author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Joel Bradford SMITHERMAN, Appellant.
    No. 05-0692.
    Supreme Court of Iowa.
    June 8, 2007.

      Mark C. Smith, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Scott Brown, and Douglas Hammerand, Assistant Attorneys General, and Richard N. Dunn, County Attorney, for appellee.
   CADY, Justice.

In this ease we must determine if the defendant’s constitutional rights to conflict-free counsel were violated. In addition, we must determine whether there was sufficient evidence to convict the defendant of first-degree murder. Finding no constitutional violation or problem pertaining to the sufficiency of the evidence, we affirm the defendant’s conviction.

I. Background Facts and Proceedings.

In 1990 law enforcement officers found Richard Tasler’s skeletal remains buried on Joel Smitherman’s property. As a result, and after a long investigation, the State finally charged Smitherman with Tasler’s murder on May 13, 2004. The court appointed the Marshalltown Public Defender’s Office (MPDO) to represent Smitherman on May 13, 2004. On May 17 MPDO attorneys Melissa Anderson and Ray Reel filed their appearances on behalf of Smitherman.

On May 18, 2004, a prison inmate— Jason Williamson — came forward with information related to the prosecution of Smitherman. Williamson was in jail on felony and serious misdemeanor charges. Reel represented Williamson on his serious misdemeanor charges, and a private attorney represented Williamson on his felony charges. Williamson was interviewed by law enforcement officials on May 19, 2004. The next day the State informed the MPDO that Williamson would likely be added to the trial information as a witness for the prosecution.

On May 21, 2004, Anderson and Reel discussed the addition of Williamson as a witness. Anderson told Reel she did not want to know anything about the potential witness or the pending cases against him. Anderson even indicated she was not sure of Williamson’s name. As a result of their conversation, Reel immediately made the decision to withdraw from representing Williamson and was relieved of that duty by May 25.

Reel additionally withdrew from representing Smitherman on May 27. At this time, Reel was replaced by Shannon Leighty, who also worked for the MPDO. Thereafter, Leighty represented Smither-man as “second chair” to Anderson. At all times in the present proceeding Anderson remained as primary counsel to Smitherman. The MPDO represented Smitherman continually from the day he was charged — May 13, 2004 — until the day he was sentenced — April 8, 2005. Specifically, Reel represented Smitherman from May 17 to May 27, and Reel represented Williamson until May 25. Thus, Reel simultaneously represented Williamson and Smitherman from May 17 to May 25, although he was not informed that Williamson would be a potential witness against Smitherman until May 20, and by May 21 he had made the decision to withdraw from Reel’s case. The MPDO, of course, simultaneously represented Smitherman and Williamson from May 13 (when the court appointed the MPDO to represent Smitherman) until May 25 (when the court in Williamson’s matter relieved the MPDO of further responsibility in Williamson’s case).

Because of our decision in State v. Watson, 620 N.W.2d 233 (Iowa 2000), and the circumstances facing the parties, the State made an application for a “Watson hearing” on June 11, 2004. In its application the State set forth the facts above, acknowledged that Reel had been replaced by Leighty, and stated “[t]he State has also been assured that Ray Reel will be separated from the current case so that no actual conflict arises.” The district court held a hearing on the matter on June 28, 2004. At the hearing the state prosecutor, Scott Brown, testified for the State and said:

Judge, we filed this application for [a] Watson hearing to raise this issue. I don’t want the court to read into that we’re wishing the Public Defender’s Office in Marshalltown to have to be removed from this case. That’s not our intention in filing it. We think we are required to do it whenever there is a potential conflict of interest so all this is laid out on the record and Mr. Smither-man is aware of the relationship between his attorney and a potential prosecution witness.

Likewise, the attorneys for the MPDO argued its representation did not violate our holding in Watson, and that a “Chinese Wall,” or an office procedure to insulate Reel from the case, had been put into place.

At the hearing, the court specifically addressed Smitherman as follows:

THE COURT: Mr. Smitherman, have you had a chance to discuss these issues with your attorney Ms. Anderson?
THE DEFENDANT: Yes, I have.
THE COURT: Do you have any concerns about Ms. Anderson continuing in your defense in this case?
THE DEFENDANT: No. I’m just disappointed in the loss of Mr. Reel_
THE COURT: So you understand, however, that because of Mr. Reel’s representation of [Williamson], he is prohibited from proceeding in this case?
THE DEFENDANT: Yes, sir.
THE COURT: And even though there was a short period of time, about maybe a week or so, where Mr. Reel represented both you and [Williamson], you’re comfortable with the Marshall-town Public Defender’s Office proceeding in this ease?
THE DEFENDANT: Yes, I am.

As a result of the hearing the district court entered an order on June 30, 2004 concluding “there is no actual or potential conflict of interest,” and “that the representation of the defendant by Ms. Anderson and Ms. Leighty is not precluded by the court’s holding in Watson.” The case proceeded to trial and the jury found Smitherman guilty of first-degree murder. On April 8, 2005 Smitherman was sentenced to life in prison without parole.

II. Issues and Standard of Review.

On appeal, Smitherman makes two arguments: (1) his state and federal constitutional rights were violated because of an impermissible conflict of interest that was created by the MPDO’s simultaneous representation of the prosecution’s witness and himself, and (2) there was insufficient evidence to convict him of first-degree murder. Our review is de novo when the defendant alleges a conflict of interest implicating the right to counsel. See State v. Powell, 684 N.W.2d 235, 238 (Iowa 2004); Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003). Our review is for errors at law when the defendant challenges his or her conviction based on the sufficiency of the evidence. See State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). “[A] jury verdict is binding on us when supported by substantial evidence,” and “evidence is substantial if it could convince a rational jury of a defendant’s guilt beyond a reasonable doubt.” Id. at 740-41 (citing State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998); State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999)). We must view the record in the light most favorable to the State, and consider the evidence supporting not just guilt, but innocence, too. Id. at 741 (citing Hopkins, 576 N.W.2d at 377).

III. Conflict of Interest.

Conflict-of-interest claims are typically raised in ineffective-assistance-of-counsel claims. See, e.g., Mickens v. Taylor, 535 U.S. 162, 164, 122 S.Ct. 1237, 1239-40, 152 L.Ed.2d 291, 299 (2002) (“[Petitioner] alleg[ed], inter alia, that he was denied effective assistance of counsel because one of his court-appointed attorneys had a conflict of interest at trial.”). Smith-erman, however, has not specifically alleged an ineffective-assistance-of-counsel claim. Nevertheless, he has alleged a violation of his federal Sixth Amendment rights, and his corresponding rights under article I, section 10 of Iowa’s Constitution due to an impermissible conflict of interest. When a defendant alleges a violation of these constitutional rights due to an impermissible conflict of interest, our basic analysis does not change depending on how the defendant has framed the violation — i.e., as a claim of ineffective assistance of counsel or otherwise. The analysis we use in this case is largely the same analysis we would use if the defendant had specifically alleged a claim of ineffective assistance of counsel due to an impermissible conflict of interest. See Watson, 620 N.W.2d at 235-37 (analyzing a conflict-of-interest claim under precedent based on claims of ineffective assistance of counsel due to a conflict of interest); State v. Williams, 652 N.W.2d 844, 847 (Iowa Ct. App.2002) (“The foundation for this type of claim [ (allegations of a conflict of interest) ] is an alleged denial of an accused’s constitutional right to effective assistance of counsel.”). The analysis is basically one question: whether the defendant has made a showing whereby we can presume prejudice. See Watson, 620 N.W.2d at 238 (stating the “legal principles applicable to conflict-of-interest claims” and recognizing situations where prejudice is presumed, such as “on remand, [when] an actual conflict is found, prejudice is presumed and reversal is mandated”). If so, the defendant’s constitutional rights have been violated and he or she is entitled to a new trial.

Notably, this analysis (whether as a specific claim of ineffective assistance of counsel due to a conflict of interest, or whether as a generic conflict-of-interest claim) is different than the typical two-part analysis for claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The difference can be summarized quite easily: A defendant has less to prove in conflict-of-interest cases. Whereas in a typical claim of ineffective assistance of counsel the defendant must prove prejudice by showing the result of the proceeding would have been different, a conflict of interest claim only requires the defendant to make a showing whereby we can presume prejudice. See, e.g., Mickens, 535 U.S. at 174, 122 S.Ct. at 1245, 152 L.Ed.2d at 306 (noting Strickland requires “in other ineffectiveness-of-counsel cases ... a showing of probable effect upon the outcome of trial,” but that in conflict of interest cases such prejudice is presumed when there’s a showing of defense counsel’s “defective performance”). Thus, in this case we are looking to see whether Smitherman has made a showing whereby we can presume prejudice.

In Watson, we held that under the Sixth Amendment we could presume prejudice when there was an actual conflict the trial court should have known about, and yet failed to inquire into. 620 N.W.2d at 237-39. In so holding, we examined United States Supreme Court precedent, and cases interpreting that precedent, to reject a requirement that the defendant must show his counsel’s performance was adversely affected by the conflict of interest. Id. at 236-38. We said,

Our review of the cases leads us to agree with those courts holding that where the trial court knew or should have known of a particular conflict, reversal is required without a showing that the conflict adversely affected counsel’s performance, even though no objection was made at trial.

Id. at 238. Instead, all that was required was an actual conflict, which we defined as “ ‘a situation conducive to divided loyalties.’ ” Id. at 239 (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991)).

Less than two years later, however, the United States Supreme Court reached a contrary conclusion. In Mickens, the Supreme Court reviewed its precedent and concluded

the [Cuyler v.] Sullivan [44:6 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980),] standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An “actual conflict,” for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.

535 U.S. at 172 n. 5, 122 S.Ct. at 1244 n. 5, 152 L.Ed.2d at 305 n. 5. Thus, when the trial court failed to conduct an inquiry (or even if it did conduct an inquiry), the Supreme Court required the defendant to show his counsel’s performance was adversely affected by the conflict of interest before it would presume prejudice and find a Sixth Amendment violation warranting reversal. Id. at 172-73, 122 S.Ct. at 1244-45,152 L.Ed.2d at 304-05.

We recognize our holding in Watson under the Sixth Amendment is impacted by the Supreme Court’s decision in Mickens. Of course, Watson may still be valid under our state constitution. See State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000) (recognizing we can provide greater protections under our state constitution), disavowed on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001). But we need not decide that question now because a different question is before us: namely, under what circumstances are we to presume prejudice when the trial court has performed an inquiry? We are convinced those circumstances must include the defendant’s ability to show what was required in Mickens — adverse effect upon defense counsel’s performance. While we were willing to presume prejudice without requiring adverse effect in Watson, we believe the facts of Watson are sufficiently distinguishable from this case so the reasons behind our holding in Watson, even if still viable after Mickens under our state constitution, are not applicable here. Under the circumstances in this case, we hold Smitherman must show adverse effect in order to prevail under either the Sixth Amendment or article I, section 10 of the Iowa Constitution.

The differences between this case and Watson are immediately apparent. Most notably, the trial court in this case conducted an inquiry into the conflict in order to protect the defendant’s rights. This inquiry, together with Smitherman’s lack of objection, casts a different light on the need for the automatic reversal rule we recognized in Watson. When conflicted defense counsel represents a defendant during the course of the trial because the court did not conduct an inquiry into the conflict, our confidence in the result of the verdict is undermined. Mickens, 535 U.S. at 168, 122 S.Ct. at 1241-42, 152 L.Ed.2d at 301-02. Joint representation is inherently suspect because it can effectively seal the lips of the attorney on critical matters and tend to prevent the attorney, often in very subtle ways, from providing effective representation. Id. (citing Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426, 438 (1978)). The nature of the conflict makes it difficult to effectively measure the harm visited on the trial by conflicted counsel. Id. On the other hand, when the court makes an inquiry in some form into the conflict, the attorney is no longer quietly inflicting the inherent harm into the trial that supports the automatic reversal rule. Instead, a prophylactic inquiry by the court ameliorates the suspicion of harm and lessens the need for a rigid rule of automatic reversal. See Holloway, 435 U.S. at 489, 98 S.Ct. at 1181, 55 L.Ed.2d at 437 (noting the rigidity of such a rule because a conviction could be reversed even if no actual prejudice is shown and the defendant is clearly guilty). Additionally, the lack of objection by the defendant, or explicit acquiescence in his representation, makes it more palatable to impose an obligation to show an adverse effect on defense counsel’s performance.

In this case, all parties and the court were manifestly aware of the conflict, and took several precautions to assure the defendant’s rights were not violated. These precautions included setting up a “Chinese wall” between Reel and the rest of the MPDO, and ending the MPDO’s representation of Williamson and Reel’s representation of Smitherman. In addition, all parties, including the defendant himself, believed the situation did not present an impermissible conflict of interest. Finally, while Reel and the MPDO represented both Smitherman and Williamson at the same time, such simultaneous representation was very brief.

Moreover, even if Reel was required to withdraw and such withdrawal was imputed to the MPDO, the imputed disqualification rule Smitherman cites does not itself establish a constitutional violation. See Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 993, 89 L.Ed.2d 123, 134 (1986) (“[B]reaeh of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.”); Iowa Code of Profl Responsibility, DR 5-105(E) (imputing the disqualification of one lawyer to the lawyer’s firm); see also Lambert v. Blodgett, 393 F.3d 943, 986 (9th Cir.2004) (“[T]he Supreme Court has never applied the ethical imputed disqualification rule in Sixth Amendment analysis.”). In addition, we are not persuaded by Smitherman’s argument that the MPDO’s investigator labored under an impermissible conflict of interest. The Sixth Amendment guarantees the right to conflict-free counsel, and Smitherman has not shown how the MPDO investigator was involved in Williamson’s and Smitherman’s cases, or how such involvement would establish a violation of the constitutional right to conflict-free counsel.

Of course, the most important point is that Smitherman has not shown his counsel was adversely affected by the conflict of interest. There is nothing in the record to suggest defense counsel’s performance was affected by a conflict of interest. Smitherman argues otherwise, and says he would have accepted a plea agreement to a lesser charge had his counsel acted differently. He also argues a more zealous defense would have found additional exculpatory evidence and exploited the weaknesses in the State’s case. This, however, is not a showing that his counsel was adversely affected by a conflict of interest. There is simply no connection between the alleged conflict and the alleged deficiencies in Smitherman’s defense. See, e.g., United States v. Stitt, 441 F.3d 297, 303 (4th Cir. 2006) (recognizing a three-part test to determine whether adverse effect has been shown, which includes a determination that the alleged deficiency is causally connected to the conflict).

Smitherman’s basic argument is that there was a conflict under Watson that requires us to reverse his conviction. As we have already stated, we are not willing to follow Watson in these circumstances, even under article I, section 10 of the Iowa Constitution. Because we require adverse effect to be shown under these circumstances, it would not matter if we found Smitherman’s counsel labored under an “actual conflict” as we defined that term in Watson (a situation conducive to divided loyalties), because his defense counsel did not labor under an “actual conflict” as the United States Supreme Court has defined the term (one requiring adverse effect). As a result, Smitherman’s constitutional rights to conflict-free counsel were not violated.

IV. Sufficiency of the Evidence.

Smitherman claims there is insufficient evidence to support the verdict. See State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984) (recognizing substantial evidence must exist to uphold the verdict). The State initially argues Smitherman cannot raise this argument because he failed to preserve error. We will assume Smith-erman preserved error to reach the merits of his argument.

In this case, Smitherman primarily attacks the State’s theory of the case. The State theorized that Smitherman was paid to shoot Tasler in 1986 because Tasler had become a liability to an individual named Tim Houser, who was Tasler’s partner in a cocaine dealing business. There was evidence to suggest Smitherman lured Tasler to go with him on a trip, that he shot Tasler five times in the back of the head, and that he then buried Tasler’s body on his property near Union, Iowa. Furthermore, evidence revealed Smitherman lied about Tasler’s whereabouts following the murder, and told others he had shot “someone.” Smitherman also attempted to bribe a cell mate to lie for him about the matter.

Smitherman largely points to evidence at trial that Houser, not Smitherman, had the motive to kill Tasler. Furthermore, Smitherman points to evidence that suggested Tasler planned his own disappearance, and had plans to disguise his physical appearance through plastic surgery. Moreover, some witnesses testified Tasler was seen after the date the State claimed he was killed by Smitherman.

The jury had two distinct theories presented at trial. They were required to sift through the conflicting evidence and assess the credibility of the witnesses. In the end, it is clear the verdict revealed the jury rejected Smitherman’s theory and evidence, and found the State’s evidence to be more compelling. Upon our review of all the evidence, we conclude substantial evidence supports the verdict.

V. Conclusion.

We need not determine the validity of the defendant’s alleged waiver because we find the defendant has failed to show his counsel’s performance was adversely affected by the alleged conflict of interest in this case. As a result, he has not established a violation under the Sixth Amendment or the Iowa Constitution and is not entitled to a new trial. Finally, there was sufficient evidence to convict him of first-degree murder.

AFFIRMED.

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

      . The record does not exactly disclose when Reel withdrew from representing Williamson, although a search performed on Iowa Courts Online indicates the court relieved the MPDO of further responsibility in Williamson’s case on May 25. Anderson testified that "[u]pon hearing that [Williamson would be a potential witness], I informed Ray [Reel] that he needed to withdraw immediately from that case. I don't know for certainty if that was filed on the 21st of May or if it was the early part of the following week.” Anderson also testified that "[Reel] withdrew from Williamson within 24 hours [of hearing that Williamson might be a potential witness].” Thus, it appears from these statements that Reel made the decision to withdraw on May 21, but did not file his withdrawal or receive permission to withdraw until May 25.

      . The “Amended and Substituted Appearance” was mailed on May 25, 2004, but was not filed with the Hardin County district court clerk until May 27, 2004.

      . Leighty was eventually replaced by Rebecca Hanson, also an attorney for the MPDO. This replacement took place on February 11, 2005, and was the result of Leighty transferring offices.

      . These constitutional provisions safeguard the defendant's right to a fair trial, which expressly includes the guarantee to “assistance of counsel.” Iowa Const, art. I, § 10; see U.S. Const, amend. VI (using the identical words "Assistance of Counsel”). The assistance of counsel, of course, implies the effective assistance of counsel. See Mickens, 535 U.S. at 166, 122 S.Ct. at 1240, 152 L.Ed.2d at 300 ("[A]ssistance which is ineffective in preserving fairness does not meet the constitutional mandate ....”).

      . The typical two-part test under Strickland asks (1) whether counsel performed an essential duty, and if not, (2) whether prejudice resulted. See State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007).

      . Perhaps this was best explained in the following:
      [I]t also follows that defects in assistance that have no probable effect upon the trial's outcome do not establish a constitutional violation. As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
      There is an exception to the general rule. We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceedings. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. But only in “circumstances of that magnitude” do we forgo individual inquiry into whether counsel’s inadequate performance undermined the reliability of the verdict.
      We have held in several cases that “circumstances of that magnitude” may also arise when the defendant's attorney actively represented conflicting interests.

        Mickens, 535 U.S. at 166, 122 S.Ct. at 1240-41, 152 L.Ed.2d at 300-01 (internal citations omitted).

      . The State additionally argued Smitherman waived his right to conflict-free counsel. See Holloway, 435 U.S. at 483 n. 5, 98 S.Ct. at 1178 n. 5, 55 L.Ed.2d at 433 n. 5 ("A defendant may waive his right to the assistance of an attorney unhindered by a conflict of interest.”). This issue is moot in light of our holding. Therefore, we express no opinion as to whether Smitherman's acquiescence in his representation amounted to a valid waiver of his right to conflict-free counsel, see United States v. Brekke, 152 F.3d 1042, 1045 (8th Cir.1998) (noting such a waiver "must be knowing, voluntary, and intelligent”), or whether such a waiver is adjudged by the same exacting standards we have required in order to waive the right to counsel, see Hannan v. State, 732 N.W.2d 45, 53 (Iowa 2007).

      . We express no opinion as to whether the MPDO was required to withdraw under our old or new ethical rules, although we note several authorities recognize that different rules should govern the imputation of conflicts among government lawyers. See United States v. Reynoso, 6 F.Supp.2d 269, 272 (N.Y.S.D.1998) (discussing these authorities, and noting "The American Law Institute has also recognized that imputed disqualification under DR 5-105(D) [(it later became DR 5-105(E))] should not automatically apply to public defender offices”); Model Rules of Prof'l Conduct r. 1.11 cmt. 2 (2003) ("Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it would be prudent to screen such lawyers.”); Iowa R. of Prof'l Conduct 32:1.11 cmt. 2 (same).


source: Caselaw Access Project

author:
MEYER, Justice.
      ANDERSON, Paul H., Justice

license: Public Domain

text:
    Ted HARRISON, Jr., a minor, by Audrey HARRISON his guardian ad litem, Respondent, v. Amy HARRISON, et al., Appellants.
    No. A05-1038.
    Supreme Court of Minnesota.
    June 21, 2007.

      Kay Nord Hunt, Robert J. King, Lorn-men, Abdo, Cole, King & Stageberg, PA, Minneapolis, MN, for Respondent.
    William Lawrence Davidson, Brian A. Wood, Sara J. Lathrop, Lind, Jensen, Sullivan & Peterson, PA, Minneapolis, MN, for Appellants.
    Cameron M. Parkhurt, Minneapolis, MN, for amicus The Minnesota Trial Lawyers Association.
    Diane B. Bratvold, Steven P. Agger-gaard, Rider, Bennett, LLP, Minneapolis, MN, for amicus Minnesota Defense Lawyers Association.
   OPINION

MEYER, Justice.

This case presents the question of whether Minnesota’s “seat belt gag rule,” Minn.Stat. § 169.685, subd. 4(a) (2006), permits an action to be brought against a child’s parents for negligent installation and maintenance of a child passenger restraint system. The district court allowed the child’s action to proceed, concluding that the child’s action fell within an exception to the seat belt gag rule that permits evidence of seat belt or car seat use in “an action for damages arising out of an incident that involves a defectively designed, manufactured, installed, or operating seat belt or child passenger restraint system.” Minn.Stat. § 169.685, subd. 4(b) (2006). The court of appeals affirmed. Harrison ex rel. Harrison v. Harrison, 713 N.W.2d 74, 75 (Minn.App.2006). We conclude that the child’s action fell within the plain language of the exception to the seat belt gag rule and affirm the court of appeals.

Ted Harrison, Jr. (Ted), respondent, was three years old, and a passenger in a motor vehicle driven by his mother that was struck by another vehicle. As a result of the collision, Ted was thrown from his child passenger restraint system and injured. A products liability action, alleging defective design, was brought on Ted’s behalf against the manufacturer of the restraint system. Ted settled with the manufacturer at the start of trial.

In a separate negligence action, Ted, by his guardian ad litem, sought recovery from his parents, Amy and Ted Harrison (the Harrisons), alleging negligent installation and maintenance of his child passenger restraint system. The parties brought cross-motions for summary judgment and stipulated, for purposes of the motions, that the Harrisons were negligent in the maintenance of Ted’s car seat for failing to discover and remove a coin from the car seat’s buckle mechanism. The parties also stipulated that the Harrisons were negligent in failing both to convert the vehicle’s seat belt restraint harness to the automatic locking mode and to check that the car seat’s buckle was securely latched into the buckle mechanism. The district court granted summary judgment to Ted and denied summary judgment to the Harri-sons, concluding that the exception to the gag rule for “defective installation” is not limited to products liability claims against designers, manufacturers, distributors, and retailers of child passenger restraint systems.

The court of appeals affirmed. Harrison, 713 N.W.2d at 75. The court rejected the Harrisons’ argument that the exception to the seat belt gag rule was limited to products liability cases. Id. at 78. Instead, the court of appeals concluded that under the plain meaning of the statute, the exception applies to Ted’s action:

The phrase, “an action for damages arising out of an incident that involves a defectively installed child passenger restraint system” does not describe only a product-liability action. It describes an action brought under any theory of liability that seeks recovery of damages that arose out of a certain type of incident. Whether the exception applies to a particular action depends on the nature of the incident from which damages arose, rather than on the theory of liability. If the incident involves a defectively installed child passenger restraint system, the exception applies.

Id. Because the court of appeals held that the language of the statute was unambiguous, it declined to consider the statute’s legislative history. Id. at 79.

The Harrisons make two arguments in this appeal. First, the exception the legislature crafted in section 169.685, subd. 4(b), allows evidence of use or installation of a car seat only in products liability cases. Second, the exception requires that all claims of defective child passenger restraint systems be brought in one action, and because Ted did not bring a single action for damages, his separate negligence action against the Harrisons falls outside the statutory exception. We address these arguments in turn.

Statutory interpretation begins with an inquiry into whether the law is ambiguous; that is, whether it is subject to more than one plausible interpretation. See Janssen v. Best Flanagan, 662 N.W.2d 876, 884 (Minn.2003). When the language of a statute is unambiguous, our role is to give effect to the legislature’s will as expressed in that language. See id. Only if we determine that the plain meaning of a statute is ambiguous will we consider the circumstances under which the law was enacted, the consequences of a particular interpretation, and the law’s legislative history. Minn.Stat. 645.16 (2006). In addition, “[e]very law shall be construed, if possible, to give effect to all its provisions.” Id. Application of a statute to undisputed facts is a legal conclusion that we review under a de novo standard. Lefio v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

Minnesota Statutes § 169.685, subd. 4, reads in relevant part:

(a) Except as provided in paragraph (b), proof of the use or failure to use seat belts or a child passenger restraint system as described in subdivision 5, or proof of the installation or failure of installation of seat belts or a child passenger restraint system as described in subdivision 5 shall not be admissible in evidence in any litigation involving personal injuries or property damage resulting from the use or operation of any motor vehicle.
(b) Paragraph (a) does not affect the right of a person to bring an action for damages arising out of an incident that involves a defectively designed, manufactured, installed, or operating seat belt or child passenger restraint system. Paragraph (a) does not prohibit the introduction of evidence pertaining to the use of a seat belt or child passenger restraint system in an action described in this paragraph.

In this personal injury action, Ted seeks damages that resulted from the operation of a motor vehicle and the use or installation of a child passenger restraint system. The evidence Ted seeks to admit — negligent use or installation of a car seat — falls squarely -within the plain meaning of subdivision 4(a). Thus, unless the exception described in subdivision 4(b) applies, the evidence is not admissible and the action may not be brought.

I.

We turn first to the Harrisons’ argument that subdivision 4(b) applies only to products liability actions. The Harrisons argue that use of the word “defectively” in subdivision 4(b) should be understood to have a technical, rather than common, meaning because the term “defective” is closely connected to products liability actions. See Bilotta v. Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn.1984) (requiring proof of a product’s defective condition in a products liability case utilizing the theory of strict liability). The Harrisons assert that, as a result, use of the word “defectively” indicates that the legislature intended Minn.Stat. § 169.685, subd. 4(b), to apply only to products liability cases and not to cases that are based in negligence and brought against noncommercial defendants.

In ascertaining the meaning of a statute, words and phrases should be construed according to the rules of grammar and according to their common meanings, but technical words and phrases should be construed according to their special meanings or definitions. Minn.Stat. 645.08(1) (2006). The word “defective” is closely connected to products liability actions; as such, a products liability action requires a plaintiff to prove the defendant’s product was in a defective condition. Restatement (Third) of Torts: Products Liability § 1 (1998); cf. Bilotta, 346 N.W.2d at 623 n. 3. Therefore, the word “defectively” in Minn.Stat. § 169.685, subd. 4(b), may indicate that the exception only applies to products liability claims. That the exception specifically applies to two products— seat belts and child passenger restraint systems — supports this interpretation.

However, subdivision 4(b) does not explicitly limit its application to products liability actions. Subdivision 4(b) simply says “an action.” An “action” means “any proceeding in any court of this state.” Minn.Stat. § 645.45(2) (2006) (emphasis added). In addition, the word “defective” has meanings outside of the products liability context. For example, “defect” connotes different things in the context of a nonconforming tender of performance under a contract, see Johannsen v. Minn. Valley Ford Tractor Co., 304 N.W.2d 654, 657 (Minn.1981) (discussing opportunity to cure the “defect”), and in the context of criminal liability of the mentally ill, see Minn.Stat. § 611.026 (2006) (discussing “defect of reason”). Moreover, in general usage, “defective” simply means “faulty.” The American Heritage Dictionary of the English Language 475 (4th ed.2000). We reject the Harrisons’ limited, technical interpretation and conclude that the common, ordinary meaning of the term “defective installation” contemplates any action arising out of the negligent installation of a child passenger restraint system.

In addition, the word “install” is used in subdivision 5, which provides, with certain exceptions, that “[ejvery motor vehicle operator, when transporting a child under the age of four * * * shall equip and install for use in the motor vehicle * * * a child passenger restraint system.” Minn.Stat. § 169.685, subd. 5(a) (2006). Accordingly, the legislature recognized that an ordinary consumer — not just a manufacturer — may “install” a child car seat. Also, Minn.Stat. § 169.685, subds. 5(a) and 5(b), both employ the term “factory-installed," indicating that, when the legislature intended to reference a seat belt installation performed at the factory, it did so explicitly. (Emphasis added.) For all of these reasons, we conclude that Minn. Stat. § 169.685, subd. 4(b), is clear and unambiguous and by its plain language permits a child to bring an action against his parents for negligent installation of a child passenger restraint system.

II.

We turn next to the Harrisons’ claim that the subdivision 4(b) exception requires that all claims of defective child passenger restrain systems be brought in one action, and because Ted did not bring all of his claims in a single action, his separate negligence action is precluded. The exception states that the gag rule does not affect a claimant’s right “to bring an action for damages,” and that evidence pertaining to the use of a child passenger restraint system in that action may be introduced. Minn.Stat. § 169.685, subd. 4(b). The Harrisons assert that the words “an action” connote one action, thereby limiting the exception to any one action brought by Ted. They argue, in effect, that “joinder” of all possible claims is required before a claimant can invoke the exception. In particular, the Harrisons argue that if subdivision 4(b) is applicable to Ted’s action against them, it applied only in the first action against the manufacturer of the car seat and, because Ted’s action against the Harrisons was not brought with that earlier lawsuit, Ted’s current lawsuit is improper.

It is true that the legislature, in other contexts, has mandated that all claims or parties are to be joined in one action. For example, Minn.Stat. § 555.11 (2006), dealing with declaratory judgments, specifically states that “all persons shall be made parties who have or claim any interest which would be affected by the declaration.” Similarly, in actions for determination of a child’s parentage, Minn.Stat. § 257.60 (2006) specifically lists circumstances under which the child must be made a party to the action.

However, joinder is not required under the common law and a plaintiff “may proceed in one action or in separate actions.” Kisch v. Show, 305 Minn. 328, 331, 233 N.W.2d 732, 734 (1975). If the legislature intended to modify the common law rule on joinder, it would have used language that clearly expressed its intent to do so. See Schermer v. State Farm Fire & Cas. Co., 721 N.W.2d 307, 324 (Minn.2006) (stating that the court presumes that statutes do not alter the common law unless they expressly so provide). We do not believe the legislature intended to modify such a well-recognized common law rule in such an offhand manner. See Gonzales v. Oregon, 546 U.S. 243, 267, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (noting that it should not be assumed that the legislature intends to “ ‘hide elephants in mouse-holes’ ”) (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)). We conclude that by its plain language, Minn.Stat. § 169.685, subd. 4(b), does not create a joinder requirement and its application is not limited to only one action. Rather, the statute may be applied to any action.

The Harrisons express the concern that the result we reach in this case will allow the exception to swallow the rule. We agree with the court of appeals that “not all litigation that involves the use of a child passenger restraint system also involves a claim that the child passenger restraint system was defectively designed, manufactured, installed, or operated.” Harrison, 713 N.W.2d at 79. Moreover, the gag rule would still prohibit the defensive introduction of such evidence by defendant drivers seeking to establish comparative negligence.

We hold that the plain language of Minn.Stat. § 169.685, subd. 4(b), permits an action to be made against a child’s parents for negligent installation and maintenance of a child passenger restraint system and evidence pertaining to the use of the child passenger restraint system in such an action is not prohibited.

Affirmed.

ANDERSON, Paul H., Justice

(dissenting).

I respectfully dissent.

The task of interpreting legislative enactments is one of the most common, yet most difficult, tasks performed by our court. To aid us in this task, we have, from the time Minnesota became a state, been developing and applying principles and rules of statutory interpretation. These principles and rules are now well established. When I apply them to the statute respondent Ted Harrison, Jr. seeks to use as the basis for his cause of action against his parents, I conclude that the district court erred when it did not grant summary judgment in favor of the parents.

As a court, our primary goal in interpreting a statute is to give effect to the intent of the legislature. Minn.Stat. § 645.16 (2006). While we generally assume that words should be given their common meaning, technical words and phrases must be construed in accordance with their special meanings or definitions. Minn.Stat. § 645.08(1) (2006). In addition, a word’s meaning depends on how it is used, so we examine the words of a statute in context rather than isolated from their setting. Bd. of Regents of Univ. of Minn, v. Royal Ins. Co., 517 N.W.2d 888, 892 (Minn.1994); Chiodo v. Bd. of Educ. of Special Sch. Dist. No. 1, 298 Minn. 380, 382, 215 N.W.2d 806, 808 (1974).

Minnesota Statutes § 169.685, subd. 4 (2006) — the statute we must interpret in the case before us today — reads in relevant part:

(a) Except as provided in paragraph (b), proof of the use or failure to use seat belts or a child passenger restraint system as described in subdivision 5, or proof of the installation or failure of installation of seat belts or a child passenger restraint system as described in subdivision 5 shall not be admissible in evidence in any litigation involving personal injuries or property damage resulting from the use or operation of any motor vehicle.
(b) Paragraph (a) does not affect the right of a person to bring an action for damages arising out of an incident that involves a defectively designed, manufactured, installed, or operating seat belt or child passenger restraint system. Paragraph (a) does not prohibit the introduction of evidence pertaining to the use of a seat belt or child passenger restraint system in an action described in this paragraph.

(Emphasis added.) Applying our rules of statutory interpretation, I construe the key word in subdivision 4(b) — the word installed — to apply much more narrowly than does the majority.

Products-liability actions require proof of a product’s defective condition; thus, the basis for a products-liability action brought under section 169.685 is inseparable from the term “defectively,” as that term is used in subdivision 4(b). Restatement (Third) of Torts: Products Liability § 1 (1998) (“One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to person or property caused by the defect.” (Emphasis added.)); cf. Bilotta v. Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn.1984). Subdivision 4(b) specifically applies to two products — seat belts and child passenger restraint systems — further linking that subdivision to products-liability actions. Moreover, defective design and defective manufacture are two specific varieties of products-liability claims. See Restatement (Third) of Torts: Products Liability § 2 (1998).

I conclude that by placing the phrase “defectively installed” together with the more specific phrases “defectively designed” and “defectively manufactured,” the legislature directs us to invoke ejus-dem generis, a canon of statutory interpretation that holds that the meaning of general words may be restricted by association with more particular words. See State v. Moore, 699 N.W.2d 733, 738 (Minn.2005). Accordingly, I conclude that when read in context, the word “installed” in Minn.Stat. § 169.685, subd. 4(b), should not be read to include the installation of a car seat or a seat belt into a car by an end-use consumer — in this case Ted Harrison, Jr.’s parents. Instead, I conclude that subdivision 4(b) applies only to products-liability actions and covers only a more limited class of potential commercial defendants. Therefore, because Ted Harrison, Jr.’s car seat was installed by his parents and not a commercial manufacturer or distributor, I conclude that subdivision 4(b) does not apply to this action against his parents. Accordingly, I would hold that Ted Harrison, Jr.’s action against his parents, Amy and Ted Harrison, Sr., is barred by subdivision 4(a), and the district court erred when it did not grant summary judgment in favor of the parents.

      . "[A] commercial seller who sells a product in a defective condition unreasonably dangerous to the user is liable for physical harm to the user caused by the defective condition, even though the seller was not negligent and even though he was not in privity with the user.” Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 156 (Minn.1982); see also Restatement (Third) of Torts: Products Liability § 1 cmt. c (1998) (stating that products liability actions may only be brought against "manufacturers and other commercial sellers and distributors who are engaged in the business of selling or otherwise distributing the type of product that harmed the plaintiff”).

      . The Harrisons appear to rely on the association of the term "defectively” with products liability actions rather than the word’s meaning in the products liability context. A manufacturing defect in the products liability context means "the product departs from its intended design.” Restatement (Third) of Torts: Products Liability § 2(a) (1998). This is a meaning substantially similar to the common meaning of "defect.” See Harrison, 713 N.W.2d at 78 (quoting The American Heritage Dictionary of the English Language 475 (4th ed.2000)) (indicating "defective” means "faulty”). Moreover, the negligent installation of the car seat by the Harrisons arguably meets the products liability definition (provided the definition is modified to apply to defective installation).

      . In its entirety, Minn.Stat. § 169.685, subd. 5, reads:
      (a)Every motor vehicle operator, when transporting a child under the age of four on the streets and highways of this state in a motor vehicle equipped with factory-installed seat belts, shall equip and install for use in the motor vehicle, according to the manufacturer’s instructions, a child passenger restraint system meeting federal motor vehicle safety standards.
      (b)No motor vehicle operator who is operating a motor vehicle on the streets and highways of this state may transport a child under the age of four in a seat of a motor vehicle equipped with a factory-installed seat belt, unless the child is properly fastened in the child passenger restraint system. Any motor vehicle operator who violates this subdivision is guilty of a petty misdemeanor and may be sentenced to pay a fine of not more than $50. The fine may be waived or the amount reduced if the motor vehicle operator produces evidence that within 14 days after the date of the violation a child passenger restraint system meeting federal motor vehicle safety standards was purchased or obtained for the exclusive use of the operator.
      (c)The fines collected for violations of this subdivision must be deposited in the state treasury and credited to a special account to be known as the Minnesota child passenger restraint and education account.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Dewey M. NELSON, a Minnesota Attorney, Registration No. 77677.
    No. A06-1370.
    Supreme Court of Minnesota.
    June 21, 2007.

      Dewey M. Nelson, Eden Prairie, MN, Attorney Pro Se.
    Martin A. Cole, Director, Timothy M. Burke, Senior Assistant Director, Office of
    Lawyers Professional Responsibility, Saint Paul, MN, for Petitioner.
   OPINION

PER CURIAM.

This attorney disciplinary action arose out of a petition filed by the Director of the Office of Lawyers Professional Responsibility alleging that attorney Dewey M. Nelson committed misconduct that violated Minnesota Rules of Professional Conduct for: failing to act diligently (Rule 1.3); failing to place client funds in a trust account (Rule 1.15(a) as interpreted by Board Opinion 15 ); failing to refund to the client the unearned portion of client funds (Rule 1.15(c)(4)); failing to protect the client’s interest at the termination of representation (Rule 1.16(d)); failing to expedite litigation (Rule 3.2); knowingly making false statements to the client (Rule 4.1); failing to respond to the disciplinary authority (Rule 8.1(b)); engaging in dishonest conduct (Rule 8.4(c)); and engaging in conduct that is prejudicial to the administration of justice (Rule 8.4(d)). In addition, the director claimed that Nelson violated the Minnesota Rules on Lawyers Professional Responsibility (RLPR) for failing to comply with the director’s investigation (Rule 25). The referee recommended that Nelson be suspended from the practice of law and be ineligible to apply for reinstatement for a minimum of six months. We adopt the referee’s recommendation in full.

Nelson was admitted to the practice of law in Minnesota in June 1966. He currently practices in Eden Prairie, Minnesota, as a solo practitioner, primarily in the areas of personal injury, criminal defense, immigration, estate planning, and family law.

Before this disciplinary action, Nelson had an extensive disciplinary history. He was: (1) admonished because he made threats of criminal prosecution to coerce payment in a civil matter (1984); (2) admonished because he failed to adequately communicate with a client (1988); (3) admonished because he failed to timely refund the unearned portion of a client’s retainer (1988); (4) admonished because he charged interest on client monies without prior written agreement (1989); (5) placed on private probation for failure to diligently pursue the completion of an estate matter and failure to adequately communicate with his client (1990); (6) admonished because he failed to adequately communicate with a client and terminated his representation of a client without sufficient notice (1993); (7) admonished because he failed to diligently pursue a client matter, allowing the statute of limitations to expire (1996); (8) placed on private probation for failure to place client fees in a trust account without a retainer agreement, and for failing to act diligently (1999); (9) placed on extended private probation from 1999 because he neglected client matters, failed to communicate with a client, and failed to return a client’s file (2000).

The director’s current allegations against Nelson stem from Nelson’s representation of two clients.

In May 2005, M.E. hired Nelson to file a motion to vacate a default judgment. Nelson and M.E. agreed on a payment of $400 for all legal work. Nelson did not file the motion to vacate the default judgment until January 2006, after Nelson had received notice from the director that a complaint had been filed against him. Nelson does not dispute that months before he actually filed the motion papers, he told M.E. that he had already filed the papers. To this Nelson said: “I guess the main purpose was for me to buy some time in order to get the paper work done and filed.”

In March 2003, M.L. hired Nelson to handle an appeal of a summary judgment that had been entered against M.L. M.L. advanced Nelson a total of $4,750 to be applied toward attorney fees and filing fees. Before the notice of appeal was filed, Nelson informed M.L. that the appeal was not meritorious. Nelson and M.L. agreed that Nelson would refund M.L. $2,500 by June 15, 2005. Nelson did not refund M.L. until May 2006, “because there was not sufficient monies coming in to his law business that would allow him to make the refund and still continue to support his family.” Nelson admits that payment to M.L. was not timely.

I.

Nelson ordered a transcript of the referee’s hearing, thereby preserving his right to challenge the referee’s factual findings. Rule 14(e), RLPR. Nevertheless, we will give great deference to a referee’s findings and will not reverse those findings “unless they are clearly erroneous.” In re Wentzell, 656 N.W.2d 402, 405 (Minn.2003). The standard of proof in an attorney discipline proceeding is full, clear, and convincing evidence. In re Getty, 452 N.W.2d 694, 696 (Minn.1990) citing In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989).

M.E. Matter

The referee found that Nelson falsely stated to M.E. that Nelson had filed the motion to vacate the default judgment when in fact he had not, and that certain hearing dates had been scheduled or can-celled when in fact no hearing date had been scheduled because the motion had not been filed. The referee concluded that Nelson’s conduct in the M.E. matter violated Rules 1.3, 3.2, 4.1, and 8.4(c) and (d).

Nelson “acknowledges that the misrepresentations and the failure to timely complete the motion to vacate the judgment was in violation of the Minnesota Rules of Professional Conduct.” Nelson essentially argues in mitigation that he attempted to correct his conduct when he apologized to M.E., offered to file the motion, received M.E.’s approval to file the motion, and obtained a satisfactory outcome. Nelson states that he understood M.E. to be satisfied with the resolution of the matter. But we note that M.E. was not completely satisfied with the outcome because, although Nelson was able to get a $1,000 discount from the judgment against him, M.E. testified that he did not have any other choice due to the delay in filing the motion to vacate the judgment.

We conclude that the referee’s findings that Nelson made false statements to M.E. were not clearly erroneous.

M.L. Matter

The referee found that Nelson did not have a written retainer agreement with M.L. and failed to deposit M.L.’s funds in a client trust account. Instead, Nelson placed the funds into a personal account and spent the monies for his own benefit. The referee also found that Nelson failed to refund the unearned portion of the client’s funds when requested. The referee concluded that Nelson violated Rule 1.15(a), as interpreted in Opinion No. 15, and Rules 1.15(c)(4) and 1.16(d).

Nelson argues that he had an oral retainer agreement with M.L. to provide services on a “project fee basis,” which was then permitted by Opinion No. 15, and implies that the funds paid as a project fee become the funds of the attorney and need not be deposited in a trust account. He argues that even if he and M.L. had made a written retainer agreement, it would not have changed his conduct. Rather, he states:

The thing that was wrong was that [he] did not have sufficient cash flow to make the refund at the time that he had agreed to make it * * *. The fact that [he] did not have sufficient income to comply with the terms of the agreement * * * should not be a basis for discipline.

In mitigation, Nelson argues that he refunded the unearned portion of the funds to M.L. in full, with interest.

The problem with Nelson’s argument is that Opinion 15 only recognized a project fee, which the opinion referred to as a “non-refundable retainer agreement,” where it was clearly set forth in a written retainer agreement that notified the client that the funds will not be refunded, and will not be placed in a trust account. Nelson had no such written agreement with M.L., and therefore Nelson was required to place the $4,750 payment in a trust account until earned. Nelson did not earn the entire $4,750 because he did not complete the project, but withdrew from representation. Later, Nelson agreed with M.L. that $2,500 of the payment was not earned and would be refunded.

We conclude that the referee’s findings that Nelson failed to deposit M.L.’s funds in a trust account and failed to refund the unearned portion of the client’s funds when requested were not clearly erroneous.

Failure to Cooperate with Director

The referee found that Nelson continually failed to timely respond to the director’s requests for information. Also, the referee found that Nelson misled the director. For example, the referee found that, in a letter to the director dated March 21, 2006, Nelson said “Regarding [M.L.’s] claim, I have enclosed a copy of a money order for $500 as payment on account,” but Nelson did not send the money order to M.L. until months later. The referee found that Nelson’s statements were “misleading and exhibited] a lack of candor.” The referee concluded that Nelson’s conduct violated Rules 8.1(a)(3) and 8.1(b) and Rule 25, RLPR.

Nelson argues that he was cooperative with the director’s investigation, and simply “requested extensions when he needed them [and those] extensions were granted.” He argues that requests for extensions should not be a basis for an allegation of the failure to cooperate with the director’s investigation. The record does not support this argument. The director requested considerable information and documentation that Nelson failed to timely provide. And the director specifically informed Nelson that his failure to cooperate with the director could provide a separate basis for discipline.

We conclude that the referee’s findings that Nelson failed to cooperate with the director’s investigation were not clearly erroneous.

II.

Although we place great weight on the recommendation of the referee, we retain the final responsibility for determining the appropriate sanction. In re Wood, 716 N.W.2d 341, 347 (Minn.2006). In making this determination, we consider four factors: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession. In re Jagiela, 517 N.W.2d 333, 335 (Minn.1994). “While this court looks to similar cases for guidance, sanctions are determined on a case-by-case basis after examining the acts of misconduct and considering both aggravating and mitigating circumstances.” In re Mayrand, 723 N.W.2d 261, 268 (Minn.2006). A lawyer’s prior disciplinary history is relevant to determine an appropriate sanction. In re Gherity, 673 N.W.2d 474, 480 (Minn.2004).

Nature of Misconduct

The director cites three cases, among others, that demonstrate similar sanctions for similar misconduct: Wood, In re Selmer, 568 N.W.2d 702 (Minn.1997), and In re Jensen, 542 N.W.2d 627 (Minn.1996). We agree that these cases support an indefinite suspension for a minimum of six months for Nelson’s misconduct.

We have said that a continuous pattern of neglect warrants indefinite suspension. See In re Brooks, 696 N.W.2d 84, 88 (Minn.2005). Further, we have said that trust account violations “almost invariably result in lengthy suspension at the very least.” In re Lochow, 469 N.W.2d 91, 98 (Minn.1991). Also, noncooperation with the disciplinary process, by itself, may warrant indefinite suspension and, when it exists in connection with other misconduct, noncooperation increases the severity of the disciplinary sanction. In re Samborski, 644 N.W.2d 402, 407 (Minn.2002).

Nelson argues that an admonition would be the appropriate discipline. He argues that suspension of his license would essentially result in his removal from the practice of law. But Nelson does not cite any cases where an admonition was viewed as the appropriate discipline for similar misconduct.

In mitigation Nelson argues that he has repaid, with interest, the remaining advance fee owed to M.L., and he has resolved M.E.’s legal matter to M.E.’s satisfaction. “An attorney’s discipline may be mitigated by evidence that he cooperated with the investigation, did not attempt to conceal the misconduct, has taken actions to ameliorate the problems, and shows that he appreciates the harm his actions caused.” Wentzell, 656 N.W.2d at 409. But the referee rejected Nelson’s claims of mitigation and found that Nelson was only remorseful after he was confronted with irrefutable evidence of his misconduct and that during the hearing Nelson did not offer any other claim or evidence of mitigation.

Cumulative Weight

“[T]he cumulative weight and severity of multiple disciplinary rule violations may compel severe discipline even when a single act standing alone would not have warranted such discipline.” In re Oberhauser, 679 N.W.2d 153, 160 (Minn.2004).

In this context, Nelson argues that it is a violation of his due process rights to consider his discipline history as an aggravating factor without prior notice. But the director made clear, in Nelson’s prior disciplinary matters, that Nelson’s disciplinary history was a factor to consider. Further, we have said that attorney disciplinary history is a serious aggravating factor. See Mayrand, 723 N.W.2d at 269.

We “expect[ ] a renewed commitment to comprehensive ethical and professional behavior after a disciplinary proceeding, and [w]here leniency has been shown once, we are reluctant to do so again.” In re Haugen, 543 N.W.2d 372, 375 (Minn.1996) (internal quotations omitted). Although Nelson has not been before this court on a disciplinary matter, his conduct after numerous disciplines imposed by the director has fallen short of renewing his commitment to the ethical practice of law. See id. at 374 (using attorney’s disciplinary history as an aggravating factor where the attorney had been publicly reprimanded, admonished twice, placed twice on private probation, and had his license suspended). Nelson has been admonished six times, and placed on private probation three times, in part, for neglect of client matters and trust account violations. We have said that similarity of misconduct is evidence of a lack of renewed commitment. Id. at 375.

Harm, to Public and Profession

Finally, we must consider the harm to the public and legal profession. The purpose of attorney discipline is not to punish the attorney but rather to protect the courts, the public, and the legal profession. In re Stanbury, 614 N.W.2d 209, 213 (Minn.2000). The referee found that Nelson’s misconduct caused a bank to attach funds in M.E.’s bank account, caused M.E. to pay higher interests rates when he purchased a home, and prevented M.L. from using the money Nelson owed M.L. at a time when his family home had just burned down. The referee also found that Nelson made false statements to both clients. We have said that “[h]onesty and integrity are chief among the virtues the public has a right to expect of lawyers. Any breach of trust is misconduct of the highest order and warrants severe discipline.” In re Ruffenach, 486 N.W.2d 387, 391 (Minn.1992).

Finally, the referee found that Nelson is not amenable to probation because his disciplinary history reflects a pattern of misconduct that has not significantly changed. The referee also found a number of aggravating factors and no mitigating factors. We conclude that the record fully supports the referee’s factual findings, legal conclusions, and recommendation for discipline. We therefore hold that Nelson’s misconduct warrants the discipline recommended by the referee.

Accordingly, we order that:

1. Respondent Dewey M. Nelson is suspended from the practice of law in the State of Minnesota commencing 20 days from the date of this decision, and is ineligible to apply for reinstatement for a minimum of six months after suspension;

2. Nelson must comply with the requirements of Rule 26, RLPR;

3. Nelson must pay the director $900 in costs, plus disbursements, pursuant to Rule 24, RLPR; and

4. If Nelson seeks reinstatement, he shall comply in all respects with Rule 18, RLPR.

So ordered.

      . Opinion 15 was repealed on January 26, 2006.

      . The Minnesota Rules of Professional Conduct were amended effective October 1, 2005, and the Minnesota Rules on Lawyers Professional Responsibility were amended effective September 1, 2005. Some of the conduct at issue in this case occurred before and some after the effective dates of the amendments. None of the amendments have any substantive effect on the issues or analysis in this case. Therefore, for simplicity, we cite only the current versions of the applicable rules.

      . Rule 1.3 requires that a lawyer "act with reasonable diligence and promptness in representing a client.”
      Rule 3.2 provides that "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
      Rule 4.1 provides that "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of fact or law.”
      Rules 8.4(c) and (d) state that it is misconduct for a lawyer to engage in conduct "involving dishonesty, fraud, deceit or misrepresentation” and conduct that is "prejudicial to the administration of justice.”

      . Rule 1.15(a) mandates that "[a]ll funds of clients * * * held by a lawyer * * * in connection with representation shall be deposited in one or more identifiable interest bearing trust accounts.” Opinion 15 provides that "[a]ll advance fee payments must be deposited into an interest bearing trust account * * *."
      Rule 1.15(c)(4) provides that a lawyer shall "promptly pay or deliver to the client * * * as requested the funds * * * in the possession of the lawyer which the client * * *is entitled to receive.”
      Rule 1.16(d) provides that "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as * * * surrendering papers and property to which the client is entitled, and refunding any advance payment of fees or expenses that has not been earned or incurred.”

      . Rule 8.1(b) provides that in connection with a disciplinary matter a lawyer shall not "knowingly fail to respond to * * * demand for information” from discipline authority. Rule 8.1(b) was previously numbered 8.1(a)(3).
      Rule 25, RLPR, requires that when a lawyer "is the subject of an investigation” the lawyer must cooperate with the director by complying with reasonable requests, including requests to "[fjurnish designated papers, documents or tangible objects.”


author: PAGE, Justice.

text:
    Victor FIELDS, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A06-1770.
    Supreme Court of Minnesota.
    June 21, 2007.

      Victor Donnell Fields, Bayport, MN, pro se.
    Lori Swanson, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

Victor Fields was convicted of first-degree murder and attempted first-degree murder for his role in the shooting death of LeTerrance Paige and the wounding of Keinon Love in December 2001. The facts and circumstances underlying his convictions can be found in our opinion deciding Fields’ direct appeal. State v. Fields, 679 N.W.2d 341 (Minn.2004).

On direct appeal, Fields raised a number of issues, including the admission of grand jury testimony of an unavailable witness, the admission of hearsay statements a witness made to his sister, the admission of the contents of anonymous tips to the police, the admission of the statements the unavailable witness made to police, and whether the evidence was sufficient to support the jury’s verdict. Id. at 345, 347, 348. Fields also raised issues relating to the denial of jail credit and to the calculation of his sentence. Id. at 349. Although we modified his sentence on direct appeal, we affirmed Fields’ conviction in all other respects. Id.

Subsequently, Fields filed a petition for postconviction relief in which he asserted various claims of ineffective assistance of both trial and appellate counsel. The post-conviction court concluded that Fields’ ineffective assistance of trial counsel claims were known to him at the time of trial and were therefore barred under Torres v. State, 688 N.W.2d 569, 572 (Minn.2004), which reaffirmed our rule in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The postconviction court concluded that Fields’ ineffective assistance of appellate counsel claims failed because there was “no evidence that failure to make the arguments that [Fields] cites would have resulted in a different decision by the Minnesota Supreme Court.”

In this appeal, Fields argues, as he did before the postconviction court, that his trial counsel was ineffective because his counsel: (1) conceded his guilt without his approval; (2) failed to object when the jury found him guilty of both first- and second-degree murder; (3) failed to challenge the admission of a photo lineup; (4) failed to object to the “inadmissible testimony of A Police Officer [sic]”; and (5) failed to object to the prosecutor’s closing argument. Fields asserts that his appellate counsel was ineffective because his appellate counsel failed to either argue on direct appeal that his trial counsel was ineffective or pursue an ineffective assistance of trial counsel claim by way of a petition for postconviction relief before pursuing Ms direct appeal. For the reasons discussed below, we affirm.

When reviewing a denial of post-conviction relief, we examine whether the postconviction court’s findings are supported by sufficient evidence. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). We will only reverse the postconviction court’s decision if that court abused its discretion. Id. Issues of law are reviewed de novo. Opsahl v. State, 710 N.W.2d 776, 782 (Minn.2006). A petitioner is entitled to an evidentiary hearing and the postcon-viction court must make findings of fact and conclusions of law “[u]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2006).

When evaluating an ineffective assistance of counsel claim, we apply the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998) (applying the Strickland test to claims of ineffective assistance of trial counsel); Roby v. State, 547 N.W.2d 354, 356-57 (Minn.1996) (applying the Strickland test to claims of ineffective assistance of appellate counsel). The first prong, often referred to as the “performance” prong, requires an appellant to show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. The second prong, often referred to as the “prejudice” prong, requires the appellant to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. For the claim to succeed, both prongs must be met. Id. at 687, 104 S.Ct. 2052. “There is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’ ” State v. Jones, 392 N.W.2d 224, 236 (Minn.1986) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). When an ineffective assistance of appellate counsel claim is based on appellate counsel’s failure to raise an ineffective assistance of trial counsel claim, the appellant must first show that trial counsel was ineffective. Zenanko v. State, 688 N.W.2d 861, 865 (Minn.2004).

We conclude that all of Fields’ ineffective assistance of trial counsel claims fail either the Strickland performance prong, the prejudice prong, or both. And, because we conclude that all of Fields’ ineffective assistance of trial counsel claims fail, we also conclude that all of Fields’ ineffective assistance of appellate counsel claims fail.

We first address Fields’ argument that he was denied effective assistance of trial counsel when his trial counsel conceded his guilt without his approval. While in jail awaiting trial, Fields made threatening calls to several of the state’s witnesses. The state argued that Fields’ guilt could be inferred from Fields having made the calls. During closing arguments, defense counsel responded with the following argument:

The state wants you to assume because he made a grievous mistake and a stupid mistake, calling people from jail, that means he is the shooter. Why would he do it if it [sic] is not guilty? [The prosecutor] hit it on the head, because he is stupid. How could that possibly help anyone when it comes to the evidence against him? It says right on the phones “These phones will be tape-recorded.” How dumb is that? Does that prove that he is the man that shot these people on the bus? No. That’s a non sequitur. It doesn’t follow. The state wants you to assume this phone call proves something. It doesn’t prove anything. It doesn’t tie him into anything. It doesn’t put him at the scene.

Fields asserts that in making this argument, defense counsel conceded his guilt.

“The decision whether or not to admit guilt at trial belongs to the defendant, and a new trial will be granted [when] defense counsel, explicitly or implicitly, admits a defendant’s guilt without permission or acquiescence.” State v. Pilcher, 472 N.W.2d 327, 337 (Minn.1991). The postconviction court concluded that Fields’ trial counsel did not concede his guilt on the matter for which Fields was standing trial. We conclude, as did the postconviction court, that Fields’ trial counsel did not concede his guilt on an element of the charged offense. Fields’ trial counsel did concede that Fields made threatening phone calls to several of the state’s witnesses, but that did not amount to a concession of guilt. As the postcon-viction court pointed out, Fields was not charged with witness tampering. Accordingly, we hold that Fields’ trial counsel did not concede Fields’ guilt and was not ineffective. Because Fields’ trial counsel was not ineffective when conceding that Fields made threatening calls to the state’s witnesses while awaiting trial, his appellate counsel was not ineffective in failing to raise the issue on appeal.

Next, Fields asserts that his trial counsel was ineffective because he failed to object when the jury “convicted” him of first- and second-degree murder. The postconviction court determined that Fields’ argument that his trial counsel was ineffective for failing to object to the jury’s verdict was barred and rejected Fields’ claim that his appellate counsel was ineffective for failing to raise this issue on appeal.

We hold that Fields’ trial counsel was not ineffective in failing to object to the jury’s verdicts. Fields’ argument appears to be based on the misunderstanding that the jury’s verdicts violated Minn.Stat. § 609.04 (2006), which provides that a defendant may not be convicted of a crime and a lesser-included crime. While the jury found Fields guilty of both first- and second-degree murder, the court convicted Fields — that is, the court entered a judgment of conviction — -of first-degree murder only. Therefore, there was no basis for an objection to the jury’s verdicts and neither Fields’ trial attorney nor his appellate attorney were ineffective for failing to raise this issue in Fields’ defense.

We next address Fields’ assertion that his trial counsel was ineffective for failing to challenge the photo lineup procedures used by the police in his case. Fields’ assertion is belied by the facts in the record. The record of the pretrial Rasmussen hearing clearly demonstrates that Fields’ trial counsel objected to the photo lineup procedures. Therefore, Fields’ ineffective assistance of trial and appellate counsel claims on this issue have no merit.

Fields also asserts that he is entitled to postconviction relief because he was denied effective assistance of counsel when his trial counsel failed to object to what he deems to have been inadmissible testimony of a police officer. Specifically, Fields asserts his counsel was ineffective in failing to object to the admission of the testimony of a police officer regarding tips the police received during the initial stages of their investigation. Fields raised this same issue on direct appeal and we concluded that review of the issue had been forfeited because trial counsel did not object. Fields, 679 N.W.2d at 348. We further noted that trial counsel presumably did not object “because the response gave credence to Fields’ theory of the case that the police immediately and prematurely focused on him as the sole suspect.” Id. We did not address whether counsel’s failure to object amounted to ineffective assistance of counsel. Because the decision to object was beneficial to Fields, he cannot meet the prejudice prong of the Strickland test. On that basis, his claim of ineffective assistance of trial and appellate counsel on this issue fails.

We turn next to Fields’ argument that he is entitled to postconviction relief because he was denied effective assistance of counsel when his trial counsel failed to object to the prosecutor’s reference to the testimony of an uncalled witness in closing argument. Fields asserts that the prosecutor’s conduct amounts to misconduct that denied him a fair trial. The postcon-viction court held that this argument was without merit and that Fields’ appellate counsel was not ineffective in not raising the issue on direct appeal.

During the prosecutor’s closing argument, the prosecutor stated:

And then JR walks away, towards the store. Minutes later JR borrows Jamal Mays’ phone, his cell phone, pays him a few — 50 cents, I believe it was, or 75 cents to use that phone because the pay phone at the store was out of order. That call was placed to the defendant’s apartment. The defendant then comes running out of that apartment, through the commons, towards the opening of the fence by Zane Avenue, towards the bus.
* * * *
And importantly, the timing of the phone call. 18-second phone call, this isn’t a phone call where somebody’s calling up just to chat away. It’s 18 seconds, just enough time to get the message from JR to his cousin, the defendant, that, hey, the guy’s out here.

Fields asserts that this was misconduct because JR never testified, no one testified that “JR called [Fields] saying ‘the guy[’]s out here,’ ” and there was no testimony that Fields was in his apartment to receive the call.

Based on the record, it does not appear that trial counsel’s failure to object to the prosecutor’s statements fell below an objective standard of reasonableness. While JR did not testify, there was ample evidence in the record supporting the prosecutor’s argument, including testimony that Fields’ cousin JR used a cell phone and placed a call to the number listed for Fields’ apartment, and surveillance tapes showing Fields running towards the scene of the crime shortly after that call was placed. Because the prosecutor’s arguments were based on reasonable inferences that could be drawn from that evidence, we conclude that the prosecutor’s closing argument did not amount to misconduct. See State v. Barnes, 713 N.W.2d 325, 336 (Minn.2006) (explaining that the “state’s closing argument can include reasonable inferences from the evidence” and that doing so does not amount to prosecu-torial misconduct). Because we conclude there was no misconduct, we also conclude that trial counsel’s failure to object and appellate counsel’s failure to raise the issue on appeal did not constitute ineffective assistance of counsel.

Finally, Fields argues that he was denied effective assistance of appellate counsel because, contrary to his wishes, his appellate counsel pursued a direct appeal in lieu of postconviction relief. While Fields’ direct appeal was pending, he contacted his appellate attorney and requested that she pursue postconviction relief instead of a direct appeal. Fields’ appellate attorney responded that in her opinion there was no basis to pursue postconviction relief instead of a direct appeal. She further told Fields that he could fire her and pursue postconviction relief pro se. The postconviction court determined that the decision of Fields’ appellate counsel to pursue a direct appeal rather than post-conviction relief was a tactical decision that did not amount to ineffective assistance of counsel.

Although Fields asserts that his appellate counsel’s failure to forego his direct appeal and pursue postconviction relief was ineffective, he does not assert why his appellate attorney’s decision fell below the objective standard of reasonableness required under the performance prong of Strickland. Nor does he offer any evidence demonstrating that there is a reasonable probability that, but for the decision to pursue a direct appeal rather than postconviction relief, the postconviction court would have granted him relief. Without more, we conclude that this claim fails both prongs of Strickland.

Therefore, we affirm the postconviction court’s denial of postconviction relief.

      . Because each of Fields' ineffective assistance of counsel claims is entirely without merit, we have elected to dispose of them on their merits and not determine whether they are barred by our KnaffLa rule. See 309 Minn. at 252, 243 N.W.2d at 741.