In the Disciplinary Matter Involving GAYLE BROWN, Attorney.
File No. 2016D120
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Counsel for the Alaska Bar Association and attorney Gayle
Brown entered into a stipulation for discipline by consent
that would result in a public censure. The Bar
Association's Disciplinary Board approved the stipulation
and now recommends that we do so, as well, and so censure
Brown. The facts of Brown's misconduct are set forth in
the stipulation, which is attached as an
appendix. We take these facts as true,
we apply our independent judgment to the sanction's
on the stipulated facts we agree with the legal analysis -
set out in the stipulation - that a public censure is the
appropriate sanction for Brown's misconduct. Accordingly:
Brown is publicly censured and shall appear before this court
at a later-scheduled time to accept the censure in person. In
addition Brown shall pay $1, 000 to the Alaska Bar
Association within 60 days from entry of this order for
disciplinary costs and fees incurred in this case.
by direction of the court.
CARNEY, Justice, dissents. She would reject the stipulation
because the agreed-upon discipline is too lenient.
THE ALASKA BAR ASSOCIATION DISCIPLINARY BOARD
Disciplinary Matter Involving GAYLE BROWN, Respondent.
Membership No. 9411094
File No. 2016D120
FOR DISCIPLINE BY CONSENT PURSUANT TO ALASKA BAR RULE
to Alaska Bar Rule 22(h), Gayle Brown, Respondent, by and
through counsel, John Murtagh, and Louise Driscoll, Assistant
Bar Counsel, stipulate as follows:
Gayle Brown is, and was at all times pertinent, an attorney
at law admitted to practice by the Supreme Court of Alaska,
and a member of the Alaska Bar Association. At all times
relevant Brown practiced law in Anchorage, Third Judicial
Brown is, and was at all times pertinent, subject to the
Alaska Rules of Professional Conduct (ARPC) and to Part II,
Rules of Disciplinary Enforcement, Alaska Bar Rules, giving
the Alaska Supreme Court and the Disciplinary Board of the
Bar jurisdiction to resolve this matter.
matter was referred to Bar Counsel from the Court of Appeals
of the State of Alaska following a finding that Brown
performed incompetently in her representation of her client
and that she was in contempt of the Court for ignoring a
previous Court order.
April 2014 a jury convicted T.K. of first- and second- degree
murder and assault charges. The superior court sentenced T.K.
to 68 years. Brown, working under contract with the Office of
Public Advocacy (OPA), was appointed to represent T.K. on his
appeal. She entered her appearance in the case on June 11,
claims were asserted on appeal: first, the evidence at trial
was legally insufficient to support T.K's convictions;
and second, the trial judge erred by failing to instruct the
jury on a person's right to use force to terminate a
theft of property.
Prior counsel had designated the entire trial record as
essential to a determination of the issues on appeal and
requested a trial transcript. Under Alaska Appellate Rule
210, the Clerk of the Appellate Courts arranges for
preparation of the transcript when a transcript is prepared
at public expense.
she was appointed as counsel Brown did not have any file
materials. She asked OPA to send her whatever materials the
Court of Appeals had sent to OPA. In response she received
documents on multiple CDs and her office printed them out.
Appellate Rule 212 sets out the substantive requirements for
filing a brief. The appellant should provide a brief
description of the case, a concise statement of proceedings
in, and decision of, the trial court. The appellant should
state the facts relevant to each issue, with a reference to
the record. Such reference may be to an excerpt, a
transcript, or to pages of the trial court file. References
may also be made to untranscribed portions of the electronic
Appellate Rule 212(c)(8)(B) requires an appellant's brief
to indicate the pages of the record where each point on
appeal was raised in the trial court.
Brown requested an extension of time to prepare and file her
opening brief. In the extension request Brown stated that her
office had received "the appellate file, transcript and
complete copy of the trial court record." Whether
"transcript" was limited to the grand jury
transcript or Brown erroneously believed at the time that the
trial transcript was copied from the CD, the parties agree
that Brown did not intentionally mislead the Court when
requesting the extension; she was unaware that her office had
neither a hard copy nor electronic version of the trial
T.K. requested a copy of the trial court record and exhibits
and a copy of trial and sentencing transcripts. Brown's
office sent him a set of documents copied from the CDs. Brown
did not confirm the entirety of the record at this time.
Brown prepared the opening brief for her client. During that
process she realized she did not have the trial transcript.
Instead of requesting the trial transcript she cited to the
transcript of the grand jury proceedings underlying T.K.'
s indictment for the charges for which he was eventually
Brown had inquired of either OPA or the appellate court clerk
she would have learned that the trial transcript had been
prepared and sent to OPA on May 19, 2015.
OnApril 19, 2016, the appellate court clerk rejected
Brown's initial version of the brief because she failed
to support many factual assertions in the statement of the
case by citations to the record and she improperly supported
factual assertions by citations to the grand jury record
rather than by citations to the trial transcript. The order
stated in part, "Appellant cites the grand jury
transcripts rather than the trial transcripts for factual
assertions." Brown was directed to correct the problems
and resubmit the brief.
May 16, 2016, Brown submitted a "corrected" version
of the opening brief. Brown added additional citations to
support factual assertions, but she still relied on citations
to the grand jury record, not on citations to the trial
transcript. She changed no citations previously used in her
initial opening brief and resubmitted an identical and
uncorrected version of the statement of the case.
May 25, 2016, the appellate court clerk rejected T.K.'s
brief for lack of proper citations to the record. The Order
Although appellant added record citations to the
argument section of his brief, he failed to correct the
incorrect record citations on pages 1-6. On these pages,
appellant continues to cite the grand jury transcripts,
rather than providing appropriate record citations to the
trial record. Because appellant is raising issues relating to
his trial and not raising a grand jury issue, appellant
should cite the record from trial. (Emphasis in
was directed to resubmit a corrected brief on or before June
June 6, 2016, Brown filed Appellant's Response to Order
Rejecting Appellant's Brief. She responded that she had
not been provided a copy of the trial transcript in hard copy
or electronic form. She decided to rely on sworn statement
contained in the grand jury transcript as "the most
expeditious option" and because she had "no reason
to believe that facts contrary to the sworn statements
provided to the Grand Jury would be raised at trial."
Her review of log notes did not reveal contrary assertions of
fact. She also noted the State could contradict any
assertions of fact in appellant's brief by citing to the
transcript. She concluded, "it is the Appellant's
contention that further delay in this matter to secure a copy
of the subject trial transcript solely for the purpose of
altering citations for the same factual assertion from
'R.' to 'Tr.' would be a needless waste of
time and resources unsupported by the Rules of Appellate
Procedure." Brown did not file a corrected brief with
July 12, 2016, the Court of Appeals issued an order that
traced the unsuccessful filing history of appellant's
brief. The Court concluded that Brown had been
incompetent in her prosecution of T.K.'s appeal and that
she may also have been in contempt of the Court. The Court
noted that Brown deliberately failed to ...