author: VOGEL, P.J.

text:
    STATE of Iowa, Plaintiff-Appellant, v. Lowell Eugene MARKS, Defendant-Appellee.
    No. 01-1066.
    Court of Appeals of Iowa.
    March 27, 2002.

      Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Brigit Barnes, Assistant County Attorney, for appellant.
    Jack Faith, Sioux City, for appellee.
    Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
   VOGEL, P.J.

The district court ruled that Lowell Marks’ field sobriety tests and Intoxilyzer test results should be suppressed as the former was given under threat of arrest and the latter conducted without reasonable grounds to invoke implied consent. The State was granted discretionary review and appeals both suppressions. We reverse.

Background facts. At approximately 2:00 a.m. on May 11, 2000, Officer Flecken-stein observed a speeding vehicle driven by Marks. The officer stopped the car and asked Marks to produce his driver’s license, registration, and proof of insurance. During that discourse, Officer Fleckenstein smelled an odor of alcohol and noticed Marks had bloodshot and watery eyes. Marks admitted he had consumed, “a couple, maybe three” beers. The officer asked Marks to perform some field sobriety tests, which Marks refused, because he requested his attorney be present. The officer informed Marks that he would arrest him unless he chose to perform the tests and that following an arrest, he would be allowed to contact his attorney. Marks eventually agreed to perform the tests, but failed all administered. Marks then refused to give a preliminary breath sample and was arrested. Prior to submitting to the Intoxilyzer breath test, Marks was allowed to and did consult with an attorney. The Intoxilyzer test result was .134, and Marks was charged with operating while intoxicated in violation of Iowa Code section 321J.2 (1999).

District court ruling. The district court ruled the results of the field sobriety tests should be suppressed because the officer told Marks he would arrest him if he did not agree to perform the tests. The court found this to be coercive and therefore Marks’ consent was involuntary. The State filed a motion to reconsider arguing the district court’s decision turned on the voluntariness of Mark’s consent rather than the Fourth or Fifth Amendment issues raised by Marks in his motion to suppress. The district court, without addressing the State’s assertions, entered a subsequent ruling affirming its prior decision to suppress the field sobriety tests based on the involuntariness of the consent. It then went a step farther and suppressed the results of the Intoxilyzer test, concluding that without the results of the field sobriety tests, the officer lacked reasonable grounds to invoke implied consent.

On appeal the State again asserts the district court erred by elevating non-testimonial evidence, field sobriety testing, into testimonial evidence with attendant Fifth Amendment protections against self-incrimination. It also asserts no Fourth Amendment violations occurred. We agree with the State on both points and therefore conclude the district court erred in suppressing the field sobriety'tests and Intoxilyzer results.

Standard of Review. In assessing alleged violations of constitutional rights, our standard of review is de novo; we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993).

Fifth Amendment. The Fifth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, provides that no person, “shall be compelled in any criminal case to be a witness against himself’. U.S. Const. Amend. V. However, this protection is only afforded to testimonial as opposed to non7testimonial evidence. State v. Rauhauser, 272 N.W.2d 432, 437 (Iowa 1978) (citing State v. Sefcheck, 261 Iowa 1159, 157 N.W.2d 128, 135 (Iowa 1968)). The results of a field sobriety test are not testimonial evidence. Rauhauser, 272 N.W.2d at 437. In State v. Krebs the court explained the use of such tests.

Field sobriety tests are used by peace officers to determine whether there are reasonable grounds to believe a person is intoxicated. These tests are part of an officer’s investigation to determine if a criminal offense has occurred. At this point in the investigation, the defendant is merely being detained by the officer, not restrained of his liberty. See Berkemer v. McCarty, 468, U.S. 420, 441-42, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317, 335-36 (1984) (requesting motorist to perform field sobriety tests was not the functional equivalent of formal arrest requiring Miranda).

State v. Krebs, 562 N.W.2d 423, 426 (Iowa 1997).

Furthermore, requesting a person to provide non-testimonial evidence does not lead to a Fifth Amendment violation. Rauhauser 272 N.W.2d. at 436 (stating the Fifth Amendment does not extend to “protect an accused from the compulsory display of measurable or identifiable physical characteristics”). There is no requirement that a person be afforded Fifth Amendment protections found in the Miranda warnings when asked to supply non-testimonial evidence. State v. Mannion 414 N.W.2d 119,122 (Iowa 1987).

Finally, and in direct contrast to the district court’s ruling, requiring a person to submit to a field sobriety test or face the consequence of being arrested, is not a coercive, prohibited tactic. See State v. Mannion, 414 N.W.2d at 121 (citing South Dakota v. Neville, 459, U.S. 553, 562-64, 563 103 S.Ct. 916, 922, 74 L.Ed.2d 748, 758-59 (1983)).

Therefore, Marks’ argument that the officer’s threat to arrest him rendered his submission to the field sobriety tests involuntary and therefore violated his Fifth Amendment privilege against self-incrimination is without merit. The district court erred in its conclusion elevating the results of a field sobriety test to testimonial evidence.

Fourth Amendment. We also disagree with the district court’s conclusion the State violated Marks’ Fourth Amendment guarantee to be free from unreasonable search and seizure. Marks was stopped when Officer Fleckenstein, using both his radar equipment and general observations, determined Marks was exceeding the speed limit." The officer, upon detecting an odor of alcohol, watery, bloodshot eyes, and having Marks admit to consuming some beer, had reasonable cause to believe Marks had been driving while intoxicated. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-07 (1968) (“a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.”). When an officer has reasonable cause to believe a driver is operating while intoxicated, a suspect may be briefly detained, asked to perform field sobriety tests and comply with other investigatory requests, without violating the suspect’s Fourth Amendment rights. State v. Stevens, 394 N.W.2d 388, 391 (Iowa 1986) (stating officer with reasonable cause to believe defendant was intoxicated could request defendant perform dexterity tests to determine whether there was probable cause to arrest).

The district court erred in suppressing the results of the field sobriety tests and Intoxilyzer test. The officer properly requested and gave the field sobriety tests and possessed reasonable grounds to" invoke implied consent. We therefore reverse and remand for further proceedings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: HECHT, J.

license: Public Domain

text:
    STATE of Iowa, Plaintiff-Appellee, v. Lynette Marie NICKENS, Defendant-Appellant.
    No. 00-1909.
    Court of Appeals of Iowa.
    March 27, 2002.

      Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Bridget Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary Kendall, Assistant County Attorney, for appellee.
    Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
   HECHT, J.

I. Background Facts and Proceedings.

On June 2, 2000, Des Moines police executed a search warrant at the residence of Lynette Nickens and Arniece Scott. Upon entry, authorities found Scott asleep on a mattress on the living room floor and Nickens and a companion, Jalynn Daye, asleep in the bedroom. On an end table in the living room, authorities found several small pieces of crack cocaine weighing 3.6 grams, drug “bindles” made of paper towels, and razor blades. Under the end table, police seized Scott’s black daily planner, detailing names and dollar amounts, and two pairs of shoes containing $115.00 in cash. Three bags of crack cocaine weighing seventy-six grams and $4040.00 in cash were found hidden in the living room couch and a loaded Ruger revolver was found concealed underneath a living room chair. A small bag of marijuana and a marijuana pipe were found on the nightstand in the bedroom.

Nickens, Scott, and Daye were charged in a four count trial information with possession with intent to deliver more than fifty grams of crack cocaine in violation of Iowa Code section 124.401(l)(a)(3) (1999) (Count I), conspiracy to possess with intent to deliver more than fifty grams of crack cocaine in violation of section 124.401(l)(a)(3) (Count II), failure to possess a tax stamp in violation of sections 453B.3 and 453B.12 (Count III), and possession of marijuana in violation of section 124.401(5) (Count IV). Counts I and II also alleged immediate possession or control of a firearm, a sentencing enhancement pursuant to Iowa Code section 124.401(l)(e).

During pre-trial proceedings, the State offered a plea bargain to Nickens, Scott, and Daye in which the State would recommend a twenty-year sentence with a mandatory one-third minimum. The plea offer was a “package deal:” if all three co-defendants did not accept the offer, it would be withdrawn. Co-defendants Scott and Daye declined the offer. On September 29, 2001, Nickens’s attorney filed a motion in the alternative to enforce plea or to withdraw. The district court denied the motion.

Trial convened from October 2 through October 5, 2000. The jury found Nickens guilty as charged and Daye was acquitted of Counts I, II, and III. Nickens was given the following indeterminate sentences to be served concurrently: 100 years for Counts I and II due to the sentencing enhancement pursuant to section 124.401(l)(e), five years for Count III, and six months for Count IV. On appeal, Nickens contends the district court erred (1) in finding sufficient evidence to support her convictions, (2) in refusing to permit trial counsel to withdraw, and (3) in failing to accept her guilty plea. Nickens further alleges her trial counsel was ineffective in a number of respects. Because we find insufficient evidence Nickens possessed, or conspired to possess, more than fifty grams of crack cocaine while in the possession of a firearm, we reverse and remand on Counts I, II, and III; however, we find sufficient evidence Nickens possessed marijuana and affirm on Count IV.

II. Sufficiency of the Evidence.

We review challenges to the sufficiency of the evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. Substantial evidence is evidence upon which a rational trier of fact could find a defendant guilty beyond a reasonable doubt. Id. We view the evidence in the light most favorable to the State, but consider all of the evidence, not just the evidence that supports the verdict. State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000). Circumstantial and direct evidence are equally probative. State v. Boley, 456 N.W.2d 674, 679 (Iowa 1990).

A. Possession of a Controlled Substance and Firearm.

Nickens contends the district court erred in finding sufficient evidence to establish she possessed more than fifty grams of cocaine and that, while doing so, she was in immediate possession or control of a firearm. In particular, Nickens asserts she was in the bedroom when the pohce arrived, while the crack cocaine and firearm were found in the living room, exclusively within the immediate physical control of Scott.

Possession can be actual or constructive. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997). A person is in actual possession of something on or around her person when she “has direct physical control” of it. Id. In this case, Nickens did not have direct physical control of the cocaine or the firearm; therefore, the State must establish she had constructive possession of both items. See State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001) (Ternus, J. concurring specially) (analogizing prior case law which addressed constructive possession of a controlled substance with immediate control of a firearm).

A person is in constructive possession of something when, although she does not have actual possession of it, she “has knowledge of the presence of [it] and has the authority or right to maintain control of it either alone or together with someone else.” Maghee, 573 N.W.2d at 10. In order to prove constructive possession when the accused does not exclusively possess the premises, but jointly possesses it, the State must show “evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the [items] on the premises.” McDowell, 622 N.W.2d at 308 (Iowa 2001) (quoting State v. Beeves, 209 N.W.2d 18, 23 (Iowa 1973)).

Nickens contends the State failed to establish her knowledge of the presence of the cocaine and firearm and her ability to maintain control over them. We agree. The circumstantial evidence on which the State relies to establish Nickens’s knowledge is limited to the size of the apartment and the drug paraphernalia found therein. See State v. Atkinson, 620 N.W.2d 1, 4-5 (Iowa 2000) (holding defendant’s physical proximity to drugs is insufficient to constitute constructive possession, state must show dominion and control). The State failed to present any witnesses who testified to Nickens’s knowledge of the cocaine and the firearm found within the immediate reach of Scott. The State further failed to present any incriminating statements- by Nickens regarding her knowledge of the items or circumstances from which a jury might lawfully infer knowledge. See Reeves, 209 N.W.2d at 23 (holding defendant’s incriminating statements constituted sufficient evidence of constructive possession).

Moreover, one of the State’s witnesses specifically testified the cocaine and firearm were not in plain view, but were hidden within a couch and under a chair. We find this testimony does not infer knowledge on the part of Nickens, but a lack thereof. See McDowell, 622 N.W.2d at 308 (finding State failed to present sufficient evidence of defendant’s constructive possession of firearm which was found in a purse in the bedroom closet); see also Atkinson, 620 N.W.2d at 4-5. Furthermore, this testimony lends support to Nickens’s argument the cocaine and firearm were in the immediate physical control of Scott, who was sleeping near the revolver, the cocaine, and her date book.

Accordingly, we reverse Nickens’s conviction for possession with intent to deliver a controlled substance while in immediate possession or control of a firearm. Moreover, because the tax stamp conviction is also dependent on Nickens’s possession of the illegal substance, that conviction must also be reversed.

B. Conspiracy.

Section 124.401(1) of the Iowa Code states “it is unlawful for any person to ... conspire with one or more other persons to ... possess with the intent to ... deliver a controlled substance.” See Iowa Code § 124.401(1). “A conspiracy is a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner.” State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998); see also Iowa Code § 706.1(1) (defining the crime of conspiracy). An agreement, in turn, is “a mental confederation involving at least two persons.” State v. Speicher, 625 N.W.2d 738, 741-42 (Iowa 2001) (citations omitted). Such a confederation may be “inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.” State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998) (citations omitted).

Nickens contends the State failed to present sufficient evidence from which a jury could properly infer she agreed to participate or aid in the underlying drug-related activity. We agree. At trial, the State presented evidence regarding the items seized in Nickens’s and Scott’s apartment. The State further presented evidence of Daye’s previous, involvement with authorities. However, this evidence does not support the finding Nickens agreed with Scott, Daye, or anyone else to possess a controlled substance. See Speicher, 625 N.W.2d at 742-43 (reversing a conviction for conspiracy to manufacture methamphetamine although law enforcement officers smelled ether coming from a garage and observed the defendant and another man leave the garage, the men attempted 'to run away from the officers, and a meth lab was found in the garage). “Without proof of any involvement from which to infer agreement, this essential element of the [conspiracy] offense rests on nothing but conjecture and speculation.” Id.

The State further presented evidence Nickens resided in the apartment in which the cocaine and firearm were found; however, it does not necessarily follow a reasonable jury could find Nickens guilty beyond a reasonable doubt of being part of a conspiracy to possess a controlled substance because she lived in a small apartment where drugs were found. See United States v. Ocampo, 964 F.2d 80, 82-83 (1st Cir.1992) (reversing a conviction for conspiracy to distribute cocaine although the defendant shared a small apartment with her alleged co-conspirator and a beeper, drug paraphernalia, and 2.5 kilos of cocaine were found at the apartment); Clayton v. State, 582 So.2d 1019, 1022-23 (Miss.1991) (reversing a conviction for conspiracy to distribute cocaine although the defendant shared a mobile home with her alleged co-conspirator, shouted a warning when law enforcement officers entered the mobile home, and had cocaine residue in her purse); Com. v. Ocasio, 422 Pa.Super. 272, 619 A.2d 352, 354-55 (1993) (reversing a conviction for conspiracy to distribute cocaine although the defendant was a resident of a house where officers found significant amounts of cocaine and cash and defendant had over $400 of cash in small denominations in his pocket).

We conclude the evidence of a conspiracy is missing in the record before us. We therefore find a reasonable jury could not convict Nickens guilty beyond a reasonable doubt of being part of a conspiracy to possess a controlled substance with intent to deliver. Accordingly, we reverse Nick-ens’s conviction on that offense.

C. Possession of Marijuana.

Nickens challenges the sufficiency of the evidence to support her conviction for possession of marijuana. Applying the analysis regarding possession set forth above, we find substantial evidence for a reasonable jury to conclude Nickens was in actual possession of the marijuana. The marijuana was found on the nightstand next to the bed in which she was sleeping, providing Nickens with direct physical control of the marijuana. Accordingly, we affirm on this issue.

III. Conclusion.

Because we find insufficient evidence Nickens possessed, or conspired to possess, a controlled substance while in the possession of a firearm, we reverse on Counts I, II, and III and remand for entry of judgment of acquittal on those charges. Accordingly, we need not address the other errors alleged on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Scott absconded prior to trial.


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Keith Edward MISQUADACE, Respondent.
    No. C4-01-81.
    Supreme Court of Minnesota.
    May 9, 2002.

      Mike Hatch, Minnesota Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, Bradley C. Rhodes, Ait-kin County Attorney, Aitkin, for appellant’s.
    John M. Stuart, Minnesota State Public Defender, Michael F. Cromett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, for Respondent’s.
   OPINION

BLATZ, Chief Justice.

Respondent Keith Edward Misquadace was charged with multiple crimes and entered a plea to four offenses in exchange for the state’s agreement to a total combined sentence of 266 months, which represented three upward disposi-tional departures and three upward dura-tional departures. On the sentences for three of the offenses, the district court departed from the guidelines sentence “pursuant to the plea agreement” without stating any other reason for the departures. On appeal, Misquadace argued that the departures on two of these sentences were not authorized under the guidelines. The court of appeals held that the agreement of the parties was insufficient grounds to depart on the two sentences. We affirm and remand to the district court for resentencing in accordance with this opinion.

I.

Upon allegations that he committed numerous crimes in Aitkin County from June 1995 to August 1999, respondent Keith Edward Misquadace was indicted for first-degree premeditated murder and was charged by five separate complaints with additional offenses including third-degree burglary, felony theft, third-degree criminal damage to property, motor vehicle theft, fleeing a peace officer, introducing contraband into a jail, and six counts of first-degree criminal sexual conduct.

The first case set for trial was the first-degree murder charge. After voir dire, Misquadace entered a negotiated plea to four offenses, under which the state would recommend an aggregate sentence of 266 months, as follows:

(1) 180 months, executed, for first-degree manslaughter, Minn.Stat. § 609.20(2) (2000) — the statutory maximum and an upward durational departure from the presumptive 86-month sentence;
(2) 13 months, executed and consecutive, for fleeing a peace officer, Minn. Stat. § 609.487, subd. 3 (2000) — an upward dispositional and durational departure from the presumptive stayed 12-month sentence;
(3) 60 months, executed and consecutive, for third-degree burglary, Minn. Stat. § 609.582, subd. 3 (2000) — an upward dispositional and durational departure from the presumptive stayed concurrent sentence of 18 months; and
(4) 13 months, executed and consecutive, for introduction of contraband into a jail, Minn.Stat. § 641.165, subd. 2(b) (2000) — an upward dispositional and downward durational departure from the presumptive stayed concurrent sentence of 21 months.

Misquadace submitted to the court a Rule 15 petition acknowledging his willingness to exchange Alford pleas for the sentencing recommendation. See Minn. R.Crim. P. 15.01. He also appeared in court and agreed with characterizations of the sentencing agreement as “advantageous,” “good,” that it “clears the slate,” and that it was what he wanted to do.

Several weeks later, at the sentencing hearing, Misquadace made an oral motion to withdraw his pleas, apparently on the basis that he had changed his mind. The court found no valid reason to allow withdrawal of the pleas and proceeded with sentencing. The court cited both the plea agreement and aggravating factors set forth in the pre-sentencing report in support of the upward durational departure for the manslaughter sentence, but cited only the plea agreement as grounds for departing from the sentencing guidelines for the burglary, fleeing a peace officer, and introducing contraband into a jail sentences.

• Misquadace appealed to the court of appeals on the basis that there was no valid reason for departure on either the burglary or contraband sentences. The court of appeals reversed, holding that the agreement of the parties was an insufficient basis on which to depart from the presumptive burglary and contraband sentences. State v. Misquadace, 629 N.W.2d 487, 490-91 (Minn.App.2001). The court noted that this court held in State v. Givens, 544 N.W.2d 774 (Minn.1996), that a defendant could waive sentencing under the guidelines, but that the statute underlying this court’s reasoning in Givens was subsequently changed by the legislature. Misquadace, 629 N.W.2d at 490. Specifically, Minn.Stat. § 244.09 (2000), which authorized the sentencing guidelines, was modified by the legislature in 1997 to provide that:- “Sentencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy-to maintain uniformity, proportionality, rationality, and predictability in sentencing.” Act of May 6, 1997, ch. 96, § 1, 1997 Minn. Laws 694, 695. Consequently, the court of appeals held that “under current statutory law, a sentencing court must support any departure from the presumptive sentence with substantial and compelling reasons and it is not sufficient that the defendant merely accede to the departure in a plea bargain.” Misquadace, 629 N.W.2d at 491. Thus, because the sentencing departures for the burglary and contraband charges were based solely on Misquadace’s consent, the court of appeals reversed the burglary and contraband sentences, and remanded the entire case for resentencing under the guidelines. Id.

II.

A district court’s decision to depart from the sentencing guidelines is within that court’s discretion, and will not be disturbed absent an abuse of discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999). However, in this case, the sentencing raises an issue regarding interpretation of Minn.Stat. § 244.09. This court reviews statutory interpretation, an issue of law, de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

The power to fix the limits of punishment for criminal acts lies with the legislature. State v. Osterloh, 275 N.W.2d 578, 580 (Minn.1978). However, the imposition of a sentence in a particular case within those limits is a judicial function. State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982). In light of a court’s discretion in sentencing, the sentencing guidelines were created to assure uniformity, proportionality, rationality, and predictability in sentencing. See Minn.Stat. § 244.09, subd. 5(2) (2000).

The purpose of the sentencing guidelines is to establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history. Equity in sentencing requires (a) that convicted felons similar with respect to relevant sentencing criteria ought to receive similar sanctions, and (b) that convicted felons substantially different from a typical case with respect to relevant criteria ought to receive different sanctions.

Minnesota Sentencing Guidelines I; see also State v. Garcia, 302 N.W.2d 643, 646-47 (Minn.1981) (describing sentencing guidelines grid, which factors into the sentence criminal history score and the severity level of offense). As other states and the federal government have done, the Minnesota Sentencing Guidelines Commission uses as its primary relevant sentencing criteria the offense of conviction and the offender’s criminal history. Minnesota Sentencing Guidelines I and II; see also U.S. Sentencing Guidelines Manual ch. 5, pt. A (2001); DeLCode Ann. tit. 11, § 6580(c) (2001); Wash. Rev.Code Ann. § 9.94A.010(1) (West Supp.2002). Because the presumptive sentence is a function of the offender’s criminal history and the offense for which he or she is sentenced, offenders committing the same offense with the same criminal history receive approximately the same sentence. In this way, the guidelines are designed to predictably achieve rational and consistent sentences. See Minnesota Sentencing Guidelines I; Garcia, 302 N.W.2d at 647.

To maintain consistency, departures from the guidelines are discouraged. Minnesota Sentencing Guidelines I. The reasons for a departure, while nonexclusive, are intended to apply to a small number of cases, and each departure must be based on the offense of conviction rather than charges that were dropped or never alleged. Minnesota Sentencing Guidelines II.D.2, II.A.01 cmt., and II.D.01 cmt. The guidelines commission believes the latter provision is necessary because allowing uncharged or dropped charges to affect the sentence would result in prosecutors and defense attorneys being less accountable in plea negotiations. Minnesota Sentencing Guidelines II.A.01 cmt.

Nonetheless, any rational system of sentencing must allow for different sentences to be imposed when substantial and compelling circumstances warrant different treatment. See Minnesota Sentencing Guidelines II.D. Thus, a court may depart from the presumptive sentence provided that the court finds and makes a record of a substantial and compelling justification for a departure. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985); see also Minn.Stat. § 244.10, subd. 2 (2000) (requiring district courts to provide written reasons justifying a departure). The question presented to the sentencing court when considering a departure is whether the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question. State v. Cox, 343 N.W.2d 641, 643 (Minn.1984). Thus, the nonexclusive reasons for departure outlined by the Minnesota Sentencing Guidelines Commission include such factors as whether the victim was the aggressor in the incident (a mitigating factor) or whether the victim was particularly vulnerable due to age or infirmity (an aggravating factor). Minnesota Sentencing Guidelines II.D.2. The question presented here is whether a plea agreement, standing alone, provides substantial and compelling justification for departure.

In Givens, we examined a sentence that constituted a downward dispositional departure and an upward durational departure imposed after a plea agreement was negotiated by the parties and accepted by the district court. 544 N.W.2d at 775. Givens admitted burglarizing the home of a 74 year old woman, and pleaded guilty to first-degree burglary. Id. The sentencing court departed from the guidelines, staying imposition of a 96-month sentence rather than imposing the presumptive 48-month sentence. Id. When Givens violated his probation, the sentence was executed. Id. On appeal, we held that the upward durational departure was justified based on the defendant’s exploitation of the victim’s vulnerability, but stated: “We believe that the real question raised by this case is whether a defendant may waive his or her right to be sentenced under the guidelines.” Id. at 776-77. Noting that “it has long been settled law that courts will hon- or a defendant’s lawful, ‘intentional relinquishment or abandonment of a known right or privilege’ ” — such as Miranda rights or the right to a jury trial — we held “that defendants may relinquish their right to be sentenced under the guidelines.” 544 N.W.2d at 777 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

The year after Givens was published, the legislature amended subdivision 5 of section 244.09 by adopting the following language:

Although the sentencing guidelines are advisory to the district court, the court shall follow the procedures of the guidelines when it pronounces sentence in a proceeding to which the guidelines apply by operation of statute. Sentencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.

Act of May 6, 1997, ch. 96, § 1, 1997 Minn. Laws 694, 695 (emphasis added). In the same act, the legislature also ordered the sentencing guidelines commission to “study the advisability of allowing a plea agreement to be used as a reason for a departure from a presumptive sentence” before recommending that the guidelines be changed to make such a departure impermissible. Act of May 6, 1997, ch. 96, § 11; 1997 Minn. Laws 694, 702. The legislature also reserved for itself the authority to make that change to the guidelines. Id.

Subsequent to these legislative acts, neither the legislature nor the sentencing guidelines commission has modified the guidelines to explicitly allow or prohibit the use of plea agreements to depart from the sentencing guidelines. The commission did, however, amend its commentary to discuss the practice:

Plea agreements are important to our criminal justice system because it is not possible to support a system where all cases go to trial. However, it is important to have balance in the criminal justice system where plea agreements are recognized as legitimate and necessary and the goals of the sentencing guidelines are supported. If a plea agreement involves a sentence departure and no other reasons are provided, there is little information available to provide for informed policy making or to ensure consistency, proportionality, and rationality in sentencing.
Departures and their reasons highlight both the success and problems of the existing sentencing guidelines. When a plea agreement is made that involves a departure from the presumptive sentence, the court should cite the reasons that underlie the plea agreement or explain the reasons the negotiation was accepted.

Minnesota Sentencing Guidelines II.D.04 cmt. (effective August 1,1998).

Thus, the issue before us is whether— given the statutory amendment and modifications to the sentencing guidelines commentary since Givens• — a plea agreement, without more, can be the basis for a departure from the sentencing guidelines. The state argues that regardless of whether sentencing under the guidelines is a right, a plea agreement can nevertheless be considered a substantial and compelling circumstance that justifies departure from the guidelines. Misquadace argues that because the legislature clarified that sentencing under the guidelines was not a waivable right, a sentence must fit within the guidelines. Misquadace also argues that the purpose of the sentencing guidelines would be undermined by allowing departures pursuant only to plea agreements.

We believe that the fairest reading of the 1997 amendment is that the legislature removed whatever “right” to sentencing under the guidelines was provided therein, but that the legislature did not want sentencing pursuant only to a plea agreement to be entirely prohibited until the sentencing guidelines commission analyzed how such sentencing fit within the entire system. The 1999 sentencing guidelines commentary, similarly, reflects some ambivalence in its explanation of why plea agreements are a difficult fit: On the one hand, “Plea agreements are important' to our criminal justice system because it is not possible to support a system where all cases go to trial,” but on the other, “If a plea agreement involves a sentence departure and no other reasons are provided, there is little information available to provide for informed policy making or to ensure consistency, proportionality, and rationality in sentencing.” Minnesota Sentencing Guidelines II.D.04 cmt. (effective August 1, 1998).

We believe that the overriding principle in all sentencing is rationality, predictability, and consistency, and plea agreements can exist within the framework of the sentencing guidelines. Therefore, in order to abide by the guidelines’ overriding principles, we conclude that negotiated plea agreements that include a sentencing departure are justified under the guidelines in cases where substantial and compelling circumstances exist. A plea agreement standing alone, however, does not create such circumstances in its own right. Rather, when reviewing a plea agreement that includes a sentencing departure, the court must determine whether the offense of conviction reflects any aggravating or mitigating circumstances that warrant a departure. Indeed, the parties might agree on grounds for departure that the court could review for adequacy. However, the grounds for departure must reflect whether the offense is any more or less serious than the typical offense of conviction, mindful that uncharged or dismissed offenses are not to be considered and that departures are intended to apply in a small number of cases. Cox, 343 N.W.2d at 643; Minnesota Sentencing Guidelines II.A.01 cmt. and II.D.01 cmt.

We recognize that, since Givens, agreements on pleas and sentences have often been reached based on the parties’ assessments of the relative strengths and weaknesses of a case going to trial, rather than necessarily on the circumstances of the offense of conviction. Rather than configure the agreed-upon sentence to reflect possible problems of proof, however, the state should consider amending the charge to better reflect what can actually be proven. The court must then proceed to establish a factual basis for the plea, requiring that the charge fit the offense to which the defendant pleads. Minn. R.Crim. P. 15.01(20).

Nonetheless, we fully recognize the effect of our holding — that plea agreements cannot form the sole basis of a sentencing departure — may be to discourage such agreements. It is for the legislature, however, to make the policy decision that sen-tending pursuant to plea agreements alone does not seriously threaten the goal of rational and consistent sentencing. Until then, we will require courts to articulate substantial and compelling circumstances other than a plea agreement when departing from the guidelines. Accordingly, we hold that all departures from the Minnesota Sentencing Guidelines must be supported by substantial and compelling circumstances, and that a plea agreement— standing alone — is not a sufficient basis to depart from the sentencing guidelines.

III.

Applying these principles to the sentence in this case, the record is not clear that aggravating circumstances existed with respect to the sentences for burglary and fleeing a peace officer. The district court noted aggravating factors in the pre-sentencing report that justify the upward departure in the manslaughter sentence, but only cited the plea agreement as grounds for departing from the sentencing guidelines for the burglary and contraband sentences. This record, therefore, does not justify the departures for those sentences.

The state argues that any remand must encompass the entire sentencing package — not merely the sentences in which the district court erred — because a defendant should not be allowed to attack the unfavorable aspects of a plea agreement while retaining the favorable aspects. However, in light of our previous ruling in Givens, on which the parties and the district court may have relied, on remand the district court should have an opportunity to determine whether substantial and compelling circumstances warrant the departures from the presumptive sentences for the burglary and contraband offenses.

In addition, because this holding establishes a new rule of law, retroactive application is not required. Given the purposes to be served, the extent of rebanee by the parties and courts on previous standards, and the effect of retroactivity on the administration of justice, prospective application is appropriate. See State v. Olsen, 258 N.W.2d 898, 907 n. 15 (Minn.1977) (delineating standards for retroactive effect). We limit application of the ruling to this case and to pending and future cases.

Affirmed and remanded to the district court for further proceedings in accordance with this opinion.

      . Misquadace did not admit guilt for his offenses, but acknowledged that the state had sufficient evidence to obtain convictions. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Goulette, 258 N.W.2d 758, 760 (Minn.1977) (holding that plea from defendant who maintains innocence may be accepted if evidence would support a jury verdict of guilty and plea is voluntarily, knowingly, and understandingly entered).

      . Because Misquadace did not appeal his sentence for fleeing a peace officer, that issue was not addressed by the court of appeals and is not an issue raised on appeal.

      . In support of this argument, the state cites In re Breedlove, 138 Wash.2d 298, 979 P.2d 417 (1999). Breedlove agreed to upward departures from the Washington Sentencing Reform Act (WSRA), and the Washington Supreme Court affirmed the departures, holding that the plea agreement was a substantial and compelling justification for the upward departure: "Through the trial judge, who has knowledge of the facts of the criminal incident and of the negotiating parties, the law provides protection to the defendant and to the public to ensure that a plea agreement is consistent with the interests of justice * * * and the goals of the [WSRA].” Breedlove, 979 P.2d at 425. However, unlike Minnesota law, the WSRA "specifically authorizes agreements which recommend sentences outside the standard sentencing range.” Id. at 424 (citing Wash. Rev.Code § 9.94A.080(3) (2000); State v. Lee, 132 Wash.2d 498, 939 P.2d 1223 (1997)). Therefore, the state's reliance on Breedlove is misplaced given the absence of comparable Minnesota statutory language, the Minnesota legislature’s delegation of this question to the sentencing commission in 1997, and the commission's subsequent amendments to the commentary cited above.

      . The state argues that section 244.09 violates the separation-of-powers doctrine, see Minn. Const, art. III § 1, because of the directive: “Although the sentencing guidelines are advisory to the district court, the court shall follow the procedures of the guidelines when it pronounces sentence in a proceeding to which the guidelines apply by operation of statute.” Minn.Stat. § 244.09, subd. 5(2) (emphasis added). The statutory language at issue imposes on the judiciary only the procedures of the guidelines-use of criminal history and the offense of conviction, while allowing for departures. The procedures set forth allow for adequate exercise of judicial discretion in individual sentences imposed so that separation of powers principles are not offended. Moreover, the judiciary shares with the legislature the goals of consistency, predictability, and rationality in sentencing.


author: LANCASTER, Justice.

text:
    STAR CENTERS, INC., Petitioner, Appellant, v. FAEGRE & BENSON, L.L.P., Respondent.
    No. C0-00-2075.
    Supreme Court of Minnesota.
    May 16, 2002.

      Collins, Buckley, Sauntry & Haugh, P.L.L.P., Patrick T. Tierney, St. Paul, for appellant.
    Bassford, Lockhart, Truesdell & Briggs, P.A., Lewis A. Remele, Jr., Charles E. Lundberg, Robin Ann Williams, Minneapolis, for respondent.
   OPINION

LANCASTER, Justice.

Appellant STAR Centers, Inc. (STAR), sued respondent Faegre & Benson, L.L.P. (Faegre), claiming that Faegre committed legal malpractice and breached its fiduciary duty by failing to disclose information about Consortium International, Inc. (Consortium), a business from which STAR sought financing. The district court granted Faegre’s motion for summary judgment and the court of appeals affirmed. Because the undisclosed information was not material to Faegre’s representation of STAR, we affirm.

In 1990, Paul Selle retained Faegre to assist with the organization of STAR. Selle formed STAR to develop an indoor soccer facility. Having found a location for the facility, Selle sought financing for STAR, but had not secured financing as of January 1995.

In January 1995, Consortium retained Faegre. Consortium described itself as a “privately held professional services organization” that performed a variety of financial services for its clients. In 1995, Faegre worked on two matters for Consortium. First, in March 1995, Faegre concluded a review of securities law issues. Second, in early July 1995, Faegre drafted a letter to one of Consortium’s clients expressing Consortium’s concerns with respect to a press release issued by the client that stated that an agreement regarding a loan had effectively been reached. According to Consortium, the press release did not accurately reflect the state of negotiations. Although Faegre was not working on any matters for Consortium at the end of July 1995, Faegre still considered Consortium a client because its engagement was not limited to specific matters.

Initial Consortiumr-STAR Financing Agreement

In early 1995, Selle learned about Consortium through a loan officer at Mortgages Unlimited. On July 25, 1995, STAR and Consortium - negotiated the preliminary terms of a financing agreement. After the meeting, Selle and John Karr, a consultant to and investor in STAR, sought additional information about Consortium.

Selle and Karr learned from Consortium that Consortium had retained Faegre. They decided to question Faegre about Consortium. Selle stated he phoned Andrew Humphrey, a Faegre attorney, to determine whether Humphrey knew anything about Consortium. According to Selle, Humphrey responded that he did not know anything about Consortium, agreed to find out what he could about Consortium, and ultimately responded that “[Faegre] had some smaller dealings with [Consortium], but nothing came up, whether it be bad or good.” Karr did not remember whether it was he or Selle who asked Faegre about Consortium, nor did he remember the precise language of Faegre’s response. Karr stated, however, that Faegre’s response left him and Selle with the impression that “Consortium was, indeed, a legitimate business.” Humphrey recalled Selle’s inquiry about Consortium. According to Humphrey, he responded by stating that he did not know anything about Consortium and that it would be inappropriate for him to say anything about Consortium if Consortium was Faegre’s client. Selle denied that Humphrey made such a statement to him.

In an August 7, 1995, letter to STAR, Gary Gandrud, a Faegre attorney, expressed the terms under which the firm’s representation of STAR in connection with its new financing project could continue. Shortly thereafter, Faegre obtained Consortium’s and STAR’S consent to Faegre’s representation of STAR in connection with its financing project.

On August 9, 1995, STAR and Consortium executed a preliminary commitment agreement. A closing scheduled for October 1995 did not take place because Consortium was unable to prepare some documents. Faegre did little or no work on the deal after the closing did not take place. STAR and Consortium rescheduled the closing for December 1995 or January 1996. That closing also did not take place, however, because a shutdown of the federal government prevented STAR from obtaining part of its financing package, a loan from the Small Business Administration.

Cemara Health Inquiry

In January 1996, William Nay contacted Sally Johnson, a Faegre attorney. Nay represented Joseph Kenney, the president and chief executive officer of Cemara Health, Inc. (Cemara). Nay asked Johnson whether Faegre would serve as an escrow agent in an effort to settle a dispute between Consortium and Cemara regarding Consortium’s failure to fund a loan. Subject to resolution of possible conflicts, Johnson agreed. Nay had only two or three brief telephone conversations with Johnson on January 10 and 11,1996. ■ Consortium and Cemara did not reach a settlement agreement. There is no evidence in the record that Faegre was retained to serve as an escrow agent.

Later that month, Kenney wrote two letters describing an advance fee scheme operated by Consortium. There is no evidence in the record that Faegre attorneys saw or heard about Kenney’s letters before their depositions in this case.

Denver Golf Litigation

In early February 1996, Consortium contacted James Nicholson, its billing partner at Faegre, and asked whether Faegre would defend it in a lawsuit filed by Denver Golf, Ltd. (Denver Golf), in the United States District Court for the District of Colorado. Nicholson passed the matter to his partners in Faegre’s Denver office.

Denver Golfs complaint alleged that Consortium breached a construction loan agreement. The complaint did not allege fraud, nor did it allege that Consortium’s refusal was part of a larger pattern of refusals to fund loans. Faegre’s conflict check revealed no conflicts. The firm made its first appearance in federal district court on Consortium’s behalf on February 12,1996. In early March 1996, Consortium filed a motion to dismiss or, in the alternative, for summary judgment, arguing that execution of the construction loan agreement was merely a “paper closing” that was done in escrow and was subject to the approval of Consortium’s Board of Directors. Because the Board did not approve the loan, Consortium argued the loan agreement never took effect. On June 18, 1996, a United States Magistrate Judge recommended that Consortium’s motion be denied.

Although Denver Golfs complaint did not allege fraud, Denver Golfs attorney, Paul Grant, told Faegre attorneys he thought Consortium engaged in fraud. In an affidavit submitted to the trial court in the instant case, Grant described the statements he made while working on the Denver Golf litigation:

Shortly after the time Faegre * * * first appeared in the case and later in written discovery requests, I asked the Faegre * ⅞ * attorneys to provide documentation demonstrating that Consortium had funded the projects identified in their promotional literature. I told [a Faegre attorney] that I thought Consortium may have engaged in fraud. I discussed with Faegre * * * attorneys, at a hearing before a United States Magistrate, that I did expect Faegre * * * to produce documents to show that Consortium had actually made the loans described in their literature. Faegre * * * attorneys replied that they were not sure they could comply, since all Consortium loans were covered by confidentiality agreements.

Cathy Lemon, a Faegre attorney who worked on the Denver Golf litigation, stated that Grant requested documentation of Consortium’s other deals because he thought that Consortium “didn’t have enough money to fund all of the deals [it] had in the pipeline.”

Renewed Consortium^STAR Financing Agreement

On January 24, 1996, Consortium sent to STAR a revised formal commitment agreement. STAR asked Faegre to represent it in connection with its new financing project. On February 26, 1996, the firm sent a letter to STAR to confirm the terms of its representation. STAR and Consortium scheduled the closing for June 28, 1996, and STAR met all conditions to close on that date. On June 19, 1996, Consortium sent a letter to STAR that terminated the loan agreement. Faegre declined STAR’S request to represent STAR in an action against Consortium and referred STAR to another law firm.

In August 1996, the Federal Bureau of Investigation (FBI) filed a criminal complaint against Arthur Schuyler Ross, also known as John Ross, who was Consortium’s chief executive officer. The complaint alleged that Ross “and others doing business as Consortium * * * have committed and are continuing to commit [wire fraud] by operating an advance fee scheme.” The FBI arrested Ross later that month.

In April 1999, STAR filed a complaint against Faegre that alleged that Faegre breached its fiduciary duty and committed legal malpractice by failing to disclose information about Consortium that was material to the law firm’s representation of STAR. The district court granted Faegre’s motion for summary judgment, holding that the Denver Golf litigation did not constitute a material matter about which Faegre had to advise STAR, that Faegre did not breach any duty to or contract with STAR, and that STAR could not prove that Faegre’s conduct constituted the “but for” cause of STAR’S damages.

STAR appealed and the court of appeals affirmed. The court of appeals declined to consider Cemara’s inquiry because it did not proceed beyond an initial inquiry and did not involve a further exchange of information. The court of appeals held that the Denver Golf litigation did not constitute a material matter bearing on Faegre’s representation of STAR and that the litigation did not create an impermissible conflict of interest for Faegre. Finally, the court of appeals briefly addressed STAR’S causation argument, concluding that the record contained no evidence establishing that Faegre’s failure to disclose the litigation to STAR was a substantial factor in causing STAR’s losses.

On appeal from summary judgment, we review whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000); Offerdahl v. Univ. of Minn. Hasps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). We view the evidence in the light most favorable to the party against whom summary judgment was granted. Louis v. Louis, 636 N.W.2d 314, 318 (Minn.2001); Offerdahl, 426 N.W.2d at 427. We review de novo whether a genuine issue of material fact exists. Brookfield Trade Ctr., Inc. v. County of Ramsey, 609 N.W.2d 868, 874 (Minn.2000). We also review de novo whether the district court erred in its application of the law. Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn.1997).

An attorney-client relationship gives rise to fiduciary duties: “The attorney is under a duty to represent the client with undivided loyalty, to preserve the client’s confidences, and to disclose any material matters bearing upon the representation of these obligations.” Rice v. Perl, 320 N.W.2d 407, 410 (Minn.1982) (emphasis omitted) (quoting Ronald E. Mallen & Victor B. Levit, Legal Malpractice § 121 (2d ed.1981)). “It is the undoubted duty of an attorney to communicate to his client whatever information he obtains that may affect the interests of his client in respect to the matters entrusted to him.” Selover v. Hedwall, 149 Minn. 302, 306,184 N.W. 180, 181 (1921).

The parties do not dispute that Faegre and STAR had an attorney-client relationship. Thus, Faegre owed fiduciary duties to STAR. The parties also do not dispute that Faegre failed to disclose the information learned about Consortium from Cemara’s inquiry and the Denver Golf litigation. We turn then to whether the undisclosed information was material to Faegre’s representation of STAR.

Materiality is ordinarily a question of fact. See State v. Stith, 292 N.W.2d 269, 276 (Minn.1980) (stating that whether misrepresentations are material in securities fraud prosecution is a question of fact); Strouth v. Wilkison, 302 Minn. 297, 299, 224 N.W.2d 511, 513 (1974) (stating that whether defendant misrepresented a material fact is a question of fact). Materiality becomes a question of law, however, when reasonable minds can reach only one conclusion. See Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn.1995) (stating that proximate cause is generally a question of fact that becomes a question of law where reasonable minds can arrive at only one conclusion).

We first address whether Faegre learned information about Consortium from Cemara’s inquiry that was material to Faegre’s representation of STAR. An applicant’s assertion that a lender refused to fund a loan, without more, reveals nothing material about the lender. To a prospective borrower, the reasons for the lender’s refusal are what matters. During two or three brief telephone calls, a Faegre attorney learned of Cemara’s allegation that Consortium refused to fund a loan. There is no evidence in the record that Faegre learned why Consortium refused to fund the loan. There is no evidence in the record that Faegre knew about Kenney’s letters that described Consortium’s advance fee scheme. Finally, there is no evidence in the record that Faegre knew about Consortium’s lending practices. Cemara’s assertion that Consortium refused to fund a loan did not reveal anything to Faegre about Consortium’s ability or willingness to serve as a lender. Therefore, reasonable minds can reach only one conclusion: that the information Faegre obtained about Consortium from Cemara’s inquiry did not constitute a material matter bearing on its representation .of STAR.

Next, we address whether Faegre learned information about Consortium from the Denver Golf litigation that was material to Faegre’s representation of STAR. Like Cemara’s inquiry, Denver Golfs complaint does not reveal why Consortium refused to fund the loan. The complaint alleged a breach of contract. It alleged neither fraud nor that the breach was part of a larger pattern of refusals to fund loans. We hold as a matter of law, therefore, that the complaint revealed nothing about Consortium that was material to Faegre’s representation of STAR.

We turn to the oral allegations of fraud. Shortly after Faegre made its first appearance on behalf of Consortium in the case, Denver Golfs attorney told Faegre that he “thought Consortium may have engaged in fraud.” He also told Faegre that he did not believe that Consortium had sufficient capital to fund all of its commitments. He sought information that might substantiate his belief that there was a misrepresentation in Consortium’s brochure, and did not assert that he had such proof.

To determine whether the oral allegations of fraud constituted information that was material to Faegre’s representation of STAR, we must analyze them within their context. First, Denver Golf and Consortium were litigating a claim that Consortium breached a contract by refusing to fund a loan. Denver Golfs complaint did not allege fraud. Second, there is no evidence in the record that Denver Golf offered evidence to support its allegations of fraud. The attorney mentioned fraud in the context of a request for information to support his belief that Consortium engaged in fraud. Third, in March 1996, Consortium filed a motion to dismiss or, in the alternative, for summary judgment. Not until June 18, 1996, the day before Consortium terminated its loan agreement with STAR, did the magistrate recommend that Consortium’s motion be denied. There is no evidence in the record that Faegre had reason to doubt Consortium’s explanation that its execution of the loan agreement was merely a “paper closing” that was done in escrow and was subject to the approval of Consortium’s Board. Without some evidence to support the oral allegations, Faegre had no reason to think that they were anything but litigation tactics, and reasonable minds can conclude only that the unsubstantiated allegations of fraud were not material to Faegre’s representation of STAR. Therefore, we hold as a matter of law that Faegre did not learn information that was material to its representation of STAR from the oral allegations of fraud.

“Unquestioned fidelity to their real interests is the duty of every attorney to his clients.” In re Lee’s Estate, 214 Minn. 448, 460, 9 N.W.2d 245, 251 (1943). Attorneys must be vigilant to ensure that representation of one client does not jeopardize that of another. On these facts, we hold as a matter of law that Faegre did not obtain information from Cemara’s inquiry or the Denver Golf litigation that was material to its representation of STAR. Consequently, we need not consider the parties’ remaining arguments that assume the undisclosed information was material to Faegre’s representation of STAR.

Affirmed.

ANDERSON, Paul H., and ANDERSON, Russell A., JJ., took no part in the consideration or decision of this case.

      . Kenney sent one letter to the Minnesota Lawyers Professional Responsibility Board. The record does not reveal to whom Kenney sent the other letter.

      . STAR does not seek to hold Faegre accountable for responding to its inquiry about Consortium. Instead, STAR claims that Faegre knew that STAR wanted information about Consortium’s viability as a lender. STAR argues that Faegre's knowledge about Consortium's alleged refusal to fund loans therefore constituted a "material matter” to STAR.

      . We do not suggest that an attorney in the position of the Faegre attorneys herein should ignore even bare allegations of fraud. Rather, the attorney must be alert to allegations that have teeth to them in the form of evidence, such as a misrepresentation, indicating a col-orable claim.