In the Disciplinary Matter Involving DEBORAH IVY, Attorney.
Appeal
from the Alaska Bar Association Disciplinary Board. No.
2010D233
Charles E. Cole, Law Offices of Charles E. Cole, Fairbanks,
for Deborah Ivy.
Kevin
G. Clarkson, Brena, Bell & Clarkson, P.C, Anchorage, for
Alaska Bar Association.
Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger,
Justices.[Maassen, Justice, not participating.]
OPINION
BOLGER, JUSTICE.
I.
INTRODUCTION
After
remand the Alaska Bar Association Disciplinary Board again
recommends disbarring an attorney who testified falsely in
private civil litigation and in these disciplinary
proceedings. Previously we directed the Board to reconsider
sanctions in light of our holding that the attorney violated
Alaska Rule of Professional Conduct 8.4 and Alaska Bar Rule
15, but not Rules of Professional Conduct 3.3 and 3.4,
because the misconduct did not arise in a representative
capacity. After independently reviewing the record, we now
conclude that the severity of this misconduct warrants
disbarment.
II.
FACTS AND PROCEEDINGS
We set
out the facts and proceedings relevant to this bar matter in
In re Ivy.[1]Here we recapitulate those facts most
relevant to the imposition of sanctions.
Deborah
Ivy and her brother, David Kyzer, were involved for several
years in now-settled litigation over the dissolution and
unwinding of business organizations and joint property
holdings of Ivy, Kyzer, their two sisters, and others. During
that litigation, relations between Kyzer and Ivy grew so
acrimonious that a no-contact order was issued in December
2007. This order prohibited in-person or telephone contact
between Ivy and Kyzer without an attorney present and
prohibited each party from coming within 500 feet of the
other's residence. Ivy subsequently testified that Kyzer
made improper contact with her on three occasions after this
order issued. In response Kyzer filed an ethics grievance
with the Alaska Bar Association, claiming that Ivy fabricated
these incidents, in violation of the Alaska Rules of
Professional Conduct.
Two of
the alleged incidents bear on the sanctions inquiry. First,
on January 7, 2008, Ivy provided a 30-minute statement to a
police officer, claiming that Kyzer had stalked her at a
women's clothing store about ten days earlier. Based on
Ivy's statement and because Ivy claimed to be in hiding
and did not want to come to the courthouse, the officer
offered to request a telephonic hearing for a domestic
violence restraining order. The day Ivy made the police
report was the same day she was scheduled to give a
deposition in the litigation with Kyzer. A few days before,
on January 3, the superior court had denied Ivy's motion
to stay the deposition, and on January 4 we denied Ivy's
emergency motion to stay the superior court order denying her
request. Ivy did not appear at the January 7 deposition
despite having been ordered to do so. In response to a
follow-up order to appear for the deposition, Ivy's
attorney reported the alleged stalking incident to the
superior court. Ivy ultimately was deposed on March 13. At
that deposition, Ivy testified about the alleged stalking
incident. She described in great detail her movements among
the various racks of clothing and the dressing rooms,
Kyzer's allegedly menacing use of his vehicle, and her
response. The second incident occurred in July 2010 when Ivy
claimed that Kyzer assaulted her in a courtroom and that his
actions constituted criminal sexual assault. To support this
claim, Ivy filed a Notice of Sexual Assault with the court
accompanied by an affidavit describing the alleged incident.
In
December 2010 Kyzer filed an ethics grievance with the Alaska
Bar Association, alleging that Ivy violated several Alaska
Rules of Professional Conduct by falsely testifying that
Kyzer stalked her and assaulted her in the courtroom. After
an investigation by a special bar counsel and a hearing, the
Area Hearing Committee found that Ivy knowingly provided
false testimony at the deposition, in her affidavit, and
during the disciplinary proceedings.
Specifically
the Committee found that Ivy's testimony about the
stalking incident was "not credible, " that her
description of how Kyzer moved his vehicle in the clothing
store parking lot was "not physically possible, "
and that when confronted with this physical impossibility
during cross-examination, Ivy "fabricated a new story,
" continued to testify falsely, and did not acknowledge
that her account was flawed. The Committee also found that
courtroom video accurately depicted the alleged assault and
largely contradicted Ivy's claims. It further found it
"not reasonably possible for someone to have experienced
the inadvertent and minor bump of a brother attempting to be
excused . . . and then to honestly or mistakenly believe that
they had been sexually assaulted." The Committee also
noted that Ivy testified that she had not been mistaken and
that she had not imagined or hallucinated the alleged
courtroom assault.
Based
on clear and convincing evidence, the Committee concluded
that Ivy violated Rules of Professional Conduct 3.3(a)(1) and
(3); 3.4(b); 8.4(a), (b), and (c); and Bar Rule 15(a)(3).
Applying this court's three-step attorney sanctions
inquiry, [2] the Committee recommended disbarment given
the ethical violations, Ivy's intentional mental state,
the serious actual or potential injury caused by her
misconduct, the recommended sanction under the American Bar
Association Standards for Imposing Lawyer Sanctions,
[3] and
the balance of aggravating and mitigating factors. The
Committee also recommended awarding $61, 282.75 in
attorney's fees and costs, about $26, 000 less than bar
counsel requested. The Board adopted the Committee's
findings and recommendations in full. Ivy appealed.
In that
initial appeal we agreed with the Board's findings about
both the alleged stalking incident and the alleged courtroom
assault.[4] We also agreed that sufficient
circumstantial evidence established that Ivy's testimony
was objectively false and that Ivy knew her testimony was not
true.[5] Accordingly we concluded that Ivy violated
Rule of Professional Conduct 8.4 and Bar Rule
15.[6]
However because Ivy's misconduct arose in a purely
personal capacity, we concluded that Ivy did not violate
Rules of Professional Conduct 3.3 and 3.4.[7] Therefore we
remanded the matter to the Board to reconsider
sanctions.[8] Finally we "f[ou]nd no fault"
with the attorney's fees and costs award.[9] We indicated only
that the Board "may revise the award if it determines
that reconsideration . . . is warranted."[10]
Upon
reconsideration, the Board again recommends disbarment and
the same fee and cost award. Ivy again appeals.
III.
STANDARD OF REVIEW
We
independently review the entire record in attorney
disciplinary proceedings, but we give "great
weight" to findings of fact made by the
Board.[11] When an attorney appeals the Board's
findings of fact, the attorney must demonstrate that such
findings are erroneous.[12] When reviewing questions of law and
questions concerning the appropriateness of sanctions, we
apply our independent judgment.[13]
IV.
DISCUSSION
A.
Ivy's Misconduct Warrants Disbarment.
When
sanctioning an attorney for misconduct, we seek to
"ensure a level of consistency necessary for fairness to
the public and the legal system."[14] "Our
paramount concern . . . must be the protection of the public,
the courts, and the legal profession."[15]
The
American Bar Association Standards for Imposing Lawyer
Sanctions (ABA Standards) and our prior cases guide
us.[16] First we characterize the attorney's
conduct in light of three variables: the ethical
violation(s), the attorney's mental state at the time of
the misconduct, and the actual or potential injury the
attorney's misconduct caused.[17] This three-variable
characterization yields a presumptive sanction under the ABA
Standards, which we then adjust in light of aggravating and
mitigating factors[18] and our prior cases.[19] Throughout
this inquiry we exercise our independent judgment,
[20]
and we recognize the fact-specific nature of each
case.[21]
Ivy
contends that her misconduct warrants a two-year suspension
rather than the Board's recommended sanction of
disbarment. Applying our independent judgment, we agree with
the Board.
1.
Step one: ethical violation(s), mental state, and
injury
a.
Ethical violation(s)
Previously
we concluded that Ivy violated Bar Rule 15 and Rule of
Professional Conduct 8.4.[22] Nonetheless the parties
dispute which subsections of these rules Ivy violated,
specifically whether Ivy violated Rule 8.4(b).[23] The nature of
Ivy's violation, which determines the subsections of Rule
8.4 Ivy violated, bears on how we characterize Ivy's
misconduct and accordingly affects our analysis of sanctions.
We
conclude, as the Board did, that Ivy violated Rule 8.4(b) -
as well as (a) and (c) - because her false testimony
constitutes a criminal act that reflects poorly on her
integrity as an attorney. Under Rule 8.4(b) it is
professional misconduct for an attorney to "commit a
criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other
respects."[24] Ivy argues that the Board has no
authority to conclude that she violated Rule 8.4(b) because
she was never convicted of perjury.
Neither
the text of Rule 8.4(b) nor the commentary to it requires an
underlying criminal conviction. Rather, as In re
Friedman demonstrates, [25] Rule 8.4(b) contemplates the
criminal nature of an attorney's misconduct. In
In re Friedman we concluded that an attorney
violated former Disciplinary Rule 1–102(A)(3); that
rule deemed it professional misconduct to "[e]ngage in
illegal conduct involving moral
turpitude."[26] We explained that, though the attorney
had not been convicted of a crime, the
attorney's misconduct would have constituted
criminal misapplication of property under Alaska law if he
had committed the underlying acts in Alaska rather than in
California.[27] But because the misconduct occurred
elsewhere, it was beyond the reach of our penal
laws.[28] Like former Disciplinary Rule
1–102(A)(3), Rule 8.4(b) does not require an underlying
criminal conviction for a violation to occur. Violating the
rule requires only that an attorney engage in dishonest
conduct that would be criminal under Alaska
law.[29]
Under
AS 11.56.200 a person commits criminal perjury, a class B
felony, [30]when "the person makes a false sworn
statement which the person does not believe to be
true."[31] The statement must be objectively false,
and the person must know that the statement is
false.[32] The statute encompasses all false sworn
statements, not just those made in court.[33] Under the
Rules of Professional Conduct, the word "knowingly"
"denotes actual knowledge of the fact in
question."[34]
We
already concluded that Ivy acted knowingly when she testified
falsely, that Ivy's testimony was objectively false, that
circumstantial evidence supported the finding that Ivy knew
her testimony was untrue, and that Ivy "did not credibly
explain that she mistakenly believed it was
true."[35] Such conclusions satisfy the elements of
criminal perjury. Because perjury is a dishonest act, we
conclude that Ivy violated Rule 8.4(b).
We
further conclude that Ivy violated Rules of Professional
Conduct 8.4(a) and (c) and Bar Rule 15(a)(3). Our previous
decision supports these conclusions: Ivy breached the Rules
of Professional Conduct, which constitutes a violation of
Rule of Professional Conduct 8.4(a); she engaged in dishonest
conduct, which violates Rule of Professional Conduct 8.4(c);
and she knowingly misrepresented facts and circumstances in
this grievance proceeding, which violates Bar Rule
15(a)(3).[36]
b.
Mental state
The
record supports the finding that Ivy acted intentionally when
she testified falsely in the litigation with Kyzer and in
these disciplinary proceedings. Neither the Rules of
Professional Conduct nor the Bar Rules define
"intentional" conduct. The ABA Standards, which we
follow, define "intent" as "the
conscious objective or purpose to accomplish a particular
result."[37] Intent does not require malfeasance,
[38]
and circumstantial evidence can support a finding of
intent.[39]
We
previously concluded that Ivy acted, at minimum, knowingly
when she testified falsely.[40] We cited Ivy's motive to
lie, the "incredibility of [her] testimony, " the
strong evidence contradicting her accounts, her persistence
in asserting her claims despite such evidence, and her
failure to demonstrate that her ability to perceive was
compromised.[41] These facts and others also support the
finding that Ivy acted with intent: Ivy made a police report
accusing Kyzer of stalking on the same day she was scheduled
to give a deposition in the litigation with him - and
after her requests to stay that deposition already
had been denied. She subsequently testified about the alleged
stalking in great detail. And, in this appeal, she admits
acting with a selfish motive when giving that testimony. She
also continues to rationalize her previous stories rather
than acknowledge their incredibility.
Such
circumstantial evidence supports the finding that Ivy sought
to manipulate the litigation with Kyzer and these
disciplinary proceedings. Therefore we agree with the Board
that Ivy acted intentionally.
c.
Injury and potential injury
We also
conclude that Ivy's misconduct caused serious actual or
potential injury to Kyzer and to the legal system, but not to
the public or to the legal profession. The ABA Standards
define injury according to the type of duty violated and the
extent of actual or potential harm.[42] Harm ranges from
"serious" to "little or no"
injury.[43]Potential injury is harm that is
"reasonably foreseeable at the time of the lawyer's
misconduct, and which, but for some intervening factor or
event, would probably have resulted from the lawyer's
misconduct."[44]
Ivy
contends that she did not cause serious harm to Kyzer, citing
a lack of "clear and convincing evidence" in the
record. She further contends that whatever potential injury
she caused to him was "limited."
As an
initial matter, evidence of injury and potential injury need
not reach the clear and convincing evidentiary threshold. The
ABA Standards, which guide us in assessing sanctions,
[45]
"are designed for use in imposing a sanction or
sanctions following a determination by clear and
convincing evidence" of an ethical
violation.[46] Accordingly we engage in a two-part
inquiry. First we ask if clear and convincing evidence
supports concluding that an attorney violated the ethical
rules.[47] If we answer in the affirmative, we then
consider what level of discipline to impose.[48] We have never
before applied the clear and convincing evidentiary threshold
to this latter inquiry.
The
extreme nature of Ivy's accusations supports our
conclusion that Ivy caused Kyzer serious actual or potential
injury. Ivy accused Kyzer of criminal sexual assault, a class
B felony, [49] and filed an affidavit with the court
supporting the allegation. Ivy also enlisted the justice
system by making a police report accusing Kyzer of stalking,
a class A misdemeanor.[50] She subsequently testified about the
alleged stalking incident in detail.
However
incredible, such accusations threaten to impose a
considerable toll on the accused. A class B felony conviction
for criminal sexual assault could result in a ten-year prison
sentence.[51] A class A misdemeanor conviction for
criminal stalking could result in a one-year prison
sentence.[52] Threats of criminal sanctions stand to
tarnish the reputation of the accused and to cause emotional
distress for the accused and his or her loved ones. For
protection a person might reasonably seek legal advice, as
Kyzer apparently did here. Moreover Ivy's false
accusation about the stalking delayed the litigation; her
deposition scheduled for January was conducted in March. This
delay could have caused Kyzer to incur substantial, and
unnecessary, legal costs.
We also
conclude that Ivy's misconduct caused serious injury or
serious potential injury to the legal system. An
attorney's duties to the legal system include abiding by
the substantive and procedural rules that "shape the
administration of justice, " not using or creating false
evidence, and generally refraining from illegal and other
improper conduct.[53]
Ivy
argues that neither the deposition nor the affidavit caused
serious harm to the legal system because the litigation
settled "[s]oon after" she testified falsely at the
deposition. But Ivy misconstrues the timeline of the
litigation. After she testified falsely about the alleged
stalking incident at the deposition, the litigation continued
for at least another two years; in mid-2010 she falsely
alleged that Kyzer assaulted her in a courtroom. And as
explained, Ivy's false testimony about the stalking
incident delayed the litigation with Kyzer. This delay, at
minimum, threatened to impose a substantial and unnecessary
burden on the judicial system. We recognize that
"lengthy and duplicative filings, " similar to
those here, can impose significant costs.[54] And failing
to timely comply with discovery requests, as Ivy did, can
seriously interfere with proceedings.[55]Further, as
the Board concluded, Ivy's false testimony about Kyzer
could have led the court to reach false conclusions about the
credibility of witnesses. Such a risk also poses serious
injury to the legal system.
However
the record does not support concluding that Ivy caused
serious actual or potential injury to either the public or
the legal profession. Duties that attorneys owe to the public
emphasize the public's right "to trust lawyers to
protect their property, liberty, and lives" and the
expectation that lawyers act honestly and refrain from
conduct that interferes with the administration of
justice.[56] Duties to the legal profession similarly
include maintaining the integrity of the
profession.[57]
We
recognize that actions falling below the ABA's standard
of conduct diminish the public's confidence in
attorneys.[58] Such conduct also threatens the
integrity of the legal profession.[59] But here there was little
risk of such harm. The record does not suggest that the
public was aware of Ivy's misconduct. And Ivy claims that
she has not practiced law in 15 years. If this is true, then
she has no current clients who would become aware of this
disciplinary action.[60] Therefore the record does not support
serious actual or potential injury to the public or to the
legal profession.
2.
Step two: presumptive sanction
If
there are multiple instances of misconduct, "[t]he
ultimate sanction imposed should at least be consistent with
the sanction for the most serious instance of misconduct . .
. and generally should be greater than the sanction for the
most serious misconduct."[61] The ABA Standards favor
disbarment in this case. For example, Standard 5.11(b)
recommends disbarment when an attorney intentionally engages
in dishonest conduct that "seriously adversely reflects
on the lawyer's fitness to practice [law], " as Ivy
did here. Similarly Standard 6.11 recommends disbarment when
an attorney acts "with the intent to deceive the court,
makes a false statement, [or] submits a false document . . .
[that] causes serious or potentially serious injury, "
as Ivy also did. Therefore disbarment, the most severe
sanction under the ABA Standards, is the baseline against
which we weigh aggravating and mitigating
factors[62] - a starting point which the dissent
does not appear to dispute.[63]
3.
Step three: aggravating and mitigating
factors
The ABA
Standards provide a nonexclusive list of aggravating and
mitigating factors that, on balance, may counsel in favor of
modifying the presumptive sanction.[64] When the ABA Standards
recommend disbarment, aggravating factors are relevant
"only to the extent that they neutralize the mitigating
factors."[65]
The Bar
Association and Ivy dispute which aggravating and mitigating
factors exist and how the factors affect the appropriate
sanction. The Board cited several aggravating factors but
only one mitigating factor and accordingly concluded that the
aggravating factors outweighed the single mitigating
factor.[66]
"We
independently review the entire record in attorney
disciplinary proceedings, though findings of fact made by the
Board are entitled to great weight."[67]We agree with
the Board's ultimate conclusion: The aggravating factors
outweigh the single mitigating factor. However we disagree
with some of the Board's analysis.
Like
the Board, we conclude that the record supports several
aggravating factors. As explained, the record establishes
that Ivy acted selfishly. Ivy admits that she acted selfishly
in her briefing; her persistent pattern of behavior, the
timing of her false accusations, and her failure to
acknowledge past wrongs further support the
conclusion.[68]These same facts and circumstances also
support several other aggravating factors: a pattern of
misconduct, multiple offenses, repeatedly making false
statements in the disciplinary proceedings, refusing to
acknowledge past wrongs, and illegal conduct.[69]
But the
record does not support the Board's conclusion that
psychological issues made Kyzer vulnerable. Rather the
Committee noted that the Committee prevented Ivy from
discovering her brother's "personal
information." And we find no evidence that might
otherwise support the finding. "[T]he Bar has the burden
of demonstrating its initial charges against a respondent
attorney."[70] Ivy's experience practicing law also
should not be considered an aggravating factor. The mere
facts that Ivy was admitted to practice in 1984 and once
worked at a law firm bear little weight, particularly when
nothing in the record refutes Ivy's claim that she has
not practiced in 15 years.
As for
mitigating factors the Board found one, no prior disciplinary
offenses. And it explained why it gave little weight to
Ivy's claims that she suffered personal or emotional
problems: Ivy "unequivocally denied any past delusional
thinking or hallucinatory episodes"; she "offered
no evidence from any mental health professional"; and
given her conduct in the proceedings, the validity of her
claims about the "past altercations she had been subject
to at the hands of her brother" could not be ascertained
- "her testimony . . . standing alone . . . was not
credible." Accordingly the Board determined it was
"not qualified to assess how[the alleged] problems may
(or may not) have contributed to Ms. Ivy's wrongful
actions."
We
agree with the Board's conclusions on mitigating factors.
The record lacks evidence of a disciplinary history; this
absence qualifies as a mitigating factor.[71]But, as the
Board found, the record also lacks evidence of personal or
emotional problems. Ivy affirmatively denied such problems,
and she produced no evidence supporting how her alleged fear
of her brother might support the finding. We give "great
weight" to the Board's factual
findings;[72] on appeal the respondent attorney
"bears the burden of proof in demonstrating that such
findings are erroneous."[73] The record supports the
Board's findings, and Ivy does not demonstrate how the
Board's findings are erroneous. Accordingly we conclude,
like the Board, that this mitigating factor is entitled to
little, if any, weight. Finally, Ivy's pattern of
dishonesty also does not support her claim to good character,
an available mitigating factor under the ABA
Standards.[74]
We now
weigh these aggravating and mitigating factors against the
ABA-recommended sanction of disbarment. "[T]here is no
'magic formula' " for balancing aggravating and
mitigating factors.[75] Each case demands an independent
inquiry[76] in light of the "nature and gravity
of the lawyer's misconduct."[77] In balancing
the factors, we are sensitive to the risk of double
counting.[78] This double-counting risk can arise
between the factors themselves; it also can arise when the
ABA-recommended sanction or underlying ethical violation
turns on the same facts as an aggravating or mitigating
factor. We account for this double-counting risk by weighing
the factors in light of the circumstances.
We
conclude, similar to the dissent, [79] that several of the
aggravating factors are repetitious under the circumstances
here. For example, Ivy's misconduct - repeatedly lying
under oath - supports several aggravating factors: a pattern
of misconduct, multiple offenses, a dishonest motive,
deceptive practices during the disciplinary proceedings, a
refusal to acknowledge misconduct, and illegal
conduct.[80] To avoid doubly aggravating the sanction
for precisely the same acts, [81] we consider the repetitious
nature of these factors and weigh them accordingly. Here
because Ivy's pattern of misconduct and multiple offenses
(both aggravating factors) turn on precisely the same
conduct, we give only Ivy's pattern of misconduct - but
not multiple offenses - weight at the balancing stage. By
contrast, we give some weight to factors that do not turn on
exactly the same facts; here this includes Ivy's pattern
of misconduct, her dishonest motive, the illegal nature of
her misconduct, deceptive practices in the disciplinary
process, and her refusal to acknowledge the wrongfulness of
her conduct.
We also
account for repetition between the facts supporting an
aggravating factor and the facts supporting an element of the
presumptive sanction or the underlying ethical violation. But
the mere existence of repetition does not mean we ignore the
aggravating factor at the balancing stage.
"[P]resumptive terms are intended to be applicable in
typical cases, and not in aggravated or mitigated
cases."[82] When an attorney's misconduct
exceeds the typical case, we give some weight to the
aggravating factor.
Ivy's
misconduct exceeds the typical case: She lied in a complex
lawsuit involving multiple parties, she falsely reported that
her brother had committed criminal acts against her, and she
lied in these proceedings to evade discipline for that
misconduct. Thus though repetition exists between the
aggravating factors and the elements of the presumptive
sanction (e.g., Ivy's selfish motive)[83] and between
the aggravating factors and the elements of the underlying
ethical violations (e.g., Ivy's dishonest conduct),
[84]
we give some weight to these aggravating factors at
the balancing stage. But in doing so we account for the
double-counting risk, which arises from the similarity of the
factual circumstances, by appropriately weighing the factors.
Acknowledging
the risk of double counting, we conclude that the five
aggravating factors - Ivy's pattern of misconduct, its
illegal nature, her dishonest motive, deceptive practices
during the disciplinary process, and refusal to acknowledge
the wrongfulness of her actions - outweigh the single
mitigating factor, Ivy's lack of disciplinary record.
Therefore we do not reduce the presumptive sanction of
disbarment.[85]
4.
Our case law
Our
prior cases also support disbarment.[86] Previously we have
reduced an ABA-recommended sanction given the presence of
several compelling mitigating factors, such as evident
remorse, active efforts to remedy the problems caused, and
voluntarily notifying authorities about the misconduct soon
after it occurred.[87] Such compelling mitigating factors are
entirely absent here. Instead Ivy continues her fabrications,
and she actively denies any misconduct. Further the only
factor counseling against disbarment is Ivy's lack of
disciplinary record. Even for a practicing attorney this
factor is not particularly compelling. Yet here Ivy
apparently has not practiced for 15 years; accordingly the
fact that she has not faced any discipline during this period
is unremarkable. And though we have explained that we
"place a great deal of weight on the absence of
dishonest and selfish motives, "[88] such
circumstances are not present here.[89]
By
contrast, when aggravating factors outweigh mitigating
factors we impose the more severe sanction, including
disbarment.[90] A "lack of cooperation" in the
disciplinary proceedings - or deliberate interference, as
here - merits "additional disciplinary
action."[91] We also have found disbarment warranted
when the attorney's misconduct threatens significant
injury and when it is part of a larger scheme to defraud, as
we did in In re Buckalew. [92] Under such circumstances,
disbarment may be warranted even if compelling mitigating
factors might otherwise favor a lesser
sanction.[93] Ivy's misconduct threatened
substantial injury, it was calculated to influence the
litigation with Kyzer and these disciplinary proceedings,
and the record lacks evidence of any compelling
mitigating factors.
To
conclude that disbarment is too severe, the dissent
analogizes to our brief order in In re Purdy
approving a stipulated five-year suspension.[94] But simply
because we approved the stipulation does not mean we agree
with all of its analysis. Contrary to the stipulation's
conclusion, the non-representative context does not
constitute a mitigating factor. Like aggravating factors, we
do not mitigate a presumptive sanction when the presumptive
sanction and the mitigating factor turn on exactly the same
facts.[95] Under the ABA Standards the presumptive
sanction accounts for the non-representative context. Similar
to the Alaska Rules of Professional Conduct, [96] the Standards
categorize recommended sanctions based on the context in
which an attorney's misconduct arises. For example, ABA
Standards 4.0 to 4.6 guide the presumptive sanction when an
attorney's misconduct implicates duties owed to clients;
the more severe the conduct with respect to a client, the
more severe the sanction. By contrast, and as here,
[97]
ABA Standards 5.0 to 5.2 guide the presumptive sanction when
the misconduct implicates duties owed to the public, and ABA
Standards 6.0 to 6.3 guide the presumptive sanction when the
misconduct violates duties owed to the legal system.
Sanctions for such violations may include disbarment
regardless of whether the misconduct relates to client
matters.[98] The context in which an attorney's
misconduct arises also might affect our evaluation of the
severity of harm, as it did here;[99] this variable may affect
the presumptive sanction.[100] Under our framework, we
account for the context before we arrive at the
presumptive sanction.[101]
Further
the severity of Ivy's misconduct and the lack of
compelling mitigating factors distinguishes In re
Purdy. Purdy lied in an administrative matter involving
only herself in an effort to get a personal advantage
vis-à-vis the government.[102] Ivy lied in a complex
lawsuit involving multiple parties, including her brother;
she lied to the police, in a deposition, and to the court in
an affidavit - all in an effort to get her brother in trouble
and to obtain an unfair advantage over her brother in that
litigation. Given the seriousness of and risk of harm from
Ivy's lies about her brother, Purdy's lies pale in
comparison. The important distinction is that without
discussing Purdy's stipulated facts and the three-step
ABA analysis for Purdy's suspension, including
aggravating and mitigating factors, drawing useful
comparisons is difficult. Only if the analytic framework -
including the ABA starting point and the aggravating and
mitigating factors - is irrelevant does In re
Purdy's outcome become relevant to the result
here.[103]
We
demand that attorneys act with integrity whether or not they
are representing a client:
Once admitted [to the bar], the requirement of good moral
character does not cease to exist. . . . Society allows the
legal profession the privilege of self-regulation. Thus, it
is of the utmost importance that the public have confidence
in the profession's ability to discipline itself . . .
.[104]
Under
the ABA Standards and our case law, Ivy's lack of
integrity, self-interested motives, and evident disregard for
how her misconduct gravely threatened others and the legal
system warrants disbarment.
B.
The Record Supports The Board's Attorney's
Fees And Costs Award.
Ivy
contends that, at minimum, the Board's attorney's
fees and costs award should be"dramatically
reduced." Previously we found "no fault with the
attorney's fees award."[105] We determined that the
Board complied with Alaska Bar Rule 16(c)(3), which
authorizes disciplinary boards to award attorney's fees
and costs upon consideration of ten statutorily enumerated
factors.[106] And we explained that even if Ivy
had properly raised the issue of attorney's fees
and costs, it was "not apparent from th[e] record how
the Bar Association's fees and costs would have been
different had it based its investigation and proceeding
solely on Ivy's violation of Rule
8.4."[107] We accordingly acknowledged that the
Board "may revise the award, " but we did not
require the Board to do so.[108]
As
before Ivy does not demonstrate why the Board's award is
flawed. Under Bar Rule 16(c)(3), the amount of an award does
not turn on who prevailed on a given issue. Instead the Rule
requires the Board to consider, among other factors,
"the reasonableness of the number of hours
expended by Bar Counsel and the reasonableness of
the costs incurred"[109] as well as "the
relationship between the amount of work performed by Bar
Counsel and the significance of the matters at
stake."[110] The Bar Association made sound
arguments that related to an issue of first impression: Never
before had we considered whether Rules of Professional
Conduct 3.3 and 3.4 apply in the non-representative context,
neither rule refers to a client relationship, and neither
necessarily implies a representative context. Simply because
Ivy prevailed in her argument that Rules 3.3 and 3.4 did not
apply does not render the attorney's fee and cost award
too high.
Moreover,
under Bar Rule 16(c)(3), the Board also shall consider
"the duration of the case, "[111] "the
reasonableness of the defenses raised by the Respondent,
"[112]and the respondent's
"vexatious or bad faith conduct."[113] We give
"great weight" to the Board's findings of
fact;[114] such findings include facts related to
the attorney's conduct in the disciplinary proceedings.
Here the Board found that the disciplinary matter had lasted
for more than two years and that Ivy had acted unreasonably,
including by refusing "to admit the falsity of her
affidavit and deposition testimony" and by asserting a
"defense of not 'knowingly' . . . offer[ing]
false testimony" - despite presenting no credible
evidence in that regard. Such actions, as the Board found,
undoubtedly increased Bar Counsel's expenses and made the
proceedings unnecessarily complex. Therefore, as before, we
uphold the fee and cost award.
V.
CONCLUSION
Deborah
Ivy is DISBARRED from the practice of law effective 30 days
from today. Ivy must also comply with the Board's fee and
cost award.
FABE,
Chief Justice, dissenting.
I
respectfully disagree with the court's decision to disbar
Deborah Ivy. I agree that Ivy violated Alaska Rules of
Professional Conduct 8.4(a), (b), and (c) by lying about the
stalking incident in the parking lot and the alleged sexual
assault by her brother in the courtroom. And she violated
Alaska Bar Rule 15 by continuing to maintain her fabricated
version of these events before the Board. But it is my view
that disbarment of Ivy for being untruthful in the course of
her own highly emotional personal family litigation is
unnecessarily severe.
All of
the various aggravators applied by the court essentially boil
down to this: Ivy was untruthful during her combative
personal family dispute and consistently maintained her false
account during the Bar proceedings. Thus the very falsehoods
that were necessary elements of the two core violations of
the rules have impermissibly provided the basis for the
aggravating factors.
Moreover,
the court has ignored the significant mitigating factor of
Ivy's personal and emotional problems, resulting from
years of a contentious personal relationship with her
brother. And Ivy's falsehoods did not arise in the
context of her representation of a client. Finally, there is
no example in all of our prior disciplinary decisions that
would support disbarment in Ivy's case. Though Ivy's
conduct is unworthy of our profession and merits the severe
sanction of a five-year suspension, it does not warrant
disbarment.
As a
separate matter, Ivy's attorney's fee obligation
should be reduced in light of the fact that she prevailed on
the issue of the application of Rules of Professional Conduct
3.3 and 3.4.
I.
IVY'S CONDUCT WARRANTS A SUSPENSION OF FIVE YEARS INSTEAD
OF DISBARMENT.
A.
The Aggravating Factors Applied Against Ivy Were Necessary
Elements Of Her Violation.
The
court concludes that "five aggravating factors -
Ivy's pattern of misconduct, its illegal nature, her
dishonest motive, deceptive practices during the disciplinary
process, and refusal to acknowledge the wrongfulness of her
actions - outweigh the single mitigating factor, Ivy's
lack of disciplinary record."[1] But all of these
aggravating factors are based on the same conduct for which
Ivy is being disciplined and thus are not properly applied as
aggravators. The sole basis for the conclusion that Ivy
violated Alaska Rules of Professional Conduct 8.4(a), (b),
and (c) and Alaska Bar Rule 15(a)(3) is the finding that Ivy
lied about the alleged instances of stalking and assault both
in her court case and before the Bar once the grievance was
filed.[2] And the aggravating factors rely on
precisely the same conduct as that for which Ivy is being
disciplined: (1) a "pattern of misconduct" (by
lying under oath on more than one occasion in the course of
her personal litigation with her brother); (2) the
"illegal nature" of her conduct (by lying under
oath in the course of her personal litigation with her
brother); (3) a "dishonest motive" (by lying under
oath in the course of her personal litigation with her
brother in which monetary relief was at stake); (4)
"deceptive practices during the disciplinary
process" (by maintaining the truth of her false
statements made in the course of her personal litigation with
her brother during the disciplinary process); and (5) a
"refusal to acknowledge the wrongfulness of her
actions" (by maintaining the truth of her false
statements made in the course of her personal litigation with
her brother during the disciplinary process).[3] These
aggravating factors do little more than restate the
underlying violation: that Ivy lied about the stalking
incident in the parking lot and the alleged sexual assault
both in the courtroom and during the disciplinary process.
Both of
Ivy's falsehoods are therefore necessary elements of
Ivy's two disciplinary violations and the basis of all of
the aggravating factors applied by the court. In the criminal
law context, the legislature has directed that "[i]f a
factor in aggravation is a necessary element of the present
offense . . . that factor may not be used to impose a
sentence above the high end of the presumptive
range."[4] Thus, conduct that constitutes an
element of the offense itself cannot be applied against the
offender as an aggravating factor. The same rationale should
apply in the attorney discipline context. When an attorney
misappropriates funds, we do not apply "misappropriation
...