Amended August 10, 2017 Iowa Supreme Court Attorney Disciplinary Board v. Theodore Fredrick Sporer

• Court: Supreme Court of Iowa
• Decided: April 28, 2017
• Docket: 16–1441
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 16–1441

Filed April 28, 2017

Amended August 10, 2017

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,

Appellee,

vs.

THEODORE FREDRICK SPORER,

Appellant.

Appeal from the report of the Grievance Commission of the

Supreme Court of Iowa.

Grievance commission recommended six-month suspension of

attorney’s license. LICENSE SUSPENDED.

Theodore F. Sporer, Des Moines, pro se.

Tara van Brederode and Elizabeth E. Quinlan, for appellee. 2

APPEL, Justice.

In this disciplinary case, attorney Theodore Sporer appeals the

findings and recommendations of the Iowa Supreme Court Grievance

Commission recommending his law license be suspended for a period of

six months. The alleged ethical violations occurred in the aftermath of a

divorce decree. In a contempt proceeding arising from the divorce

decree, the district court found Sporer falsely testified that he rejected

the terms of a settlement letter sent by the opposing lawyer by

immediately writing handwritten notes on the letter and sending it back

to the opposing lawyer on the same day. The district court also found

Sporer falsely and frivolously asserted that the secretary’s signature on

the bottom of a settlement letter bound the client to the terms of a

settlement agreement.

The Iowa Supreme Court Attorney Disciplinary Board filed a

complaint alleging various violations of our ethical rules. After a hearing,

the commission concluded that Sporer violated Iowa Rule of Professional

Conduct 32:3.1 (“A lawyer shall not . . . assert or controvert an issue . . .

unless there is a basis in law and fact for doing so that is not frivolous

. . . .”), rule 32:3.3(a)(1) (“A lawyer shall not knowingly . . . make a false

statement of fact or law to a tribunal . . . .”), rule 32:8.4(c) (“It is

professional misconduct for a lawyer to . . . engage in conduct involving

dishonesty, fraud, deceit, or misrepresentation[.]”), and rule 32:8.4(d) (“It

is professional misconduct for a lawyer to . . . engage in conduct that is

prejudicial to the administration of justice[.]”). The commission did not

find a violation of rule 32:3.4(a) (“A lawyer shall not . . . unlawfully alter,

destroy, or conceal a document . . . .”) as alleged by the Board. 3

Based upon our review, we affirm the findings of the grievance

commission. We also affirm most of the grievance commission’s

conclusions. We suspend Sporer’s license to practice law for six months.

I. Factual Background and Proceedings.

A. Introduction. Sporer has been licensed as an Iowa attorney

for thirty-one years. During this time, he has maintained a law office in

Polk County, Iowa. Sporer’s primary practice areas are civil litigation

and domestic relations.

Sporer has a disciplinary history. On August 24, 2011, Sporer

received a public reprimand from the Board for violating rule 32:1.4(a)(3)

and (4) by failing to inform a client of her trial date and respond to her

reasonable inquiries, rule 32:1.3 by failing to diligently file documents in

a litigated matter, rule 32:8.4(d) by causing delays in litigation, and rule

32:8.4(c) by engaging in deceit or misrepresentation for advising a client

that an order for sanctions was the result of a clerical error.

B. Overview of Factual Record Before the Commission.

1. Propstein divorce proceedings. In 2012, Sporer represented

Gary Propstein in a dissolution action against Linda Propstein. Lawyer

Timothy Duffy represented Linda in the proceedings. The record before

the commission establishes that on March 30, 2012, the district court

entered its “Findings of Fact, Conclusions of Law, and Decree” in the

Propstein divorce proceeding. At the time of the entry of the decree, both

Gary and Linda were fifty-three-years old. Their marriage had lasted

twenty-one years.

In dividing the marital property, the district court noted that

dissipation of assets is a proper consideration. The district court found

that Gary had unreasonably dissipated marital assets in contemplation

of the dissolution. The court concluded Gary had unreasonably spent 4

$139,000 from a 401(k) account and $30,000 from the parties’ home

equity line of credit. The district court stated it would adjust the

distribution of the remaining marital property as if these expenditures

had not occurred.

The district court ordered Gary to pay Linda approximately

$23,835 for Linda’s share in the marital home. The court also ordered

that Linda receive substantial retirement assets through a qualified

domestic relations order (QDRO) with a value in excess of $100,000. In

addition, the court ordered that Gary’s interest in a defined benefits plan

be distributed between the parties according to the formula established

in In re Marriage of Benson, 545 N.W.2d 252, 255–57 (Iowa 1996). The

district court awarded Linda rehabilitative alimony in the amount of

$200 per month for three years.

Sporer filed a motion to amend, requesting that either Gary be

given at least eighteen months to pay Linda her equity share in the home

or, alternatively, be allowed to transfer his interest in an IRA valued at

$23,313 to Linda.

While the motion to amend was pending, the lawyers engaged in

settlement negotiations. Consistent with the motion to amend, Sporer

proposed that Gary provide Linda with additional retirement funds to

offset Linda’s equity share in the marital home. The parties, however,

were not able to finalize the agreement, the district court overruled the

motion to amend, and Sporer filed a notice of appeal on Gary’s behalf on

July 30, 2012.

Sporer did not file a supersedeas bond or seek a stay of the district

court order. As a result, the filing of the notice of appeal did not stay

enforcement of the district court decree. Gary, however, did not pay

Linda the $23,835 for her equitable share in the marital residence within 5

thirty days as required by the district court. On August 30, 2012, Duffy

filed a contempt application on behalf of Linda. The district court set a

hearing for October 10.

Cumulatively, the district court’s order, Gary’s motion to amend,

his settlement posture, his failure to post a supersedeas bond, and his

failure to timely pay Linda the $23,835 as required by the divorce decree,

suggest that Gary was strapped for cash in the aftermath of the divorce

proceeding.

2. September settlement communications. Against the backdrop of

Linda’s contempt application and the October 10 hearing date, the

parties renewed settlement negotiations. On September 21, Sporer sent

Duffy a letter proposing settlement. In the September 21 settlement

letter, Sporer proposed that Gary pay Linda $27,000 by cashier’s check

within twenty-one days, that Linda execute a quit claim deed on the

house, that Gary dismiss the pending appeal, that the parties exchange

releases of all claims, and that each party remain responsible for their

own attorney’s fees. The September 21 settlement letter did not

expressly discuss the distribution of Gary’s retirement assets and

benefits or the execution of an appropriate QDRO.

On September 24, Duffy responded with a settlement letter of his

own. In his September 24 settlement letter, Duffy responded that the

offer from Sporer was acceptable, but with certain changes. Duffy then

specifically indicated that he needed information necessary to prepare a

QDRO in the matter and asked for any instructions or model language

the plan administrator might have to assist in the preparation of the

QDRO. From Duffy’s September 24 settlement letter, it was apparent

that Duffy did not regard Linda’s entitlement to her share of Gary’s 6

retirement assets and benefits as within the scope of the proposed

mutual releases.

According to Sporer, he received Duffy’s September 24 settlement

letter on September 27. Sporer claimed that on September 27, he took a

red Sharpie, drew large Xs through the last paragraph related to the

QDRO, and wrote the following undated note in his hand: “Duffy—

Pardon the informality. No—complete release all claims! No $ w/o

release! TFS.” Sporer further claimed that he sent Duffy a copy of the

marked-up September 24 settlement letter on September 27 via

facsimile, hand delivery, and regular mail.

Duffy, however, denied receiving the marked-up version of his

September 24 settlement letter from Sporer. Sporer’s billing records for

September 27 do not contain any entry for either reviewing Duffy’s letter

or communicating with Duffy on that date. Although Sporer’s office had

procedures in place to retain confirmation of faxed messages and to

document hand deliveries that were sent out of the office, Sporer did not

produce any such documents related to the September 24 settlement

document with Sporer’s handwritten notes.

Further, on September 27, Sporer received an email from Gary,

asking, “Any confirmation yet? From [D]uffy or [L]inda?” On

September 28, Sporer replied, “Yes, we are settled. I am working on

papers to finalize early next week. Keep you posted.” Sporer made no

mention of Duffy’s September 24 settlement letter in his September 28

email to Gary.

3. Secretary signs bottom of attorney’s letter. On October 9, 2012,

Duffy learned that a $27,000 check was available for Linda at Sporer’s

office. The record does not reveal the details of how the availability of the

check was communicated to Duffy. In any event, Duffy dispatched his 7

secretary, Teresa Young, to pick up the check at Sporer’s office. When

she arrived at Sporer’s office, Young was provided with the check, a letter

dated October 9 which repeated verbatim the terms contained in Sporer’s

September 21 settlement letter, and a six-page, single-space document

entitled “Settlement and Release of Claims.” According to Young, when

she turned to leave Sporer’s office with the documents in hand, she was

told by Sporer’s staff that she needed to sign something.

Young signed the presented document without reading it. The

document she signed was the October 9 letter that summarized the

terms of Sporer’s original September 21 settlement letter to Duffy. At the

bottom of the October 9 letter, however, an additional sentence was

added in a font different from the body of the letter: “Payment and terms

accepted by Linda Propstein, by and through her attorney Timothy

Duffy.” A line was provided for a signature. The October 9 letter did not

mention Duffy’s September 24 settlement letter discussing the need for

information to prepare a QDRO or the annotated version of the

September 24 letter that Sporer claimed he sent to Duffy on

September 27.

The next day, October 10, Linda and Duffy reviewed the terms of

the “Settlement and Release of Claims.” Duffy was concerned that the

language of the document could be construed to release Linda’s award of

retirement assets in the divorce decree. As a result, Duffy modified the

document by inserting the handwritten phrase “except pending QDRO

concerning pet. retirement accounts per decree” in three places on the

“Settlement and Release of Claims.” Linda initialed each handwritten

change, and she signed the document before a notary. Also on

October 10, Linda cashed Gary’s check for $27,000. 8

On October 11, 2012, Duffy dismissed the contempt complaint

with prejudice. On October 22, Sporer dismissed his appeal in the

divorce proceeding. On October 23, Sporer testified he received a letter

from Duffy dated October 18, along with the modified “Settlement and

Release of Claims” with Duffy’s handwritten alterations.

Remarkably, Sporer did not respond to the modified “Settlement

and Release of Claims.” He did not advise Duffy that the changes were

unacceptable. On the other hand, Sporer did not have his client sign the

document.

On October 29, Duffy sent Sporer a quitclaim deed for the marital

residence. In the letter, Duffy stated, “I am still needing the information

on your client’s 401k so I can prepare the Qualified Domestic Relations

Order.” Sporer did not respond. On November 8 and November 30,

Duffy again wrote to Sporer regarding QDRO information. Again, Sporer

did not respond.

On December 10, 2012, however, Duffy’s assistant received a

phone call from Sarah Gelbowitz, Sporer’s paralegal. Duffy’s assistant

wrote a message about the call, which stated that Gelbowitz advised her

that “Ted [Sporer] is meeting w/Gary on Friday and will get QDRO info to

us by Next Tues. or Weds.” The QDRO information, however, was not

provided to Duffy.

4. Court filings and unsuccessful mediation. On January 17, 2013,

Duffy filed what he styled as an “Application for Hearing on

Implementation of Terms of Decree of Dissolution of Marriage,” seeking

to obtain the assistance of the district court in implementing the terms of

the divorce decree in light of Sporer’s failure to respond to his repeated

inquiries regarding the QDRO. Sporer still did not respond, either to

Duffy or to the district court. On March 6, Duffy filed his second 9

contempt application against Gary. When the parties appeared before

the district court on March 20, the court ordered Sporer to file a

response to Duffy’s filings within twenty days, ordered the parties to

mediate the contempt action, and ordered the parties to exchange

exhibits at least five days prior to the hearing. The district court set the

pending matters for hearing on April 23.

On April 17, the parties participated in mediation with mediator

Joseph Seidlin. During the mediation, Sporer took the position that

under the circumstances, there was a binding settlement agreement

between the parties which released any claims that Linda might have

under the divorce decree with respect to Gary’s retirement assets.

Also on April 17, Sporer filed a resistance to Duffy’s “Application

for Hearing on Implementation of Terms of Decree of Dissolution of

Marriage.” In that resistance, Sporer asserted that the parties “reached a

full, final and written settlement of all issues described in the

Application.” Sporer also pled that Linda had “accepted the benefits of

the settlement and has thereafter attempted to enforce the original terms

of the [divorce] Decree.” Sporer further pled that Linda’s claims were

“barred by the doctrines of estoppel, waiver, [and] accord and

satisfaction.” As a result, Sporer on behalf of Gary asked that the

application be denied with prejudice.

Sporer additionally filed a resistance in the contempt action on

April 17. In the resistance, Sporer denied that Gary had engaged in

contemptuous behavior. He further asserted two affirmative defenses—

the first alleging that the application fails “to state a prima facie claim of

contempt.” For his second affirmative defense, Sporer asserted that

Linda’s claim, “if any, is barred by the doctrine of accord and

satisfaction.” 10

5. Testimony offered in contempt proceedings before the district

court. The contempt matter was continued from April 23 to allow Sporer

to retain an attorney. The matter came to hearing on June 5, 2013, and

July 19, 2013, before Judge Douglas Staskal. The record of the district

court proceedings was made part of the record before the commission.

At the contempt hearing, Gary, Duffy, and Sporer testified as

witnesses. On June 5, Gary testified that he was told the matter was

settled and to bring to Sporer’s office a check. Gary further testified that

after the check was received by Linda, “we waited ten days . . . to see if

there were any aftershocks from the settlement agreement.” Gary also

told the district court he had spent all the money in the retirement funds

in any event.

The next witness to testify in the contempt proceeding on June 5

was Duffy, who was examined by other counsel. Duffy testified that

Young had authority to pick up the check but not to settle the case. He

testified that the fighting issue on October 10 was payment of the

$23,835 in cash ordered by the district court. Duffy further testified that

he never intended to settle or dismiss Linda’s claim to the retirement

assets under the district court’s order.

The last witness in the contempt hearing on June 5 was Sporer.

Sporer testified regarding exhibit 4, the September 24 settlement letter

with handwritten annotations by Sporer. Sporer testified that he wrote

the notations “literally the moment [he] saw the September 24 letter.” He

testified that he used handwritten notations on the September 24

settlement letter to communicate with Duffy because “[he] was in a

hurry.” With respect to whether the September 24 settlement letter with

Sporer’s notations was sent to Duffy, Sporer testified, “I know it was

mailed. I believe it was faxed. And I also believe that it was hand 11

delivered.” Sporer further testified that Linda cashed the check on

October 10 and that “[he thought] there was a complete meeting of the

minds.”

On redirect examination, Sporer was asked when the parties

achieved an agreement. Sporer responded, “When the signature of

Teresa Young appeared that says, Payment and terms accepted by Linda

Propstein by and through her attorney, Timothy Duffy.” On recross-

examination, Sporer dug in further. He testified, “[I]t is unfathomable to

me that Ms. Young would be anything other than a full agent, as I would

expect my staff—anything that your staff signs on your behalf, you’re

stuck with, unless it’s a legal pleading.” According to Sporer, Linda

sought to avoid the risks of an appeal and was willing to accept $27,000

in exchange for a full release of claims, including the retirement benefits.

Sporer presented a brief closing argument to the district court. In

closing, Sporer asserted, “[W]e had a complete settlement. They intended

exactly what happened in this case. The evidence overwhelmingly shows

that.” Addressing the issue specifically of whether Gary was in

contempt, Sporer asserted, “[Gary] didn’t do anything intentionally. We

have been acting under the belief that we have a settlement. That it was

clear. And this [—] this later attempt is just—was just a trick.”

After oral argument, the district court continued the hearing. The

district court ordered Gary to produce all records showing funds taken

from Gary’s retirement accounts. The court also ordered Gary not to

dispose of property in his possession other than for food, clothing, and

living expenses until the district court issued a ruling in the matter.

The district court found there was no agreement for Linda to

release her property under this dissolution decree. The court found

Duffy’s secretary did not have authority to bind Linda to such an 12

agreement, nor was there, in fact, such an agreement. The district court

characterized Sporer’s argument that Duffy manipulated the situation in

order to get the appeal dismissed and led Sporer to believe he was giving

up his client’s rights was “ludicrous” and unbelievable.

The district court reconvened the hearing on the contempt action

on July 19. The court began the hearing by summarizing the prior

proceedings and then asking questions of counsel. The court asked

Duffy whether he had ever seen exhibit 4, the version of his

September 24 settlement letter with handwritten notes written by Sporer.

Duffy responded, “[Neither] I nor anybody on my staff has ever seen that

document.” The district court then turned to Sporer and asked him

whether it was his testimony that exhibit 4 had been mailed, faxed, and

hand delivered to Duffy’s office. Sporer replied, “That is correct,” but

qualified his response by stating, “I am not entirely certain that it was

hand-delivered. I had given instructions to that effect but I am not sure

that they were executed.”

At this point, Gary took the stand and provided further testimony.

Based on the documents submitted by the parties and to the district

court after the June 5 hearing, Gary admitted that, in fact, he had not

drained all the funds out of his retirement accounts. Gary testified that

his inaccurate prior statement was “made in frustration.” Gary further

testified he drew down funds from his retirement accounts in March even

after the contempt action had been filed. He testified that when he did

so, he thought the matter had been settled.

The district court asked Gary when he thought the matter had

been settled. Gary testified he thought the matter had been settled in

September. He testified Sporer told him that Linda had “accepted the

offer of the $27,000 to cash now to settle everything.” 13

After Gary’s testimony, Duffy again took the stand. Duffy testified

that at the mediation, Duffy presented his September 24 settlement letter

as showing that Linda wanted the retirement assets ordered by the court.

Duffy further testified that Sporer did not present the version of the

September 24 settlement letter with his handwritten notes at the

mediation. According to Duffy, the modified September 24 settlement

letter was never in his office, never presented to the mediator, and never

presented to Duffy. Instead, Duffy testified that the mediator presented

Duffy with the original document with Young’s signature on it, a clear

reference to the October 9 letter signed by Young when she picked up

Gary’s check from Sporer’s office.

Duffy further testified that the records produced by Gary showed

that Gary withdrew money from a Wells Fargo retirement account on

September 22 to provide the $27,000 to Linda. While Gary testified that

he withdrew funds to pay Linda prior to September 30, he denied that he

withdrew the funds specifically on September 22.

At the conclusion of Duffy’s testimony, the district court asked

Sporer whether he showed the September 24 settlement letter with his

handwritten notes to the mediator, Seidlin. Sporer testified that he had

the document with him at the time of the mediation, but could not recall

whether he showed the document to Seidlin. When asked by the court

whether anyone else had ever seen the September 24 settlement letter

with the handwritten notes, Sporer stated attorney Andrea Flanagan was

in the room when he wrote it and his paralegal Gelbowitz would have

been the person responsible for making copies. Neither Flanagan nor

Gelbowitz, however, was called as a witness by Sporer in the contempt

proceedings. 14

The district court asked Sporer, “If [the September 24 settlement

letter with your notes] existed . . ., why wouldn’t you have shown it to

Mr. Seidlin, to the mediator?” Sporer responded,

Mr. Duffy and his client were claiming that they were not responsible for a signed agreement that we had with his office’s signature on it.

If they were willing to argue that that was somehow not our agreement that was signed, . . . I didn’t see anything to be gained by future negotiations in this mediation because anything that we say, there is just a story invented to explain it, explain any facts that we have used.

Sporer briefly closed with additional argument. Sporer told the

district court, “I believe we reached a full and final settlement agreement

and once the respondent received the benefit, 100 percent of the benefit

of that settlement agreement, they withdraw.”

The district court declared the matter submitted. The court then

observed, “This case is about as troubling as any case the court has ever

had and not just because of what the petitioner did.” The court advised

the parties it would provide a written ruling. The district court further

stated,

I don’t believe by any stretch of anyone’s imagination that the respondent released an over $100,000 award in a decree for retirement assets in the context of settling a contempt action in which she was owed money for another reason. To me, it’s ridiculous, ridiculous and every time I even think about it[,] it troubles me.

The district court advised Gary, for planning purposes, to begin figuring

out how he could comply with the decree of the district court.

6. District court’s contempt ruling. The district court entered its

written ruling on August 19. The court found that Gary’s claims were

“meritless and contrived.” The court found that Sporer presented the

defense to the contempt “without even a subjective belief in its validity.” 15

The court further found that Sporer “lied under oath and fabricated

evidence.”

On the question of whether Linda surrendered her rights to

retirement assets and benefits as part of a settlement, the district court

concluded that she had not. The court emphasized that in Duffy’s

September 24 settlement letter, Duffy stated the need to obtain

information for preparation of a QRDO, an observation which, according

to the district court, “would have been completely out of place and

nonsensical” if Linda were relinquishing her retirement award as a term

of the settlement.

The district court then turned to the version of Duffy’s

September 24 letter containing Sporer’s handwritten notes. As the court

observed, the significance of the handwritten notation is that if it were

received by Duffy, it would suggest that Gary was insisting on the release

of Linda’s claim for retirement funds and that Duffy was aware of this

position.

But the district court concluded that the September 24 settlement

letter with Sporer’s handwritten note was “a fraud.” The court cited the

tone, substance, and circumstances of the note. The court emphasized

that it would be absurd for Linda to give up her retirement benefit of

more than $100,000, plus an unknown value of a share of a defined

benefit pension, in exchange for $3000. Further, the court noted that it

would be extremely unlikely that Linda would surrender the retirement

award in settlement of the contempt action against Gary.

Further, the district court reasoned that there was no plausible

motivation for Linda to accept “such a ridiculous agreement.” According

to the court, there was no prospect of the district court’s award of

retirement benefits to be eliminated on appeal. The only argument 16

presented by Gary was a fault-based argument unlikely to result in any

adjustment of the amount of the retirement account award.

The district court also concluded that Sporer had received Duffy’s

edited version of Sporer’s “Settlement and Release of Claims” that

excluded Linda’s share of Gary’s retirement assets prior to Sporer’s

dismissal of Gary’s appeal. The court reasoned that a local letter dated

October 18 and placed in the mail on that date would likely be delivered

prior to October 22. Even if the release had not yet been received, the

district court concluded, no attorney would dismiss an appeal, an

irrevocable act, unless the proper documentation was in hand. In

addition, the district court pointed out that Sporer was silent after

receiving Duffy’s modified version of the “Settlement and Release of

Claims” for many months after its receipt.

The district court further emphasized that Sporer’s staff in

December 2012 communicated with Duffy’s office indicating that they

were trying to assemble needed retirement information for the QRDO.

The court observed that this communication demonstrated that as of

December, Sporer did not believe Linda had released her share of the

retirement assets in a settlement agreement.

After entry of the district court’s ruling, a sentencing hearing was

held on September 6. Sporer declined to provide a further statement.

Gary, however, did make a statement to the district court. Gary’s

statement covered many topics, but included a statement about the

mediation. According to Gary,

When we mediated the contempt, Mr. Sporer had all the documents we used at the contempt hearing with him. The only document I thought was relevant was the signed agreement. The mediation was brief. Linda admitted that Mr. Duffy’s office signed the settlement agreement. I thought that was enough to prove we had settled. 17

The district court sentenced Gary to six months in jail. Mittimus

was withheld pending Gary’s payment of the funds and execution of the

document related to the QDRO and compliance with the district court’s

order.

7. Proceedings before the commission. The Board filed its

complaint against Sporer on October 7, 2015. Sporer filed an answer on

November 13, admitting many of the alleged facts but denying violation

of any ethical rules. Two aspects of Sporer’s answer are noteworthy.

First, in response to the Board’s allegation that on December 10,

2012, Duffy’s secretary took a message from Gelbowitz in Sporer’s office

stating that “Ted [Sporer] is meeting w/Gary on Friday and will get

QDRO info to us by Next Tues. or Weds.,” Sporer denied the allegation as

he did not know who took the message but admitted there was a brief

telephone call in the matter. Sporer did not deny the content of the

December 10 message as alleged by the Board.

Second, in response to the Board’s allegation that Sporer for the

first time raised the defenses of accord and satisfaction, estoppel, and

waiver in court papers filed on April 17, 2013, Sporer denied the

allegation. He alleged that the defenses of laches and estoppel were

specifically discussed at the mediation. He further claimed he asserted

accord and satisfaction or waiver in the mediation.

The commission heard the matter on February 22, February 23,

and February 26, 2016. The testimony before the commission was more

extensive than that before the district court in the contempt matter.

Witnesses included Duffy, Judge Joseph Seidlin, Teresa Young, Andrea

Flanagan, Sarah Gelbowitz, Gary Propstein, Cherie Bradshaw, and Judge

Douglas Staskal. 18

Much of the testimony before the commission tracked that

presented to Judge Staskal in the contempt proceeding and will not be

repeated here. Some additional information, however, was elicited from

witnesses before the commission.

With respects to the merits of the underlying divorce case, Duffy

stated, “It was as solid a case as I’d ever seen.” He testified that he had

never received or saw the September 24 settlement letter with the

handwritten notes by Sporer prior to the contempt proceeding. Duffy

testified that prior to the scheduled April 23 contempt hearing, Duffy

received a copy of the document from Sporer identified as an

“October 23, 2012 note, Sporer to Duffy.” According to Duffy, that was

the first time he had ever seen the document.

Duffy provided additional testimony regarding the circumstances

surrounding events on October 9 and October 10, 2012. Duffy testified

that his secretary, Teresa Young, did not have authority to bind Duffy or

his clients. Duffy did not recall whether he reviewed the settlement

documents before his client cashed the check, although he remembered

reading the settlement agreement and release with his client on October

10. Duffy told the commission, “When I amended it, it reflected what our

intent was.” When asked why Duffy did not contact Sporer before

cashing the check, Duffy responded, “I made a counteroffer [on

September 24]. I ended up with the check, I ended up with the release. I

gave the check to my client, we went through the release, and we

preserved her QDRO rights.” When pressed on how Sporer would know

that Duffy viewed the terms of the settlement as different from Sporer’s

September 21 settlement letter, Duffy responded,

I’m the one who made the last offer. You [Sporer] never counteroffered anything. . . . You [Sporer] told me the check’s ready. I’m to assume that it had settled. This 19 document is boilerplate, maybe dressed up a little by you, and I was concerned that it would give up more than my client intended.

....

. . . I gave you [Sporer] credit for not trying to trick my client.

The mediator in this matter, now Judge Joseph Seidlin, briefly

testified before the commission. He testified that he did not recall ever

seeing the version of the September 24 settlement letter with Sporer’s

handwriting. He testified that Sporer, in effect, took the position in the

mediation that “I’ve got a signed settlement agreement, they cashed the

check, we dismissed our appeal and now they want to get out of it.”

Duffy’s secretary, Young, testified before the commission. She

recounted retrieving the settlement documents and the check from

Sporer’s office on October 9. Young testified,

I think I was given the check, and I turned to leave and the gal behind the counter said, “Wait, you need to sign this.” I didn’t read it; I just signed it assuming that it was a receipt of some kind that I had picked up the check.

The next witness before the commission after Young was Sporer.

Sporer testified that he had a heated conversation with Duffy on September 27. Sporer asserted he told Duffy he could be sued for

possessing stolen bank records of his client, that Duffy was exposed to

an abuse of process claim for obtaining an ex parte order, and the

possibility of bringing something under RICO for “combining all of the

illegal things they did.” Sporer told the commission that on

September 27, he took a red Sharpie and made the handwritten

annotations on the letter. He testified that two people, lawyer Flanagan

and paralegal Gelbowitz, were in his office at the time or part of the time

when these events occurred. 20

When asked whether Sporer took the position at the contempt

hearing that the October 9 letter signed by Duffy’s secretary was a

binding contract, Sporer stated, “[T]hat, accompanied by two other

things.” Sporer elaborated on his hedge—“I have a signed agreement, a

cashed check, a very long period upon holding the repudiation of that

signed agreement.” Sporer told the commission that he did not believe

Young’s signature alone was binding, although “in theory, that argument

could be made.”

Sporer testified he received the amended “Settlement and Release

of Claims” after he dismissed his appeal on October 22. He claimed the

October 18 date on the letter accompanying the document was a fraud.

Sporer claimed Duffy saw his dismissal of the appeal before he sent to

him the modified version of the “Settlement and Release of Claims.”

Lawyer Andrea Flanagan, the managing partner of the Sporer law

firm, testified before the commission. Flanagan recalled overhearing

Sporer in a heated phone conversation with an unidentified person.

When she left her office to see what was going on, Flanagan stated she

saw Sporer instructing Gelbowitz in some way. He had a piece of paper

in his hand with Duffy’s letterhead and was yelling “that’s not what we

agreed to.” Flanagan testified,

I believe a check had been issued, someone had picked it up, and then when Mr. Duffy’s client was supposed to sign the release that the parties had agreed on, instead of signing it as presented he made changes to it. And that frustrated Ted [Sporer] because the agreement was that his client was on a full release.

According to Flanagan, Sporer made it clear that “in our office never

again would a check be sent out to the other side in a settlement

situation without a release.” Flanagan placed these events in “the fall of

2012, maybe October” but was not sure. 21

Flanagan testified she did not remember seeing Sporer mark the

document with a red Sharpie at the time of the phone call. She testified,

however, that she later saw the document with his writing on it.

Flanagan was asked how the Sporer office documented fax

transmissions. Flanagan testified that the fax machine prints a receipt

and the receipt is stapled to the back of the document and placed in the

file. Flanagan indicated it would be abnormal not to have such a receipt

on a faxed document, but such failures were the kind of problems the

firm had when Gelbowitz was an employee. Gelbowitz was eventually

terminated from her position at the law firm for failure to follow

“important policies.”

Flanagan also indicated it would be unusual to have someone

hand deliver a document by a process server without some kind of

documentation regarding delivery. Flanagan indicated that one of the

reasons the office no longer used Cherie Bradshaw, a friend of Sporer’s,

as a process server was because of her consistent failure to document

delivery of papers.

Sarah Gelbowitz, who was a paralegal in the Sporer office at the

time of the events surrounding this matter, testified before the

commission. Gelbowitz testified that she remembered an occasion when

Sporer raised his voice on the phone, heard the phone clang down “pretty

loudly,” and saw Sporer writing on the bottom of a letter with a red

Sharpie, saying, “This should get his attention.” Gelbowitz recalled that

Flanagan stepped into the office to see what was going on. Gelbowitz did

not recall the date of these events, but placed them sometime between

July and December, 2012.

Gelbowitz further testified that Sporer directed that the document

be “taken to him [Duffy] and delivered immediately” and sent it to Duffy 22

through fax and mail as well. Gelbowitz testified that she hand delivered

the document, faxed it, and mailed it to Duffy. Gelbowitz also testified

that normally she would keep fax confirmation pages, but there were

times “when they didn’t print out” or that sometimes “the fax pages did

not get kept with the letters once they were sent.”

Gelbowitz also testified regarding the December 10, 2012

communication with Duffy’s office. Gelbowitz testified that she and

Sporer had numerous conversations about the Propstein file and that

Sporer was “trying to get things settled.” Gelbowitz stated that her phone

conversation with Duffy’s office on December 10 lasted “[p]robably less

than a minute.” Gelbowitz recalled that when she told Sporer about the

communication with Duffy’s office, Sporer was not too happy that she

took it upon herself to call Duffy’s office. Gelbowitz remembered that

Sporer told her “everything was on hold at the moment” and “[n]othing

was going out or being done” until Sporer and Duffy “worked some things

out.” Gelbowitz stated Sporer told her that Duffy was trying “to weasel

out of a settlement agreement.”

While Gelbowitz testified that she hand delivered the September 24

settlement letter with Sporer’s handwritten comments to Duffy, Cherie

Bradshaw testified that she hand delivered the document as well.

Bradshaw, a friend of Sporer, was in the Sporer law office at the time of

the outburst about which Flanagan and Gelbowitz testified. According to

Bradshaw, Sporer asked her to deliver the document to the Duffy law

office. She testified that she folded the paper up and delivered it a day or

two later. Bradshaw testified she did not get a receipt for delivery

because she was not instructed to do so.

The last two witnesses before the commission were Gary Propstein

and Judge Staskal. Propstein testified that he first learned of the 23

settlement in late September or early October, 2012. Judge Staskal

generally described his ruling. He stated on cross-examination that the

September 24 settlement letter with Sporer’s notes may have first

surfaced in April as part of the exchange of documents in the contempt

proceeding and not in June, as he had previously thought. Judge

Staskal testified that the fact the September 24 settlement letter with

Sporer’s annotations surfaced a few months earlier than he originally

thought did not change his opinion on the matter.

C. Commission’s Findings of Fact and Violations.

1. Findings of fact. The commission found that Sporer did not

send the September 24 settlement letter with his handwritten

annotations to Duffy. In reaching its conclusion, the commission noted

that Sporer’s handwritten note was not dated and that Sporer’s billing

records for September 27 did not list any communications with Duffy.

Further, the commission noted that Sporer could not produce any

confirmation of fax or hand delivery on September 27, notwithstanding

office procedures designed to retain such confirmation.

The commission further found that it was unusual to handwrite a

response to a settlement letter. The commission stated Sporer’s

September 21 settlement letter noted that Sporer had a conflict with the

October 9 date set for the contempt hearing and that the matter would

need to be continued if the parties did not settle the matter. The

commission reasoned that the September 21 suggestion that the matter

might need to be continued suggested a lack of urgency in the settlement

negotiations.

The commission found it unusual that a document such as the

September 24 letter with Sporer’s annotations on it would be served on

the opposing party in three ways. The purported importance of ensuring 24

the document was received by Duffy through three methods of delivery

was inconsistent with the fact that no documentation of any kind was

kept showing delivery of the document by any means.

Although the commission recognized Sporer offered testimony of

the managing attorney in his office, Flanagan, in support of his claim

that he sent the annotated version of the September 24 settlement letter

to Duffy on September 27, the commission found Flanagan’s testimony

did not support Sporer’s assertions. The commission observed that

although Flanagan testified she heard Sporer in a heated conversation

with someone, she could not identify who that someone was. The

commission further reasoned that Flanagan’s focus on the incident was

to make sure the office would never again send out a check without a

signed release. The commission concluded this testimony did not

support Sporer’s claim that the document was sent to Duffy on

September 27, which was before any settlement check was issued.

With respect to the testimony of Gelbowitz, the commission found

inconsistencies in her testimony adversely affected her credibility and on

balance her testimony did not support Sporer’s claim that he prepared

the handwritten note on September 27 and sent it to Duffy on that date.

The commission noted the lack of fax confirmation. Further, the

commission found Gelbowitz created a memorandum to memorialize the

delivery of the document, but then deleted it from the system even

though the Propstein matter was still an open file.

The commission further found that Linda would not have accepted

$27,000 in return for a full release of her claim to future retirement

benefits in excess of $100,000. The commission noted there was no

objective reason to believe that on appeal Gary could completely reverse

the trial court’s award of retirement benefits. Further, the commission 25

found Gary had no defense to the contempt action, thus indicating that

Gary rather than Linda should have been more motivated to effect a

settlement.

The commission also concluded the September 24 settlement letter

with Duffy’s notes did not surface until April 23, 2013. Like Judge

Staskal, the commission found Sporer’s silence in response to Duffy’s

revised release and Duffy’s November 8 and 30 letters was consistent

with the real agreement of the parties, which did not include release of

retirement claims.

The commission also made findings of fact regarding the Board’s

charges that Sporer advanced a frivolous claim and made false

statements before a tribunal. The commission found that it was not

objectively reasonable for Sporer to argue that the October 9, 2012

signature by Young gave rise to a binding settlement agreement.

Further, the commission did not believe that Young in fact had such

authority.

2. Violations. Rule 32:3.1 provides that a lawyer “shall not bring

or defend a proceeding, or assert or controvert an issue therein, unless

there is a basis in law and fact for doing so that it is not frivolous.” Iowa

R. Prof’l Conduct 32:3.1. The commission concluded that Sporer violated

rule 32:3.1. The commission found there was no reasonable basis for

Sporer to assert Young had authority to enter a settlement agreement

when she signed the October 9 letter. According to the commission,

there was no evidence indicating Young had such agency. Young was

simply a messenger. The commission found Sporer violated rule 32:3.1

by arguing otherwise.

Rule 32:3.3(a)(1) provides, in relevant part, “A lawyer shall not

knowingly . . . make a false statement of fact or law to a tribunal. . . .” 26

Id. r. 32:3.3(a)(1). The commission concluded Sporer violated rule

32:3.3(a)(1) by falsely testifying in the contempt proceeding that he added

his notes to Duffy’s September 24 settlement letter on September 27.

The commission found no evidence that the document was created on

that date, and concluded that had the document existed then, it would

have been used by Sporer in the contempt mediation.

The commission also found a violation of rule 32:3.3(a)(1) when

Sporer testified in the contempt proceeding that he believed Young’s

signature on the October 9 letter legally bound Linda to release her

retirement benefits. The commission reasoned that because Sporer had

not been told Young had such authority, Sporer had no reason to believe

her agency extended to approving a settlement.

Rule 32:3.4(a) provides, “A lawyer shall not . . . unlawfully . . .

alter, destroy, or conceal a document or other material having potential

evidentiary value.” Id. r. 32:3.4(a). The commission concluded that

Sporer did not violate this rule. The commission concluded that in order

to violate the rule, a lawyer must affirmatively change the substance of

an existing document. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Thompson, 732 N.W.2d 865, 866 (Iowa 2007) (finding a violation where

attorney forged signature on order for hearing); Comm. on Prof’l Ethics &

Conduct v. Hurd, 325 N.W.2d 386, 388, 390 (Iowa 1982) (involving

attorney altering a document by cutting three lines from a motion, then

taping the motion together and filing). According to the commission,

Sporer did not alter any document, but instead created a new document

when he added the annotations to Duffy’s September 24 settlement

letter.

Rule 32:8.4(c) provides, “It is professional misconduct for a lawyer

to . . . engage in conduct involving dishonesty, fraud, deceit, or 27

misrepresentation[.]” Iowa R. Prof’l Conduct 32:8.4(c). The commission

found Sporer falsely testified that he wrote the handwritten note on

September 27 in violation of the rule. The commission further found

Sporer violated the rule when he falsely stated he subjectively believed

Young’s signature on the October 9 document created a binding

Finally, rule 32:8.4(d) provides, “It is professional misconduct for a

lawyer to . . . engage in conduct that is prejudicial to the administration

of justice.” Id. r. 32:8.4(d). The commission found that Sporer’s

misconduct violated the rule by causing the district court to hold

numerous hearings, including the contempt hearings on June 5, July 19,

and September 6, 2013, and thus unnecessarily expend considerable

judicial resources.

D. Commission’s Recommended Sanction. Before imposing

sanctions, the commission considered aggravating and mitigating factors.

The sole mitigating factor cited by the commission was Sporer’s timely

cooperation with the disciplinary proceedings.

With respect to aggravating factors, the commission noted Sporer

committed multiple violations of ethical rules, had a prior public

reprimand, was an experienced practitioner, and refused to admit

wrongful conduct or show remorse. The commission recommended

Sporer’s license to practice law be suspended for six months as a result

of the ethical violations.

II. Standard of Review.

The standard of review in lawyer discipline proceedings is de novo.

Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGinness, 844 N.W.2d 456,

461 (Iowa 2014). “The Board must prove violations by a convincing

preponderance of the evidence.” Iowa Supreme Ct. Att’y Disciplinary Bd. 28

v. Wright, 857 N.W.2d 510, 514 (Iowa 2014). Although we are not bound

by the commission’s findings, we give them respectful consideration,

especially with respect to witnesses’ credibility. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 101 (Iowa 2012); Iowa

Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa

2006).

III. Discussion.

A. Violations Related to Assertion that Duffy’s Secretary Had

Authority to Bind the Client to Settlement Agreement. The

commission found Sporer violated four of our ethical rules by asserting

in the contempt proceeding that Duffy’s secretary had authority to bind

Duffy’s client to the terms of a settlement agreement favorable to Sporer’s

client. See Iowa R. Prof’l Conduct 32:3.1 (frivolous claims, defenses, or

issues); id. r. 32:3.3(a)(1) (knowingly making false statement of fact or

law to a tribunal); id. r. 32:8.4(c) (conduct involving dishonesty, fraud,

deceit, or misrepresentation); id. r. 32:8.4(d) (conduct prejudicial to the

administration of justice).

Sporer, however, asserts that he was not relying merely on the fact

that Duffy’s secretary signed the October 9 short-form settlement

agreement. In his briefing before us, Sporer combines the signature of

the October 9 letter with the subsequent cashing of the $27,000

settlement check by Linda after Duffy’s secretary delivered the

documents to her employer to bind Linda to Sporer’s settlement terms.

Sporer also claims on appeal that he never argued that the mere

fact of Young’s signature bound Duffy and Linda to the October 9

settlement. He claims that he argued below that Young’s signature was

the first step in a chain of events that bound Linda to the terms of the 29

October 9 settlement letter and the enclosed settlement agreement and

release.

According to Sporer, by cashing the $27,000 check, an accord and

satisfaction occurred. Accord and satisfaction arises when “valid

consideration is offered, intended and accepted in full satisfaction of a

claim.” Kissner v. Brown, 487 N.W.2d 97, 98 (Iowa Ct. App. 1992) (per

curiam). By cashing the check, according to Sporer, an accord and

satisfaction defense arose to any claims that Linda might bring against

Gary, including contempt.

In a second variation of the argument, Sporer further suggests that

Young’s signature, even if affixed without authority, was ratified by

Linda’s accepting the consideration before repudiating Young’s authority

to bind Linda. An agent may exceed authority and bind the principal if

the principal “appropriates the benefits of the acts of the agent.

Ratification is, in fact, equivalent to previous authority.” James Horrabin

& Co. v. McCallum, 191 Iowa 441, 442, 182 N.W. 646, 646 (1921)

(citation omitted). In order for ratification to occur, there must be the

“intent of the principal to ratify the agent’s act which can be either

expressed or implied.” Joseph L. Wilmotte & Co. v. Rosenman Bros., 258

N.W.2d 317, 324 (Iowa 1977) (quoting Abodeely v. Cavras, 221 N.W.2d

494, 502 (Iowa 1974)).

In a third variation of the argument, Sporer argues that Duffy took

no action to repudiate the terms of the October 10 settlement until

October 18. If he objected, according to Sporer, Duffy had a duty to

disclose to Sporer Duffy’s lack of agreement in a timely fashion. Yet,

Duffy did not get back to Sporer until he sent a letter with modifications

to the proposed settlement agreement on October 18. In reliance upon

Duffy’s silence for more than a week, Sporer claimed he dismissed the 30

appeal on October 19, only to learn when the mail was received on

October 23—according to Sporer—that Linda did not agree to Gary’s

October 10 terms. Sporer claims he dismissed his appeal of the

underlying divorce action, however, in reliance on a lack of repudiation.

Neither the district court nor the commission addressed these

alternative arguments now presented by Sporer in this appeal. This is,

in part, because of the nature of Sporer’s advocacy before the district

court in the contempt action. Sporer pled that the parties “reached a

full, final and written settlement of all issues described in the

Application.” This pleading seems impliedly to rely upon Young’s

signature, but is not inconsistent with a ratification defense. Sporer also

pled that Linda “accepted the benefits of the settlement and has

thereafter attempted to enforce the original terms of the Decree,” a

pleading that surely put the accord and satisfaction defense in play

before the district court. Finally, Sporer further pled that Linda’s claims

were “barred by the doctrines of estoppel, waiver, accord and

satisfaction.” But Sporer did not file a brief before the district court

elaborating upon his accord and satisfaction, ratification, and estoppel

arguments.

In any event, Sporer’s statement in his brief that he “never argued

the mere fact of Young’s signature bound Duffy and Linda to the Short

Form Settlement Agreement” is simply inaccurate. At the contempt

hearing, Sporer generally acted as a lawyer representing Gary, but also

took the stand as a witness and was examined by another lawyer. As a

witness under oath at the contempt hearing, Sporer testified, “I believe

that when the signature was made on October 9 by a party’s agent

authorized—to the best of our knowledge authorized to make that

signature, that constitutes a full and final agreement.” And further, 31

Sporer argued, “[I]t is unfathomable to me that Ms. Young would be

anything other than a full agent, as I would expect my staff—anything

that your staff signs on your behalf, you’re stuck with, unless it’s a legal

pleading.”

It was this testimony—and not the other defenses raised in

Sporer’s legal filings on behalf of Gary—that drew the ire of Judge

Staskal, who concluded, beyond a reasonable doubt, that Sporer

lied under oath when he testified to a subjective belief that, by signing the bottom of his September 21 offer letter when she picked up the $27,000 check, Duffy’s secretary had legally committed Linda to giving up the retirement award.

Putting aside the question of whether Sporer had other good-faith

defenses available in the contempt action, the Board’s charge and the

commission’s finding have a narrower dimension. The asserted

violations are not based on the fact that Sporer defended Gary in the

contempt action. Instead, the charge is based primarily on Sporer’s

remarkable testimony as a witness in the contempt hearing that he

believed Young had authority to bind Linda and Duffy when she signed

the bottom of the October 9 letter, and it was “unfathomable” that she

did not have such authority. Although the Board alleged and the commission found multiple

violations of our ethical rules, we focus our attention primarily on the

question of whether Sporer knowingly made a false statement of fact or

law before a tribunal in violation of rule 32:3.3(a)(1) and whether Sporer

violated rule 32:3.1 related to frivolous claims.

We begin by observing that Sporer’s assertion that it was

“unfathomable” to him that Young was anything other than a full agent

is objectively absurd. Every lawyer knows that clerical staff provide

essential support to a legal practice and make significant contributions 32

to the lawyers and clients for whom they perform administrative services.

Yet no lawyer, let alone a highly experienced lawyer, reasonably believes

that clerical staff performing routine tasks such as retrieval of

documents have authority, actual or apparent, to bind clients of the firm.

We are not surprised that neither Sporer nor we have found legal

authority supporting the proposition that legal secretaries generally have

authority to bind clients of the attorneys for whom they work. See Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Barnhill, 847 N.W.2d 466, 485 (Iowa

2014) (noting that when we determine whether there is a basis in law or

fact that is not frivolous, we ask whether there was legal authority to

support the attorney engaging in the conduct).

Of course, it is not a violation of rule 32:3.3(a)(1) to advance even

an objectively absurd position. In order to violate this specific rule, the

Board must prove that the lawyer “knowingly” made a false statement of

fact or law to a tribunal. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Netti, 797 N.W.2d 591, 603 (Iowa 2011) (holding misrepresentation must

be made knowingly, not negligently).

On this subjective issue, we give respectful consideration to the

findings of Judge Staskal in the contempt hearing and the commission in

this proceeding. The commission and Judge Staskal did not believe

Sporer actually believed his extraordinary assertion that secretaries have

authority to bind clients to settlement agreements. We too simply find it

hard to accept the notion that an experienced lawyer would believe a

secretary dispatched on a routine mission of picking up legal documents

had the authority to bind a client to the terms of a settlement agreement,

particularly one in which a party was required to surrender a substantial

legal claim. We thus conclude that the Board proved by a convincing 33

preponderance of the evidence that Sporer knowingly made a false

statement of fact or law to the tribunal in violation of rule 32:3.3(a)(1).

In the alternative, even if we found that Sporer’s conduct was not

“knowing,” we would conclude that Sporer through his testimony

asserted or controverted an issue without a basis in law or fact in

violation of rule 32:3.1. To the extent, however, that Sporer claimed

Young had authority to bind the client by signing the October 9 letter, we

think he asserted an issue that had no basis in fact or law.

We note that the Board did not claim and the commission did not

find that the defenses of accord and satisfaction, ratification, and

estoppel were frivolous or that Sporer did not subjectively believe in these

potential theories. Instead, the Board and the commission focused on

the assertion that Sporer falsely claimed that by signing the October 9

letter, Young bound Linda to unfavorable settlement terms. To the

extent Sporer made this specific argument—and he did make this

specific argument before the district court in the contempt proceeding—

we find Sporer has violated both rule 32:3.1 and rule 32:3.3(a)(1).

Finally, we consider whether Sporer engaged in conduct prejudicial

to the administration of justice in violation of rule 32:8.4(d). Among

other things, an attorney’s conduct that results in additional or delayed

court proceedings violates the rule. Iowa Supreme Ct. Att’y Disciplinary

Bd. v. Rhinehart, 827 N.W.2d 169, 180 (Iowa 2013).

We do not find the Board has shown a violation by a convincing

preponderance of the evidence of this rule in light of the posture of this

case. As indicated above, the Board focuses primarily on Sporer’s

assertion regarding Young’s authority to bind Linda. In its complaint,

the Board does not assert that there were no potential defenses in the

contempt action. In particular, although the Board addresses Sporer’s 34

estoppel argument in part, the Board’s briefing does not address the

accord and satisfaction and ratification arguments, issues plainly raised

by Sporer’s resistance in the district court contempt proceedings. We

thus are unable to conclude Sporer’s conduct violated rule 32:8.4(d)

because the Board has not shown that the hearings associated with the

contempt matter would not have occurred but for the ethical violations or

that they were materially delayed or extended by Sporer’s unfounded

testimony.

B. Violations Related to Handwritten Version of the

September 24 Settlement Letter. The Board charged and the

commission found violations of five of our ethical rules arising out of

Sporer’s use of the version of the September 24 settlement letter from

Duffy that had his handwritten annotations. Iowa R. Prof’l Conduct

32:3.1 (asserting or controverting an issue without a basis in law or fact);

id. r. 32:3.3(a)(1) (knowingly making false statement of fact or law to a

tribunal); id. r. 32:3.4(a) (unlawfully altering a document or other

material having potential evidentiary value); id. r. 32:8.4(c) (dishonesty,

fraud, deceit, or misrepresentation); id. r. 32:8.4(d) (conduct prejudicial

to the administration of justice). Sporer claims that he angrily made his

handwritten annotations upon receipt of Duffy’s September 24 settlement

letter and forwarded the annotated version to Duffy by first-class mail,

fax, and hand delivery on September 27. The district court and the

commission both found that Sporer’s assertions were untrue and that

the annotated letter was not generated at the time suggested by Sporer

and, in any event, was not sent to Duffy as claimed by Sporer.

There are a number of features in the record that make Sporer’s

assertions with respect to the annotation of the September 24 settlement

letter difficult to believe. As Sporer himself concedes, lawyers do not 35

ordinarily respond to settlement letters by scribbling handwritten

annotations and returning them to the sending party by multiple means

in nonemergency situations. Sporer responds by claiming he was “in a

hurry” and angry at Duffy upon receipt of the September 24 settlement

letter and was trying to make a point by responding in handwriting with

exclamation marks.

But as noted by the commission, Duffy’s position expressed in his

September 24 letter making clear that Linda was unwilling to surrender

her share of retirement benefits to settle pending issues in the divorce

proceeding was hardly surprising or unanticipated. There was a pending

contempt proceeding arising from Gary’s failure to pay the $23,835 as

ordered by the district court. Gary was thus facing a day of reckoning.

In September of 2012, Gary had no obvious defense to the contempt

proceeding. He had not complied with the court order to pay Linda

$23,835 within thirty days of the decree. Yet, Gary was offering Linda

only about $3000 in additional dollars with which Sporer sought to

obtain a release of over $100,000 in retirement assets and benefits. If

anyone had an unreasonable settlement position, it was Gary. It just

seems improbable that Sporer was outraged by Duffy’s unsurprising and

entirely predictable position as expressed in the September 24 settlement

Sporer suggests that at the time he received the September 24

settlement letter from Duffy refusing to surrender Linda’s share of

retirement assets under the divorce decree, Gary was in a strong position

in the litigation and Linda was desperate for funds. These assertions are

not supported by the record. Indeed, it appears that it was Gary who

was cash strapped and in a weak position. Although Gary had appealed

the divorce decree, he failed to file a supersedeas bond and, as a result, 36

he was obligated to pay Linda the approximately $23,835 in cash within

thirty days of the decree. Gary had missed the deadline and was facing a

contempt proceeding for which he had virtually no defense. Although

results on appeal cannot be predicted with certainty, there is no reason

to think from the record developed in this proceeding that Linda was in a

particularly exposed position on the divorce appeal. The claims against

Duffy and Linda for stealing records, due process violations, and RICO

violations, even if they were made at the time, are largely bluster and are

not of sufficient merit to shift the relative position of the parties in the

settlement discussions. The notion that Linda was taking an unrealistic

position that provoked an angry, handwritten note from Sporer upon

receipt of Duffy’s September 24 letter is not supported in the record.

In order to counter Duffy’s testimony that he had never seen the

September 24 letter with Sporer’s handwritten annotations, Sporer

claimed to have served Duffy through fax, mail, and hand delivery.

Sporer was unable, however, to provide any documentation regarding

service by fax. He had no printout or mechanically generated

confirmation that he sent the document to Duffy shortly after receiving

the September 24 letter. Sporer also had no documentation that the September 24 settlement letter as annotated by him was ever placed in

the mail. It is true, of course, that office procedures occasionally break

down, but the lack of documentation here, when cumulatively combined

with other factors, further undermines any claim that Sporer sent the

document to Duffy at any time.

Sporer also claimed that the document was hand delivered to

Duffy’s office. This led to curious testimony from two persons, one a

former paralegal in Sporer’s office and another a friend of Sporer’s who

wanted to get involved in the business of serving legal papers. Both 37

claimed to have hand delivered the September 24 letter with Sporer’s

annotations to Duffy’s office. It is doubtful that the document was hand

delivered twice. The fact that two witnesses improbably claimed to have

hand delivered the September 24 letter gives rise to an inference that it

may not have been delivered once. In any event, Duffy denied ever

receiving the document, testimony credited by the district court and the

commission.

The fact that the September 24 settlement letter with Sporer’s

annotations did not appear at the mediation is also a curious event.

Duffy used an unadorned copy of his September 24 letter to demonstrate

to the mediator that when Linda cashed Gary’s check, Sporer understood

that he and Linda did not intend to extinguish Linda’s rights to her share

of Gary’s retirement accounts and benefits awarded by the district court.

But Sporer did not counter with his marked-up version of the document.

It may well be that Sporer and or his client wished to take a hard line in

the mediation, but if Sporer had in fact sent the marked-up copy of the

September 14 settlement letter to Duffy prior to Linda’s cashing of Gary’s

check, disclosure of this fact would have strengthened Sporer’s hand and

would have been consistent with a hardball approach to the mediation.

In considering the question of whether the document was ever sent

to Duffy, it is important to note that Duffy denied seeing it before it was

listed as an exhibit in April 2013. Of course, Sporer challenged Duffy’s

testimony. But as between Sporer and Duffy, the district court found

Duffy to be more credible. The commission further found that Duffy was

credible in his testimony that he had not seen the September 24

settlement letter with Sporer’s handwritten note before it was produced

by Sporer before the scheduled April 23, 2013 contempt hearing. We

have said that this court “gives special weight to the commission’s 38

findings concerning the credibility of witnesses.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Bowles, 794 N.W.2d 1, 3 (Iowa 2011).

The most troublesome testimony before the commission, however,

came from Flanagan. She clearly linked Sporer’s irritation with Duffy

and Sporer’s writing of notations on a document with Duffy’s letterhead

to the cashing of a check without a signed release, which occurred in

October. Clearly, Flanagan’s testimony, as pointed out by the

commission, is inconsistent with Sporer’s position that he sent the

marked-up copy of Duffy’s September 24 settlement letter to Duffy on

Consistent with Flanagan’s testimony, it is striking that in the

contempt proceeding, Sporer characterized exhibit 4—the version of

Duffy’s September 24 settlement letter with his notations—as

“October 23, 2012 note, Sporer to Duffy.” Sporer now claims exhibit 4

was mislabeled. In light of the testimony of Flanagan, we think it more

likely that the original date placed on exhibit 4 by Sporer may have been

quite accurate.

In addition, there is Gelbowitz’s December 10, 2012 call to Duffy’s

office advising that Sporer was meeting with Gary and that the QDRO

documentation would be coming soon. Gelbowitz testified that she was

acting on her own when she contacted Duffy’s office and was responding

to constant bombardment from Duffy’s office about the QDRO matter.

We think it doubtful, however, that Gelbowitz was flying blind when she

called Duffy’s office. Gelbowitz obviously routinely communicated with

Sporer about the Propstein file. It is difficult to believe that she was not

generally aware of its status, particularly when she testified that she was

present when Sporer blew up over the settlement issues and wrote his

notations on the September 24 settlement letter with a red Sharpie. 39

Sporer defends his conduct in part by suggesting that it would

make no sense for him to testify falsely about an inconsequential

document. But the marked-up version of the September 24 settlement

letter and its claimed delivery to Duffy were not inconsequential. If

Sporer had sent the marked-up September 24 settlement letter to Duffy

on September 27—well before Linda cashed the settlement check on

October 10—the case for accord and satisfaction or ratification would

have been enhanced. The last communication on the settlement would

not have been from Duffy but from Sporer. Sporer would thus have a

better shot at establishing accord and satisfaction or ratification because

he could argue that Duffy and Linda knew that Gary still insisted that

the payment of the $27,000 would be made only with a full release of all

claims, including the award of retirement assets and benefits in the

divorce decree.

In light of all the above, we thus find that the Board has proved by

a clear and convincing preponderance of the evidence that the

September 24 settlement letter with the Sporer notations was not

generated on September 27 and was not provided to Duffy on that date.

False statements to a tribunal, of course, may be orally made to the

court. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Hearity, 812

N.W.2d 614, 621 (Iowa 2012). As a result, Sporer violated rule

32:3.3(a)(1) (false statements to a tribunal) and rule 32:8.4(c)

(misrepresentation or deceit) by representing that the September 24

settlement letter with his handwritten notions was generated on

September 27 and sent to Duffy on that date.

We also believe the Board established by a clear and convincing

preponderance of the evidence that Sporer’s conduct violated rule

32:8.4(d). With respect to the claim that Sporer sent the September 24 40

settlement letter with his annotations to Duffy on September 27, the

district court in the contempt proceeding expended considerable time

and effort evaluating the assertion. We therefore conclude that Sporer’s

conduct interfered with the efficient operation of the judiciary by

advancing his false assertions regarding the annotated version of the

September 24 settlement letter.

Like the commission, however, we decline to find a violation of rule

32:3.4(a) related to alteration of documents. In a sense, of course,

Sporer did alter the September 24 settlement letter. But Sporer never

claimed that he did not alter the document. Indeed, he represented to all

that exhibit 4 was, in fact, a copy of the September 24 settlement letter

with his later handwritten notes added to it. We think the commission

got it right when it declined to find this rule violation.

C. Sanction. In considering sanctions, we consider both

aggravating and mitigating circumstances. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Iversen, 723 N.W.2d 806, 810 (Iowa 2006). As the

commission has correctly pointed out, timely cooperation with the Board

is a mitigating circumstance in this case. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Khowassah, 837 N.W.2d 649, 657 (Iowa 2013).

There are, however, significant aggravating circumstances. Sporer

is an experienced practioner. See Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Wright, 758 N.W.2d 227, 231 (Iowa 2008). We have found he

committed multiple violations of our rules. See Netti, 797 N.W.2d at 607.

He has a prior disciplinary history involving somewhat less egregious

conduct, but which also involved a misrepresentation by Sporer, albeit to

a client. Prior public reprimands are an aggravating factor in imposing

discipline. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Beek, 757

N.W.2d 639, 643 (Iowa 2008). 41

Sporer’s conduct in this case is somewhat similar to McGinness,

844 N.W.2d 456. In McGinness, an attorney falsified a certificate of

service attached to discovery requests, sent them to opposing counsel,

and then defended the validity of the certificates in a judicial proceeding.

Id. at 462. We suspended McGinness for six months. Id. at 467.

Similarly, in Committee on Professional Ethics & Conduct v. Bauerle, we

suspended the license of an attorney for six months for backdating

partnership documents and providing a false notarization. 460 N.W.2d

452, 453–54 (Iowa 1990); see also Iowa Supreme Ct. Att’y Disciplinary Bd.

v. Liles, 808 N.W.2d 203, 206–07 (Iowa 2012) (imposing sixty-day

suspension when lawyer forged witness’s signature on will and files in

probate proceeding); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Stein, 586 N.W.2d 523, 526 (Iowa 1998) (imposing 180-day suspension

on lawyer who changed certificate of service of pleadings at both trial and

appellate levels, among other violations).

Here, Sporer may have believed he erred by providing Duffy with

the $27,000 settlement check without clearly rejecting Duffy’s

September 24 settlement letter. And, he may have realized that he erred

when he dismissed Gary’s appeal without a signed settlement agreement.

He may have been so wrapped up in his enmity with Duffy that his

ethical judgment became clouded. Or, he may have had a difficult client

who took unreasonable positions and expected his lawyer to bail him

out. We may never know the answer to these questions, but we do know

that we cannot tolerate lawyers making false representation to tribunals

about evidence in a case.

We think it clear that Sporer’s conduct requires a significant

suspension. Based on our review of the record, we suspend Sporer’s

license to practice law for six months. 42

IV. Conclusion.

For the above reasons, we suspend Sporer’s license for a period of

six months from the date of this opinion without the possibility of

reinstatement. The suspension applies to all facets of the practice of law,

as provided by Iowa Court Rule 34.23(3), and requires Sporer to notify

his clients, as provided by Iowa Court Rule 34.24. Upon any application

for reinstatement, Sporer must establish that he has not practiced law

during the suspension period and that he has complied with the

requirements of Iowa Court Rule 34.25. The costs of this proceeding are

assessed to Sporer pursuant to Iowa Court Rule 36.24(1).

LICENSE SUSPENDED.