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In re Disciplinary Matter Involving Ivy

Supreme Court of Alaska

May 1, 2015

In the Disciplinary Matter Involving DEBORAH IVY, Respondent.

Appeal from the Alaska Bar Association Disciplinary No. 2010D233 Board.

Charles E. Cole, Law Offices of Charles E. Cole, Fairbanks, for Respondent.

Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, Special Bar Counsel for Alaska Bar Association.

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, Justices. [Maassen, Justice, not participating.]

OPINION

BOLGER, Justice.

I. INTRODUCTION

The Alaska Bar Association Disciplinary Board recommends disbarment of Deborah Ivy for making false statements as a party to litigation in violation of Alaska Rules of Professional Conduct 3.3, 3.4, and 8.4 and Alaska Bar Rule 15. We agree the record establishes that Ivy made false statements in violation of Professional Conduct Rule 8.4 and Bar Rule 15. But we conclude that Rules 3.3 and 3.4 do not apply because they are intended to govern attorneys acting as advocates and not in their personal capacities. We therefore remand this matter to the Board for reconsideration of its recommended sanction.

II. FACTS AND PROCEEDINGS

Deborah Ivy and her brother, David Kyzer, were involved for several years in now-settled litigation, including the Kyzer Partnership Litigation[1] and the Kyzer/McManamin Litigation.[2] This litigation involved the dissolution and unwinding of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and others.[3] In the Kyzer Partnership Litigation, Ivy counterclaimed against Kyzer, alleging, among other things, that Kyzer created a hostile work environment and committed "intentional tortious acts, " by behaving abusively toward her for decades. Relations between Kyzer and Ivy grew so acrimonious during the litigation that a no-contact order was issued in December 2007, prohibiting in-person or telephone contact between the parties without an attorney present and prohibiting each party from coming within 500 feet of the other's residence.

During the course of the litigation, Ivy alleged and testified that Kyzer made improper contact with her on three occasions, two of which are relevant to this appeal. Kyzer filed a grievance with the Alaska Bar Association alleging Ivy fabricated these incidents and violated the Professional Conduct Rules by testifying falsely about them.

The first such incident allegedly occurred December 29, 2007, when Ivy claims Kyzer stalked her at a women's clothing store. Ivy was scheduled to have her deposition taken in the McManamin litigation in January. Ivy did not appear at the scheduled date; the deposition did not occur until March 13, 2008. At the deposition, Ivy testified about the alleged stalking. According to Ivy, she was shopping at the store from approximately 3:15-3:45 p.m., saw Kyzer in his car outside the store, and completed her shopping while continuing to look out the window at Kyzer. Ivy claimed that after completing her purchase, she hurried to her car, and while she was backing out, Kyzer's vehicle pulled up next to her so close that she thought they would collide. She testified she could see Kyzer in his car "focused, intent, locked in to me" and her "reaction was just to flee." Ivy stated that she and Kyzer then drove off in different directions.

Ivy testified she could not recall whether she contacted the police that day. She stated she did not file a police report that day and could not recall whether she asked anyone else to file one for her. She recalled contacting the police multiple times about the incident but could not remember when. But she provided a detailed statement to a police officer over a week later. The police report states, "[I]f what she provided could be corroborated, it still would not amount to criminal activity." The police officer encouraged her to apply for a domestic violence restraining order. The police report stated that Ivy's attorney at the time called the police officer after hearing from Ivy about their conversation. The officer told Ivy's attorney that he would be willing to request a telephonic hearing for the restraining order because Ivy was afraid to come to the courthouse.

Ivy also alleged Kyzer assaulted her in a courtroom on June 29, 2010, before a hearing in the Kyzer/McManamin Litigation. According to Ivy's affidavit:

Just prior to the commencement of the hearing, I was standing behind the bar, waiting to come forward and join my attorneys . .., who were in front of the bar . . . .
. . . David Kyzer surreptitiously approached me from the rear, and using force, repeatedly thrust his groin into my buttocks area.
. . . I not only felt his groin and crotch (penis), but he also pushed [his] entire frontal area extremely hard against me, from his upper chest/lower neck all the way through his legs (which were so entangled that he tripped while disengaging himself).
. . . His pushing/pressure during the attack caused me pain . . . .
. . . While he was attacking me, his mouth was near my ear, and he was talking into my ...

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