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In re Disciplinary Matter Involving Gayle Brown

Supreme Court of Alaska

March 10, 2017

In the Disciplinary Matter Involving GAYLE BROWN, Attorney.

         ABA File No. 2016D120

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

          ORDER

         Bar 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.[1] We take these facts as true, [2]and we apply our independent judgment to the sanction's appropriateness.[3]

         Based 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:

         Gayle 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.

         Entered by direction of the court.

          CARNEY, Justice, dissents. She would reject the stipulation because the agreed-upon discipline is too lenient.

         Appendix

         BEFORE THE ALASKA BAR ASSOCIATION DISCIPLINARY BOARD

         In The Disciplinary Matter Involving GAYLE BROWN, Respondent.

         ABA Membership No. 9411094

         ABA File No. 2016D120

         STIPULATION FOR DISCIPLINE BY CONSENT PURSUANT TO ALASKA BAR RULE 22(h)

         Pursuant to Alaska Bar Rule 22(h), Gayle Brown, Respondent, by and through counsel, John Murtagh, and Louise Driscoll, Assistant Bar Counsel, stipulate as follows:

         JURISDICTION AND VENUE

         1. 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 District, Alaska.

         2. 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.

         BACKGROUND FACTS

         3. This 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.[1]

         4. In 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, 2015.

         5. Two 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.

         6. 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.

         7. When 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.

         8. 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 record.

         9. 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.

         10. 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 transcript.

         11. 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.

         12. 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 convicted.

         13. If 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.

         14. 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.

         15. On 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.

         16. On May 25, 2016, the appellate court clerk rejected T.K.'s brief for lack of proper citations to the record. The Order said:

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 original order.)

         Brown was directed to resubmit a corrected brief on or before June 7, 2016.

         17. On 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 this response.

         18. On July 12, 2016, the Court of Appeals issued an order that traced the unsuccessful filing history of appellant's brief.[2] 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 ...


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