fisher stated that he was very concerned about Kress’s deteriorating mental condition in March and early April 2004. Based on his discussions with Kress, Fisher concluded that the April 19 incident was caused by delirium, due to out of control diabetes, complicated by mental illness. Other medical evidence, however, questioned the role of Kress’s diabetes in the incident. Fisher also emphasized his view that Kress was an individual of unusually high integrity and that he had been utterly frank with him about his behavior, including when it was potentially disadvantageous to him.

Fisher also challenged the veracity of Lembke’s results. Fisher took Lembke to task for failing to consider criteria for delirium in the DSM IV, for expressing her opinions in a conclusory manner, for noting but not considering the impact of traumatic brain injury in her analysis, for failing to consider Kress’s history of cognitive or amnesic episodes, for confusing delirium and delusion, and for suggesting that narcissistic personality disorder would be consistent with an intolerance to negative student reviews.

Kress further submitted a letter by Dr. Richard LeBlond, Professor of Internal Medicine at the University of Iowa College of Medicine who had treated Kress over the past several years. LeBlond characterized the events of April 19 as a “distinctly unusual event” for Kress. He reviewed the blood sugar levels that Kress experienced, noting that the elevated levels “can induce significant metabolic abnormalities.” LeBlond noted that Kress’s memory loss suggested that his judgment may have been clouded by a metabolic brain state due to high blood sugar and medications inducing a transient delirium. LeBlond noted, however, that it was impossible to make a firm determination of the nature of the event, but that the possibility of metabolic disturbance needs to be considered.

Kress also submitted a report by Dr. Michael First, a psychiatrist on the faculty at Columbia University. First opined that Kress was suffering from an exacerbation of his long-standing bipolar disorder and met criteria for a manic episode with psychotic features. First concluded that the episode was related to the discontinuation of his antipsychotic medication two weeks earlier and daily doses of stimulants. First opined that the fact that Kress could lecture earlier in the evening and then have severe clouding of consciousness was not inconsistent with a diagnosis of delirium.

First noted that Kress’s manner of altering the evaluations was consistent with his opinion. First observed that if Kress had intended to alter the evaluations, it is unlikely that he would have preceded the evaluation process with an appeal for leniency. Further, First cited the crudeness of the alterations — the use of the same dark pencil on all substituted evaluations, the use of the same handwriting style on all altered forms, and the crude erasure of average scores and replacement with top scores — as indicating manic delusions. Kress’s actions, according to First, were a direct manifestation of his psychotic belief that he was counteracting the effects of the administration’s mind control efforts which was a manifestation of the acute exacerbation of his long-standing bipolar illness.

Each of the doctors presented divergent opinions as to Kress’s present and future fitness to practice law. Lembke advised that Kress’s current psychiatric problems qualified him for total disability. Michael-son indicated that Kress could not handle the stress of teaching law but might be able to handle a limited practice. Fisher indicated that the complicated set of circumstances which Kress experienced in April 2004 were unlikely to recur. First stated that if Kress immediately sought consultation at the first sign of hypomania and discontinued the use of stimulants at high doses, his future prognosis to return to work is excellent.

D. Findings and Recommendations of the Commission. The Commission determined that the Board had proven the alleged ethical violations by a convincing preponderance of the evidence. In making this finding, the Commission relied on the analysis and conclusions in the Lembke report, the testimony of Michaelson that delirium is usually accompanied by disturbing, troubling, unusual or erratic behavior (evidence of which was notably absent from the record), the presence of a motive for Kress to alter the evaluations, the lack of supportive contemporaneous medical records upon which Kress’s experts could rely in reaching their exculpatory opinions, and Kress’s demeanor, which the Commission found resembled a person who thought he was above the law until he was caught.

The Commission recommended, based upon the seriousness of the alleged misconduct and its determination that Kress had an apparent intent to deceive it, that his license to practice law be suspended indefinitely with no possibility of reinstatement for one year. The Commission also suggested that Kress undergo and pass a complete mental health evaluation by a mental health professional before reinstatement and comply with all physicians’ orders regarding his ongoing mental health care as a condition for maintaining his license.

II. Standard of Review.

In disciplinary matters, this court engages in a de novo review. Iowa Ct. R. 35.11(3); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). The Board must prove ethical violations by a convincing preponderance of the evidence. Id. On review, the court may adopt, increase, or reduce the sanction recommended by the Commission. Iowa Supreme Ct Bd. of Prof'l Ethics & Conduct v. Eich, 652 N.W.2d 216, 217 (Iowa 2002).

III. Discussion.

A. Positions of the Parties. Kress does not deny that he manufactured and altered the student evaluations on April 19, 2004. He also recognizes that this court has long rejected contentions that a lawyer’s mental or emotional problems constitute a defense to attorney disciplinary actions. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Thompson, 595 N.W.2d 132, 136 (Iowa 1999); Comm, on Prof'l Ethics & Conduct v. Tompkins, 415 N.W.2d 620, 623 (Iowa 1987); Comm. on Prof'l Ethics & Conduct v. Silver, 395 N.W.2d 877, 878-79 (Iowa 1986).

Kress attempts to distinguish these eases, however, by arguing that under DR 1-102(A)(4), intent is an element that the Board must prove by a convincing preponderance of the evidence. Kress cites cases from other jurisdictions finding such an intent requirement in equivalent ethical provisions. Disciplinary Matter Involving West, 805 P.2d 351, 353-54 (Alaska 1991); State ex rel. Okla. Bar Ass’n v. McMillian, 770 P.2d 892, 899 (Okla.1989). Kress argues in light of the “unique and unprecedented circumstances” of this case, he could not form the level of intent necessary to commit this ethical violation. In the alternative, Kress argues that his health status should mitigate any sanction.

In response, the Board does not challenge Kress’s assertion that intent must be proven in order to establish a violation of DR 1-102(A)(4). Instead, the Board responds by emphasizing the purposeful nature of Kress’s activities on April 19. The Board also asserts that Kress’s behavior amounts to conduct adversely reflecting on the practice of law, as then prohibited by DR 1-102(A)(6).

B. Requirement of Intent and Availability of Affirmative Defenses Related to Mental Capacity. This court has held that intent is a required element for misrepresentation under DR 1-102(A)(4). Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004). We believe there is also an intent requirement for fraud, dishonesty, and deceit under DR 1-102(A)(4). Att’y Grievance Comm’n of Maryland v. Clements, 319 Md. 289, 572 A.2d 174, 179 (1990). For the purpose of the disciplinary rules, the intent requirement is satisfied where the evidence shows that the actor intends the natural and logical consequences of his or her acts. Matter of Levy, 637 N.E.2d 795, 799 (Ind.1994) (holding that intent is shown “where lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct but without the conscious objective or purpose to accomplish a particular result”). Where the record reveals mere haste or oversight, however, there is no violation of DR 1-102(A)(4). Comm. on Prof'l Ethics & Conduct v. Bitter, 279 N.W.2d 521, 526 (Iowa 1979). In order for Kress’s conduct to arise to a DR 1-102(A)(4) violation, the Board must prove intent by a convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004) (“This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.”).

Once the Board has shown an intentional act of fraud, dishonesty, deceit, or misrepresentation, the affirmative defenses of insanity or mental incapacity are unavailable. While insanity is a recognized defense in criminal proceedings, it is not recognized in attorney disciplinary proceedings. Silver, 395 N.W.2d at 878-79. Certainly, where fraudulent, deceitful, or dishonest acts occur, claims that the attorney was acting as a result of mental aberration or amnesia depriving him or her of the ability to distinguish between right and wrong are of no avail. See, e.g., In re Hoover, 155 Ariz. 192, 745 P.2d 939, 945-46 (1987) (holding that manic depressive could not assert as a complete defense his inability to distinguish right from wrong in case involving misappropriation of client funds); La. State Bar Ass’n v. Theard, 222 La. 328, 62 So.2d 501, 503 (1952) (holding that insanity defense was not available where attorney engaged in forgery and conversion of client funds even though he had no recollection of events); In re Houtchens, 555 S.W.2d 24, 26 (Mo. 1977) (holding that attorney who converted client funds who suffered from pscyhotem-poral epilepsy reflected in periodic amnesia, disorientation, and confusion could not raise defense of severe mental or physical problems); In re Fallick, 247 A.D. 176, 286 N.Y.S. 581, 583 (1936) (holding that a lawyer who converted funds but suffered from mental illness and lapse of memory was subject to sanction). But see In re Conduct of Holman, 297 Or. 36, 682 P.2d 243, 261 (1984) (holding that heavy alcohol abuse and addiction to prescription drugs showed lack of appreciation of ethical violation necessary to support violation of ethical rule prohibiting conduct involving dishonesty).

The principal reason for refusing to accept affirmative defenses based on mental health is the need to protect the public from dishonest acts of lawyers regardless of their mental health status. See Silver, 395 N.W.2d at 879; Theard, 62 So.2d at 503; Houtchens, 555 S.W.2d at 26; In re Fallick, 286 N.Y.S. at 583. The primary purpose of attorney discipline is to protect the public, not mete out punishment. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 684 (Iowa 2001).

There is a question, however, as to whether a claim of unconsciousness due to mental or other illness may under any circumstance wholly negate the intent requirement of DR 1-102(A)(4). To the extent there is any possibility that an attorney may claim unconsciousness to vitiate the intent element of the prima facie case in disciplinary cases involving dishonesty, fraud, deceit, or misrepresentation, the record must demonstrate a total and complete unconsciousness and not merely an assertion that the conduct in question was caused by or was a result of mental or other illness. See State ex rel. Okla. Bar Ass’n v. Krug, 92 P.3d 67, 79 (Okla.2004) (Opala, C.J., dissenting) (discussing whether the criminal defense of automatism or total unconsciousness applies in attorney disciplinary context under applicable statute).

The framework of analysis is different, however, when considering alleged violations of DR 1-102(A)(6). Unlike DR 1-102(A)(4), intent is not a requirement for violation of DR 1-102(A)(6). Under DR 1-102(A)(6), the focus is on conduct, not the mental status of the actor. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Joy, 728 N.W.2d 806, 814-15 (Iowa 2007); State Bar v. Lerner, 859 S.W.2d 496, 499-500 (Tex.Ct.App.1993). With respect to violations of DR 1-102(A)(6), the Board is not required to show intent, but only to show that the objective conduct of the lawyer reflects adversely on his or her fitness to practice law.

C. Application of Legal Principles.

1. Alleged violation of DR 1-102(A)(6). The Board asserts that Kress violated DR 1-102(A)(6) by failing to manage his medical problems. See Tompkins, 415 N.W.2d at 623 (holding that a lawyer who fails to get help for compulsive mental illness while practicing law violates disciplinary rule). We are reluctant, however, to rely upon DR 1-102(A)(6) in this case. The new Model Rules of Professional Conduct adopted by this court in 2005 materially altered DR 1-102(A)(6) by limiting its scope to acts that amount to criminal transgressions. While Kress’s failure to manage his medical conditions may have put him at risk of odd behavior, his failure to monitor and control his health problems does not amount to criminal activity. Although DR 1-102(A)(6) was in effect at the time of the alleged transgressions, we prefer not to impose a potentially serious sanction based upon an ethical norm that is no longer applicable. We find that the more pertinent question is whether Kress violated DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), which is carried over in virtually identical form in the current Model Rules. See Iowa R. Prof 1 Conduct 32:8.4(d).

2. Alleged violation of DR 1-102(A) (h.). In determining whether Kress violated DR 1-102(A)(4), it is not disputed that Kress altered two student evaluations and manufactured three others to improve the overall composite rating of his teaching ability. Kress claims, however, that the Board cannot show the necessary intent because he was unconscious — due to delirium — when the acts were committed. We do not find it necessary to reach the theoretical question of whether intent can ever be defeated in a disciplinary proceeding by claims of total unconsciousness because we find that Kress did not act in a totally unconscious fashion sufficient to vitiate intent.

We note that the independent expert from Stanford, Dr. Lembke, came to the conclusion that it was not probable that the incident in question occurred as a result of delirium in light of Kress’s concerted, purposeful activity. Although Kress presented opposing medical testimony and reports, those opinions assume that Kress was in fact unconscious and then present diverse views on how such a mental state might have been caused. Further, even Kress’s own medical reports do not consistently urge that Kress was totally unconscious when he altered and manufactured the student evaluations, but often suggest merely that Kress’s conduct was out of character and that he was acting under the influence of delusions and psychotic beliefs.

In addition, the medical evidence presented by Kress was not always consistent with other evidence. For instance, Kress’s own expert, Dr. Michaelson, testified that if Kress suffered from delirium, he would have probably appeared disturbing, troubling, unusual, and erratic to his students. The only student who testified at the hearing, however, stated that Kress appeared normal and that he did not appear rambling, confused, or frenzied.

Further, the total picture of Kress’s behavior on the evening of April 19 suggests intentional, conscious conduct. The sequence of objective facts, which were essentially undisputed, show that Kress made improper remarks to his class about the student evaluations, remained in the classroom when the students were completing the forms in violation of university policy and left only when asked to do so by his research assistant, stationed himself just outside the classroom in a fashion that caused student concern about his potential eavesdropping, did not allow his research assistant to take the evaluations home but instead escorted him to his secretary’s office, to which he had a key, where the forms were left. It is undisputed that these acts amounted to intentional, conscious conduct. Kress then admits to altering the forms in a fashion that eliminated three neutral or negative evaluations, replaced them with newly minted favorable evaluations, and materially raised the score of two other evaluations. These actions were certainly not negligent, mistaken, or accidental. It is difficult to find that Kress was totally unconscious when he performed the systematic and organized acts of altering and manufacturing student evaluations in a fashion that dramatically improved his composite evaluation, particularly when these acts are consistent with his admittedly intentional and conscious conduct throughout the evening of April 19.

Kress’s version of events does not challenge the objective facts but repeatedly focuses on his subjective state of mind. Even accepting Kress’s testimony about his delusions, the asserted pattern of intentional, conscious conduct, interrupted at the key moment by a brief period of unconscious delirium in which the actus reus was performed on five evaluations, seems as improbable to us as it did to Lembke. Further, as noted by the Commission, Kress had motivation — possible promotion to an endowed chair — to change the evaluations.

Finally, while this court engages in de novo review, findings of credibility by the Commission are entitled to consideration. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). While Kress offered evidence of his character and integrity, the Commission did not believe Kress’s rendition of events based in part on his demean- or. The Commission’s finding with respect to Kress’s demeanor is a factor that reinforces our conclusion that the Board met its burden of showing a violation of DR 1 — 102(A)(4) in this case.

D. Sanctions. In considering sanctions, we agree with Kress that mental and physical conditions may be mitigating factors. The full extent of mitigation depends upon the relationship between the unethical conduct and the mental and physical illnesses. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 295 (Iowa 2002).

Based on our review of the record, we find that Kress’s health status obviously played a role in his behavior and should be considered in mitigation. While his acts remain intentional, and thus subject to sanction, we believe the record shows that Kress was experiencing an episode of mental health instability, along with poorly controlled diabetes. These conditions undoubtedly clouded his judgment on April 19.

We note that Kress has not had a history of disciplinary problems in the past and that he has spent years as a dedicated teacher. He has been engaged in the representation of mentally-ill clients on a pro bono basis or for a highly-discounted fee. These are mitigating factors to be considered in fashioning sanctions. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 477-78 (Iowa 2003); Comm. on Prof'l Ethics & Conduct v. Conzett, 476 N.W.2d 43, 46 (Iowa 1991); Comm. on Prof'l Ethics & Conduct v. Nadler, 467 N.W.2d 250, 254 (Iowa 1991).

A potential aggravating feature is Kress’s refusal to acknowledge the intentional nature of his misconduct. The nub of the issue is the truthfulness of Kress’s claim not to remember altering and manufacturing the student evaluations. While it is possible that Kress does not remember the specifics of his actions as a result of amnesia, we conclude that Kress has been less than candid in his testimony to the Commission.

The most important factor in developing sanctions in this case, however, is protection of the public. Silver, 395 N.W.2d at 879. Kress concedes that he changed the scores on the student evaluations in a fashion that dramatically improved his composite score. Public confidence in our legal system demands more than a mild sanction for this type of conduct.

Under all the facts and circumstances, we order that Kress’s license be suspended indefinitely with no possibility of reinstatement for three months. Upon application for reinstatement, Kress shall prove that he has not practiced law during the period of suspension and that he met the requirements for client notification set forth in Iowa Court Rule 35.21. Additionally, we further order that before Kress is readmitted to practice in Iowa, he undergo a comprehensive mental and physical health examination, which evaluates his present condition as well as his ability to control his diabetes and bipolar disorder, by a provider or providers approved by the Board. We further order that upon any application for reinstatement, Kress provide the Board with statements from his treating physicians that he has complied with all physicians’ orders regarding his ongoing mental and physical health care.

IV. Conclusion.

Based on our de novo review, we order that the respondent’s license to practice law be suspended indefinitely with no possibility of reinstatement for three months and place conditions on possible reinstatement.

LICENSE SUSPENDED.


author: RUSSELL A. ANDERSON, Chief Justice.

text:
    Michael WAYNE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    Nos. A07-629, A07-1687.
    Supreme Court of Minnesota.
    March 27, 2008.
    Rehearing Denied May 5, 2008.

      Michael Wayne, Rush City, for Appellant pro se.

    Lori Swanson, Attorney General, Peter Reed Marker, Attorney General’s Office, St. Paul; Paul M. Dressier, Waseca, for Respondent.
   OPINION

RUSSELL A. ANDERSON, Chief Justice.

Appellant Michael Wayne was convicted in 1987 of the July 29, 1986, murder of Mona Armendariz. On direct appeal, we affirmed both his conviction and the denial of his first petition for postconviction relief. State v. Fenney (Wayne I), 448 N.W.2d 54 (Minn.1989). He later filed a second and then a third petition for post-conviction relief. In both cases, the district court denied relief, and we affirmed. Wayne v. State (Wayne III), 601 N.W.2d 440 (Minn.1999); Wayne v. State (Wayne II), 498 N.W.2d 446 (Minn.1993). Wayne also has petitioned in federal district court for a writ of habeas corpus. Wayne v. Benson, 89 F.3d 530, 531 (8th Cir.1996). The federal district court denied the writ, and the Eighth Circuit Court of Appeals affirmed. Id. at 531-32.

Wayne filed this fourth petition for post-conviction relief on December 19, 2006, alleging newly discovered evidence; ineffective assistance of counsel; erroneous admission of evidence; violations of his right to be present; erroneous omission of jury instructions on lesser-included offenses; prosecutorial misconduct; and other constitutional irregularities at trial. The district court denied relief. We affirm.

“On review of a postconvietion court’s denial of relief, we ‘extend a broad review of both questions of law and fact.’ ” Spann v. State, 740 N.W.2d 570, 572 (Minn.2007) (quoting Butala v. State, 664 N.W.2d 333, 338 (Minn.2003)). This court reviews legal issues de novo and factual issues for sufficiency of the evidence. Id. A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief. Ferguson v. State, 645 N.W.2d 437, 442 (Minn.2002). A petitioner is entitled to an evidentiary hearing if he has alleged facts that would, if proved by a fair preponderance of the evidence, entitle him to relief. Id. at 446.

Claims that have been raised or claims that were known and could have been raised on direct appeal are procedurally barred from consideration. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). This court will consider a claim otherwise barred by Knaffla only where its legal basis is so novel that it was not reasonably available on direct appeal, or where fairness so requires and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal. Leake v. State, 737 N.W.2d 531, 535 (Minn.2007).

Wayne’s newly discovered evidence claim rests primarily upon an unauthenticated confession. This confession consists of a five-page, unnotarized, typed account of Armendariz’s murder purportedly signed by Steven Sack. The affidavit is dated December 16,1992. One of Wayne’s attorneys received the affidavit in April of 2001 by mail in an envelope with no return address. Wayne’s theory that Sack and not Wayne committed the crime was litigated at trial and has arisen repeatedly during the various postconviction proceedings. See Wayne II, 498 N.W.2d at 447.

A new trial will be granted on grounds of newly discovered evidence only if the evidence (1) was not known to the defendant or his counsel at the time of trial; (2) could not have been discovered through due diligence before trial; (3) is not cumulative, impeaching, or doubtful; and (4) would probably produce an acquittal or a more favorable result. Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997). Like the evidence seeking to implicate Sack in Wayne II, the purported confession is doubtful because it has not come forward in a credible manner from a credible source. 498 N.W.2d at 448. Therefore we reject Wayne’s newly discovered evidence claim as meritless.

Wayne’s remaining claims are barred by KnaffLa, and neither exception applies. Nevertheless, we have again carefully examined the record and conclude that each of Wayne’s claims is without merit. We therefore hold that the district courts summary denial of Wayne’s petition was not improper.

Wayne also contests the district court’s denial of leave to amend his petition. On his initial appeal of the denial of his petition, Wayne obtained a stay from this court so that he could seek reconsideration of his petition on the limited grounds of newly discovered evidence. Based on Wayne’s original petition, the district court considered and rejected the newly discovered evidence claim. Wayne appealed again, and we authorized him to seek leave to amend his petition. Wayne then moved the district court for leave to file an amended petition, which the district court denied. We hold that the denial of leave to amend was not improper under the circumstances.

Affirmed.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . During his third postconviction proceeding, Wayne obtained DNA testing, which confirmed that blood found on his clothing in his backpack was consistent with the victim. Wayne III, 601 N.W.2d at 441.