from the report of the Grievance Commission of the Supreme
Court of Iowa.
commission recommended six-month suspension of attorney's
license. LICENSE SUSPENDED.
Theodore F. Sporer, Des Moines, pro se.
van Brederode and Elizabeth E. Quinlan, for appellee.
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.
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.
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.
Factual Background and Proceedings.
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.
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.
Overview of Factual Record Before the Commission.
Propstein divorce proceedings.
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
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 $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.
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
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.
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.
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 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.
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.
September settlement communications.
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.
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 retirement assets and benefits as
within the scope of the proposed mutual releases.
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.
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
on September 27, Sporer received an email from Gary, asking,
"Any confirmation yet? From [D]uffy or [L]inda?" On
September 28, Sporer relied, "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.
Secretary signs bottom of attorney's letter.
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
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.
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.
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.
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.
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.
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.
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.
Court filings and unsuccessful mediation.
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 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.
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.
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
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
affirmatives 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.
Testimony offered in contempt proceedings before 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.
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.
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.
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 notions 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 delivered." Sporer further testified that Linda
cashed the check on October 10 and that "[he thought]
there was a complete meeting of the minds."
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
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."
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.
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 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
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 ...