author: CADY, Justice.

text:
    Larry STEWART d/b/a Larry Stewart Realty, Appellant, v. Jeffrey P. SISSON, Appellee.
    No. 04-1323.
    Supreme Court of Iowa.
    March 24, 2006.

      Judith M. O’Donohoe of Elwood, O’Do-nohoe, Stochl, Braun & Churbuck, Charles City, attorney for appellant.
    Joel J. Yunek of Yunek Isaacson, P.L.C., Mason City, attorney for appellee.
   CADY, Justice.

In this appeal, we must decide whether an oral agreement between a property owner and a real estate broker for the broker to procure a buyer for the property without listing it constitutes a “listing agreement” within the meaning of a real estate commission rule requiring such agreements to be in writing. We conclude such an agreement is not , a “listing agreement” and, therefore, reverse the judgment of. the district court and remand for further proceedings.

I. Background Facts and Proceedings

Jeffrey Sisson owned a sports bar and restaurant in Charles City. In early 1999, he contacted Larry Stewart about selling the restaurant. Stewart is a licensed real estate broker in Charles City. According to the facts accepted for the purpose of summary adjudication, Sisson told Stewart he wanted a sales price around $615,000, and he would pay him ten percent of the sales price if he found a buyer. However, Sisson did not want Stewart to list the property because he thought he would lose sales and value from the business if the public were aware it was for sale. Stewart agreed to find a buyer, but the parties never reduced the agreement to writing.

Stewart began looking for a buyer for the property. One person he contacted was Michael Walter, who Stewart thought would be interested in the business. Stewart obtained financial information about the business from Sisson and told Sisson he intended to disclose it to Walter. Stewart required Walter to sign an agreement to keep the information confidential and to prevent him from negotiating directly with Sisson.

On November 13, 2001, Sisson sold the business to Walter without notifying or involving Stewart. Stewart subsequently learned about the sale and wrote Sisson to inquire about his commission. Sisson replied and asked Stewart for written documentation to verify the agreement. Stewart could not provide a writing, and further efforts to resolve the dispute failed.

Stewart filed an action against Sisson for breach of contract in March 2002. Sis-son responded by filing a motion to dismiss. He claimed Iowa Administrative Code rule 193E — 1.23 [now rule 193E— 11.1] barred Stewart’s claim. See Iowa Admin. Code r. 193E — 1.23 (1997) (“All listing agreements shall be in writing, properly identifying the property and containing all of the terms and conditions under which the property is to be sold, including the price, the commission to be paid, the signatures of all parties concerned and a definite expiration date.”). Stewart resisted the motion and filed an amended petition, adding claims of fraudulent misrepresentation, reckless misrepresentation, breach of implied contract, and unjust enrichment. The district court dismissed the breach-of-contract claim in the original petition, as well as the additional claims in the amended petition.

Stewart appealed. We transferred the case to the court of appeals. The court of appeals reversed the district court and remanded the case for further proceedings. Without explanation, the court of appeals concluded “the district court was in error to grant defendant’s motion to dismiss plaintiffs claims.”

After remand, Sisson filed an answer to Stewart’s amended petition and denied most of the allegations. Sisson then filed a motion for summary judgment. He again claimed rule 193E — 1.23 barred Stewart’s claims. Stewart resisted the motion. He claimed his agreement with Sisson was not subject to the writing requirement of the rule because it was not a “listing agreement,” and in any event, the rule was invalid and unconstitutional.

The district court granted summary judgment in favor of Sisson. It held that the oral agreement between Stewart and Sisson was subject to the writing requirement of the rule. In addition, the court held the rule was not unconstitutional. Finally, the court concluded Stewart was not permitted to recover under any theory because the purpose of the rule would be defeated. Stewart appealed.

II. Standard of Review

We review rulings granting summary judgment for correction of errors at law. Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa 2005) (citing In re Estate of Graham, 690 N.W.2d 66, 69-70 (Iowa 2004)).

A motion for summary judgment should only be granted if, viewing the evidence in the light most favorable to the non-moving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Id. (quoting Iowa R. Civ. P. 1.981(3); citing Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004)).

III. Discussion

The premise for the district court’s decision was that the agreement between Stewart and Sisson was a “listing agreement” under rule 193E — 1.23. We have previously held that this administrative rule makes oral listing agreements unenforceable upon proper objection. Hubbell Commercial Brokers, L.C. v. Fountain Three, 652 N.W.2d 151, 156 (Iowa 2002) (citing Milholin v. Vorhies, 320 N.W.2d 552, 554 (Iowa 1982)). The district court considered the motion for summary judgment as an objection and relied upon this authority to dismiss the contract claim, as well as all other companion claims. See Maynes Real Estate v. McPherron, 353 N.W.2d 425, 426-27 (Iowa 1984) (holding brokers cannot recover for quantum meru-it under properly-objected-to oral listing agreement; reasoning “the legislative intent underlying section 1.23 was to forbid any recovery by a broker or sales agent under an oral agreement” (emphasis added)). Biot see Restatement (Second) of Torts § 530 cmt. c, at 64-65 (1977) (stating misrepresentation claims are still viable when contract and quasi-contract claims fail due to the lack of a writing); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 109, 764 & n. 7 (5th ed.1984) (opining that rules barring recovery on oral contracts should not also bar tort claim of misrepresentation because “the policy which invalidates the promise is not directed at cases of dishonesty in making it”). Thus, we must decide if the district court properly applied the law. See Westfield Ins. Cos. v. Econ. Fire & Cas. Co., 623 N.W.2d 871, 876 (Iowa 2001) (stating when we review for correction of errors at law, “we determine whether the district court correctly applied the law” to the undisputed facts).

Rule 193E — 1.23, entitled “Listings,” is an administrative rule promulgated by the Iowa Real Estate Commission pursuant to its rulemaking authority under Iowa Code section 543B.9 (1999). “[R]ules properly adopted by the commission have the force of a statute.” Hubbell Commercial Brokers, L.C., 652 N.W.2d at 155 (citing Milholin, 320 N.W.2d at 553). In construing an administrative rule, “[a]s with a statute, we seek to ascertain and give effect to the intent of the drafters” and “construe it liberally ‘to promote its objects and assist the parties in obtaining justice.’ ” Rodgers v. Baughman, 342 N.W.2d 801, 805 (Iowa 1983) (quoting Iowa Code § 4.2 (1983)).

Rule 193E — 1.23 provides:

All listing agreements shall be in writing, properly identifying the property and containing all of the terms and conditions under which the property is to be sold, including the price, the commission to be paid, the signatures of all parties concerned and a definite expiration date. It shall contain no provision requiring a party signing the listing to notify the broker of the listing party’s intention to cancel the listing after such definite expiration date. An exclusive agency or exclusive right to sell listing shall clearly indicate that it is such an agreement. A legible copy of every written listing agreement or other written authorization shall be given to the owner of the property by a licensee as soon as reasonably practical after the signature of the owner is obtained.

Iowa Admin. Code r. 193E — -1.23. Thus, at least with respect to “listing agreements,” the rule changes the common law, which recognized the enforceability of oral brokerage agreements. Maynes Real Estate, Inc., 353 N.W.2d at 426 (citing McHugh v. Johnson, 268 N.W.2d 225, 227 (Iowa 1978)). We have said that rule 193E — 1.23 “is analogous to the statute of frauds applicable to contracts.” Hubbell Commercial Brokers, L.C., 652 N.W.2d at 156 (citing Milholin, 320 N.W.2d at 554); see also Rodgers, 342 N.W.2d at 805 (“[L]ike a statute of frauds the rule is intended to be available as a shield and not a sword.” (citing Warder & Lee Elevator, Inc. v. Britten, 274 N.W.2d 339, 342 (Iowa 1979))). “The rule essentially means that a broker must normally comply with the requirements of the rule to recover a commission. The rule both protects the public and provides guidance for brokers in their business dealings with the public.” Hub bell Commercial Brokers, L.C., 652 N.W.2d at 156 (citing Milholin, 320 N.W.2d at 554).

In Hiibbell, we observed that “[t]he term ‘listing agreement’ is not a defined phrase under chapter 543B or the commission rules.” Id. We did not define the term, but concluded that it did not encompass agreements between brokers. Id. at 157. We also noted:

The language of the rule as a whole is consistent with the common definition of a listing agreement as “[a]n agreement between a property owner and an agent, whereby the agent agrees to try to secure a buyer or tenant for a specific property at a certain price and terms in return for a fee or commission.”

Id. (quoting Black’s Law Dictionary 943 (7th ed.1999)).

The primary, and dispositive, issue presented on appeal is whether an agreement to procure a buyer without listing the property is a listing agreement under rule 193E — 1.23. The structure of the rule itself reveals that it is not. The definitional provision of the real estate commission’s rules provides different definitions for “listing broker” and “selling broker.” Compare Iowa Admin. Code r. 193E — 1.1 (“ ‘Listing broker’ means the real estate broker who obtains a listing of real estate or of an interest in a residential cooperative housing corporation.”), with id. (“ ‘Selling broker’ means a real estate broker who finds and obtains a buyer in a transaction.”). In addition, while rule 193E — 1.23 applies to “listing agreements,” a different rule — -rule 193E — 1.42-applies to “brokerage agreements.” Rule 193E — 1.42 similarly provides that “[a]ll brokerage agreements shall be written.” Id. r. 193E — 1.42 (1997). Rule 193E — 1.1 defines “brokerage agreement” as “a contract between a broker and a client which establishes the relationship between the parties as to the brokerage services to be performed.” Id. r. 193E — -1.1; accord Iowa Code § 543B.5(8). The Code defines “brokerage services” as:

1. Selling], exchanging], purchasing], renting], or leasing] real estate.
2. Listing], offering], attempting], or agreeing] to list real estate for sale, exchange, purchase, rent, or lease.
3. Advertising] or holding] oneself out as being engaged in the business of selling, exchanging, purchasing, renting, leasing, or managing real estate.
4. Negotiating], or offering], attempting], or agreeing] to negotiate, the sale, exchange, purchase, rental, or lease of real estate.
5. Buying], selling], offering] to buy or sell, or otherwise dealing] in options on real estate or improvements on real estate.
6. Collecting], or offering], attempting], or agreeing] to collect, rent for the use of real estate.
7. Assisting] or directing] in the procuring of prospects, intended to result in the sale, exchange, purchase, rental, or leasing of real estate.
8. Assisting] or directing] in the negotiation of any transaction intended to result in the sale, exchange, purchase, rental, or leasing of real estate.
9. Preparing] offers to purchase or purchase agreements, listing contracts, agency disclosures, real property residential and agricultural rental agreements, real property commercial rental agreements of one year or less, and groundwater hazard statements, including any modifications, amendments, or addendums to these specific documents.

Iowa Code § 543B.3; see id. § 543B.5 (defining “brokerage services” as “those activities listed in sections 543B.3 and 543B.6”); see also id. § 543B.6 (incorporating acts set out in section 543B.3).

This scheme is instructive. The distinction made between selling and listing brokers and the broad definition of brokerage services shows that listing property for sale is just one of many brokerage services that a broker can provide to a client. See id. § 543B.3(1)-(8). This indicates that a listing agreement is just one type of brokerage agreement between a broker and a client. Clearly, the rules and statutes distinguish between “listing” property and other brokerage services, and we must give this distinction meaning in defining agreements relating to the services. Thus, the statutory and regulatory framework reveals that the term “listing agreements” under rule 193E — 1.23 would not encompass agreements between a broker and a client in which the parties agree not to “list” the property. To conclude otherwise would render the listing-agreement rule a virtual nullity because listing agreements would necessarily be covered by the brokerage-agreement rule. See In re Interest of G.J.A., 547 N.W.2d 3, 6 (Iowa 1996) (“The ‘statute should not be construed so as to make any part of it superfluous unless no other construction is reasonably possible.’ We will presume the legislature enacted each part of the statute for a purpose and intended that each part be given effect. [Furthermore, w]e will not presume that the legislature intended words in the statute be given a redundant meaning.” (Citations omitted.)); Messina v. Iowa Dep’t of Job Serv., 341 N.W.2d 52, 56 (Iowa 1983) (“Generally, the rules of statutory construction and interpretation also govern the construction and interpretation of rules and regulations of administrative agencies.” (Citation omitted.)). Agreements to perform brokerage services other than “listing” the property are “brokerage agreements” under rule 193E— 1.42, but are not “listing agreements” under rule 193E — 1.23.

The remaining question is what it means to “list” a property. The Minnesota Supreme Court has held that “listing,” in the context of Minnesota’s real-estate-license statute, means using a compiled and published list of properties and their descriptions “for the purpose of attempting to meet the individual needs of some specifically identified seller, buyer, landlord, or tenant.” State v. Beslanowitch, 311 Minn. 56, 248 N.W.2d 286, 288 (1976). Other authorities are in agreement. See Leo Eisenberg & Co. v. Payson, 152 Ariz. 390, 732 P.2d 1128, 1130 (Ct.App.1987) (“A listing agreement is a form of agency agreement and employment in which the agent agrees to expose a property to the market in consideration of payment of his commission if a sale or lease is made.” (Citation omitted.)); Jae K. Shim et al., Dictionary of Real Estate 168 (1996) (defining “list” as: “To secure a listing by a real estate agent for a certain parcel of property”; defining “listing” as: “Legal contract with a property owner empowering a real estate agent in selling, leasing, or mortgaging the principal’s property. A listing has a legal description of the property, is valid for a specified time and gives the details of the sale.”). See generally Grempler v. Multiple Listing Bureau of Harford County, Inc., 258 Md. 419, 266 A.2d 1, 3 (1970) (“Multiple listing is a device used by the real estate broker to give wide exposure to properties listed for sale. Each cooperating broker informs all other participating brokers of the properties listed with him, thus an individual home for sale is available to purchasers at several different brokers’ offices.”). These authorities reveal that real estate would not be “listed” when a broker is not permitted to disclose the sale of the property to the general public, but is only permitted to privately disclose the sale to those persons the broker considers to be potential buyers.

Applying this principle to this case, we conclude rule 193E — 1.23 did not apply to the agreement between Stewart and Sisson. An agreement that provides the property is not to be “listed” is not a “listing agreement.” A listing “agreement is called a ‘listing’ agreement because the broker obtains the right to place the seller’s property on the broker’s list of properties for sale.” George Lefcoe, Real Estate Transactions 63 (2d ed.1997).

Stewart stated in his affidavit resisting the motion for summary judgment that Sisson did not want to “list” his restaurant because he did not want to detract from his daily business. We must accept this as true for purposes of summary judgment. INNK Land & Cattle Co. v. Kenkel, 493 N.W.2d 818, 819 (Iowa 1992). Viewing the facts in the light most favorable to Stewart, we conclude the district court erred in concluding Stewart and Sisson had a listing agreement. Consequently, rule 193E—1.23 was inapplicable to the case, and the district court erred in concluding that it barred Stewart from recovery. Likewise, this same error reveals the district court erred in dismissing the companion claims.

As previously observed, rule 193E — 1.42 also requires “brokerage agreements” to be in writing. Thus, it is possible to proceed to determine if the oral agreement in this case is a “brokerage agreement” and, if so, to then decide if the failure to reduce the agreement to writing precludes enforcement of the agreement, as with listing-agreements. However, in his motion for summary judgment, Sisson did not raise rule 193E — 1.42 as a ground to deny enforcement of the agreement, or argue that the oral agreement, if not a listing agreement, should be denied enforcement as a brokerage agreement. In addition, Sisson did not make any argument in his statement of undisputed facts or memorandum of law that rule 193E — 1.42 barred Stewart’s claims. Sisson’s claim for summary judgment was based solely on rule 193E— 1.23. The district court did not rule on the issue, but rather, based it decision to dismiss all of Stewart’s claims on the applicability of rule 193E — 1.23.

Our limited role as an appellate court acts to constrain our ability to decide issues not presented to the district court. See Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 679 (Iowa 2004) (reversing summary judgment because the sole ground raised in the motion was erroneous, declining to consider issue not raised in motion, and remanding for further proceedings); DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002) (holding we can affirm on a ground not relied on by the district court, but only if the ground was raised in district court); Conkling v. Standard Oil Co., 138 Iowa 596, 600, 116 N.W. 822, 824 (1908) (“[T]he case must be considered in this court following the line of the theory on which it was tried in the court below; and this we feel constrained to say, although the point is not made by counsel for appellee. In justice to the trial court, if on no other ground, we will not permit a party to mend his hold after coming into this court, and seek to advantage himself on grounds not suggested on the trial he-low.”); cf. In re Detention of Hodges, 689 N.W.2d 467, 469 (Iowa 2004) (“The general rule is ‘that an appellate court will not consider grounds for a motion for directed verdict which the movant did not place before the trial court.’ ” (quoting Podraza v. City of Carter Lake, 524 N.W.2d 198, 202 (Iowa 1994))). This constraint is based on fairness and provides the essential symmetry and balance to our judicial process. It is not for us to decide substantive issues not raised by the parties, but to decide issues first presented to the district court. See Pond v. Anderson, 241 Iowa 1038, 1049, 44 N.W.2d 372, 379 (1950) (“[O]ur duty is merely to pass upon the errors assigned and not to review the evidence de novo nor decide the case as we might think it should be decided.”).

IV. Conclusion

The agreement between Stewart and Sisson was not a “listing agreement.” Rule 193E — -1.23 did not apply, and the district court erred in dismissing the claims by Stewart on that basis. We reverse the judgment of the district court and remand for further proceedings.

REVERSED AND REMANDED.

      . Sisson acknowledged in his motion for summary judgment that he had contacts with Stewart concerning the sale of the business and presumed for purposes of summary judgment that he and Stewart had an agreement as alleged by Stewart. However, Stewart does not argue on appeal that the agreement is removed from the coverage of rule 193E— 1.23, as a judicial admission of the existence of an oral contract, which can by analogy remove a contract from the statute of frauds. See Catamount Slate Prods., Inc. v. Sheldon, 176 Vt. 158, 845 A.2d 324, 328 (2003) ("Under the judicial admission exception, a court can enforce an otherwise unenforceable oral agreement when the party against whom enforcement is sought admits the existence of the agreement.” (citing 10 Richard A. Lord, Williston on Contracts § 27:10, at 69-70 (4th ed. 1999))); accord E. Allan Farnsworth, Contracts § 6.7, at 396-97 (3d ed.1999) (discussing exception); 73 Am.Jur.2d Statute of Frauds § 478, at 166 (2001) ("[A] defendant waives the right to assert the statute of frauds if the defendant's counsel stipulates the facts showing that an agreement has, in fact, been reached.”); cf. Gardner v. Gardner, 454 N.W.2d 361, 363 (Iowa 1990) (applying exception). Accordingly, we do not need to decide whether there is such an exception to the rule. See Aluminum Co. v. Musal, 622 N.W.2d 476, 479 (Iowa 2001) ("It is a well-established rule of appellate procedure that '[t]he scope of appellate review is defined by the issues raised by the parties' briefs.’ ” (Citations omitted.)).

      . In arguing that the oral agreement was not a listing agreement, Stewart acknowledged it was a brokerage agreement. Notwithstanding, he claimed it was not required to be in writing because the current rule covering brokerage agreements, rule 193E — 11.3, did not go into effect until September 4, 2002. Stewart is correct that the effective date of the rule was after the date of the oral agreement, but rule 193E — 11.3 was not a new rule in 2002; it was just renumbered. Its predecessor, rule 193E — 1.42, was in effect in 1999 when Stewart and Sisson made their agreement. See Iowa Admin. Coder. 193E — 1.42 (1997).

      . The fairness rationale is readily apparent in this case. Stewart alternatively argued that rule 193E — 1.23 was unconstitutional. If we proceeded to apply rule 193E — 1.42 to resolve the appeal, Stewart would not only be deprived of the opportunity to make arguments specifically directed at rule 193E — 1.42 but would be deprived of the opportunity to challenge the application of the rule as unconstitutional. Appellate courts will not address a claim that a statute is unconstitutional when it was not first raised at trial. Fairness dictates that both parties be given an opportunity to reframe their arguments in light of our determination that a listing agreement was not involved in this case.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Walter Junior HOSKINS, III, Appellant.
    No. 04-1698.
    Supreme Court of Iowa.
    March 31, 2006.

      Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

In this appeal, the State seeks further review of a court of appeals decision suppressing evidence found in a warrantless search of the defendant’s vehicle. Because probable cause and exigent circumstances supported the search, we vacate the decision of the court of appeals. As a consequence of vacating the court of appeals’ decision, we must also decide if the defendant’s trial counsel was ineffective for failing to move for disclosure of the identity of the confidential informant and for failing to raise a specific sufficiency-of-the-evidence claim during the defendant’s motion for judgment of acquittal. On our review, we find the defendant’s trial counsel was not ineffective. Therefore, we affirm the judgment of the district court.

I. Background Facts and Proceedings.

During the early morning hours of September 5, 2003, a confidential informant visited the Waterloo police station and relayed information to patrol sergeant Mark Meyer. The informant reported Walter Junior Hoskins, III was at a bar located two blocks from the station with crack cocaine on his person for sale. Meyer stated the informant had seen Hoskins with the drugs but Meyer did not know whether Hoskins had the drugs out looking at them or whether he was making a sale. The informant described the vehicle Hoskins was driving and said Hoskins parked it in front of the bar.

Within twenty to thirty minutes of receiving the informant’s information, Meyer dispatched other police officers to the bar. The officers returned to the station and corroborated part of the informant’s information, that the vehicle being driven by Hoskins was parked in front of the bar where the informant said it would be, but did not corroborate that Hoskins had drugs on his person. After reporting to Meyer, one of the officers, Greg Erie, drove to a parking ramp overlooking the bar. When he arrived at the top of the ramp, he observed the vehicle leaving the bar. Erie immediately notified other officers as to the direction the vehicle was headed.

Officer Michael Rasmussen’s police car caught up to Hoskins’ vehicle just as it drove through a red light. Rasmussen stopped the vehicle and informed the driver he stopped the vehicle for running a red light. There were two people in the vehicle, a driver, Hoskins, and a front passenger, Rodney Dejuan Berry. Rasmussen asked Hoskins for his license, registration, and insurance information. Upon receiving this documentation, Rasmussen returned to his car and called the dispatcher asking for backup and a canine unit.

Rasmussen returned to Hoskins’ vehicle and asked him to exit it. Backup officers arrived at the stop. Hoskins consented to a search of his person and no contraband was found on his person. While the other officers were present, Rasmussen searched Berry and found no contraband on his person. Rasmussen then asked Hoskins if he could search the vehicle. Hoskins refused to consent to a search of his vehicle. Rasmussen then informed Hoskins he had requested a canine unit to come to the scene so the drug dog could sniff the vehicle. He told Hoskins if the drug dog indicated the vehicle contained narcotics, he would search the vehicle. Rasmussen was then notified that the canine unit was tied up with another stop. At this point, Meyer told Rasmussen they had probable cause to search the vehicle.

Rasmussen searched the vehicle and found a white towel beneath the driver’s seat, which contained two plastic bags, one containing nine smaller bags of crack cocaine (0.96 grams) and the other containing ten smaller bags of powder cocaine (3.18 grams). The canine unit eventually arrived and the rest of the vehicle was searched but nothing more was found. The police arrested Hoskins and brought him to the station. Hoskins received his Miranda warnings and he told Meyer he wanted to be charged with simple possession. Hoskins acknowledged the substances found in the vehicle were his but did not acknowledge he was using cocaine. Hoskins also said there was not anything going on that he did not know about as to the drug trade.

The State charged Hoskins with two drug crimes: (1) possession of cocaine base with the intent to deliver in violation of Iowa Code section 124.401(l)(c) (2003), and being a second offender and an habitual offender under Iowa Code sections 124.411, 902.8, and 902.9; and (2) possession of salt of cocaine with the intent to deliver in violation of Iowa Code section 124.401(l)(e), and being a second offender and an habitual offender under Iowa Code sections 124.411, 902.8, and 902.9.

Hoskins filed a motion to suppress challenging the legality of the stop and search of his vehicle. Hoskins claimed the police stopped his vehicle without reasonable suspicion, the police did not have a warrant to search the vehicle, and there was no probable cause to search the vehicle. The district court denied Hoskins’ motion to suppress. The court concluded probable cause supported the search of the vehicle in view of Meyer’s experience and the reliable informant’s tip.

The case proceeded to a jury trial. At trial, Hoskins’ trial counsel moved for a judgment of acquittal stating “specifically we do not believe that the State has presented evidence which given in the light most helpful to the State would be adequate to find [Hoskins] guilty of possession with intent to deliver either crack cocaine or powdered cocaine.” The State resisted the motion and the court overruled it.

The jury found Hoskins guilty of both crimes. The court entered judgment and sentenced Hoskins to terms of incarceration not to exceed thirty years on each conviction, to be served concurrently.

Hoskins appealed. We transferred the case to our court of appeals. The court of appeals reversed the district court’s ruling on the motion to suppress. We granted further review. We will discuss other facts bearing on Hoskins’ contentions on appeal in our analysis of the legal issues presented.

II. Issues.

Hoskins raises two issues on appeal. First, he asserts the district court erred in overruling his motion to suppress. Second, Hoskins claims his trial counsel provided ineffective assistance of counsel in failing to move for disclosure of the identity of the confidential informant and in failing to raise a specific sufficiency-of-the-evidenee claim during the motion for judgment of acquittal.

III. Scope of Review.

The State requested further review claiming the court of appeals erred in suppressing the drugs found in this case under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. Our review is de novo when we assess an alleged violation of constitutional rights. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). We are required to review the record and independently evaluate the totality of the circumstances. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We are not bound by the fact findings of the district court, but we do give deference to those findings because the district court had the opportunity to evaluate the credibility of the witnesses. Id.

Hoskins’ claims involving ineffective assistance of counsel have their basis in the Sixth Amendment to the United States Constitution and are reviewed de novo. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). Although these claims are typically preserved for postconviction relief actions, “we will address such claims on direct appeal when the record is sufficient to permit a ruling.” Id.

IV. Analysis.

A. Motion to Suppress. Our federal and state constitutions protect people from unreasonable searches and seizures. U.S. Const. amend. IV; Iowa Const. art. I, § 8; State v. Cline, 617 N.W.2d 277, 281 (Iowa 2000), abrogated on other grounds by Turner, 630 N.W.2d at 606 n. 2. Cases interpreting the federal constitution are persuasive in our interpretation of the state constitution because the federal and state search-and-seizure clauses are similar. See State v. Olsen, 293 N.W.2d 216, 219-20 (Iowa 1980). Decisions interpreting the federal constitution, however, are not binding on us with respect to the Iowa Constitution. Id. Because Hoskins has not given us reason to do otherwise, and the facts of this case do not give us a basis to distinguish the protections of our state constitution from those of the federal constitution, our discussion of the merits of Hoskins’ suppression motion applies equally to his state and federal constitutional claims. State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004); State v. Lewis, 675 N.W.2d 516, 522-23 (Iowa 2004).

The Fourth Amendment to the United States Constitution assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Fourth Amendment is binding on the states through the Fourteenth Amendment of the federal constitution. Freeman, 705 N.W.2d at 297. “Warrantless searches and seizures are per se unreasonable, unless one of the few carefully drawn exceptions to the warrant requirement exists.” Id. The recognized exceptions include “searches based on consent, plain view, probable cause coupled with exigent circumstances, searches incident to arrest, and those based on the emergency aid exception.” Lewis, 675 N.W.2d at 522. The State must prove by a preponderance of the evidence that a recognized exception to the warrant requirement applies. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996), abrogated on other grounds by Turner, 630 N.W.2d at 606 n. 2. The assessment of a police officer’s conduct is based on an objective standard. Freeman, 705 N.W.2d at 297. A search’s legality does not depend on the actual motivations of the police officers involved in the search. Id.

The State claims the exception to the warrant requirement applicable to this case is probable cause coupled with exigent circumstances. Exigent circumstances exist when a vehicle is mobile and its contents may not be found again if a warrant is required. State v. Carter, 696 N.W.2d 31, 37 (Iowa 2005). At the suppression hearing, Hoskins’ trial counsel conceded exigent circumstances existed at the time the officers searched Hoskins’ vehicle due to the mobility of the vehicle.

Additionally, it is well-settled law that a traffic violation, no matter how minor, gives a police officer probable cause to stop the motorist. State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996). An officer observed Hoskins’ vehicle drive through a red light in violation of Iowa’s traffic laws. Consequently, the officer clearly acted within his authority in stopping Hoskins’ vehicle. Therefore, we will focus on whether the police had probable cause to search the vehicle after it was lawfully stopped.

Probable cause exists to search a vehicle

“when the facts and circumstances would lead a reasonably prudent person to believe that the vehicle contains contraband. The facts and circumstances upon which a finding of probable cause is based include ‘the sum total ... and the synthesis of what the police [officer has] heard, what [the officer] knows, and what [the officer] observe[s] as [a] trained officer[ ].’ ”

State v. Gillespie, 619 N.W.2d 345, 351 (Iowa 2000) (omission in original) (alterations in original) (citations omitted), abrogated on other grounds by Turner, 630 N.W.2d at 606 n. 2. The assessment of probable cause “ ‘is based on probabilities and not mere suspicion,’ ” but it need not “rise to the level of certainty beyond a reasonable doubt.” Carter, 696 N.W.2d at 37 (citation omitted). The probable cause needed by the officers to search the vehicle in this case must be based on facts that would justify a magistrate to issue a warrant, even though the officers had not actually obtained a warrant. United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572, 583-84 (1982). A probable cause finding rests on a nexus between the criminal activity, the place to be searched, and the items to be seized. State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004).

The State claims the officers had probable cause to search Hoskins’ vehicle when Meyer authorized the search. Consequently, we must determine whether the totality of the circumstances available to Meyer at the time he authorized the search would be enough to establish probable cause for the issuance of a warrant to search the vehicle. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983) (holding the totality-of-the-circumstances standard is used in determining whether probable cause has been established for the issuance of a search warrant).

At the time' Meyer authorized the search, an informant had informed him Hoskins had drugs in his possession at the bar and Hoskins’ vehicle was parked outside of the bar. Meyer knew this informant for fifteen to twenty years. Meyer testified this informant is a mature individual. Meyer also testified the information provided by this informant in the past led to the courts issuing several search warrants and the police department making numerous arrests. Meyer further testified this informant had never given false information in the past, had supplied information in the past well over fifty times, and past information from this informant led to the discovery of drugs and other contraband. Meyer also confirmed the department pays this informant if the information proves helpful to the police.

Meyer corroborated the information given to him by the informant concerning the location of Hoskins’ vehicle by sending officers to the bar. In addition to the information provided by the informant, Meyer was familiar with Hoskins, his prior convictions for possession of drugs with intent to deliver, and the vehicle he was using.

When determining whether probable cause exists to issue a search warrant, the Supreme Court stated:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is A fair probability that contraband or evidence of a crime will be found in a particular place.

Id. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

In this case, a reliable informant with a favorable track record of providing information to the authorities provided Meyer with the informant’s firsthand observation of Hoskins at the bar with drugs in his possession. See State v. Gogg, 561 N.W.2d 360, 365 (Iowa 1997) (finding a confidential informant was credible for the issuance of a search warrant where the information “revealed the informant had supplied information on several prior occasions and had never been shown to have provided false information,” and the information “was not public knowledge and the informant personally saw [the defendants] in possession of [drugs]”). Additionally, Meyer corroborated the information provided by the informant when he sent officers to confirm Hoskins’ vehicle was parked outside the bar. See State v. Weir, 414 N.W.2d 327, 332 (Iowa 1987) (explaining courts making informant credibility determinations for the issuance of a search warrant rely on various factors, one of which is the corroboration of the informant’s information). Finally, Meyer was aware of Hoskins’ prior drug convictions. See State v. Padavich, 536 N.W.2d 743, 748 (Iowa 1995) (recognizing in making a determination of probable cause for the issuance of a search warrant, several factors may be considered, such as “a suspect’s history of involvement in the drug trade”). These facts are sufficient to establish a fair probability that illegal drugs would be found in Hoskins’ possession.

Even so, Hoskins argues and the court of appeals agreed the information provided by the informant did not establish a nexus between the items the police seized — the drugs — and the place the police searched — the vehicle. We disagree.

The ninth circuit was confronted with a similar situation where an affidavit in support of a search warrant application stated an informant had purchased drugs at the defendant’s apartment, but provided no information drugs were ever seen in the defendant’s vehicle. United States v. Spearman, 532 F.2d 132, 133 (9th Cir.1976). There the affidavit included a statement from a police officer stating, “It is commonplace for dealers of heroin to have heroin that is packaged for sale in the place where they live or sell from, in their vehicles or on their persons.” In reaching the conclusion probable cause existed to issue a search warrant to search the defendant’s vehicle, the court pointed out it had upheld many searches where

“the nexus between the items to be seized and the place to be searched rested not on direct observation ... but on the type of crime, the nature of the [items to be seized], the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [the items to be seized].”

Id. (omission in original) (citations omitted). The court found even though the informant’s direct observation only connected the drugs with the defendant’s apartment, the magistrate was required to interpret the affidavit in a common-sense fashion. Id. Therefore, “the magistrate was justified in inferring probable cause that [the defendant] would also have heroin concealed in his automobile.” Id.

We have adopted this reasoning in an analogous situation. State v. Groff, 323 N.W.2d 204, 212 (Iowa 1982). In Groff, the affidavit disclosed the defendants’ field contained a large quantity of marijuana plants in various stages of growth. Id. The affidavit also included a statement from a state narcotics agent that in his experience as a narcotics investigator, individuals who manufacture or distribute marijuana need “an area to refine, manicure and store said substances during various stages of drying prior to use and distribution.” Id. Based on this affidavit, we affirmed the magistrate’s issuance of a search warrant allowing officers to search the defendants’ residence. Id. In doing so, we reaffirmed the principle that there must be a nexus between the place to be searched and the items to be seized. Id. We also confirmed the notion that direct observation is not required to establish this nexus, as it “can be found by considering the type of crime, the nature of the items involved, the extent of the defendant’s opportunity for concealment, and the normal inferences as to where the defendant would be likely to conceal the items.” Id.; see also State v. Leto, 305 N.W.2d 482, 486 (Iowa 1981) (holding it was reasonable for a magistrate to infer that a suspect in an automobile theft operation would keep items relating to stolen vehicles at a repair shop located at his residence); State v. Iowa Dist. Ct., 247 N.W.2d 241, 248 (Iowa 1976) (holding it was reasonable for a magistrate to infer from circumstances including the presence of stolen property in a truck that the remainder of the stolen property would be found at the occupants’ residence).

At the suppression hearing, Meyer testified most drug dealers take their drugs with them when they leave a bar, rather than leaving the drugs behind. Rasmussen testified in his experience with narcotics stops people hide their drugs in their vehicles to avoid detection by the authorities. It is reasonable to infer from the knowledge of the officers at the time of the search that a suspect who has drugs in a bar would take them with him when he left the bar and hide them in his vehicle in order to avoid detection on his person if stopped by the police. Thus, the officers’ testimony established the nexus between the place to be searched — the vehicle — and the items to be seized — the drugs — because it is reasonable to infer from their testimony that they would probably find the drugs seen by the informant at the bar in Hoskins’ vehicle.

If a magistrate was presented with an affidavit in support of an application for a search warrant containing all the information Meyer had available to him when he authorized the search of Hoskins’ vehicle, the magistrate should have found there was probable cause to issue a warrant to search Hoskins’ vehicle. Furthermore, if Hoskins appealed the magistrate’s decision to issue the warrant, we have no doubt we would affirm that decision. Accordingly, under the totality of the circumstances, the officers had probable cause to search Hos-kins’ vehicle. The presence of probable cause coupled with the exigent circumstances created by the mobility of the vehicle relieved the officers of the obligation to obtain a warrant before executing the search.

B. Inejfective-Assistance-of-Counsel Claims. Hoskins claims his trial counsel failed to provide effective assistance of counsel by not moving for disclosure of the identity of the confidential informant or raising a specific suffieiency-of-the-evidence claim during the motion for judgment of acquittal. “In order for a defendant to succeed on a claim of ineffective assistance of counsel, the defendant must prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted.” Wills, 696 N.W.2d at 22; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). In order to satisfy the first element, “ ‘counsel’s performance is measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner.’ ” State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004) (citations omitted). Prejudice exists where “ ‘there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Wills, 696 N.W.2d at 22 (citations omitted).

In regards to Hoskins’ first ineffective-assistance-of-counsel argument, that his trial counsel failed to move for disclosure of the identity of the confidential informant, the analysis begins with the principle that the State can withhold the identity of an informant to maintain the information flow essential to law enforcement. State v. Robertson, 494 N.W.2d 718, 722 (Iowa 1993). However, this principle is not an absolute because “the defendant’s right to prepare and present a meaningful defense” is weighed against it. Id. at 723; see also State v. Denato, 173 N.W.2d 576, 578 (Iowa 1970) (stating the balancing test for disclosure “ ‘depend[s] on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors’ ” (citation omitted) (emphasis omitted)).

We have noted a distinction in applying these principles when a defendant seeks disclosure of an informant’s identity at a pretrial hearing on a motion to suppress, rather than at a trial on the criminal charges. State v. Luter, 346 N.W.2d 802, 809-11 (Iowa 1984). The Supreme Court recognized this distinction when it stated:

“We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment.”

McCray v. Illinois, 386 U.S. 300, 307, 87 S.Ct. 1056, 1060, 18 L.Ed.2d 62, 68 (1967) (citation omitted).

It is the defendant’s burden to demonstrate the necessity of disclosure of the identity of an informant. Robertson, 494 N.W.2d at 723. Normally, when a magistrate is requested to issue a search warrant, the magistrate reviews the affidavit in support of the application, determines the veracity of any informants, and decides whether probable cause exists to issue the warrant. Thus, in the context of a motion to suppress evidence found in a search conducted pursuant to a warrant, there is a much greater burden on the defendant to compel disclosure after the magistrate has passed on the veracity of the informant than a suppression hearing based on a warrantless search and seizure. Id. at 723-24. Nonetheless, the defendant still has the burden to show the need for disclosure of the informant’s identity, even though the suppression hearing involved a warrantless search.

Hoskins contends the disclosure of the identity of the informant was necessary to ensure a fair hearing on the probable cause issue. Given the record made in this case, Hoskins’ mere allegations that the informant’s identity would help ensure a fair hearing on the probable cause issue does not sustain his burden to overcome the principle that the State can withhold the identity of an informant to maintain the information flow essential to law enforcement. The district court had sufficient information to evaluate the reliability of the informant based on the informant’s past performance. Additionally, Hoskins has failed to point out any discrepancies between the information provided by the informant and the facts. Hoskins does not dispute he was in the bar at the time the informant said he was in the bar, nor does he dispute his vehicle was parked at the bar where the informant said it was parked. Finally, the informant’s information that Hoskins had crack cocaine in his possession was consistent with the drugs found during the search of Hoskins’ vehicle. The disclosure of the identity of the informant under these circumstances would amount to nothing more than a fishing expedition by Hoskins for information that might help ensure a fair hearing on the probable cause issue. We have repeatedly declined to authorize such expeditions. Id. at 724.

Thus, Hoskins has failed to establish a legal basis that would have required the district court to disclose the identity of the informant. Consequently, Hoskins’ ineffective-assistance-of-counsel claim fails on this issue. See Wills, 696 N.W.2d at 24 (holding trial counsel was not ineffective for failing to raise issues that have no merit).

Hoskins also claims his trial counsel was ineffective for failing to raise a specific sufficiency-of-the-evidenee claim during the motion for judgment of acquittal. Hoskins contends there was insufficient evidence for a jury to find he possessed the drugs with the intent to deliver. When reviewing a claim based on the sufficiency of the evidence, “we view the evidence in the light most favorable to the State.” State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). The verdict must be supported by substantial evidence. State v. Robinson, 288 N.W.2d 337, 338-40 (Iowa 1980). If a rational trier of fact could be convinced the defendant is guilty of the charge beyond a reasonable doubt, the evidence is substantial. Greene, 592 N.W.2d at 29. Therefore, we must determine whether a rational jury could have found Hoskins was in possession of cocaine base and salt of cocaine with the intent to deliver beyond a reasonable doubt.

Turning to the evidence in this case, we are convinced that a rational jury could have found Hoskins had the intent to deliver the drugs based on several facts presented at trial. These facts include Hos-kins’ statements to Meyer the drugs were his, he was not using cocaine, and there was not anything going on that he did not know about as to the drug trade. Additionally, we find support for our conclusion in Meyer’s testimony that the quantity of drugs, the packaging, and money found on Hoskins were consistent with a person dealing in drugs. See State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996) (stating proof of intent to deliver drugs “usually consists of circumstantial evidence and the inferences that can be drawn from that evidence” and such intent may be inferred from the packaging of the drugs, large amounts of unexplained cash, and the quantity of drugs).

Accordingly, Hoskins has failed to establish his trial counsel would have succeeded in raising a specific sufficiency-of-the-evidence claim during the motion for.judgment of acquittal. Consequently, Hoskins’ ineffective-assistance-of-counsel claim fails on this issue as well. See Wills, 696 N.W.2d at 24 (holding trial counsel was not ineffective for failing to raise issues' that have no merit).

V. Disposition.

Because probable cause and exigent circumstances supported the warrantless search of Hoskins’ vehicle and his trial counsel was not ineffective, we vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Carl Anton KNUTSON, a Minnesota attorney, Registration No. 289917.
    No. A05-808.
    Supreme Court of Minnesota.
    April 6, 2006.

      Carl Anton Knutson, pro se respondent. Thomas F. Ascher, Asst. Director, Office of Lawyers Professional Responsibility, St. Paul, for petitioner.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility has petitioned us to take disciplinary action against attorney Carl Anton Knutson, alleging that Knutson neglected client matters, made misrepresentations to clients about his neglect, failed to pay a professionally incurred debt, failed to return client files, instructed clients to lie to the court, and failed to cooperate with the associated disciplinary proceedings in violation of Minn. R. Prof. Conduct 1.2(c), 1.3, 1.4, 1.5, 3.3(a), 3.4(c), 4.1, 8.1(a)(3), 8.4(a), 8.4(c), and 8.4(d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). Knutson has not responded to the allegations; as a result, the allegations are deemed admitted. Rule 13(b), RLPR. The sole issue before this court is the appropriate sanction to impose. The director requests that Knutson be suspended indefinitely, such suspension lasting for a minimum of 18 months before Knutson is permitted to seek reinstatement.

Knutson’s misconduct reflects a pattern of neglect and noncooperation. In April 2003 R.B. hired Knutson to incorporate a trucking business on his behalf. R.B.’s wife, J.B., met with Knutson on April 23, paid Knutson $242, and gave Knutson the information he needed to accomplish the incorporation. Knutson told J.B. that the incorporation would take four to six weeks. After repeated attempts in early June, J.B. finally managed to contact him. Knutson told J.B. that the Secretary of State’s office had rejected the incorporation papers because the business name R.B. desired was already claimed. Knut-son assured J.B. that the incorporation would be completed in about two weeks. Near the end of June, Knutson told J.B. that the business had been incorporated, and he would send her a copy of the incorporation documents. J.B. contacted Knutson again when she did not receive the incorporation documents. Knutson told her that the papers had not been sent because his secretary had quit, but that he would send J.B. the papers. It was later discovered that Knutson never had a secretary during the time of his dealings with J.B. and R.B. Knutson never filed any incorporation documents on their behalf. J.B. later decided to personally incorporate the business.

In February 2003, C.C. hired Knutson to file a bankruptcy petition, and paid Knut-son a retainer of $1,200 for his services. In May 2003, C.C. moved to Texas; at that time C.C.’s home was in foreclosure, but Knutson had not filed any papers on the bankruptcy matter. In July, C.C.’s wife tried several times without success to contact Knutson about the bankruptcy matter. When C.C. finally managed to reach Knut-son, Knutson assured C.C. on more than one occasion that he was planning to schedule a court date for the bankruptcy and promised to contact C.C. with the date. In fact, no such hearing could even have been scheduled, as Knutson had not filed and never did file a bankruptcy petition on behalf of C.C. Knutson never took any action on C.C.’s case, never withdrew from his representation of C.C., never returned C.C.’s file, and never returned C.C.’s retainer. Furthermore, Knutson advised C.C. to tell the bankruptcy court that C.C. was merely visiting Texas as opposed to residing there. Knutson knew that this would have been a misrepresentation to the bankruptcy court, as C.C. was in fact residing in Texas.

The third matter Knutson neglected was that of L.R. In 2004 L.R. retained Knut-son for a bankruptcy matter, and Knutson filed a bankruptcy petition for her on April 8, 2004. L.R. later notified Knutson that there were some creditors who had not been included on the petition and needed to be added. Knutson asked the court for time to amend the petition, which was granted; however, Knutson never did amend the petition. Additionally, L.R. informed Knutson that Knutson had incorrectly listed the amounts of certain debts on the petition; instead of amending the petition, Knutson instructed L.R. to tell the court that the debt amounts were correct.

L.R. attempted without success to contact Knutson over the next few months to ascertain whether Knutson had amended the bankruptcy petition to include the overlooked creditors. On July 7, 2004, the bankruptcy court entered an order granting L.R.’s discharge — presumably under the incomplete and incorrect petition. L.R. continued to attempt to contact Knut-son, but Knutson never returned her calls or provided her with copies of her bankruptcy documents. Because of Knutson’s neglect, L.R. continued to receive collection calls from the overlooked creditors; to correct the situation, she faced the prospect of having to reopen the bankruptcy matter.

Knutson also failed to pay a professionally incurred debt, even after judgment was entered against him. On September 17, 2008, John R. Hoffman & Associates provided mediation services to Knutson and billed Knutson $625. After making repeated, unanswered requests for payment, Hoffman sued Knutson to collect the $625. On March 16, 2004, judgment was entered for Hoffman and against Knutson in the amount of $625. Hoffman served Knutson with a financial disclosure form as part of an attempt to enforce the judgment. Knutson did not complete and file the form. Knutson was then served with an order to- show cause, with instructions to appear at the Hennepin County clerk’s office on July 26 at 9:30 a.m. Knutson did not appear, which resulted in a finding of contempt. Knutson finally sent partial payment to Hoffman on August 25, and sent the rest of the payment to Hoffman on September 2. Despite his failure to pay the debt for nearly a year, Knutson never disputed either the existence or the amount of the debt, and never responded to Hoffman’s requests for payment.

Finally, Knutson has failed to cooperate with the disciplinary process. Despite the director’s repeated attempts to contact Knutson and obtain explanations for his misconduct, Knutson has failed to provide an explanation for his actions or fully respond to the director’s inquiries. On the occasions when Knutson did respond, he misled investigators with what proved to be false assurances of compliance. For instance, Knutson told the investigator that he intended to return J.B.’s $242 check, but then did not do so. On another occasion, Knutson requested a two-week extension to respond to the investigator’s report regarding the J.B. complaint, but then never sent a response.

Knutson did appear at a prehearing meeting on September 21, 2004, wherein he offered some explanation for his actions and promised a written response within a week. However, Knutson never sent a written response, and did not appear at two subsequent prehearing meetings. Additionally, Knutson failed to appear at a February 3, 2004, panel hearing, and never sent any of the documents requested for the meeting, despite having left a voice mail message at the panel chair’s office assuring the chair that Knutson had sent his “papers” to the director’s office, and that he “looked forward to meeting with [the panel chair].”

The sole issue before the court is the appropriate discipline to impose. We impose discipline on attorneys for professional misconduct in order to protect the public, to protect the judicial system, and to deter future misconduct. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004) (citing In re Daffer, 344 N.W.2d 382, 385 (Minn.1984)). We look to similar cases of misconduct for guidance as to the discipline to impose. In re Brooks, 696 N.W.2d 84, 88 (Minn.2005). But discipline is imposed case-by-case after consideration of both aggravating and mitigating circumstances. Oberhauser, 679 N.W.2d at 159 (citing In re Koss, 611 N.W.2d 14, 16 (Minn.2000)). In determining the appropriate sanction to impose, we consider (1) the nature of the misconduct, (2) the cumulative weight of violations of the rules of professional conduct, (3) the harm to the public, and (4) the harm to the legal profession. Oberhauser, 679 N.W.2d at 159 (citing In re Singer, 541 N.W.2d 313, 316 (Minn.1996)).

We have said that “an attorney’s pattern of neglect and failure to communicate with clients, combined with failure to cooperate with a disciplinary authority’s investigation, usually warrants an indefinite suspension from the practice of law.” In re Campbell, 603 N.W.2d 128, 132 (Minn.1999). An attorney’s failure to attend a meeting prior to a panel hearing may provide an independent basis for suspension, and an attorney’s failure to attend the hearing itself is at least as serious an infraction. In re Thedens, 557 N.W.2d 344, 350 (Minn.1997). Indefinite suspension is also a typical sanction for repeated instances of misrepresentations to clients. See In re Westby, 639 N.W.2d 358, 371 (Minn.2002). Additionally, advising a client to lie under oath is a serious offense, as “[o]ur legal system depends on the truthfulness of the testimony of witnesses.” See In re Ward, 563 N.W.2d 70, 72 (Minn.1997) (quoting In re Salmen, 484 N.W.2d 253, 254 (Minn.1992)). Lack of a previous disciplinary record is a mitigating factor, see In re Benson, 431 N.W.2d 120, 122 (Minn.1988), but we determine that it is insufficient to overcome Knutson’s numerous violations of professional responsibility.

Knutson has engaged in several types of misconduct on many different occasions, demonstrating a pattern of neglect of client matters that warrants an indefinite suspension. The length of the required minimum term of suspension is based on the consideration of the nature, number, and seriousness of Knutson’s offenses. See Oberhauser, 679 N.W.2d at 159.

The director requests that Knutson be indefinitely suspended, citing for support In re Jensen, 418 N.W.2d 721 (Minn.1988), and In re Kinnunen, 502 N.W.2d 773 (Minn.1993), in which attorneys were indefinitely suspended with minimum suspension periods (one year for Jensen; 18 months for Kinnunen) for similar infractions to those at issue here. See also In re Graham, 436 N.W.2d 782, 782-83 (Minn.1989) (attorney was indefinitely suspended for a minimum of 18 months for neglect of client matters, receiving unauthorized fees, ignoring court orders, and failing to cooperate with the Office of Lawyers Professional Responsibility), and In re Patrow, 467 N.W.2d 323, 323 (Minn.1991) (18-month minimum suspension when Patrow neglected two clients’ matters, made numerous misrepresentations to the clients, created a false court order that attorney then represented to be genuine to one client, a county case worker, and opposing counsel, and directed the issuance of a trust account check to a client when the client had no funds in Patrow’s trust account, but cooperated with the Office of Lawyers Professional Responsibility).

We agree with the director’s office that an 18-month minimum suspension period is warranted in this ease because Knut-son’s misconduct placed two of Knutson’s clients in especially difficult positions. As bankruptcy clients, they had little money to pay for attorney representation. Knut-son took money from these clients, then neglected their matters, leaving them to attempt to navigate the difficulties of bankruptcy proceedings alone. The egregiousness of Knutson’s noncooperation and the dishonesty Knutson has practiced towards his clients and the director also support an 18-month suspension. Accordingly, we hold that indefinite suspension with a minimum suspension of 18 months is the appropriate discipline.

Accordingly, it is ordered:

1. That Carl Anton Knutson is indefinitely suspended from the practice of law for a minimum of 18 months. The suspension, as ordered, shall commence 20 days after the date this opinion is filed. Knutson may apply for reinstatement after said 18-month period;
2. That Knutson shall pay to the director the sum of $900 in costs and disbursements pursuant to Rule 24, RLPR;
3. That Knutson shall comply in all respects with Rule 26, RLPR;
4. That if Knutson seeks reinstatement, he shall also comply fully with Rule 18, RLPR;
5. That if reinstated, he shall be placed on supervised probation for a period of two years, with the terms and conditions of probation to be determined at the time of reinstatement.

So ordered.

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

      . Citations are to the Minnesota Rules of Professional Conduct as they read prior to the amendments that took effect Oct. 1, 2005. 14 Minn.Stat. 1379 et. seq. (2004) (amended June 17, 2005, eff. Oct. 1, 2005).

      . 14 Minn.Stat. 1462 (2004) (amended Aug. 10, 2005, eff. Sept. 1, 2005).


author: ANDERSON, G. BARRY, Justice.

text:
    JERRY'S ENTERPRISES, INC., Respondent, v. LARKIN, HOFFMAN, DALY & LINDGREN, LTD., et al., Appellant.
    No. A04-0188.
    Supreme Court of Minnesota.
    April 6, 2006.

      Lindsay G. Arthur, Jr., Robert W. Kettering, Kirsten J. Hansen, Arthur Chapman Kettering Smetak & Pikala, P.A., Minneapolis, MN, for Appellant.
    James P. McCarthy, Christopher L. Lynch, Lindquist & Vennum, P.L.L.P., Minneapolis, ,MN, for Respondent.
    Charles E. Lundberg, Bassford Remele, A Professional Association, Minneapolis, MN, for Amici Curaie, Minnesota Lawyers Mutual Insurance Company.
    Thomas H. Boyd, Winthrop & Wein-stine, P.A., Minneapolis, MN, for Amici Curaie, Minnesota State Bar Association.
    William Lawrence Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for Amici Curaie, Minnesota Defense Lawyers Association.
    William M. Hart, Meagher & Geer P.L.L.P., Minneapolis, MN, for Amici Cu-raie, American Insurance Association.
   OPINION

ANDERSON, G. BARRY, Justice.

Jerry’s Enterprises, Inc. (Jerry’s) brought this action for legal malpractice against the law firm of Larkin, Hoffman, Daly & Lindgren, Ltd. and two of its shareholders, Thomas Stoltman and Gary Renneke (collectively, Larkin). Jerry’s had previously retained Larkin to represent Jerry’s in the purchase of undeveloped land in Woodbury, Minnesota. Jerry’s alleges that Larkin’s representation fell below the standard of care and caused Jerry’s to suffer monetary damages in the form of legal fees and settlement costs incurred in the process of clearing title to the property. At the close of Jerry’s case, the district court granted Larkin’s motion for a directed verdict. The court of appeals reversed and remanded for trial. See Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, 691 N.W.2d 484, 495 (Minn.App.2005). In this appeal from that decision, we hold that questions of fact exist regarding whether Larkin’s representation fell below the standard of care and whether Larkin’s allegedly negligent conduct was the “but for” cause of Jerry’s alleged injuries. We therefore affirm.

In 1993, Robert Shadduck, the president of Jerry’s, became interested in purchasing undeveloped land in Woodbury, Minnesota (the property). Larkin entered into a retainer agreement with Jerry’s, and Lar-kin agreed to represent Jerry’s in its efforts to purchase the property. No limitation was placed on the scope of Larkin’s representation of Jerry’s. At that time, the property was divided into two separate parcels. One parcel was owned by William L. Bruggeman; the other was owned by Hardy W. Morningstar. Jerry’s subsequently entered into an agreement with Bruggeman and a separate agreement with Morningstar which gave Jerry’s the option to purchase both parcels. Included in the agreement between Jerry’s and Bruggeman was a buy-back option, drafted by Larkin, that gave Bruggeman the option to purchase the entire property if Jerry’s had not begun construction of improvements on the Bruggeman parcel within two years of Jerry’s purchase. As Jerry’s prepared to exercise its purchase option for the Bruggeman parcel, Stoltman and Renneke reviewed closing documents drafted by Bruggeman’s attorneys. The closing documents did not include the buyback option. Larkin admits that, at the time of closing and during the two years following, it neither discussed the survival of the buy-back option with Jerry’s nor conducted any research to determine whether the buy-back option survived closing. Jerry’s eventually closed on both the Bruggeman and Morningstar parcels and became owner of the entire property.

During the next two years, Jerry’s proceeded in its efforts to develop the property. Larkin represented Jerry’s in these efforts and drafted purchase agreements for the sale of portions of the property. These purchase agreements stated that there were no existing options to purchase the property. Just over two years after Jerry’s purchased the Bruggeman parcel, Bruggeman informed Shadduck that he intended to exercise his buy-back option. Shadduck immediately contacted Stoltman, who told Shadduck that Bruggeman’s option had been merged into the deed and was thereby extinguished. When Jerry’s refused to sell the property to Bruggeman, Bruggeman filed suit against Jerry’s. Larkin represented Jerry’s in the litigation with Bruggeman. The district court granted Jerry’s summary judgment, but on appeal we held that since the buy-back option could not be performed prior to closing, it did not merge into the deed at closing. Bruggeman v. Jerry’s Enters., Inc., 591 N.W.2d 705, 706, 710 (Minn.1999). Although Jerry’s had purchased a title insurance policy on the property, Jerry’s had to pay Larkin for its representation in the litigation with Bruggeman, allegedly because Larkin had neglected to send a copy of the buy-back option to the title insurance company. On remand, the district court ordered Jerry’s to sell the property to Bruggeman for $3.1 million, a figure arrived at through a formula included in the buy-back option. Jerry’s and Brugge-man subsequently entered a settlement in which Jerry’s paid Bruggeman $4.2 million to retain ownership of the property.

Jerry’s filed suit against Larkin, alleging Larkin committed legal malpractice because throughout the months prior to and the two years after Jerry’s purchase of the property, Larkin neither warned Jerry’s of the possible survival of the buy-back option after closing nor took any steps to extinguish the buy-back option. After Larkin’s motion for summary judgment was denied, a jury trial was held. At trial, Jerry’s case included the testimony of Shadduck, Stoltman, and Renneke. In addition, Jerry’s presented the expert testimony of attorney Theodore Meyer, who opined that Larkin’s conduct fell below the applicable standard of care and constituted malpractice. At the close of Jerry’s case, the district court granted Larkin’s motion for a directed verdict. On appeal, the court of appeals reversed and remanded, holding that sufficient evidence of malpractice had been presented to create a question of fact for a jury. Jerry’s Enters., Inc., 691 N.W.2d at 495. Larkin petitioned for further review by this court, and Jerry’s cross-appealed. We are presented with the following issues on this appeal:

1. Whether Larkin is entitled to a directed verdict because Larkin’s behavior, as a matter of law, did not fall below the standard of care.
2. Whether a plaintiff must show “but for” causation in actions alleging legal malpractice in a transactional matter.
3. Whether the district court abused its discretion by allowing Larkin to introduce evidence relating to the scope of the merger doctrine prior to our statement on the issue in Bruggeman.

I.

At the close of the evidence offered by an opponent, a party may seek a directed verdict. Minn. R. Civ. P. 50.01. “If the evidence is sufficient to sustain a verdict for the [nonmoving party], the motion shall not be granted.” Id. A directed verdict should be granted:

only in those unequivocal cases where (1) in the light of the evidence as a whole, it would clearly be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence, or where (2) it would be contrary to the law applicable to the case.

J.N. Sullivan & Assocs., Inc. v. F.D. Chapman Constr. Co., 304 Minn. 334, 336, 231 N.W.2d 87, 89 (1975). Viewing the evidence in a light most favorable to the nonmoving party, this court makes an independent determination of whether there is sufficient evidence to present an issue of fact for the jury. Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 406 (Minn.1998).

To bring a successful claim of legal malpractice, a plaintiff traditionally must show four elements: “(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiffs damages; [and] (4) that but for defendant’s conduct, the plaintiff would have been successful in the prosecution or defense of the action.” Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281 (Minn.1983). If the plaintiff does not provide sufficient evidence to meet all of these elements, the claim fails. Noske v. Friedberg, 670 N.W.2d 740, 743 (Minn.2003). Larkin challenges the sufficiency of the evidence for one of the elements— Larkin argues that the court of appeals erred by finding that a fact question exists concerning whether Larkin breached its duty to Jerry’s.

Attorneys have a duty “to exercise that degree of care and skill that is reasonable under the circumstances, considering the nature of the undertaking.” Prawer v. Essling, 282 N.W.2d 493, 495 (Minn.1979); Sjobeck v. Leach, 213 Minn. 360, 365, 6 N.W.2d 819, 822 (1942). Expert testimony is generally required to establish the “standard of care applicable to an attorney whose conduct is alleged to have been negligent, and further to establish whether the conduct deviated from that standard.” Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 266 (Minn.1993).

At trial, Jerry’s presented the expert testimony of Theodore Meyer, a practicing real estate attorney. Meyer testified that, in his opinion, Larkin failed to meet the required standard of care in its representation of Jerry’s by failing to advise Jerry’s about the potential cloud on its title so Jerry’s could take steps to address the issue. In light of this testimony and Larkin’s admission that it did not research the issue of merger until after Brugge-man’s attempt to exercise the buy-back option, the court of appeals held that Jerry’s had presented sufficient evidence on the element of breach of duty to survive Larkin’s motion for directed verdict. Jerry’s Enters., Inc., 691 N.W.2d at 493.

Larkin claims that the court of appeals erred in its analysis of this issue in two ways. First, Larkin argues that, as a matter of law, Larkin did not breach its duty of care to Jerry’s by failing to warn Jerry’s about the potential cloud on the title or to research merger law before Bruggeman attempted to exercise his buyback option. Larkin argues that this could not constitute breach of duty because at the time of closing, the doctrine of merger in Minnesota was “settled” or “apparently well settled.” In the alternative, Larkin argues that even if the law of merger was unsettled at the time of the alleged malpractice, it is protected from liability by the rule in Meagher v. Kavli, 256 Minn. 54, 97 N.W.2d 370 (1959). We address each of these arguments in turn.

Larkin states that, because the law of merger was well settled, or at least apparently well settled, before our decision in Bruggeman, it was, as a matter of law, not a breach of the standard of care to fail to research the issue or advise Jerry’s of the issue. While a case may arise in which an attorney’s failure to consider or revisit settled law is, as a matter of law, not a breach of the attorney’s duty to the client, this is not such a case. First, Jerry’s presented expert testimony at trial stating that Lar-kin’s actions fell below the standard of care, and we must view the evidence in a light most favorable to Jerry’s. Second, Larkin has cited no Minnesota precedent holding, as a matter of law, that no breach of the duty of care exists here. Finally, the case law Larkin does cite as support is distinguishable. Each of the relevant cases cited by Larkin deals with a “change in the law” that reversed the prevailing practice among attorneys or altered the law as previously established by the court of last resort. Our decision in Bruggeman did neither. In Bruggeman, we specifically stated that “[w]e have not squarely addressed, until now, whether agreements to perform acts subsequent to closing are governed by the merger doctrine.” 591 N.W.2d at 709. We noted that in a 1914 decision, we had stated in dicta that the merger rule “ ‘does not necessarily apply to acts not made conditions precedent, and are to be performed in the future, and continue as a charge upon the estate granted.’ ” Id. (quoting In re Brown’s Estate, 126 Minn. 359, 363, 148 N.W. 121, 122 (1914)). For these reasons, we reject Larkin’s argument that, due to the state of merger, law, no jury question exists regarding whether Larkin’s representation fell below the standard of care.

In the alternative, Larkin argues that even if we determine the law of merger to have been unsettled before Brugge-man, Larkin is protected from liability under the rule in Meagher v. Kavli. In Meagher, we held that a lawyer could not be held liable for malpractice for failure to object to an exhibit where that failure was later, by a divided court, held to constitute waiver. Meagher, 256 Minn. at 60-61, 97 N.W.2d at 375 (noting, in addition, that plaintiff failed to show any causation between alleged negligence and claimed damages). In reaching this holding, we stated:

It is well settled that: “An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error in judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers.”

Id. (quoting Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144, 146 (1954)). In more recent cases, we have made it clear that a lawyer must act with some level of reasonable care to be protected by the rule in Meagher. See Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn.1992) (“[A] professional must use reasonable care to obtain the information needed to exercise his or her professional judgment, and failure to use such reasonable care would be negligence, even if done in good faith.”); Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 693 (Minn.1980) (per curiam) (stating that case did “not involve mere error of judgment” where “gist of plaintiffs’ claim is that [attorney] failed to perform the minimal research that an ordinarily prudent attorney would do” in a similar situation). Because Lar-kin admits that it neither raised the issue of merger with Jerry’s nor conducted legal research on the issue prior to Brugge-man’s attempt to exercise the buy-back option, under the rules established in Wartnick and Togstad, a fact question remains about whether Larkin exercised sufficient care in forming its judgment to be protected by the rule in Meagher.

In light of the evidence that Larkin did not research or raise the issue of merger with Jerry’s before Bruggeman’s attempt to buy back the property and the expert testimony presented by Jerry’s, we hold that a fact question exists regarding whether Larkin breached its duty to Jerry’s sufficient to defeat Larkin’s motion for a directed verdict.

II.

As noted above, the fourth element in a legal malpractice action has, in the past, been formulated as “but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action.” Blue Water Corp., 336 N.W.2d at 281. We have traditionally applied the fourth element in cases in which the alleged injury was damage to or loss of a cause of action belonging to the plaintiff. See, e.g., Togstad, 291 N.W.2d at 692, 694 (stating plaintiff must produce sufficient evidence that plaintiff would have been successful in medical malpractice action before plaintiff is entitled to damages for attorney’s negligent failure to warn about statute of limitations). In this case, the court of appeals held that the fourth element was “inapplicable” because Jerry’s alleged malpractice during a transactional matter — not malpractice in the course of litigation. Jerry’s Enters., Inc., 691 N.W.2d at 491-92. Larkin and amici appeal this modification of the four-element test for legal malpractice, arguing that Jerry’s should not be relieved from making a “but for” causational showing between Larkin’s alleged negligence and Jerry’s injury. This issue involves a pure question of law, and we review it de novo. See Anderson v. Dep’t of Natural Res., 693 N.W.2d 181, 186 (Minn.2005).

In legal malpractice cases not involving damage to or loss of a cause of action, we have previously indicated that a plaintiff must demonstrate “but for” causation between defendant’s negligence and plaintiffs injury in order to show proximate causation. See Ross v. Briggs & Morgan, 540 N.W.2d 843, 847 (Minn.1995) (holding that because plaintiff could not establish that his insurance company would have had a duty to defend his claim, he could not establish that defendant law firm’s failure to tender his claim to insurance company proximately caused his loss); Blue Water Corp., 336 N.W.2d at 282-84 (holding that plaintiffs could not recover for attorney’s negligent failure to file bank charter application where the evidence did not show that if application had been timely filed, charter would have been granted). We hold that in an action for legal malpractice arising out of representation in transactional matters, the fourth element of the cause of action is modified to require a plaintiff to show that, but for defendant’s conduct, the plaintiff would have obtained a more favorable result in the underlying transaction than the result obtained.

In this case, viewing the evidence in a light most favorable to Jerry’s, Jerry’s has provided sufficient evidence to create a fact question for the jury regarding whether, “but for” Larkin’s alleged negligence, Jerry’s would have obtained a more favorable result in the Bruggeman transaction than the result obtained. Jerry’s argues that if Larkin had informed Jerry’s of the possible cloud on its title to the property, it would have begun construction within the two-year time period and prevented Bruggeman from exercising his buy-back option. At trial, Shadduck, the president of Jerry’s, testified that had he known of the possible survival of the buy-back option, Jerry’s1 would have ensured that the option was extinguished, either by beginning construction or otherwise. During adverse direct examination, Stoltman testified that had he told Jerry’s about the potential survival of the buy-back option, Jerry’s could have begun construction within two years of closing and extinguished the option. After Bruggeman’s exercise of the buy-back option, Jerry’s paid Larkin over $170,000 in legal fees to defend its title. Eventually Jerry’s paid Bruggeman $4.2 million to keep the property. In light of this evidence, a question of fact exists regarding whether Larkin’s conduct was the “but for” cause of Jerry’s damages.

III.

The final issue -we consider is whether the district court erred by ruling that Larkin could introduce evidence regarding the state of the merger doctrine at the time of the alleged malpractice. The court of appeals upheld the district court’s ruling, holding that such evidence was relevant in determining the standard of care. Jerry’s Enters., Inc., 691 N.W.2d at 494. Jerry’s seeks to reverse the district court’s ruling, arguing that the ruling impermissi-bly allows jurors to decide a question of law. A district court has wide discretion in determining the relevancy of evidence, and its decision to admit evidence under Minn. R. Evid. 403 will only be reversed for clear abuse of discretion. State v. Schulz, 691 N.W.2d 474, 477 (Minn.2005).

“Evidence is relevant * * * when it, in some degree, advances the inquiry.” Id. at 478. Questions of law are generally not to be decided by a jury. See Hughes v. Quarve & Anderson Co., 338 N.W.2d 422, 425 (Minn.1983). Jerry’s argues that, since Larkin admits it did not research the state of merger law prior to Bruggeman’s attempt to exercise his option, such evidence about the state of the merger law is irrelevant. However, Lar-kin seeks to use this evidence to demonstrate that, due to the state of merger law at the time of the alleged malpractice, its failure to research the issue or discuss the issue with Jerry’s did not breach the standard of care. We have held that, in legal malpractice cases, whether the standard of care has been breached is generally a question of fact for the jury. See Admiral Merchs. Motor Freight, Inc., 494 N.W.2d at 266-67. Because whether Larkin’s conduct fell below the standard of care is a jury question, the district court’s decision to admit evidence of the state of merger law was not a clear abuse of discretion.

Affirmed as modified.

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

      . Larkin argues that attorneys need not conduct legal research to exercise judgment. While this may be true, it clouds the real issue, as identified in Wartnick and Togstad, of whether Larkin exercised reasonable care in forming that judgment. In addition, the record is not clear on whether Stoltman -even considered the issue of merger before Bruggeman's attempt to exercise his buyback option. Larkin argues that Stoltman’s testimony demonstrates that he thought the Bruggeman option had merged and was no longer enforceable. In portions of his testimony, Stoltman indicated, however, that he had not considered the issue of merger at all prior to Bruggeman’s attempt to exercise the option. While Stoltman did at times state that he did not look into the issue of merger because "the law was well-settled on that point and there was no need to do so,” viewing Stoltman’s testimony in a light most favorable to Jerry's, a fact issue exists about whether Stoltman considered the merger issue, as well as whether any consideration he did give the issue met the standard of care.

      . A careful reading of the decision of the court of appeals, however, indicates that the court of appeals likely did not intend to do away with this requirement. While the court stated that "more traditional concepts of proximate cause, rather than 'but for’ causation, are used” in malpractice suits stemming from representation in transactional matters, in its discussion of proximate cause the court also held that "there is sufficient record evidence to create a fact question for the jury regarding whether Jerry's suffered damages as a result of [Larkin's] acts.” Jerry's Enters., Inc., 691 N.W.2d at 491, 493. It appears likely that the court of appeals did not eliminate "but for” causation from Jerry's burden, but merged its “but for” inquiry into the “proximate cause” element of legal malpractice.

      . A similar approach has been adopted by the California Supreme Court. See Viner v. Sweet, 30 Cal.4th 1232, 135 Cal.Rptr.2d 629, 70 P.3d 1046, 1054 (2003).