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McGee v. Alaska Bar Association

Supreme Court of Alaska

July 24, 2015

BRANT MCGEE, Petitioner,
v.
ALASKA BAR ASSOCIATION, Respondent.

Original Application from a decision by Bar Counsel for the Alaska Bar Association. ABA File No. 2013D160

Brant McGee, pro se, Anchorage, Petitioner. [1]

Louise R. Driscoll, Assistant Bar Counsel, Alaska Bar Association, Anchorage, for Respondent.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

WINFREE, Justice.

I. INTRODUCTION

When an ethics grievance against a lawyer is filed with the Alaska Bar Association, Bar Counsel may, after a preliminary review, determine that a formal investigation is unwarranted and close the file. The complainant may request that the decision be reviewed by the Bar's Discipline Liaison - designated by the Bar's Board of Governors - and if the Discipline Liaison agrees with Bar Counsel, then no further action is taken and the matter is closed. In Anderson v. Alaska Bar Ass'n we held that we will directly review a grievance-closing decision.[2] In that case we reviewed the grievance closure for abuse of discretion and concluded that Bar Counsel had not abused his discretion in determining that a formal investigation was unwarranted.[3]

We now consider a complainant's application for relief contending that Bar Counsel erred in closing the complainant's grievance without a formal investigation. Resolving this matter requires explaining more fully how we review a grievance closure. First, we expect Bar Counsel will base a grievance closure on the facts of record, applicable law and policy, practicality, and professional experience and judgment; when Bar Counsel does so we will afford Bar Counsel broad discretion. Second, when reviewing a grievance-closing decision for abuse of discretion, we look to ensure that the decision is not arbitrary, capricious, or the result of a breakdown in the process. On that standard we see no abuse of discretion in Bar Counsel's decision to close this complainant's grievance without a formal investigation.

II. DISCUSSION

A. Legal Framework

Former Alaska Bar Rule 22(a) implied that if a properly filed grievance contained "allegations which, if true, would constitute grounds for discipline" Bar Counsel was required to open a formal investigation.[4] Bar Rule 22(c) provided that after a formal investigation had been opened, Bar Counsel could dismiss the grievance if "there is no probable cause to believe that misconduct has occurred."[5]

We amended Rule 22(a) in 2003 to confirm Bar Counsel's prosecutorial discretion when deciding whether to open a formal investigation, and Rule 22(a) now requires Bar Counsel to open a formal investigation only when a properly filed grievance "contains allegations that warrant investigation."[6] But we also added a provision that a complainant could request review of Bar Counsel's grievance-closing decision by the Bar's Discipline Liaison, who could direct that a formal investigation be opened on one or more of the grievance allegations.[7] We did not change Rule 22(c)'s language.[8]

In Anderson v. Alaska Bar Ass'n we held that there was no right to appeal grievance-closing decisions to the superior court, but that based on "the presumption of reviewability pertaining to all final administrative orders, and the inherent authority of this court to regulate the practice of law, " we would directly review such decisions.[9]Citing but not discussing Vick v. Board of Electrical Examiners, we stated our "review should be deferential, namely, whether bar counsel ...


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