               IN THE SUPREME COURT OF IOWA
                              No. 11–1280

                         Filed December 9, 2011


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

STEVEN F. OLSON,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      The Grievance Commission of the Supreme Court of Iowa

recommends the respondent be ordered to cease and desist from

practicing law in Iowa for thirty days. COMPLAINT DISMISSED.



      Charles L. Harrington and Amanda K. Robinson, Des Moines, for

complainant.


      Steven F. Olson, Bloomington, Minnesota, pro se.
                                        2

MANSFIELD, Justice.

        This attorney disciplinary proceeding comes before us on the

report of a division of the Grievance Commission of the Supreme Court of

Iowa.      See Iowa Ct. R. 35.10(1).        The Iowa Supreme Court Attorney

Disciplinary Board alleged the respondent, Steven F. Olson, violated

ethical rules by communicating directly with a represented party, making

misrepresentations of fact to that party, and engaging in fraud and deceit

toward that party. The commission found two of the alleged violations

had occurred and recommended Olson be ordered to cease and desist

from the practice of law in Iowa for thirty days. Upon our consideration

of   the    commission’s   findings    of    fact,    conclusions    of   law,   and

recommendations,      we   are   unable       to     conclude   by   a    convincing

preponderance of the evidence that Olson committed any of the alleged

violations. Therefore, we dismiss the complaint.

        I. Factual and Procedural Background.

        Olson is a member of the Minnesota and South Dakota bars. His

offices are located in Minnesota. Olson also is admitted to practice in the

tribal courts of the Sac & Fox Tribe of the Mississippi (the Tribe). His law

firm regularly represents the Tribe. Olson is not a member of the Iowa
bar.

        DNA Today, LLC is a now-defunct software company that was

formerly based in West Des Moines. The company offered software that

potentially could be used to store information about a person’s ancestry

and verify whether that person was a bona fide member of an Indian

tribe. At some point in 2005, DNA Today approached the Tribe about its

software. Eventually the parties agreed the Tribe would provide funding

to the company.
                                      3

      In July 2005, the Tribe loaned one million dollars to DNA Today

secured by “all assets of the Company,” including “source code or similar

software.”   Steven Whitehead, the President of DNA Today, personally

guaranteed repayment of the one million dollar debt.

      The debenture agreement also contained terms under which the

Tribe could convert its debt interest into stock.          Additionally, the

agreement required DNA Today to keep the collateral free and clear of

any other security interests. The agreement was governed by the laws of

the Tribe and deemed to have been executed on Indian lands.

      The agreement was prepared by Olson and negotiated between

Olson and Whitehead. Olson and Whitehead continued to deal directly

with each other after that.

      Under the terms of the debenture agreement, DNA Today was

required to pay interest to the Tribe of $25,000 per quarter and to repay

the one million dollars in principal on the one-year anniversary of

signing—i.e., July 2006. By the fall of 2005, however, DNA Today was in

default with the Tribe.       DNA Today was actively searching for other

investors.   One possible deal that would have required the Tribe to

subordinate its debt fell through in the spring of 2006.

      In or about March 2006, without notifying the Tribe, DNA Today

took out a $200,000 secured line of credit with a commercial bank. This

was in violation of the debenture agreement, which prohibited DNA

Today from encumbering its assets with other security interests.

      In late May 2006, DNA Today signed an agreement to retain

Windstone Capital of Scottsdale, Arizona as a broker to use its best

efforts to raise $5 million in outside capital for the company.         The

agreement required a $25,000 cash retainer with $15,000 due upon

signature and the remaining $10,000 payable in thirty days. DNA Today
                                          4

paid the initial $15,000, but was unable to pay the remaining $10,000 of

Windstone’s retainer. 1

       Meanwhile, DNA Today was not compensating its team of

computer programmers, who were located in France. As a result, they

had ceased working for the company. By July 2006, DNA Today was in a

very precarious financial position. As Whitehead explained to Olson in

an e-mail:

              [W]e are in need of immediate relief if we are to
       stabilize the company to insure that we will be operational
       over the next several months. . . .

              ....

              . . . We are at a serious crossroads that not only
       [a]ffects us, bu[t] the tribe as well. . . .

              ....

              The biggest risk is holding our team, including the
       technical team, together. The[] guys in France are refusing
       to provide services for us until they get paid. This will be a
       very big problem if it goes on much longer. Our staff has
       forfeited pay for many pay periods, but can no longer afford
       to do so. We are at partial staffing as a result, which is also
       dangerous.

              I urge [you] to review this situation with full and deep
       consideration. With the tribe’s support, we can make it
       through and should be in great shape to cash in on the
       market that is so strong for us. Without any support, the
       tribe’s investment and our company are in serious
       jeopardy—and I mean serious. This is not a scare tactic, it is
       reality.

Whitehead’s e-mail included suggestions of how the Tribe might provide

additional funding to DNA Today.

       On July 11, 2006, a meeting took place between DNA Today and

the Tribe. No attorneys were present. On July 25, 2006, Olson faxed a

       1In  his complaint against Olson, Whitehead referred to Windstone as a “new
investor.” The record clearly indicates that Windstone was not an investor, but rather,
a broker for potential investments.
                                   5

letter on behalf of the Tribe to Whitehead regarding another potential

business meeting to occur on July 26. The July 26 meeting took place,

again without attorneys present.

      On July 27, 2006, according to Whitehead’s later explanation to

his investors, Whitehead called Olson to find out what the Tribe planned

to do.   Olson returned the call on July 28.    In that call, Whitehead

warned Olson that “our business was in serious jeopardy of shutting

down and that we would likely lose the Windstone deal, which would

mean that the tribe would never get their money back for the debenture.”

In the mean time, Whitehead contacted Windstone and obtained yet

another extension of the deadline to pay the remaining $10,000 of the

broker fee.

      Olson recalled these events similarly. As Olson explained:

      He [Whitehead] came to the Tribe in July—in late June, early
      in July, and explained that he was completely out of money
      and that he was going to have to close the doors unless the
      Tribe loaned him some additional money.

            Well, the Tribe didn’t do anything for an extended
      period of time. I don’t know if any of you have ever dealt
      with Indian tribes, but I suspect you—some of you have
      dealt with governing bodies, political entities. And a tribal
      council is like any political entity, it makes decisions very
      slowly, and perhaps even more slowly than most traditional
      governing bodies that we’re accustomed to dealing with in
      the non-Indian world.

             And as a consequence of that delay he [Whitehead]
      was at the point by the end of July where he was in default
      with the Tribe, but he also owed virtually every other
      creditor, according to what he was telling the Tribe at the
      time. He really had no other resources, and he had no other
      direction to go because he didn’t have the $25,000 in the
      business coffers that it would take to get this broker, the
      Windstone broker that he talked about when he was here, to
      put together a deal that could then go out and be marketed
      to potential investors.    As he indicated, this was an
      investment broker; this was not a venture capital firm, this
      was not any kind of a firm that had a banking firm or that
      had actual resources.
                                      6

      Around this time, Olson learned DNA Today had taken out the

$200,000 secured line of credit several months before in violation of the

parties’ debenture agreement.    On August 2, 2006, Olson filed a UCC

financing statement with the Iowa Secretary of State regarding DNA

Today’s assets, including the software source code.

      On August 7, 2006, Olson filed a complaint in tribal court against

DNA Today and Whitehead alleging default under the loan and security

agreement and seeking damages and an injunction.              The injunction

would prohibit the defendants from disposing of or interfering with any

effort by the Tribe to take possession of the Tribe’s collateral. On August

8, 2006, the tribal court issued a temporary restraining order, which

Olson did not immediately serve on DNA Today.

      During the month of July, when discussions began about the Tribe

possibly providing additional funding to DNA Today, Olson for the first

time had direct contact with Frank Carroll of the Davis Brown law firm.

Olson recalled receiving a phone call from Carroll and being told by

Carroll that he represented DNA Today for purposes of negotiating the

new agreement, but not with respect to the existing financing. Carroll

testified he did not recall placing any limitations with Olson on his

representation of DNA Today.         In any event, Whitehead and Olson

continued to correspond with each other directly on matters other than

the   potential   new   agreement,    while   copying      Carroll   on   their

communications.

      Notably, Whitehead’s recollection on this subject was not far from

Olson’s. Whitehead testified that the Davis Brown firm was fine with his

contacting Olson directly so long as it was for informational purposes as

opposed to negotiations for contracting or legal issues.
                                           7

       Between August 7 and August 9, 2006, drafts of a “Collateral

Agreement” were exchanged between the Davis Brown law firm and

Olson. Frank Carroll was away from the office, so Julie McLean Johnson

and Jason Stone of the same law firm communicated with Olson. The

gist of the negotiations was that the Tribe would provide some additional

funds and DNA Today would deposit a copy of the software source code.

The parties did not come to an agreement, however. Among other things,

DNA Today objected to giving the Tribe a copy of the source code as the

Tribe had requested, instead preferring to have the code deposited with a

third-party escrow agent. The amount of funding also was in dispute.

DNA Today sought $30,000 to $50,000 in immediate cash and a

commitment from the Tribe to provide an additional $500,000 in

financing. The Tribe, on the other hand, was willing in its proposals to

advance only the $10,000 required by Windstone.

       Around midday on August 9, after receiving Olson’s latest version

of the agreement from Davis Brown, Whitehead wrote his stockholders

that the Tribe had “rejected every key point that we proposed.”                   With

regard to the interim financing, Whitehead added, “[The Tribe] are telling

us verbally that they are going to do it, but won’t put it in writing.

Why?” 2

       On August 10, 2006, at 12:20 p.m., phone records show that

Olson had a one-minute call with Jason Stone, one of DNA Today’s

attorneys.      Olson claims that Stone authorized him in that call to

communicate directly with DNA Today.                Stone did not recall such a

conversation but testified that, if it had occurred, he thinks he would

have remembered it.            Stone also did not think that, under the

       2Olson  testified that he did not believe negotiations had ended and was awaiting
a response to his latest proposal relating to the $10,000.
                                      8

circumstances, he would have given Olson permission to talk directly to

his client.

      Late    that   afternoon,   Olson   spoke directly    with   Whitehead.

Whitehead recalls Olson telling him the Tribe was no longer interested in

taking possession of the software code, but “had agreed to making the

payments of the funds and had agreed in principle to providing us with

the bridge financing.”      As Whitehead remembers, Olson also asked

Whitehead if the Tribe could have a couple of its members visit DNA

Today’s offices the next morning to verify the software was there.

Whitehead recalls being told that Janice Eagle Hawk and a “Rich” or

“Mike” were the persons who would be coming.               Following the call,

Whitehead e-mailed Stone:

      We won. The tribe gave in and has agreed to work with us
      on the finances. We played hardball with them and won.
      Olson called me today to confirm their interest in moving
      forward without us giving them the code. A big victory for
      our team. Now we should be able to move ahead freely and
      light things up.

      Olson denied making any assurances regarding financing to

Whitehead. According to Olson, he called Stone first about scheduling a

meeting to look at the software. Stone told him to talk to Whitehead.

Olson claims he then spoke with Whitehead, but only about examining

the software. Olson said he advised Whitehead that Janice Eagle Hawk

and J.R. would be the two persons coming to DNA Today’s offices. Olson

testified that the Tribe wanted to see the software because it had received

a back-channel communication from the head of the programming team

that the complete software was not in West Des Moines.

      After receiving Whitehead’s e-mail reporting on the conversation

with Olson, Stone responded to Whitehead with his own e-mail:
                                         9
      Just make sure that you secure the source code tomorrow
      and take steps to ensure that the Tribe cannot easily obtain
      a copy of it while they are there. Also, you should make sure
      that you have a copy. I have no reason to believe that there
      will be any issues associated with their trip, but it will not
      hurt to be a bit cautious.

      Whitehead replied to his counsel early the morning of August 11

that he would “keep my eye on them today.” He also explained that the

company had two copies of the software and that the software had

certain security features preventing outsiders from accessing, editing, or

downloading it even if they obtained a copy of it. 3
      At around 9 a.m. that morning, two persons arrived at DNA

Today’s offices. One was tribe member Janice Eagle Hawk; the other was

Olson’s law partner J.R.       According to Whitehead, J.R. “mumbled” his

name and did not provide any card or type of identification. Whitehead

recalls that J.R. looked disheveled.         The meeting began in a meeting

room where a terminal was set up to show off the software.                       To

Whitehead’s surprise, Eagle Hawk had a portable hard drive in her

possession.

      At some point, J.R. became more agitated and started pacing the

room. He asked where the server was. When shown to the server, J.R.

disconnected it and said, “I’m taking it. It belongs to us. It’s ours.” J.R.

walked out the door, and Eagle Hawk followed shortly thereafter.

Whitehead called the police and also pursued J.R. outside as he put the

server in the trunk of his car.

      About ten minutes after J.R. left, a man identifying himself as the

police chief of the Tribe appeared at the offices. According to Whitehead,

he said, “I’m really sorry. We should have given you these papers before;

      3Although    these e-mails reflecting communications between DNA Today and its
counsel were admitted into evidence, DNA Today generally declined to waive the
privilege with respect to its communications with the Davis Brown law firm.
                                          10

we’re just a little late. But here, here are the papers that explain what

just happened.” 4

        Whitehead testified that the server was a leased server, not

actually owned by DNA Today, and that data stored on the server

included confidential information relating to numerous individuals.

        An information technology consultant retained by DNA Today, Alex

Romp, also was present when Eagle Hawk and J.R. came to the offices

on the 11th.     He testified that the source code at DNA Today was an

older version.       According to Romp, his understanding from Whitehead

was that the Tribe’s representatives were coming just to examine the

source code. Romp’s memory of what happened on the 11th generally

corresponded to Whitehead’s; however, Romp added that Eagle Hawk

seemed genuinely surprised by the entire series of events.

        Whitehead wrote Olson on August 16, stating, “We strenuously

object to your patently dishonest, highly unethical tactics concerning the

seizure of one of our servers.”         Whitehead’s position, as stated in the

letter, was that Olson had lied to him on August 10 about the status of

negotiations and the purpose of the next day’s meeting, in order to obtain

access to the premises so the Tribe could repossess the server.

Whitehead added, “You knew full well that we were represented by

[counsel] during this process and you chose to ignore them and not

involve them in this process.”

        In his hearing testimony, Olson denied knowing beforehand that

J.R. would try to take possession of the software on the morning of the

11th.      Olson acknowledged that repossession was an option if


        4Whitehead  testified that, if the Tribe’s process-server had arrived while the
server was still there, he would have called the Davis Brown law firm and asked for
their advice.
                                         11

negotiations broke down; that is why the Tribe had obtained an order

from the tribal court.      However, Olson said that his preference would

have been to work with DNA Today. In Olson’s view, it made no sense to

foreclose since that would put DNA Today out of business without

retiring its financial obligation to the Tribe. Olson testified he had told

Stone either on the 10th or earlier that the purpose of the Tribe’s visit on

the 11th would be to verify the company had a complete copy of the

source code that could be downloaded. 5 According to Olson, his concern

was that the French programmers actually owned the code and that the

Tribe did not have a complete or current version. In fact, Olson testified

he later learned that DNA Today did not own the code after all; the

programmers did.

       Olson claimed he was “shocked” when he found out J.R. had taken

the server at the meeting on the 11th. Olson explained that he had been

in Minnesota while J.R. had been at the Tribe settlement during the days

leading up to the 11th and he had not been in touch with J.R.. As he

put it, “Unfortunately, at some point after [J.R.] was at the settlement,

plans must have changed. I was not brought into the loop on that at all.”

       Olson also testified that as an attorney he would never go to

repossess something.          “That’s not my role as an attorney.”                He

acknowledged the possibility of repossession had been discussed.                  He

said he was aware the Tribe believed it needed to look at the source code

before it went any further.

       According to Olson’s hearing testimony, J.R. disclosed to him only

afterward that the Tribe had made a firm decision they would come away

from the August 11 meeting with a copy of the code. Olson contends he

       5Olson’s  phone records show a two-minute call with Stone late on the afternoon
of the 9th, in addition to the one-minute call on the 10th.
                                          12

was later told by J.R. that J.R. made an on-the-spot decision to take the

server when it appeared this was the only way the Tribe would be able to

obtain the code.

       Olson acknowledged that, in an initial joint response to the Board

in September 2006, he and J.R. wrote “it was nearly certain” the Tribe

would need to repossess the source code on the 11th. Additionally, in

that response, he and J.R. wrote they had conferred together before the

August 11 trip to DNA Today and decided not to disclose “the second

purpose of the visit,” i.e., to repossess the source code if DNA Today

would not provide a copy voluntarily.

       In an effort to reconcile his hearing testimony with the September

2006 letter, Olson explained the response to the Board “was a combined

response that really presented the perspective of the two of us, and that

perspective is not entirely all mine.”           Olson testified it was not his

understanding the source code was going to be repossessed, although it

may have been J.R.’s.

       Olson was not questioned at the hearing about his written

response in October 2006 to the Minnesota Office of Lawyers Professional

Responsibility. 6 He alone signed that response. In that response, Olson

reiterated that it was “virtually certain” the source code would need to be

repossessed by the time of the meeting and that he and J.R. had

conferred and concluded ahead of time they did not need to disclose the

Tribe’s intent to repossess the source code if DNA Today could not or

would not provide a copy.




       6A parallel complaint filed by Whitehead against Olson with the Minnesota Office
of Lawyers Professional Responsibility was denied by that agency.
                                            13

       II. Scope of Review.

       We review attorney disciplinary proceedings de novo.                          Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 793 (Iowa

2010). We give respectful consideration to the commission’s findings and

recommendations, but we are not bound by them.                       Iowa Supreme Ct.

Att’y Disciplinary Bd. v. Lickiss, 786 N.W.2d 860, 864 (Iowa 2010). “The

board has the burden of proving attorney misconduct by a convincing

preponderance of the evidence.” Id.

       III. Review of Alleged Ethical Violations.

       In its complaint, the board alleged that Olson violated Iowa Rules

of Professional Conduct 32:4.2(a) by communicating with Whitehead on

August     10    without     Stone’s     consent,      violated    rule    32:4.1(a)     by

misrepresenting to Whitehead that the Tribe was no longer insisting on a

copy of the software source code and had agreed to provide supplemental

financing as requested by the company, and violated rule 32:8.4(c) by

engaging in deceptive conduct with Whitehead. 7

       7Other  allegations were dismissed by the commission before the hearing. The
commission also denied Olson’s motion to dismiss based on lack of personal
jurisdiction. We agree with that ruling. Rule 32:8.5(a) provides in part:
       A lawyer not admitted in Iowa is also subject to the disciplinary authority
       of Iowa if the lawyer provides or offers to provide any legal services in
       Iowa. A lawyer may be subject to the disciplinary authority of both Iowa
       and another jurisdiction for the same conduct.
Iowa R. of Prof’l Conduct 32:8.5(a).
        “Our jurisdiction to discipline attorneys practicing in Iowa under rule
32:5.5(d)(2) rests on our responsibility to protect the citizens of our state from unethical
conduct of attorneys who provide services in Iowa.”             Iowa Supreme Court Att’y
Disciplinary Bd. v. Carpenter, 781 N.W.2d 263, 267 (Iowa 2010). As noted by the
commission, this case centers on Olson’s communications with an Iowa resident who
was in Iowa at the time of the communications and was the head of an Iowa-based
company. The purpose of the communications was to enable Olson’s client to visit the
Iowa offices of that company and to obtain a copy of the source code. As a precursor to
those communications, Olson caused a UCC financing statement to be filed with the
Iowa Secretary of State. See In re Tonwe, 929 A.2d 774, 778 (Del. 2007) (stating that
“physical presence is not required to establish that a person is providing, or offering to
provide, legal services in this state”).
                                        14

       In a thorough decision that followed a full-day hearing on June 2,

2011, the commission found that Olson did not have express or implied

permission to contact Whitehead directly and thus violated rule

32:4.2(a).   The commission did not find a violation of rule 32:4.1(a)

because it deemed the evidence of intentional misrepresentation

insufficient. However, the commission found a violation of rule 32:8.4(c),

stating that Olson should have communicated “[t]he material fact . . . to

Whitehead . . . that the Tribe had the ‘alternative plan’ to repossess the

source code at the meeting.”        The commission recommended an order

prohibiting Olson from practicing law in Iowa for thirty days. 8

       We now review the commission’s findings, conclusions, and

recommendations. Unlike in many disciplinary cases, we do not have to

examine a long sequence of alleged ethical shortcomings. Instead, our

attention is squarely focused on the phone calls Olson had with Stone

and Whitehead just before the August 11 meeting at which J.R. removed

the server from the DNA Today offices. Whitehead claims he was tricked

by Olson over the phone into agreeing to that meeting. Olson maintains

that he did not mislead Whitehead and that the meeting turned out

differently than he had anticipated.
       Some legal background is important. It is undisputed that DNA

Today was in default and that the Tribe had the right to take possession

of the source code as collateral. See Iowa Code § 554.9609(1)(a) (2005)

(providing that “[a]fter default, a secured party . . . may take possession

of the collateral”). This repossession can be carried out “without judicial

process, if it proceeds without breach of the peace.” Id. § 554.9609(2)(b).

        8As noted above, Olson is not admitted to practice law in Iowa.  Thus, after
concluding a thirty-day suspension of Olson’s license otherwise would have been the
appropriate sanction, the commission properly recommended an equivalent sanction
that invoked our equitable powers. See Carpenter, 781 N.W.2d at 269–70.
                                       15

        A. Alleged Violation of Rule 32:4.2(a). Rule 32:4.2(a) provides:

        In representing a client, a lawyer shall not communicate
        about the subject of the representation with a person the
        lawyer knows to be represented by another lawyer in the
        matter, unless the lawyer has the consent of the other lawyer
        or is authorized to do so by law or a court order.

Iowa R. Prof’l Conduct 32:4.2(a). This rule is designed to “protect[] the

represented party from the imbalance of legal skill and acumen between

the lawyer and that party.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Schmidt, 796 N.W.2d 33, 40 (Iowa 2011). It also “promotes the integrity

of the attorney-client relationship and serves to prevent a variety of

overreaching.”     Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.

Herrera, 626 N.W.2d 107, 113–14 (Iowa 2001) (equating rule 32:4.2(a)

with its predecessor Iowa Code of Prof’l Responsibility DR 7–104(A)(1)).

We      have   interpreted   this   rule    to   “prohibit   an   attorney    from

communicating with an adverse party represented by counsel concerning

litigation or a transactional matter unless the attorney for the adverse

party gives the opposing attorney permission to talk to the adverse

party.”   Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d

801, 806 (Iowa 2010) (equating rule 32:4.2(a) with its predecessor Iowa
Code of Prof’l Responsibility DR 7–104(A)(1)).

        As we have set forth above, Olson contends he received permission

from Stone on August 10 to speak directly to Whitehead. Stone does not

recall the phone call, but does not believe he gave Olson permission. The

phone records show there was a call, but it only lasted one minute or

less.

        The commission concluded on this record that Olson did not

receive permission and most likely reached Stone’s voicemail.                As the

commission put it, “In this era of email, we would expect an email
                                   16

confirming this express permission, especially considering the email

exchanges of the previous three days.”

      We believe the commission overlooked some key points in the

record.   First, and most importantly, late in the day on August 10,

Whitehead e-mailed Stone and said, among other things, “Olson called

me today to confirm their interest in moving forward without us giving

them the code.” If Stone had not given Whitehead permission to talk to

his client directly, one would have expected Stone to take some action—

e.g., call Olson immediately.   Instead, Stone responded to Whitehead

with various advice about the next day’s meeting, telling him to “secure

the source code tomorrow” and “make sure that you have a copy.”

      Furthermore, when asked at the hearing whether his attorneys

were “fine with you contacting Mr. Olson directly,” Whitehead answered,

“As long as there weren’t, you know, negotiations for contracting or legal

issues going on. For informational purposes they were fine with that.”

Thus, while Carroll and Stone had no recollection of giving Olson

permission to communicate directly with Whitehead, Whitehead did have

a recollection that such permission had been given, at least on some

subjects. Even after the Davis Brown law firm became involved in July

2006, Olson and Whitehead continued to e-mail each other directly,

except with respect to the text of the proposed Collateral Agreement.

After consulting with his attorneys regarding the events of August 11,

Whitehead again wrote Olson directly on August 16, while only sending

an informational copy to Carroll.        Against this backdrop, it is

understandable that Olson would not have sent a confirming e-mail to

Stone on the 10th.
                                         17

       We are unable to find by a convincing preponderance of the

evidence that Olson did not have Stone’s permission to speak directly

with Whitehead on August 10. 9

       B. Alleged Violation of Rule 32:4.1(a). Rule 32:4.1(a) states, “In

the course of representing a client, a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person[.]”

Iowa R. Prof’l Conduct 32:4.1(a).

       The Board alleged Olson misrepresented to Whitehead that the

Tribe had agreed to provide supplemental financing to DNA Today as

requested and was no longer insisting on obtaining a copy of the software

source code, but only in verifying that DNA Today had possession of the

source code.

       The commission concluded the Board had failed to establish these

allegations by a convincing preponderance of the evidence.                We agree.

Regarding the alleged misrepresentation that the Tribe had agreed to

provide the supplemental financing requested by Whitehead, it is

important to contrast the specific differences that had emerged in the

written negotiations with the vagueness of Whitehead’s description of the

conversation where Olson allegedly made the misrepresentation.

       According to the written record, the situation on August 9 was that

the Tribe was willing to provide $10,000 whereas DNA Today wanted

$30,000 to $50,000 with a commitment for more to follow.                          Yet

Whitehead’s e-mail to his attorney Stone on the 10th following the key

call from Olson was fairly nonspecific. It said the Tribe “has agreed to


       9After finding that Olson did not have express consent to speak directly with
Whitehead, the commission went on to address whether Olson had implied consent.
Although the commission’s discussion of implied consent is a thorough and thoughtful
treatment of the subject, we do not need to reach the issue of implied consent because
we disagree with the commission’s finding as to express consent.
                                          18

work with us on the finances.” Likewise, in his August 7 communication

with his stockholders, Whitehead acknowledged that the “details” as to

“how much money they will provide us, what the terms are, when that

money will be available etc.” were “extremely important.”                       Those

important details were missing from Whitehead’s e-mail to his attorney

after the August 10 call.

       Moreover, in his subsequent complaint to the Board, Whitehead

said that as of August 10 the “primary issue of the negotiations was

collateral.”     This statement, however, seems inconsistent with the

contemporaneous documents, which show the parties well apart on the

amount of financing—the issue that one would have expected the

company to consider “primary.”             In short, the paper trail from the

relevant time period tends to suggest that Olson communicated at most a

general intention to work out a deal, as opposed to a commitment to

Whitehead’s specific deal.          See id. r. 32:4.1 cmt. [2] (noting that

statements of “a party’s intentions as to an acceptable settlement of a

claim” are ordinarily not considered statements of fact for purposes of

the rule). 10

       By midday August 9, 2006, DNA Today was in desperate straits.
Whitehead believed the negotiations with the Tribe were over and his

company was potentially headed into oblivion. This makes it plausible

that, when Olson called the next day, Whitehead may have optimistically


       10There  was a precedent for Whitehead and Olson being crossed in their signals.
In his August 7 memo to DNA Today shareholders, Whitehead said Olson had told him
on August 3 that the Tribe “had agreed to extend us a line of credit,” but “did not give
any specific details when asked.” When the draft agreement arrived a few days later, it
proposed that the Tribe would only pay the $10,000, with no reference to a line of
credit. Notwithstanding Whitehead’s use of the term “agreed” to characterize Olson’s
August 3 representations, the circumstances indicate there was never any actual
agreement, given Olson’s refusal on August 3 to provide “any specific details when
asked.”
                                        19

thought he heard more than he actually did hear. Of course, it is also

plausible that Olson affirmatively misled Whitehead on the financing.

Ultimately, though, we are not persuaded by a convincing preponderance

of the evidence that Olson told Whitehead on August 10 the Tribe had

agreed to provide the actual supplemental financing requested by DNA

Today. 11

      Likewise, we are not persuaded by the required level of proof that

Olson told Whitehead on August 10 the Tribe was no longer insisting on

obtaining a copy of the software code. In our view, it is quite possible

Olson actually said only that the Tribe wanted to examine the software

and Whitehead thought he heard an additional statement that the Tribe

no longer was interested in getting a copy.          As with the other alleged

misrepresentation, another possibility is that Olson affirmatively and

intentionally misled Whitehead, but we cannot say this occurred with the

required degree of confidence.

      C. Alleged Violation of Rule 32:8.4(c). Rule 32:8.4(c) provides,

“It is professional misconduct for a lawyer to . . . engage in conduct

involving dishonesty, fraud, deceit or misrepresentation[.]”                Id. r.

32:8.4(c).

      Although the commission did not find that Olson made an

affirmative misrepresentation of fact to Whitehead on August 10, it did

conclude he had engaged in deceptive conduct within the meaning of rule

32:8.4(c). As the commission explained:

            It is far   too convenient   for Olson to now state that he
      was not sure      whether [J.R.]   would or would not seize the
      source code       the following     day at the time he called
      Whitehead.        The material     fact that should have been

      11We  assume without deciding that such a misrepresentation—i.e., that the
Tribe had agreed to DNA Today’s specific financing request—would be one of material
fact.
                                     20
      communicated to Whitehead is that the Tribe had the
      ‘alternative plan’ to repossess the source code at the
      meeting.     Considering the ongoing dispute about even
      producing a copy of the source code, it is abundantly clear
      that had Olson informed Whitehead of this plan, Whitehead
      would not have agreed to the meeting.         To us, this
      demonstrates the artifice that Olson created to let
      Whitehead’s guard down to permit the self-help
      repossession.

      We approach the commission’s resolution of this issue with a

considerable degree of respect.       The commission’s written decision

reflects   careful and   balanced   deliberation.     We   agree   with   the

commission that a failure to disclose facts with the intent to deceive can

violate rule 32:8.4(c) when there is an underlying duty to disclose. See

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell, 726 N.W.2d 397, 406

(Iowa 2007) (holding that an attorney violated former DR 1–102(A)(4),

which is worded similarly to rule 32:8.4(c), by placing a lien on his

client’s property without disclosing this fact to her).        Yet we part

company from the commission’s final conclusion, primarily for legal

rather than factual reasons relating to the scope of Olson’s disclosure

obligation.

      Under the law, so long as Olson did not affirmatively mislead

Whitehead, see 4 James J. White & Robert S. Summers, Uniform

Commercial Code § 34–8, at 446 (6th ed. 2010) (“When creditors enter

premises under ruses (I am the piano tuner), and particularly when
private parties pose as policemen, they are likely to have broken the

peace . . . .”), he had no legal duty to disclose the Tribe’s contingent plan

to attempt self-help repossession, see 10 Ronald A. Anderson Uniform

Commercial Code § 9–503:156, at 393 (3d ed. rev. 1999) (“The secured

creditor may enter the debtor’s premises without prior notice in order to

repossess the collateral.”); see also Rainwater v. Rx Med. Servs. Corp., 30

UCC Rep. Serv. 2d 983 (E.D. Cal. 1995) (finding no breach of the peace
                                          21

where the plaintiff simply walked into the business premises of her

former employer after having been terminated and took certain

equipment in which she had a security interest). Self-help is to some

extent a rough and tumble world. A commercial debtor that is in default

is not entitled to a Miranda warning that its collateral may be

repossessed if it consents to the creditor’s entry on the premises. 12

         In any event, this debtor was not in need of such a warning. Stone

told Whitehead on August 10 to “make sure that you secure the source

code tomorrow” and, if something happened, to make sure “you have a

copy.”     Whitehead responded that the code had “unique” protections

which meant that “nothing can be done with the code as far as getting

access to it to edit it or download it” without a smart card and a dongle.

Whitehead himself acknowledged to his counsel that he was engaging in

“hardball.”

         The statement that Olson admitted he made, and that we find he

made, was that the Tribe wanted to see the source code firsthand. This

was a true statement and not just a ruse. Based on conversations with

the head of DNA Today’s outside programming team, Olson had concerns


        12In some jurisdictions, even a creditor that makes a misrepresentation to

enable repossession does not commit a breach of the peace. See, e.g., K.B. Oil Co. v.
Ford Motor Credit Co., 811 F.2d 310, 313–14 (6th Cir. 1987) (applying Ohio law and
concluding fraudulent misrepresentations to a third party that the debtor had agreed to
repossession did not amount to breach of the peace); Cox v. Galigher Motor Sales Co.,
213 S.E.2d 475, 479 (W. Va. 1975) (stating that, “although we look with disfavor on the
use of deceit, such repossession was achieved without a breach of the peace and was
lawful”). But see Clarin v. Minn. Repossessors, Inc., 198 F.3d 661, 664 (8th Cir. 1999)
(applying Minnesota law and relying on White & Summers treatise to hold that five
factors enter into whether the creditor committed a breach of the peace, including the
creditor’s use of deception); Ford Motor Credit Co. v. Byrd, 351 So.2d 557, 559 (Ala.
1977) (finding the creditor committed a breach of the peace when it tricked the debtor
into bringing his car into the dealership under false pretenses). There is no Iowa
authority directly on point. Regardless, the key point for present purposes is that a
secured creditor does not normally have a duty to tell the defaulting debtor about plans
for repossession.
                                         22

about the integrity of the version of the code in West Des Moines. The

concerns turned out to be valid.

         We recognize a disclosure obligation can be triggered when a party

to a business transaction makes a partial or ambiguous statement of the

facts.     In that circumstance, other matters may need to be said to

prevent the statement from being misleading.               See Wright v. Brooke

Group Ltd., 652 N.W.2d 159, 175 (Iowa 2002); Restatement (Second) of

Torts § 551(2)(b) (1976).         Olson came close to the edge by telling

Whitehead the Tribe wanted to see the source code without also

mentioning it planned to come away from the meeting with a copy. But

given that the Tribe was genuinely interested in looking at the code (and

not just in getting a copy), and given Whitehead’s and his counsel’s

appreciation of the risks in letting them into the offices, we cannot say by

a convincing preponderance of the evidence that Olson crossed the line

here. 13    In short, we cannot conclude Olson violated rule 32:8.4(c)

because the commission’s analysis, in our view, would impose a duty of

disclosure on attorneys that the underlying law does not impose.

         With some justification, the commission criticizes Olson for

inconsistency in his testimony.          As noted by the commission, Olson
testified “both that he told Whitehead that the purpose of the visit was

merely to confirm that the source code was at DNA Today’s offices, and

that he told Whitehead that the Tribe ‘might make a copy’ of it during the

August 11 meeting.” Initially Olson testified:

         [I said] they were coming there to confirm that he had a
         complete copy of the source code and that it was
         downloadable to a device that, where it could be saved as

        13The risk that Whitehead and his counsel did not appreciate was that one of

their guests might walk out of the office with DNA Today’s computer server. However,
we believe J.R.’s decision to walk out with the server was not preplanned and was made
on the spur of the moment.
                                    23
      opposed to a copy of the source code that was unique to a
      single device or a single system, that this was reproducible
      copy.

Later Olson went on, “[I said] there might be a copy of it made if it was a

copy—if it was a source code, a type that could be copied.”

      We agree with the commission that there is a distinction between

telling someone you want to find out if something can be copied and

telling someone you actually want a copy. We suspect that Olson only

made the former statement.       As previously noted, based on Olson’s

behind-the-scenes conversations with the programmers, one of the

Tribe’s concerns was that DNA Today did not actually have a version of

the software that was capable of being copied or downloaded and the

Tribe needed to do a test. Whitehead’s private communications with his

attorney and his stockholders suggest the Tribe’s concern was legitimate

and that DNA Today was to some extent playing a cat-and-mouse game

with the Tribe.   Still, regardless of which of these statements Olson

made, it would not be enough in our mind to establish that Olson

defrauded DNA Today and Whitehead.

      There are also apparent inconsistencies between Olson’s 2011

hearing testimony and his September and October 2006 letters to the

Iowa and Minnesota disciplinary authorities. In his hearing testimony,

Olson claimed he was unaware that the Tribe had made a decision to

repossess the software code.    In his 2006 letters, on the other hand,
Olson said that he and J.R. spoke beforehand and agreed they “did not

have to disclose” the Tribe’s plan to take possession of the source code if

DNA Today did not voluntarily provide a copy.        If we were forced to

choose, we would probably trust Olson’s nearly contemporaneous letters

as a more accurate version of events. However, we do not need to choose

because under either version of what happened we cannot conclude by a
                                           24

convincing preponderance of the evidence that Olson engaged in

fraudulent or deceitful conduct. 14

       Since the Board’s complaint against Olson hinges in large part on

Whitehead’s credibility, we believe two additional points should be noted.

Taken as a whole, Whitehead’s writings unrealistically blame the Tribe

and Olson for the demise of DNA Today. After all, the Tribe loaned $1

million to DNA Today, something no one else did. The Tribe also did not

attempt to collect its debt for approximately nine months after the

company went into default.             And the Tribe was willing to lend an

additional $10,000 after DNA Today’s programmers had pulled out and

the company had generally stopped paying its bills. Whitehead’s blame-

shifting to some extent detracts from his credibility, in our view.

       Furthermore, Whitehead declined to waive the company’s attorney-

client privilege at the commission hearing. The reasons for this decision

are unclear. DNA Today had ceased operations and entered bankruptcy

years before.     As a result of this decision, the record includes only a

portion of the DNA Today attorney-client communications—those which

Whitehead chose to release.

       IV. Conclusion.

       As we have previously observed, this matter requires us to consider

what was said or not said in a few oral communications. For the reasons

we have discussed, as we reconstruct what happened in those

conversations, we are unable to conclude by the required convincing

preponderance of the evidence that Olson violated rule 32:4.2(a), rule

32:4.1(a), or rule 32:8.4(c).

        14We are troubled by certain aspects of Olson’s hearing testimony.       However,
given some ambiguities in the record (for example, at times it is unclear whether Olson
is referring to the repossession of the server or to the repossession of the source code),
and given the fact that J.R. did not testify, we cannot say anything more at this point.
                                   25

      The Board also took exception to a number of Olson’s actions in

defending this disciplinary proceeding, including motions that he filed.

Because these matters are not raised as independent violations, but only

as alleged aggravating factors, we do not consider them.

      COMPLAINT DISMISSED.

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