author: STREIT, Justice.

text:
    Kevin James LYNCH and Rosemarie Ann Lynch, Appellants, v. John SADDLER, Joseph Cerruto, Alan L. Gross, and City of Cedar Rapids, Appellees.
    No. 01-1466.
    Supreme Court of Iowa.
    Jan. 23, 2003.

      James E. Shipman and Paul P. Morf of Simmons, Perrine, Albright <& Ellwood, P.L.C., Cedar Rapids, for appellants.
    Mohammad H. Sheronick, City Attorney, Cedar Rapids, for appellees.
   STREIT, Justice.

Kevin Lynch, a police officer for the City of Cedar Rapids, was seriously injured after the police helicopter he was piloting failed in mid-air and crashed. Lynch sued three municipal co-employees for negligence and gross negligence. After a trial, the jury found the three co-defendants liable for simple negligence, but not liable for gross negligence. Finding the co-employees are immune from suit, the trial court entered a judgment notwithstanding the verdict. Lynch appeals arguing Iowa Code section 670.12 (1995) does not immunize the municipal employees from his suit. Lynch also argues the trial court erred in refusing to include a jury instruction on spoliation of evidence. The municipal employees cross-appeal asserting the trial court erred in granting Lynch a conditional new trial based upon the damages award in the event of a successful appeal. We find the municipal employees are immune from this suit and the court properly refused the spoliation jury instruction. Consequently, it is not necessary for us to address the city’s cross-appeal. We affirm.

I. Background and Facts

, Kevin Lynch, a Cedar Rapids police officer, and his wife brought this action to recover damages for personal injuries he sustained in the crash of a police helicopter he was piloting. The city aviation department bought ten to twelve United States Army surplus Vietnam War vintage helicopters. The city used the salvaged parts from these helicopters for the repair and maintenance of operational helicopters. Within a ten-month period, two of the city’s four helicopters crashed. The second crash occurred in June 1997 while Lynch was piloting a Model 269A helicopter that experienced complete engine failure and crashed. The exact cause of this crash is not clear. It appears to have been caused by one of three possibilities: (1) improper inspection, rigging, and testing of the throttle cable; (2) contaminated fuel pump; or (3) blockage- of the air intake by a plastic piece broken off of the air filter housing. As a result of Lynch’s extensive injuries, he became eligible for benefits under chapter 411 Retirement System for Police Officers, and Fire Fighters. See Iowa Code ch. 411 (1997).

Lynch sued the city and three employees associated with the city’s aviation department. A jury returned a verdict finding defendant John Saddler (the civilian director of the aviation department) was fifty percent at fault for the accident, and both Lynch and defendant Alan Gross (a mechanic for the aviation department) were twenty-five percent at fault. The jury specifically found none of the defendants were grossly negligent or liable for punitive damages.

The district court granted all defendants a judgment notwithstanding the $830,357 verdict. The court found the city was not subject to liability pursuant to our holding in Goebel v. City of Cedar Rapids, 267 N.W.2d 388 (Iowa 1978), which provided that police officers who receive disability and pension benefits under Iowa Code chapter 411 have no right of action against the municipality. In addition to relying on our holding in Goebel, the court also found the individual defendants were not hable for negligence based upon statutory provisions of Iowa Code chapters 411 and 670. Though the court’s ruling mooted Lynch’s motion for a new trial based on an inadequate damages award, the court conditionally granted a new trial on those grounds in the event of a successful appeal.

Lynch appeals and the city cross-appeals. Lynch argues the Goebel holding is no longer good law in light of subsequent changes to chapter 411. Lynch also contends Goebel should not be used to support an interpretation of subsequently enacted Iowa Code section 670.12 as precluding simple negligence actions. Finally, Lynch argues the court erred in failing to give the requested spoliation jury instruction. The city cross-appeals asserting the jury’s damage award was supported by evidence and did not warrant a new trial.

II. Scope of Review

We review the district court’s grant of judgment notwithstanding the verdict for correction of errors at law. Iowa R.App. P. 6.4; Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001). We determine whether substantial evidence exists to support each element of the plaintiffs claim, justifying submission of the case to the jury. Id In doing so, we review the evidence in the light most favorable to the non-moving party. Iowa R.App. P. 6.14(f)(2); Gibson, 621 N.W.2d at 391. We review the trial court’s exclusion of a requested jury instruction for correction of errors at law. Iowa R.App. P. 6.4; Duncan v. City of Cedar Rapids, 560 N.W.2d 320, 325 (Iowa 1997).

III. The Merits

On appeal, we consider two main issues. First, we must determine whether Iowa Code section 670.12 permits a municipal employee to sue a co-employee for simple negligence. We also consider whether the trial court erred in failing to give the requested spoliation jury instruction.

A. Iowa Code section 670.12 Immunity

Iowa Code chapter 670 contains our provision for governmental immunity. The code makes clear that liability is the rule and immunity the exception. See Iowa Code § 670.2; Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 443 (Iowa 2002). This liability is limited to the extent that a municipality shall be immune for any claim against it as to which the municipality is immune from liability under the provisions of any other statute or where the action is based upon a claim that has been barred or abated by operation of statute or rule of civil procedure. Iowa Code § 670.4(4). Another provision of the code addresses the issue of whether a municipal employee may be sued for injuries caused as a result of the performance of municipal duties. Iowa Code section 670.12 provides,

All officers and employees of municipalities are not personally liable for claims which are exempted under section 670.4, except claims for punitive damages, and actions permitted under section 85.20. An officer or employee of a municipality is not hable for punitive damages as a result of acts in the performance of a duty, unless actual malice or willful, wanton and reckless misconduct is proven.

Id. § 670.12. The question then is whether the claim Lynch has brought against his co-employees is a claim he could maintain against the municipality itself under section 670.4.

We have before examined the effect these code provisions have on a party’s ability to maintain a simple negligence suit against a municipality. In Goebel v. City of Cedar Rapids, 267 N.W.2d 388 (Iowa 1978), we determined whether persons who receive benefits under chapter 411 are barred from maintaining a tort action against a city based upon the same injury. We answered in the affirmative.

In that case, plaintiffs received disability benefits under chapter 411. The purpose of this chapter is to “provide an orderly means for police officers and fire fighters to have a retirement system which will provide for the payment of pensions to ... members incurring disability....” Iowa Code § 411.1A. Goebel attempted to sue the city for damages in addition to the benefits he was already receiving under chapter 411. The City of Cedar Rapids argued it was immune from liability under Iowa Code chapter 670. The city asserted the claims fell within one of the exceptions to the general rule of liability contained in section 670.4

We noted the general rule of municipal liability is not intended to abrogate immunity established by other statutes. Bearing in mind section 670.4, we addressed chapter 411 benefits. Under this chapter, comprehensive disability benefits are provided. The city pays the full cost of hospital, nursing, and medical attention for job-related injuries. Id. § 411.15. We compared chapter 411 benefits to those available under workers’ compensation. Chapter 411 and workers’ compensation benefits “serve equivalent purposes and are mutually exclusive.” Goebel, 267 N.W.2d at 390. We reasoned that workers’ compensation is the exclusive remedy for the employee against the employer. Id. By analogy, we concluded, “the legislature intended that the provisions of chapter 411 constitute an exclusive remedy for covered persons against a municipality.” Id. at 392.

Lynch argues our holding in Goebel is no longer good law because of subsequent statutory amendments. The changes to chapter 411 since Goebel include: (1) the system is now administered by a single statewide agency; (2) members contribute more and receive greater benefits; (3) pension allowance has increased; (4) the city contributes more; and (5) pension and annuity funds have been combined. We find none of these changes sufficiently compelling to find Goebel should be overruled.

We also note that since our Goe-bel decision in 1978, the legislature has not responded by amending chapter 411 to state explicitly that benefits received pursuant to it are not an exclusive remedy. In general, it is the legislature’s duty to declare the law and the court’s responsibility to interpret the law. See Slockett v. Iowa Valley Cmty. Sch. Dist., 359 N.W.2d 446, 448 (Iowa 1984). The legislature enacted section 613A.4(4) (renumbered as section 670.4 in Iowa Code (1993)) and we interpreted it in Goebel. Twenty-five years later, the legislature still has not amended the law in such a way as to supersede our decision. Rather, the statutory language has remained the same since 1978. Because the “legislative branch is not required to live with a judicial interpretation of a statute,” we assume our holding in Goebel was and remains consistent with legislative intent. See Miller v. Westfield Ins. Co., 606 N.W.2d 301, 308 (Iowa 2000) (Cady, J., dissenting). We interpret the legislature’s failure to respond as a “tacit approval of our decision.” See Drahaus v. State, 584 N.W.2d 270, 276 (Iowa 1998). We decline to overrule Goe-bel.

After Goebel, the law was settled regarding a municipality’s immunity from suit where the injured employee received chapter 411 benefits. Four years after Goebel, our legislature expanded upon a related issue — individual liability of municipal employees. It added section 670.12 to the Municipal Tort Claims Act which provides:

All officers and employees of municipalities are not personally liable for claims, which are exempted under section 670.4, except claims for punitive damages, and actions permitted under section 85.20. An officer or employee of a municipality is not liable for punitive damages as a result of acts in the performance of a duty, unless actual malice or willful, wanton and reckless misconduct is proven.

Iowa Code § 670.12. Section 670.12 states that municipal employees are immune to the extent a municipality would be immune under the same suit. Under Goebel, because Lynch is eligible to receive chapter 411 benefits, the city would be immune from suit brought against it by Lynch for negligence. Section 670.12 makes municipal employees liable only for claims of actual malice or willful, wanton, or reckless conduct. The language of section 670.12 is clear and unambiguous. Lynch may not sue his co-employees for simple negligence. The co-employees are only amenable to a suit for punitive damages based upon actual malice or willful, wanton and reckless misconduct or for gross negligence based upon section 85.20, in cases where the latter statute applies to municipal employees.

In sum, section 670.12 provides municipal employees are liable only to the extent the municipality is hable under section 670.4. Section 670.4 compels the conclusion that a municipality is immune from Lynch’s suit. Section 670.12 requires the same result as to municipal co-employee liability. Given our interpretation of sections 670.12 and 670.4 and consistent with our holding in Goebel, we find the district court was correct in entering a judgment notwithstanding the verdict based upon the co-employees’ immunity from suit.

B. Spoliation Jury Instruction

On appeal, Lynch argues his ability to prove gross negligence was frustrated because the trial court failed to properly instruct the jury on inferences that may be drawn from the destruction and alteration of evidence. Lynch argues the trial court prevented him from proving gross negligence. Lynch complains that before the trial began, city employees destroyed parts of the helicopter from the first crash and replaced the lower forward fairings on the city’s three other active Model 269A helicopters, including the helicopter in which Lynch ultimately crashed. Lynch argues that if the court had instructed on the spoliation issue, the jury would have found gross negligence. He argues the trial court’s failure to give a spoliation instruction constituted error. The city contends Lynch did not preserve error on this issue.

Based on the destruction of parts of the helicopter from the first crash and the replacement of parts on the helicopter in which Lynch later crashed, Lynch requested the trial judge to include the following spoliation instruction:

You are instructed that under the law of Iowa, if a party intentionally spoils or disposes of evidence to prevent its use against them, a strong presumption arises that if the evidence had not been destroyed or altered the information which could have been obtained from the destroyed or altered evidence would have been adverse to the party or parties destroying or altering it....

The judge refused to give this instruction and Lynch offered a revised instruction stating the following:

If you find that Defendants knowingly and intentionally destroyed evidence— destroyed the air filter housing ... then you may, but you are not required to find they did so knowing that the evidence would be unfavorable to the Defendants.

The court refused to give this instruction noting that it was an inaccurate statement of the law and was not appropriate under the facts of the case. Lynch objected stating,

Plaintiffs object and except to the court’s failure to give Plaintiffs’ proposed Instruction No. 20 and Plaintiffs’ revision to their revised proposed Jury Instructions ..., the instruction on spo1 liation of evidence. Plaintiffs further object and except to the court’s failure to give the proposed revised spoliation of evidence instruction consisting solely of the first two paragraphs of their proposed Instruction No. 20 on spoliation of evidence.

The court instructed the jury regarding the issues of simple negligence and gross negligence as follows:

Plaintiffs have claimed that Defendants Alan Gross, John Saddler, and Joseph Cerruto were grossly negligent. In order to prevail on this theory against any Defendant, the Plaintiff must prove all of the following numbered propositions with regard to such Defendant:
1. The Defendant was grossly negligent ... in engaging in one or more of the acts and omissions described in ... instruction 17.
2. The gross negligence was a proximate cause of damage to the Plaintiff.
3. The amount of damage.

The court instructed the jury could find each of the defendants grossly negligent if each defendant discarded equipment when the city was expressly requested to preserve it. Lynch did not object to the jury instruction the court ultimately submitted. See Iowa R. Civ. P. 1.924 (“[A]ll objections to giving or failing to give any instruction must be made ... specifying the matter objected to and on what grounds;”).

In Lynch’s only objection to the court’s refusal to give a spoliation instruction, Lynch did not specify the grounds for his objection. He did nothing more than state his objection to the court’s failure to give the requested instruction. Iowa Rule of Civil Procedure 1.924 provides when a party objects to giving or failing to give a jury instruction, the party must specify the matter objected to and on what grounds. Iowa R. Civ. P. 1.924. This rule requires an objection “ ‘sufficiently specific to alert the trial court to the basis of the complaint so that if error does exist the court may-correct it before placing the case in the hands of the jury.’ ” Boham v. City of Sioux City, 567 N.W.2d 431, 438 (Iowa 1997) (quoting Moser v. Stallings, 387 N.W.2d 599, 604 (Iowa 1986)). Lynch’s general objection made to the court’s failure to give the requested instruction did not alert the trial court to the arguments made on appeal. The objection had nothing to do with Lynch’s argument that the spoliation instruction was necessary to prove gross negligence. Because Lynch did not adequately identify the grounds of his objection, he did not preserve error on this issue.

Even if Lynch had preserved error, his spoliation argument would still fail. Evidence of spoliation may allow an inference that “a party who destroys a document with knowledge that it is relevant to litigation is .likely to have been threatened by the document.” Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (citing Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994)). Such inference may only be drawn when the destruction of relevant evidence was intentional, as opposed to merely negligent or the evidence was destroyed as the result of routine procedure. Id. at 719. In the case before us, Lynch is not entitled to a spoliation instruction unless he can show both intentional destruction and control of the evidence. Id. “A spoliation inference should be utilized prudently and sparingly.” Id. at 720 (citing Crosser v. Iowa Dep’t of Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976)).

The facts before us show it is not clear whether the city employees intentionally destroyed the evidence with knowledge it was relevant to this litigation. The destroyed evidence itself was from the first helicopter crash, not the crash which is the subject of this appeal. The evidence was destroyed only after the National Transportation Safety Board and Federal Aviation Administration had investigated the crash and filed reports regarding the cause of the first crash. There is no evidence the city had knowledge that a second wreck was to come. Similarly, there is no evidence the city employees replaced the air filter housings in the three other helicopters out of concern that the old equipment would be used against them to prove liability for the crash. The parts were replaced months after the first crash and it appears a repair station work order was filled out for each helicopter that had replacements. Because Lynch cannot prove intentional destruction or alteration of the helicopter parts, a spoliation instruction is not warranted under the circumstances.

IV. Conclusion

We hold municipal employees and officers are immune from those claims that are exempted under Iowa Code section 670.4. Section 670.4 would immunize the City of Cedar Rapids from Lynch’s negligence suit. As such, Lynch’s co-employees are likewise immune from liability for simple negligence. We reaffirm our holding in Goebel. Even if Lynch had preserved error on the spoliation issue, such an instruction was not justified because the facts do not support a finding of intentional destruction or alteration of evidence. We affirm the trial court’s refusal to specifically instruct the jury on the issue of spoliation. Our holding renders it unnecessary for us to address the propriety of the trial court’s grant of a conditional new trial for damages. We affirm.

AFFIRMED.

      . The first of the crashes came before us on appeal in Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543 (Iowa 2002).

      . The cause of the first Model 269A helicopter crash involving Mason was more clear. In that crash, the National Transportation Safety Board determined "that the probable cause of the crash was two plastic pieces that had broken off the air filter and entered the air induction tubes, blocking the flow of air and fuel into the engine.” Mason, 653 N.W.2d at 545.

      .The city has also argued Lynch failed to preserve error on the issue of Joseph Cerru-to's (Commander of the Police Air Support Unit for the City of Cedar Rapids) liability. The city contends Lynch did not comply with Iowa Rule of Appellate Procedure 6.14(l)(c) requiring a party to state, argue, or cite authority in support of an issue or the issue may be deemed waived. Iowa R.App. P. 6.14(l)(c). Because we find the city is immune from simple negligence and the jury did not find gross negligence, it is not necessary for us to address this error preservation argument on appeal.

      . We have not been presented with the question of whether gross negligence is available as a cause of action against co-employees under chapter 411, similar to allowing recov-eiy for gross negligence against a co-employee under chapter 85 workers’ compensation. See Iowa Code § 85.20(2) (statutorily allowing a cause of action for gross negligence under workers’ compensation).

      . Although Lynch’s revised inslruction may not be an accurate reflection of the law, tire trial court in essence instructed the jury on a cause of action for gross negligence based upon the destruction of evidence. Specifically, jury instruction number seventeen provided, in part:
      Plaintiffs claim Defendants Alan Gross, John Saddler, and Joseph Cerruto were at fault by being negligent.... To prevail on this theory ... Plaintiffs must prove all of the following numbered propositions with regard to each Defendant:
      1. Defendant was at fault. In order to prove fault, Plaintiffs must prove that one or more of the Defendants engaged in one or more of the following:

      j. Discarding the air filter housing from N7052A when expressly requested to preserve it, and discarding the air filter housing from the three other 269A model helicopters still in operational use; ...
      When the court instructed the jury on gross negligence, it referred to the fifteen allegations of negligence contained in instruction number seventeen, including subsection "j” addressing the destruction of evidence. Therefore, the jury could have found the defendants liable for gross negligence on numerous grounds, including the defendants' destruction and alteration of the air filter housing.


source: Caselaw Access Project

author: TERNUS, Justice. CARTER, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Felipe Edgardo TOVAR, Appellant.
    No. 01-1558.
    Supreme Court of Iowa.
    Jan. 23, 2003.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, J. Patrick White, Johnson County Attorney, and Victoria Dominguez, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Felipe Tovar, challenges his conviction, after a bench trial, of third-offense operating while intoxicated (OWI). He claims his first OWI conviction should not have been used to enhance the penalty for his current conviction because his prior conviction resulted from an uncounseled guilty plea, and he had not made a valid waiver of his Sixth Amendment right to counsel at the guilty plea proceeding. The district court and the court of appeals rejected Tovar’s argument.

Upon our review of the record and the parties’ legal arguments, we conclude the defendant’s waiver of his right to counsel was not a knowing and intelligent waiver and, therefore, his prior conviction should not have been used for enhancement purposes in the present criminal proceedings. Accordingly, we vacate the court of appeals decision and reverse the district court’s judgment of conviction. The case is remanded for further proceedings consistent with this opinion.

I. Background Proceedings.

On December 14, 2000, Tovar was charged with OWI, third offense, a class D felony, and driving while license barred, an aggravated misdemeanor. See Iowa Code §§ 321J.2, 312.561 (1999). The enhancement of the OWI charge to a third offense was based upon Tovar’s two prior convictions for OWI.

Tovar pled not guilty to both of the current charges, and filed a motion to adjudicate law points asserting that his first OWI conviction could not be used to enhance the pending OWI charge. He argued his guilty plea in the prior proceeding had been uncounseled and there had not been a knowing and intelligent waiver of his right to an attorney. The district court ruled Tovar’s waiver of counsel in the prior case was valid, and consequently denied Tovar’s motion.

The present case proceeded to trial before the court and Tovar was found guilty of both charges. After sentencing, Tovar appealed his OWI conviction, alleging the district court erred in allowing his first OWI conviction to be used to enhance his current conviction. The court of appeals affirmed the district court’s ruling on the defendant’s motion to adjudicate law points, and this court granted further review.

II. Issue on Appeal and Standard of Review.

The parties agree that a prior conviction resulting from an uncounseled guilty plea for which there was an invalid waiver of counsel may not be used to enhance a subsequent offense where the prior conviction resulted in incarceration. See Baldasar v. Illinois, 446 U.S. 222, 226, 100 S.Ct. 1585, 1587, 64 L.Ed.2d 169, 173-74 (1980) (holding a “prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment”), overruled in part by Nichols v. United States, 511 U.S. 738, 749, 114 S.Ct. 1921, 1928, 128 L.Ed.2d 745, 755 (1994) (holding uncounseled convictions could enhance later offenses provided no incarceration was imposed in the first prosecution); State v. Cooper, 343 N.W.2d 485, 486 (Iowa 1984) (holding, where defendant had not been advised of her right to counsel in two prior prosecutions for simple misdemeanor theft, the State was precluded from using the prior convictions to enhance a third charge of theft to an aggravated misdemeanor). There is also no disagreement that Tovar was not represented by an attorney when he pled guilty to his first OWI charge nor that he expressed the desire to waive his right to counsel at the guilty plea hearing. The dispute in this case centers on whether Tovar’s waiver of his right to counsel at the time he pled guilty was valid under the Sixth Amendment.

Although our standard of review for constitutional issues is de novo, see In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001), there is no factual dispute in this case. The only issue for our determination is whether the district court correctly determined that the undisputed facts established the defendant had made a knowing and intelligent waiver of his right to counsel at the plea proceeding on his first OWI charge.

III. Waiver of Right to Counsel in First OWI Prosecution: Undisputed Facts.

In 1996, Tovar, a college student in Ames, was brought before the Story County district court to plead to a charge of OWI, first offense. At the time, the district court was receiving guilty pleas from several defendants collectively. The judge engaged the defendant in the following discussion. References to the defendant’s right to counsel are emphasized.

The Court: We are on the record in the State of Iowa versus Felipe Tovar, Case No. 23989. This is the time and place set for arraignment on a trial information charging the defendant with operating while intoxicated. Mr. Tovar appears without counsel and I see, Mr. Tovar, that you waived, application for a court appointed attorney. Did you want to represent yourself at today’s hearing?
Tovar: Yes, sir.
The Court: And did you want me to read that information to you or did you want to waive the reading?
Tovar: Waive the reading.
The Court: And how do you wish to plead?
Tovar: Guilty.
The Court: All right. Gentlemen, if you continue with this desire to plead guilty, there are certain rights that each one of you will be giving up and I now will explain those rights to you. First of all, if you enter a plea of not guilty, you would be entitled to a speedy and a public trial by jury. But, if you plead guilty, you give up your right to have a trial of any kind on your charge.
Do you understand that, Mr. [Tovar]? Tovar: Yes, sir.
The Court: If you would enter a plea of not guilty, not only would you have a right to a trial, you would have a' right to be represented by an attorney at that trial, including a court appointed attorney. That attorney could help you select a jury, question and cross-examine the State’s witnesses, present evidence, if any, in your behalf, and make arguments to the judge and jury on your behalf. But, if you plead guilty, not only do you give up your right to a trial, you give up your right to be represented by an attorney at that trial.
Do you understand that, Mr. [Tovar]?
Tovar: Yes, sir.
[The court then continued to review the other trial-related rights the defendants would be giving up by pleading guilty.] The Court: Gentlemen, those are the rights that you will be giving up if you plead guilty. Knowing that, did you still want to plead guilty?
Mr. [Tovar]?
Tovar: Yes, sir.

(Emphasis added.)

After this colloquy, the judge determined whether there was a factual basis for Tovar’s guilty plea. He explained to the defendant that there were two elements to his offense: (1) operating a motor vehicle (2) while he was intoxicated. The court then informed the defendant that intoxication could be shown by an alcohol level of .10 or above or by evidence that “the consumption of alcohol has affected your judgment or your reasoning or your faculties or it has caused you to lose control in any manner.” Tovar admitted driving a car and, although he did not contest his blood alcohol test results of .194, he denied feeling any effects of the alcohol. The judge concluded there was a factual basis for Tovar’s guilty plea and then accepted the plea.

At a later sentencing hearing, Tovar again appeared pro se. The only discussion of Tovar’s right to counsel was the following exchange:

The Court: Mr. Tovar, I note that you are appearing here today without having an attorney present and you waived application for a court-appointed attorney. I am sorry. You applied, but it was denied due to the fact you are dependent upon your parents. Mr. Tovar, did you want to represent yourself at today’s hearing or did you want to take some time to hire an attorney to represent you?
Tovar: No, I will represent myself.

The court then conducted essentially the same colloquy used at the guilty plea proceeding and pronounced sentence. To-var’s sentence included a brief stint in the county jail.

IV. Did Tovar Validly Waive His Sixth Amendment Right to Counsel in His First OWI Prosecution?

A. General legal principles. The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This protection extends to state prosecutions. State v. Spencer, 519 N.W.2d 357, 359 (Iowa 1994).

To provide a framework for our consideration of whether this right was accorded to the defendant in his first prosecution for OWI, we quote the observations of the United States Supreme Court on the importance of the right to counsel:

The “... right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with [a] crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.”

Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 1466 (1938) (citation omitted). As this discussion illustrates, the right to counsel is not solely a trial-related right; a defendant is “entitled to the assistance of counsel at all critical stages of the proceedings.” State v. Hindman, 441 N.W.2d 770, 772 (Iowa 1989); accord Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411, 417 (1972).

A decision to plead guilty is one of those critical stages. See Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309, 319-20 (1948). Thus, a defendant has the right to an attorney when he enters a guilty plea unless there has been a valid waiver of that right. Id. at 720-21, 68 S.Ct. at 321-22, 92 L.Ed. at 319. The desirability of legal advice during plea proceedings exists for misdemean- or eases as well as felony cases: “Counsel is needed [in misdemeanor cases] so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.” Argersinger v. Hamlin, 407 U.S. 25, 33, 92 S.Ct. 2006, 2011, 32 L.Ed.2d 530, 536 (1972).

Although it is well established a defendant has a right to counsel at a guilty plea hearing on an offense that may result in incarceration, the requirements for a valid waiver of that right are subject to some dispute. At a fundamental level, it is clear that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 (1970). What constitutes an adequate awareness of relevant circumstances and likely consequences necessarily depends on the context within which the waiver occurs. See State v. Cooley, 608 N.W.2d 9, 15 (Iowa 2000) (stating the “trial court’s inquiry may vary depending on the nature of the offense and the background of the accused”); Hindman, 441 N.W.2d at 772 (“The degree of inquiry which is required ... varies with the nature of the offense and the ability of the accused to understand the process.”).

In Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2889, 101 L.Ed.2d 261 (1988), the United States Supreme Court, considering the level of inquiry required in postin-dictment questioning, reasoned:

[W]e have taken a more pragmatic approach to the waiver question — asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage — to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized.
At one end of the spectrum, we have concluded there is no Sixth Amendment right to counsel whatsoever at the post-indictment photographic display identification, because this procedure is not one at which the accused “requirefs] aid in coping with legal problems or assistance in meeting his adversary.” At the other extreme, recognizing the enormous importance and role that an attorney plays at a criminal trial, we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial. In these extreme cases, and in other[s] that fall between these two poles, we have defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel. An accused’s waiver of his right to counsel is “knowing” when he is made aware of these basic facts.

487 U.S. at 298, 108 S.Ct. at 2397-98, 101 L.Ed.2d at 275-76 (citations omitted) (emphasis added). The Court stated that in determining whether a waiver of counsel is knowing and intelligent, “the key inquiry” is whether the accused was “made sufficiently aware of his right to have counsel present” at the proceeding and “the possible consequences of a decision to forgo the aid of counsel.” Id. at 292-93, 108 S.Ct. at 2395, 101 L.Ed.2d at 272. Consistent with the directives of Patterson, our court has required at a minimum that the defendant be “admonished as to the usefulness of an attorney at [the] particular proceeding, and made cognizant of the danger of continuing without counsel.” Cooley, 608 N.W.2d at 15; accord State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000) (stating “[b]e-fore a trial court accepts the defendant’s request to proceed pro se, the court must make the defendant ‘aware of the dangers and disadvantages of self-representation’ ”).

B. Parties’ contentions. Relying on our decision in Cooley, Tovar claims his prior waiver of counsel was not knowing and intelligent. He argues the district court failed to ensure the defendant understood “the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof.” Cooley, 608 N.W.2d at 15. Tovar also claims the court had a duty to admonish him as to the usefulness of having an attorney and to make him aware of the dangers of proceeding without counsel.

In contrast, the State claims the court was not required to engage the defendant in such a broad discussion “[g]iven the simplicity of the charge he faced and the proceeding in which he was representing himself.” The State distinguishes cases in which such a colloquy has been found necessary, noting they involve defendants who have proceeded to trial. See, e.g., Cooley, 608 N.W.2d at 15; Martin, 608 N.W.2d at 450; Hindman, 441 N.W.2d at 772. The State argues that the present case is similar to the postindictment questioning addressed in Patterson where the Court concluded that Miranda warnings adequately imparted “the dangers and disadvantages of self-representation” to the accused so as to render his waiver of counsel at that stage of the proceedings “knowing and intelligent.” Patterson, 487 U.S. at 299, 108 S.Ct. at 2398-99, 101 L.Ed.2d at 277. The State suggests the guilty plea colloquy required by Iowa Rule of Criminal Procedure 2.8(2)(b) performed the same function here that the Miranda warnings served in Patterson. It cites two cases in support of this proposition: Stano v. Dugger, 921 F.2d 1125, 1149 (11th Cir.1991) and State v. Cashman, 491 N.W.2d 462, 463 (S.D.1992).

C. Discussion. Before we evaluate the arguments of the parties, we think it is important to briefly discuss the one prior case in which this court has considered the validity of a waiver of counsel in a guilty-plea setting. In State v. Moe, 379 N.W.2d 347 (Iowa 1985), the defendant claimed his current OWI conviction was improperly enhanced based on a prior OWI conviction that resulted from an uncounseled guilty plea. 379 N.W.2d at 348. The record from the defendant’s first prosecution for OWI showed the only inquiry concerning the defendant’s waiver of counsel was the following question: “Do you understand an attorney would be provided for you at public expense if you are indigent?” Id. at 349. Despite the defendant’s affirmative response to this question, he contended in his second OWI prosecution that his waiver of counsel was invalid because he had not been advised that his right to counsel extended to the plea proceeding as well as to trial. Id. A divided court rejected this contention, relying on the defendant’s admission in the second case that he was aware of his right to counsel during the prior prosecution. Id. at 350.

Unfortunately, our decision in Moe provides little guidance in the present case due to Moe’s narrow focus on whether the defendant understood the scope of his right to counsel. The court appeared to presume that so long as the defendant was aware that he was entitled to counsel at the plea proceeding, his decision to forego that right constituted a knowing and intelligent waiver. Moe is also of limited value because subsequent to our decision in that case the United States Supreme Court rendered its decision in Patterson, making clear that a valid waiver requires more than a simple recognition that one has a right to counsel: the court must make the defendant aware of the “usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel.” Patterson, 487 U.S. at 298, 108 S.Ct. at 2398, 101 L.Ed.2d at 276.

Finding no definitive Iowa case to resolve the dispute before us, we turn initially to the cases upon which the State relies: Stano, 921 F.2d at 1125, and Cashman, 491 N.W.2d at 462. In Stano, the Eleventh Circuit Court of Appeals distinguished between the inquiry required for acceptance of a guilty plea and that required for waiver of the right to counsel. 921 F.2d at 1148-49. In the course of its discussion, the court noted that a defendant who pleads guilty need not be admonished of the dangers of proceeding pro se at trial as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This observation does not, however, answer the question we face here.

Clearly, under Patterson, a waiver-of-counsel inquiry must be tailored to the proceeding at which counsel is waived. Thus, because the dangers of proceeding pro se at a guilty plea proceeding will be different than the dangers of proceeding pro se at a jury trial, the inquiries made at these proceedings will also be different. To simply conclude, as the State suggests, that a Faretta-type inquiry is not required at a guilty plea hearing does not answer the ultimate question of what colloquy is required. That question was more directly addressed in the South Dakota case cited by the State.

In Cashman, the Supreme Court of South Dakota applied Patterson in considering the validity of a waiver of counsel at a guilty plea proceeding. 491 N.W.2d at 463-66. In that case, the defendant claimed his two prior convictions for driving under the influence (DUI) could not be used to enhance his current DUI conviction because the prior convictions resulted from uncounseled guilty pleas for which there had been no valid waivers of counsel. Id. at 462. In considering the inquiry needed to ensure that the defendant’s waivers were knowing and intelligent, the court contrasted a guilty plea proceeding with the postindictment questioning at issue in Patterson:

The full dangers and disadvantages of self-representation in the entry of a guilty plea might not be as insubstantial as those involved in the post-indictment questioning at issue in Patterson. However, they are even more obvious to an accused fully advised of the charges, the elements of the offenses, his constitutional and statutory rights, the maximum possible penalties, and the fact that a plea of guilty would waive these rights.

Id. at 465. The court then reviewed the defendant’s prior guilty plea proceedings and concluded valid waivers had occurred:

During the course of both proceedings, Cashman was advised of his right to counsel and to court appointed counsel if he was indigent. In both proceedings, Cashman indicated his understanding of his right to counsel. Thus, it is beyond dispute that Cashman was aware of his right to counsel. Also as in Patterson, it is obvious that Cashman had to know “what a lawyer could ‘do for him’ ...” during the ' entry of his plea, namely: advise him to plead not guilty. Clearly, by having been advised of the maximum possible penalties for his offenses, Cash-man was aware of the “ultimate adverse consequence ...” he could suffer by entering an uncounseled guilty plea.

Id. at 465-66 (citations omitted). In essence, the court found the colloquies used to accept the defendant’s guilty pleas were also adequate to render his' waivers of counsel knowing and intelligent.

We find the Cashman court’s analysis overly simplistic. To say that an attorney would merely advise a defendant to plead not guilty characterizes a lawyer’s role as one-dimensional when in fact it is multifaceted. A lawyer will know what defenses might be available to the crime charged. A lawyer will also know what questions to ask to determine whether such defenses might be factually viable.

The State minimizes the need for an attorney at an OWI guilty plea proceeding, however, based on “the simplicity of the charge.” We are not persuaded. Although a layperson can readily understand what it means to drive while intoxicated, he or she will most likely be unaware of the prerequisites for invoking implied consent and the other statutory and constitutional restrictions on police action that might provide a basis for suppression of the evidence of intoxication, which is usually the only meaningful defense available. The United States Supreme Court aptly stated the importance of counsel at this critical stage:

A waiver of the constitutional right to the assistance of counsel is of no less moment to an accused who must decide whether to plead guilty than to an accused who stands trial. Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman even though acutely intelligent.

Von Moltke, 332 U.S. at 721, 68 S.Ct. at 322, 92 L.Ed. at 319-20 (citation omitted).

Given these considerations, we think the colloquy undertaken by the court in To-var’s first OWI prosecution was inadequate. We note initially that the discussion between Tovar and the court with respect to the usefulness of counsel at trial did not suffice to advise Tovar of the value of counsel at the plea stage. See Patterson, 487 U.S. at 298, 108 S.Ct. at 2398, 101 L.Ed.2d at 276 (stating the court must make the defendant aware of the “usefulness of counsel to the accused at the particular proceeding ” (emphasis added)). Not only was there an absence of any dialogue concerning the value of having an attorney when pleading guilty, there was no colloquy with Tovar that alerted him to the dangers and disadvantages of entering a guilty plea without the advice of counsel. Importantly, the court did not warn Tovar that he might have legal defenses to the charge that he, as a layperson, would not recognize. As one court has noted,

“Substantive criminal law contains many complexities' — intent standards, jurisdictional provisions, defenses, and so forth. The defendant may be ‘guilty’ in a layman’s sense, and so be willing to confess, and yet may have a viable defense that he ought to invoke, or may be pleading guilty to the wrong grade of crime.”

United States v. Akins, 276 F.3d 1141, 1148 (9th Cir.2002) (citation omitted).

Under circumstances similar to those presented in the ease before us, the Ninth Circuit Court of Appeals held in Akins that a waiver of counsel at a guilty plea hearing on a misdemeanor charge was not valid where the defendant had not been admonished of the dangers of self-representation. Id. We agree with that court’s analysis:

The purpose of the constitutional right to counsel “is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights.” Nowhere is counsel more important than at a plea proceeding. “[A]n intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney.”

Id. at 1147 (citations omitted). The court also rejected an argument that the courts would be overburdened if judges were required to warn a defendant of the disadvantages of proceeding without counsel:

Because a defendant must already appear before the court to enter a guilty plea, a brief exchange regarding the waiver of counsel should not significantly increase the burden on the courts.... It is the duty of the courts to safeguard the fundamental right to liberty by ensuring that a defendant’s waiver of the right to counsel is knowing and intelligent.

Id. at 1148-49.

V. Summary and Disposition.

In summary, a defendant such as Tovar who chooses to plead guilty without the assistance of an attorney must be advised of the usefulness of an attorney and the dangers of self-representation in order to make a knowing and intelligent waiver of his right to counsel. In fulfilling this requirement in a case such as the one before us, the court is not expected to assume the role of an attorney, discussing with the defendant the various defenses that might be available. Rather, the trial judge need only advise the defendant generally that there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked. The defendant should be admonished that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty. In addition, the court must ensure the defendant understands the nature of the charges against him and the range of allowable punishments. Only with this information can the defendant make an informed and intelligent decision whether to forgo the assistance of counsel given the risks and possible outcomes.

Here, the State’s only proof of the knowing and intelligent nature of Tovar’s waiver of counsel in his first OWI prosecution is the court’s plea colloquy with the defendant. Because the district court did not engage Tovar in any meaningful discussion concerning his waiver of counsel at the plea proceeding, we cannot conclude that Tovar understood the usefulness of counsel at that stage or knew the dangers and disadvantages of proceeding pro se. As a result, the record does not support a finding that Tovar’s waiver of counsel was made knowingly and intelligently. Therefore, it was error for the district court to allow the State to use Tovar’s prior conviction of first-offense OWI to enhance the current charge to a third-offense OWI.

We vacate the court of appeals decision affirming the defendant’s conviction. We also reverse the district court’s judgment of conviction and remand for entry of judgment without consideration of the defendant’s prior OWI conviction based on his uncounseled guilty plea.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED AND CASE REMANDED.

All justices concur except CARTER, J. who dissents. NEUMAN and STREIT, JJ. join the dissent.

CARTER, Justice

(dissenting).

I respectfully dissent.

The result reached in the opinion of the court is an extreme measure that unnecessarily depreciates the consequences of a criminal conviction based on defendant’s solemn confession of guilt in open court. At the time of his guilty plea, defendant was fully advised of his right to counsel and elected to forego being represented. Defendant’s earlier OWI conviction is still on his record and will remain that way because the statute of limitations for seeking postconviction relief has now run. To permit a collateral attack on the earlier conviction in the present litigation should only be permitted on a convincing showing that defendant was not guilty with regard to the first OWI conviction or that some compelling federal authority requires that it be disregarded for sentencing enhance-raent purposes. Neither of these circumstances exists in the present case.

The opinion of the court correctly suggests that a pragmatic approach should be taken in determining whether a waiver of right to counsel is knowingly and voluntarily made. That is the teaching of Patterson v. Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 2397-98, 101 L.Ed.2d 261, 275-76 (1988). But, the standard that the majority of this court applies is not pragmatic in any sense. It is a rigid standard which requires that the party seeking to waive counsel must, in all instances, be expressly advised of the dangers that exist in proceeding without counsel.

Prior to the Court’s decision in Patterson, we approached the problem of determining whether a waiver of counsel was knowing and voluntary solely on the basis of whether the accused had been properly advised of the right to counsel. State v. Moe, 379 N.W.2d 347, 348 (Iowa 1985). The Patterson case has injected another consideration, which is whether the accused is aware of the consequences of proceeding without counsel. However, nothing in Patterson suggests that a waiver of counsel is never voluntary unless an express admonition concerning the potential adverse effect of that decision is given the accused. Quite the contrary is true. Patterson recognized that the accused’s knowledge of the consequences of proceeding without counsel could be inferred from his having been given Miranda warnings. Patterson, 487 U.S. at 293-94, 108 S.Ct. at 2395-96, 101 L.Ed.2d at 272-73.

In the present case, the State argues persuasively that Tovar was sufficiently made aware of the adverse consequences that might befall him from the district court’s guilty-plea admonition. In addition to advising Tovar concerning his waiver of the constitutional rights described in the opinion of the court, he was also advised concerning both the maximum and mandatory minimum sentences that would befall him upon a plea of guilty. He was therefore made fully aware of the penal consequences that might befall him if he went forward without counsel and pleaded guilty.

It is true that there are other adverse consequences that might arise from proceeding without counsel. A search for these consequences leads the court into speculation concerning unidentified potential defenses that an able lawyer might have advanced. I submit that it is not reasonable to ignore the consequences of a voluntary guilty plea based on that type of speculation. As the Supreme Court observed in Patterson:

If petitioner [after having been advised of his right to counsel in a Miranda warning] nonetheless lacked “a full and complete appreciation of all of the consequences flowing” from this waiver, it does not defeat the State’s showing that the information it provided to him satisfied the constitutional minimum.

Id. (quoting Oregon v. Elstad, 470 U.S. 298, 316-17, 105 S.Ct. 1285, 1296-97, 84 L.Ed.2d 222, 236-37 (1985)). The showing of the State in Patterson did not include evidence that an express admonition of the dangers that existed in proceeding without counsel had been given the accused. Nevertheless, the Court found that the waiver was knowingly and voluntarily made. I would reach the same result in the present case. I would affirm the judgment of the district court.

NEUMAN and STREIT, JJ„ join this dissent.


author: CADY, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Michael T. PRACHT, Respondent.
    No. 02-1381.
    Supreme Court of Iowa.
    Jan. 23, 2003.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Michael T. Pracht, Davenport, pro se.

   CADY, Justice.

This case is before us on report of the Grievance Commission of the Supreme Court of Iowa. The Grievance Commission found Michael T. Pracht violated the Iowa Code of Professional Responsibility for Lawyers by failing to comply with a court order, neglecting client matters, and failing to cooperate with the Iowa Supreme Court Board of Professional Ethics and Conduct. The Commission recommended a one-year suspension. Upon our review of the matter, we find Pracht violated the Code of Professional Responsibility as alleged. We suspend his license to practice law indefinitely with no possibility for reinstatement for one year.

I. Background Facts and Report of Commission.

Michael T. Pracht was admitted to practice law in Iowa in 1976. He practiced in Davenport with a law firm comprised of three, and later four, attorneys until May 2001, when his license to practice was suspended for two years for improperly removing the filing system records from the office of the clerk of the district court. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 627 N.W.2d 567 (Iowa 2001). Pracht primarily practiced in the area of real estate law. One of the other lawyers in the law firm was experienced in probate law.

In addition to the suspension in 2001, Pracht was disciplined in 1993 for incompetently handling probate matters, neglect of client matters, and failing to cooperate with the Board, then known as the Committee on Professional Ethics and Conduct of the Iowa State Bar Association. We publicly reprimanded Pracht for this unethical conduct, and directed him to file a statement with the supreme court clerk certifying, among other things, that he would not “handle probate matters unless he (1) associates with a lawyer experienced in that field, or (2) secures our permission upon a showing of acquired proficiency in probate law.” Comm. on Prof'l Ethics & Conduct v. Pracht, 505 N.W.2d 196, 199-200 (Iowa 1993). Pracht subsequently filed a statement indicating he would not handle probate matters unless he satisfied the required conditions. He never requested our permission to engage in probate work since his public reprimand.

In January 1997, a petition was filed in district court to probate the estate of Louis E. Iossi, Jr. In February 1998, a petition was filed in probate in the estate of Joseph J. Steiniger. In both cases, Pracht was the designated attorney. He engaged in a variety of legal services on behalf of the executors, but neglected his work on more than one occasion.

In the Iossi estate, Pracht failed to timely comply with an order issued by the district court to file a final report and close the estate. He also failed to close the estate within the statutory time period. See Iowa Code § 633.473 (1997). Pracht failed to move for an extension of time at both junctures, resulting in the issuance of delinquency notices. Similarly, Pracht failed to timely close the Steiniger estate, resulting in the delinquency notice. After Pracht received notice from the Board of a complaint, he failed to respond. He also failed to respond to subsequent inquiries by the Board.

The Board filed a multiple-count complaint against Pracht. The first count claimed Pracht violated our prohibition against handling estate matters without associating himself with an experienced probate lawyer or securing our consent. The second count alleged neglect of client matters in the Iossi estate case. The final count concerned the failure to respond to the Board.

Pracht testified at the Commission hearing that he felt justified in handling probate matters following the 1993 order because he practiced in a law firm that included an experienced probate lawyer, and this lawyer was available to assist him if necessary. However, Pracht acknowledged that he never asked this lawyer to work with him in the Iossi and Steiniger estates and he never consulted with him about the cases, or even informed him he intended to represent the executors. He also acknowledged this lawyer was never designated as co-counsel in the estate cases. Furthermore, Pracht never requested clarification of the order before engaging in probate work after 1993 to determine if his conduct satisfied the restriction previously placed on him.

The Commission concluded Pracht committed misconduct as alleged by the Board. It found Pracht violated DR 7-106(A) (disregarding a ruling of a court) and DR 1~102(A)(5) (conduct prejudicial to administration of justice) by handling probate matters after the 1993 order. It found he neglected his responsibilities in the Iossi estate in violation of DR 6-101(A)(3) (neglect of client’s legal matters). Finally, it found Pracht failed to respond to the Board inquiries in violation of DR 1-102(A)(5) and DR 1-102(A)(6) (conduct that adversely reflects on fitness to practice law). The Commission recommended Pracht be suspended for one year.

II. Scope of Review.

We review attorney disciplinary actions de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). We are not bound by the findings of the Commission, but give them weight. Id. We also “consider the discipline recommended by the Commission” but are not bound by its recommendation. Id. The Board has the burden to prove disciplinary violations by a “ ‘convincing preponderance of the evidence.’ ” Id. (citation omitted).

III. Violations.

The violation of a court order by a lawyer constitutes misconduct. See Comm. on Prof'l Ethics & Conduct v. Zimmermann, 522 N.W.2d 619, 620-21 (Iowa 1994); see also Mulford, 625 N.W.2d at 687. Furthermore, misconduct can occur even if the conduct would be prohibited by one interpretation of the order but permitted by another interpretation of the order. Zimmermann, 522 N.W.2d at 620-21. When ’faced with an ambiguity in a court order, “an attorney should seek clarification from the court.” Id. at 621.

In this case, Pracht claimed he satisfied the terms of the 1993 order because he worked in the same law firm as an experienced probate lawyer. We find such an interpretation to be unreasonable. Since Pracht practiced in the same law firm with the experienced probate lawyer at the time of the disciplinary action in 1993, his interpretation of our order would mean he was not required to do anything to continue to handle probate matters. His interpretation is unreasonable, and constituted a willful violation of the 1993 order. Additionally, even if Pracht reasonably believed the order was ambiguous, he failed to seek a clarification. Clearly, his conduct violated DR 7-106(A), as well as DR 1-102(A)(5). See Mulford, 625 N.W.2d at 682; Zimmermann, 522 N.W.2d at 620-21.

Pracht also committed the other misconduct as found by the Commission. He neglected client legal matters due to his failure to timely close the lossi estate. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002). Moreover, Pracht cannot overcome this finding based on his assertion that the root of the delay was due to the persistent lack of cooperation by the executors. Pracht failed to bring such claim to the attention of the district court in a motion for extension of time. See Comm. on Prof'l Ethics & Conduct v. Larsen, 407 N.W.2d 601, 602 (Iowa 1987). Instead, Pracht did nothing, and allowed the case to become delinquent. Finally, Pracht admittedly failed to respond to Board inquiries.

IV. Discipline.

To determine the appropriate discipline for an attorney’s misconduct, this court considers “ ‘the nature, of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue’ ” to practice law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375-76 (Iowa 2002) (citation omitted). We also consider any aggravating and mitigating circumstances in the case. Id. at 376. Multiple instances of neglect and prior disciplinary actions, as well as any uncooperativeness with the Board, are aggravating circumstances to consider in determining discipline. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Jay, 606 N.W.2d 1, 4 (Iowa 2000). Harm to the client is also considered. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999).

Generally, discipline imposed in cases based on client neglect coupled with failure to respond range from reprimand to suspension. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Scheetz, 549 N.W.2d 828, 832 (Iowa 1996) (summarizing cases imposing sanctions ranging from public reprimand to six-month suspension). Yet, the seriousness of this case is compounded by the violation of the order we imposed to prevent the very neglect and incompetence documented in this case. Considering the purposes behind the imposition of attorney discipline, this additional misconduct, combined with the other misconduct, clearly warrants a suspension. We agree with the Commission that a one-year suspension is appropriate under all the circumstances. Pracht has shown to be unable to handle probate matters in a competent manner, and has failed to cooperate with our restrictions and conditions imposed for him to handle such cases. Similarly, he has failed to cooperate with the Board. Therefore, we suspend Pracht’s license to practice law indefinitely with no possibility of reinstatement for one year. In addition, Pracht shall be barred from handling probate matters following any reinstatement until further order of the court. This suspension shall be concurrent with his present suspension. This suspension applies to all facets of the practice of law. Iowa Ct. R. 35.12. Upon application for reinstatement, Pracht must establish that he has not practiced law during the suspension and that he has in all other ways complied with the requirements of Iowa Court Rule 35.21. Costs of this action are taxed to Pracht pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Michael Charles VINYARD, Respondent.
    No. 02-1596.
    Supreme Court of Iowa.
    Jan. 23, 2003.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Peter Riley, Cedar Rapids, for respondent.
   STREIT, Justice.

Michael C. Vinyard, an Iowa attorney, was convicted of fourteen counts of mail fraud and twelve counts of money laundering. Following Vinyard’s felony convictions, the Iowa Supreme Court Board of Professional Ethics and Conduct charged Vinyard with violating several ethics rules. The Grievance Commission recommended we revoke Vinyard’s license to practice law. Our review is required by Iowa Court Rule 35.10 (2002). We concur with the Commission’s findings and recommendation.

I. Background and Facts

Michael C. Vinyard has been a practicing attorney since 1969 in Ottumwa, Iowa. Vinyard and his brother, James Vinyard (hereinafter James), devised a scheme to defraud James’s employer. The scheme involved the creation of a plastics brokerage company which the brothers used to overcharge James’s employer and keep the “mark-up” for themselves. Their misconduct culminated with Vinyard’s indictment on thirty-two counts of felonious mail fraud and money laundering in the United States District Court for the District of South Carolina. Later, the United States Attorney dismissed six of these counts. In August 1999, after a federal trial, a jury found Vinyard guilty of fourteen counts of mail fraud and twelve counts of money laundering in violation of 18 U.S.C. §§ 1341, 1346, 1956(a)(1)(B)(i) and (2). 18 U.S.C. § 1341 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service ... shall be fined ... or imprisoned ... or both.

18 U.S.C. § 1341. Vinyard was also found guilty of money laundering:

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—
(B) knowing that the transaction is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity ...,
shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

18 U.S.C. § 1956(a)(1)(B)(i). Vinyard was sentenced to concurrent terms of imprisonment of seventy months and ordered to pay a special assessment of $2600 plus restitution of over $1,418,000. Vinyard is currently serving his sentence in a federal prison in South Dakota.

In 2001, the United States Court of Appeals for the Fourth Circuit affirmed Vin-yard’s convictions and summarized his misconduct as follows.

James was employed in South Carolina by the Sonoco Products Corporation (“Sonoco”). Sonoco’s high density film products division, which manufactures plastic grocery bags, had decided to explore opportunities to use recycled materials, and had installed James as Recycling Manager-[Sonoco] directed James to employ an independent broker to research potential sources of recycled resins and to negotiate deals for Sonoco on a confidential basis. Rather than locate such a broker, James devised a more personally lucrative solution: the creation of his own brokerage. James enlisted the services of his brother, [Vinyard], and together they created the entity Charles Stewart Enterprises (“CSE”)....
James took charge of CSE’s operations from its inception, while administrative matters were relegated to [Vinyard]. [Vinyard]’s responsibilities consisted chiefly of providing CSE with office space in his law firm, arranging the installation of separate phone and fax lines, and retaining secretarial and accounting services. Under James’s direction, CSE presented itself to Sonoco and plastic vendors as an independent broker; it purchased recycled resins from various vendors and sold them to Sonoco, collecting a commission on each sale. Sonoco was led to believe that Charles Stewart was an actual person at CSE and also that CSE was a legitimate broker of recycled plastic pellets that could provide such pellets at the lowest possible price. In addition to its brokerage operations, CSE became involved in the enterprise of collecting used grocery bags from Sonoco customers and selling them for an unlawful commission (i.e., a kickback) to companies that would reuse or recycle them. Between 1991 and 1997, Sono-co paid CSE over $12 million, yielding the brokerage a net profit of more than $2.8 million....
Both James and [Vinyard] tunneled théir CSE earnings through another entity, Birchwood Enterprises, so that there would be no mention of CSE on their income tax returns....
James also testified that he had informed his brother, before incorporating CSE, that “if Sonoco ever found out about this, [James] would get fired.” There was sufficient evidence for the jury to conclude that [Vinyard] was involved in, and willingly assisted in, his brother’s fraud scheme to breach his duty of loyalty to Sonoco.

The Fourth Circuit further found two of Vinyard’s secretaries involved with CSE business received large bonuses or severance pay, which the court found Vinyard gave them as “hush money.” In 2002, the United States Supreme Court denied Vin-yard’s petition for writ of certiorari.

In October 2001, the Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint alleging Vinyard violated the following rules of professional responsibility: DR 1-102(A)(1) (lawyer shall not violate a disciplinary rule); DR 1-102(A)(3) (lawyer shall not engage in illegal conduct involving moral turpitude); DR 1-102(A)(4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice); and DR 1-102(A)(6) (lawyer shall not engage in conduct that adversely reflects on one’s fitness to practice law). The Commission recommended revocation of Vinyard’s license to practice law.

II. Scope of Review

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rauch, 650 N.W.2d 574, 576 (Iowa 2002); Iowa Ct. R. 35.10. We give respectful consideration to the Grievance Commission’s findings and recommendations, but are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002). The Board has the burden to prove misconduct by a convincing preponderance of the evidence. Id.

III. Misconduct

Vinyard’s federal felony conviction is conclusive evidence of his misconduct warranting revocation. See Iowa Code § 602.10122(1). Vinyard violated DR 1-102(A)(1) prohibiting a lawyer from violating the ethical rules. Because Vin-yard has been found guilty of the felonies of money laundering and mail fraud- — • crimes involving dishonest intent — he violated DR 1-102(A)(3) prohibiting a lawyer from engaging in conduct involving moral turpitude. See Comm. on Prof'l Ethics & Conduct v. Cody, 412 N.W.2d 637, 639 (Iowa 1987) (‘When applied in the context of attorney misconduct, the term ‘moral turpitude’ has been held to connote fraudulent or dishonest intent.”). Conviction of these crimes constitutes violation of DR 1-102(A)(5) prohibiting a lawyer from engaging in conduct prejudicial to the administration of justice. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lyzenga, 619 N.W.2d 327, 330 (Iowa 2000) (lawyer’s violation of essential criminal laws is prejudicial to the administration of justice, in part, because it results in lay person’s loss of respect for the law). Vinyard’s perpetration of fraud violated DR 1-102(A)(4) and (6) providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation or conduct adversely reflecting on one’s fitness to practice law. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Morris, 604 N.W.2d 653, 655 (Iowa 2000) (conviction in state court of fourth degree fraudulent practice); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Palmer, 563 N.W.2d 634, 635 (Iowa 1997) (federal conviction of fraudulent use of credit card); Comm. on Prof'l Ethics & Conduct v. Shepler, 519 N.W.2d 92, 93 (Iowa 1994).

IV. Sanction

In determining the appropriate sanction, we consider the nature of the violations, “the need for deterrence, protection of the public, maintenance of the reputation of the bar as a whole, and the respondent’s fitness to continue to practice law.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999). When we examine a lawyer’s fitness to practice law, we consider more than legal competence. A lawyer must avoid criminal conduct that undermines the public’s confidence in the legal profession. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 882 (Iowa 1996). A lawyer’s conviction of a crime reflects adversely both on the offending lawyer and all other lawyers. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Neuwoehner, 595 N.W.2d 797, 798 (Iowa 1999). Consideration of both aggravating and mitigating factors is also appropriate in fashioning the appropriate sanction. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ruth, 636 N.W.2d 86, 89 (Iowa 2001).

We have not before considered the crimes of mail fraud and money laundering within the context of an attorney disciplinary action. However, we have consistently imposed harsh sanctions for a lawyer’s commission of criminal conduct involving fraud and dishonesty. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Schatz, 595 N.W.2d 794, 796 (Iowa 1999) (revocation after two criminal felony convictions for theft and income tax evasion); Palmer, 563 N.W.2d at 635 (revocation after federal felony conviction for fraudulent use of a credit card); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Romeo, 554 N.W.2d 552, 554-55 (Iowa 1996) (three-year suspension after state conviction of record-tampering, an aggravated misdemeanor involving intent to deceive); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sylvester, 548 N.W.2d 144, 147 (Iowa 1996) (revocation after state conviction of second degree theft, a class D felony); Comm. on Prof'l Ethics & Conduct v. Humphreys, 524 N.W.2d 396, 399-400 (Iowa 1994) (revocation after federal conviction for income tax violation, commingling client funds, and improper relationship with client).

The fact that Vinyard has already been in one sense punished by virtue of his felony convictions does not mitigate the need for a professional sanction. See Comm. on Prof'l Ethics & Conduct v. Owens, 427 N.W.2d 463-464 (Iowa 1988). Though this is Vinyard’s first attorney disciplinary action, this mitigating factor is overpowered by the serious nature of several other aggravating factors. First, Vin-yard’s fraudulent scheme involved harm or the potential for harm to the victim, i.e., Sonoco. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa 2001); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fay, 619 N.W.2d 321, 326 (Iowa 2000); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999). Sonoco’s and its insurance carrier’s loss was determined to be over $2,800,000. Second, Vinyard had over twenty years experience in the practice of law at the time of his misconduct. We have before held substantial experience in the practice of law to be an aggravating factor. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gallner, 621 N.W.2d 183, 188 (Iowa 2001); Wagner, 599 N.W.2d at 730. Third, at the very heart of Vinyard’s misconduct existed dishonesty. Where felony convictions have directly involved dishonest conduct, we have revoked the attorney’s license to practice law. Palmer, 563 N.W.2d at 635. Finally, Vin-yard is not guilty of an isolated event of unethical conduct. Rather he engaged in a lengthy pattern of misconduct involving mail fraud and money laundering all for the sake of personal, pecuniary gain. Gallner, 621 N.W.2d at 187 (pattern of misconduct warrants enhanced sanction) (citing Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lesyshen, 585 N.W.2d 281, 288 (Iowa 1998)).

It appears the scheme to defraud James’s employer did not originate with Vinyard. Rather, he became involved only after his brother devised the plan and assigned a role to Vinyard. This is analogous to situations where a client initiates criminal conduct in which the attorney later participates. The fact that the lawyer did not create the idea or set the criminal conduct into motion does not work as a mitigating factor. See Comm. on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990); The Florida Bar v. Calvo, 630 So.2d 548, 550 (Fla.1993) (though scheme primarily originated with client, not lawyer, “[i]t is especially incumbent upon attorneys to use their legal expertise to discourage rather than further the type of flagrant fraud on the public involved in this case”). Though we recognize Vinyard’s crimes did not involve the practice of law, we have held an attorney may be sanctioned for criminal convictions “not even remotely related to the practice of law.” See Lyzenga, 619 N.W.2d at 332.

Given the above facts, we find revocation of Vinyard’s license is necessary for deterrence, protection of the public, and maintenance of the reputation of the bar as a whole. Stein, 603 N.W.2d at 576. Vin-yard’s actions in the criminal enterprise for which he was convicted conclusively show he lacks the character and fitness required of a member of the bar. The seriousness of his violations warrants revocation of his license to practice law. Costs are assessed to Vinyard pursuant to Iowa Court Rule 35.25.

LICENSE REVOKED.