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Tyler v State (09/14/2001) ap-1763
Tyler v State (09/14/2001) ap-1763
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID A. TYLER, )
) Court of Appeals No. A-7779
Appellant, ) Trial Court No. 3AN-99-6645 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No 1763 C September 14, 2001]
)
Appeal from the Superior Court, Third Judicial District,
Anchorage, Sigurd E. Murphy, Judge.
Appearances: Eugene B. Cyrus, Eagle River, for Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
MANNHEIMER, Judge.
On May 18, 2001, this court ordered attorney Eugene B. Cyrus to show
cause why sanctions should not be imposed on him under Appellate Rule 510(c) for his
conduct in this appeal. Having considered Mr. Cyrus=s response, we conclude that Mr.
Cyrus should be fined under Appellate Rule 510(c). In his opening brief, Mr. Cyrus
misstated the facts of the case in a way that masked this court=s potential lack of
jurisdiction to entertain the appeal. Then, after the true facts were revealed and the
jurisdictional problem became known, Mr. Cyrus knowingly failed to cite a decision of
the Alaska Supreme Court that was directly adverse to his contention that this court had
jurisdiction to decide the appeal.
Procedural history of Tyler v. State
To explain our decision, we need to describe the procedural history of the
underlying appeal: Tyler v. State, File No. A-7779.
David A. Tyler was convicted of felony DWI C driving while intoxicated
after having been twice previously convicted of DWI within the preceding five years.[1]
Tyler, represented by Mr. Cyrus, appealed his conviction to this court.
In his brief to this court, Mr. Cyrus conceded that Tyler was guilty of
driving while intoxicated on the date alleged in the indictment, but he asserted that
Tyler=s two prior DWI convictions were invalid because, in both prior cases, Tyler had
not knowingly waived his right to counsel before he pleaded no contest to the charges.
Mr. Cyrus therefore argued that Tyler=s prior convictions should be set aside and that
Tyler=s current DWI offense should be reduced to a misdemeanor.
Mr. Cyrus stated in his brief that Tyler was entitled to litigate this issue
because he had gone to trial and had been convicted. But when the State=s attorney
reviewed the record in preparation for writing the appellee=s brief, he discovered that
Tyler had not gone to trial. Rather, Tyler had been convicted of felony DWI after
convincing the superior court to let him enter a Cooksey plea over the objection of the
prosecutor. Under the terms of this Cooksey plea, Tyler purportedly reserved the right to
litigate the validity of his pleas to the two prior DWI charges.[2]
Based on this discovery, the State moved to dismiss Tyler=s appeal. The
State argued that Tyler=s Cooksey plea was invalid because the issue that Tyler had
preserved for appeal C the validity of his two prior DWI pleas C was not dispositive of
Tyler=s case.
The State pointed out that even if we ultimately concluded that Tyler had
not knowingly waived his right to counsel before he pleaded no contest to the two prior
charges, this would not mean that Tyler was entitled to an acquittal of the prior charges.
Rather, Tyler would be entitled to withdraw his no contest pleas C but the charges would
still stand, and Tyler would face trial on those charges. The State argued that if Tyler
was again convicted of these charges (either following trial or after entering counseled
pleas of no contest), then Tyler would still be a third offender for purposes of his current
offense, and thus Tyler=s felony DWI conviction would remain valid.
In his response, Mr. Cyrus conceded that he had incorrectly stated the facts
in his brief: Tyler had not gone to trial, but rather had entered a Cooksey plea. Mr.
Cyrus further conceded that Tyler=s Cooksey plea would be invalid if the State=s legal
argument was correct C i.e., if the State was correct in arguing that Tyler would remain a
third offender if he was ultimately re-convicted on the two prior DWI charges. But Mr.
Cyrus contended "that the present state of the law does not permit such a relation back."
He argued that even if Tyler was again convicted of the two prior DWIs, those
convictions would be new C that is, they would no longer be "prior" to his current DWI
conviction, and thus Tyler=s current offense would be a misdemeanor, not a felony:
[I]f there [sh]ould be ... new conviction[s] ... on the [two
prior] misdemeanor DWI cases, [these convictions] would be
after the offense date in the instant case ... , and thus,
[Tyler=s] priors would not [support] enhanced punishment
[for his current offense].
In support of his argument, Mr. Cyrus cited three prior decisions of the
Alaska Supreme Court: State v. Division of Motor Vehicles[3] (holding that the superior
court is empowered to investigate the underlying validity of a prior DWI conviction that
is being used as the basis for enhancing a period of license revocation); Wik v.
Department of Public Safety[4] (holding that, for purposes of determining whether a DWI
defendant is subject to an enhanced sentence or an enhanced period of license revocation,
the number of a defendant=s prior convictions should be assessed as of the date of the
defendant=s latest arrest, not the date of the defendant's latest conviction); and
Tulowetzke v. Department of Public Safety[5] (holding that, for purposes of determining
whether a DWI defendant is subject to an enhanced sentence or an enhanced period of
license revocation, prior convictions arising from separate incidents must be counted as
separate convictions, even though the trial court may have entered these convictions at
the same time).
But the supreme court's holdings in these three cases are, at best,
tangentially related to the proposition of law advanced by Mr. Cyrus. None of these
cases addresses the particular question posed by Tyler's appeal: Would Tyler remain a
third offender for purposes of the felony DWI statute if he were allowed to withdraw his
pleas in his two prior DWI cases, but then were re-convicted of these same offenses?
Although the three cases cited by Mr. Cyrus do not involve or address this
legal issue, the Alaska Supreme Court has in fact addressed this very issue in a slightly
different setting. The case is McGhee v. State, 951 P.2d 1215 (Alaska 1998).
In McGhee, the Division of Motor Vehicles revoked McGhee's driver's
license after he was arrested for DWI.[6] McGhee's period of revocation was increased
because he had two prior DWI convictions.[7]
After his license was revoked, McGhee filed a motion in district court
attacking one of his prior DWI convictions. McGhee argued that he should be allowed
to withdraw his plea because the judge failed to expressly advise him of his right to a
jury trial. McGhee was successful; the court allowed him to withdraw his plea. But after
obtaining this favorable ruling, McGhee immediately re-entered a no contest plea, and he
was again convicted of the charge.[8]
Following this series of events, McGhee returned to the Division of Motor
Vehicles and challenged the length of his license revocation. McGhee argued that he
should no longer be subjected to the same enhanced revocation period because, now,
one of his prior convictions was no longer "prior". McGhee contended that even though
he had been re-convicted of the same DWI offense, his conviction should be considered
"new" because it was entered after his current DWI arrest. Thus, McGhee argued, his re-
conviction of the old DWI offense could not be used to trigger the enhanced suspension
period.[9]
But the supreme court rejected this argument. The court declared:
"Because McGhee remains convicted of the same DWIs that subjected him to an
enhanced revocation [in the first place], the temporary set-aside of the prior DWI
requires no alteration of the original [license] revocation."[10]
Neither Mr. Cyrus nor the State's attorney cited McGhee in their pleadings.
We found the case ourselves. And, having found it, we concluded that it provided the
answer to Tyler's appeal.
Based on McGhee, we concluded that even if Tyler were allowed to
withdraw his pleas to the two prior offenses, this would not necessarily mean that he
should be acquitted of felony DWI in his current case. Rather, if Tyler were later re-
convicted of the two prior offenses, he would continue to be a third offender (i.e., a
felony DWI offender) for purposes of his current case. We therefore agreed with the
State that the issue Tyler preserved for appeal (the validity of his pleas to the two prior
DWI charges) was not dispositive of his case, and that Tyler's Cooksey plea was
therefore not valid. Accordingly, we dismissed Tyler's appeal.[11]
Mr. Cyrus's misstatement of the procedural posture of Tyler's appeal: his
statement that Tyler had gone to trial when, in fact, Tyler had entered a
Cooksey plea
As explained above, Mr. Cyrus's opening brief in Tyler's
appeal contained a misstatement concerning the procedural posture of
Tyler's case. Mr. Cyrus declared that Tyler had been convicted following a
trial. Mr. Cyrus told this court that Tyler had agreed to be tried on
stipulated facts (i.e., Tyler stipulated that he was guilty of driving while
intoxicated in the present case) so that Tyler would be able to pursue an
appellate attack on his two prior convictions.[12]
Mr. Cyrus now concedes that this statement was false. He
admits that Tyler was convicted based on a Cooksey plea of no contest,
after Mr. Cyrus convinced the superior court to accept this plea over the
objection of the prosecuting attorney.
In his response to our order to show cause, Mr. Cyrus
contends that he simply made a mistake. He asserts that he has represented
several clients who all raised similar defenses to felony DWI charges
(defenses based on defects in the defendants' prior convictions). Mr. Cyrus
further asserts that many of these other clients consented to a "walk-
through" trial (i.e., a trial on stipulated facts). Mr. Cyrus contends that he
confused Tyler's case with these others, forgetting that Tyler's case had
been resolved by a Cooksey plea rather than a trial on stipulated facts.
As we have explained, the distinction between "conviction
following a trial" and "conviction based on a Cooksey plea" was crucial to
the proper resolution of Tyler's appeal. If Tyler had gone to trial, he would
have been entitled to demand that we resolve the merits of his appeal. But
because Tyler did not go to trial and instead entered a Cooksey plea, Tyler
could not ask us to assess the validity of his pleas to the prior DWI charges
until he first convinced us that his Cooksey plea was valid. For unless a
Cooksey plea is valid, we have no jurisdiction to entertain the appeal.[13]
To demonstrate the validity of his Cooksey plea, Tyler had to
demonstrate that the issue preserved for appeal was "dispositive" C i.e., that
a successful attack on his pleas to the prior DWI charges would
conclusively resolve whether he was guilty of felony DWI in the current
case. We ultimately concluded that the validity of Tyler's prior convictions
was not a dispositive issue. Accordingly, we ruled that Tyler's Cooksey
plea was invalid and that Tyler had no right to pursue his appeal.
Thus, when Mr. Cyrus falsely told this court that Tyler had
gone to trial, this misstatement of fact effectively concealed a flaw C
ultimately, a fatal flaw C in Tyler's case: our lack of jurisdiction to
entertain his appeal. If the State's appellate attorney had not read the
record carefully and discovered the existence of the Cooksey plea, Tyler
might have obtained something that he did not legally deserve.
Mr. Cyrus asserts that his misstatement of fact was innocent
rather than intentional. For present purposes, we assume this to be true.
But even assuming that Mr. Cyrus acted in good faith, it is obvious that he
failed to review the record of the superior court proceedings when he
prepared Tyler's brief.
In his response to our order to show cause, Mr. Cyrus asserts
that he did not remember that Tyler had entered a Cooksey plea over the
objection of the prosecutor; rather, he mistakenly thought that Tyler had
gone to trial on stipulated facts. Mr. Cyrus explains that his faulty memory
remained uncorrected because he "did not have a copy of the [in-court
clerk's] log notes when [he] wrote ... the appeal brief". From Mr. Cyrus's
explanation, we infer another fact: Mr. Cyrus did not have the audio tapes
of the superior court proceedings C or, if he did, he did not listen to them
or have them transcribed.
Alaska Civil Rule 11 (which, by virtue of Alaska Criminal
Rule 50(b), also governs criminal litigation) declares that an attorney's
signature on a document filed with a court constitutes the attorney's
certificate that the assertions of fact contained in the document are well-
grounded "to the best of the signer's knowledge, information, and belief
formed after reasonable inquiry". (Emphasis added) The phrase "formed
after reasonable inquiry" implies that an attorney's good faith is not enough
to satisfy Rule 11. It implies that an attorney has an obligation to make
objectively reasonable efforts to ascertain the facts of the case before
making assertions of fact in court documents.
This is, indeed, how the Alaska Supreme Court has
interpreted Rule 11. In Keen v. Ruddy, 784 P.2d 653 (Alaska 1989), the
court declared that the rule "creates an objective standard of
>reasonableness under the circumstances,' and is intended to be more
stringent than a mere >good faith' formula."[14]
A similar duty of reasonable inquiry is described in the
Comment to Alaska Professional Conduct Rule 3.3:
[A]n assertion purporting to be on the lawyer's own
knowledge, as in an affidavit by the lawyer or in a statement
in open court, may properly be made only when the lawyer
knows the assertion is true or believes it to be true on the
basis of a reasonably diligent inquiry.
Id., "Representations by a Lawyer" (emphasis added).
In the present case, Mr. Cyrus made a false
assertion concerning a fact that directly affected Tyler's legal
right to pursue the appeal and this court's authority to
entertain the appeal. Before writing Tyler's brief, Mr. Cyrus
was obligated to make a reasonable effort to ascertain the
facts of the case C particularly, the facts that provided the
legal basis for Tyler's invoking this court's jurisdiction. We
assume that Mr. Cyrus never subjectively intended to mislead
this court about whether Tyler went to trial as opposed to
entering a contested Cooksey plea. Nevertheless, Mr. Cyrus
neglected to review the pertinent superior court proceedings
before making his false assertion of fact.
Normally, the requirements of Appellate Rule
212(c)(1)[g] will forestall an attorney from relying solely on
their personal memory of events when writing an appellate
brief. Under Rule 212(c)(1)[g], an attorney's brief must
recite "the facts relevant to the issues presented for review",
and these assertions of fact must be accompanied by
"appropriate references to the record" in the format specified
by Appellate Rule 212(c)(8). This requirement serves two
purposes: it allows the appellate court and opposing counsel
to verify the attorney's assertions of fact (by locating the
portions of the lower court record that the attorney is
describing), and it protects the court and opposing counsel
from unfounded assertions of fact.
Both this court and the Alaska Supreme Court
review newly-filed briefs for compliance with the various
requirements of Appellate Rule 212. Thus, for example,
if an attorney tried to brief an evidence issue or a jury
instruction issue from memory, without including citations to
the record, the brief might well be rejected for filing.
But there is seldom a dispute concerning the
facts that support a criminal defendant's invocation of this
court's jurisdiction. Because of this, we generally do not
subject a defendant's jurisdictional statement to the same
scrutiny as other portions of the brief. For instance, we
accepted Mr. Cyrus's opening brief in Tyler's appeal even
though he included no citation to the record when he asserted
that Tyler had been convicted following a court trial.
Nevertheless, as Tyler's case illustrates, the facts
supporting an appellant's claim of jurisdiction C i.e., the facts
that demonstrate the appellant's legal right to pursue the
appeal C are just as important as the facts supporting the
appellant's claims of error. An appellate attorney must make
a reasonable effort to verify those facts before writing the
brief. We conclude that Mr. Cyrus violated this duty.
Mr. Cyrus's failure to cite McGhee v. State,
legal authority that was directly adverse to the
proposition of law he was advancing
Once the State discovered that Tyler had entered
a Cooksey plea instead of going to trial, the State moved to
dismiss Tyler's appeal. The State argued that Tyler's
Cooksey plea was invalid because the issue that Tyler had
preserved for appeal C the validity of his pleas to the two
prior DWI charges C was not dispositive of Tyler's case.
As we explained above, the State's motion to
dismiss Tyler's appeal presented the following legal issue: If
Tyler were allowed to withdraw his no contest pleas to the
two prior DWI charges, but if the State then succeeded in re-
convicting Tyler of these same charges, would those two
DWI convictions still be "prior convictions", so that Tyler
could properly be charged with felony DWI in the current
case? Or would the re-convictions be "new" convictions, so
that Tyler would technically be a "first offender" for purposes
of his current case (and thus guilty of only misdemeanor
DWI)?
The State argued that if Tyler was convicted
again of the two earlier charges (either following trial or after
entering counseled pleas of no contest), Tyler would continue
to be a third offender for purposes of his current offense, and
therefore his current felony DWI conviction would remain
valid. Mr. Cyrus argued the opposite. He contended that
even if Tyler was re-convicted of the two previous DWIs,
those convictions would be new C that is, they would no
longer be "prior" to Tyler's current DWI offense. According
to Mr. Cyrus's argument, even if the State re-convicted Tyler
of the two earlier DWIs, Tyler would still be a "first offender"
for purposes of his current offense, and thus his current
offense would be a misdemeanor, not a felony.
When the parties submitted their pleadings on
this issue, neither Mr. Cyrus nor the State's attorney alerted
us to McGhee v. State, the Alaska Supreme Court decision
that addresses this re-conviction issue in the context of an
administrative revocation of a driver's license for a third-
offense DWI. The State's attorney apparently did not find the
McGhee case when he researched the State's motion to
dismiss Tyler's appeal C for if the State's attorney had found
McGhee, he doubtless would have cited it. But Mr. Cyrus
plainly knew of the supreme court's decision in McGhee: he
was the attorney who represented McGhee in the supreme
court.[15]
Alaska Professional Conduct Rule 3.3(a)(3)
declares that a lawyer shall not knowingly "fail to disclose ...
legal authority in the controlling jurisdiction" if the lawyer
knows that this legal authority is "directly adverse to the
position of the [lawyer's] client" and if this authority has "not
[been] disclosed by opposing counsel". McGhee was decided
by our supreme court, so it is "legal authority in the
controlling jurisdiction". Mr. Cyrus knew about the McGhee
decision, and he knew that the State's attorney had not
brought McGhee to our attention. The remaining question is
whether Mr. Cyrus knew that McGhee was "directly adverse"
to his legal position C directly adverse to his contention that
Tyler would have to be treated as a "first offender" even if he
was re-convicted of the two prior DWIs.
Our decision in Tyler v. State C i.e., our
dismissal of Tyler's appeal C is clearly premised on our
conclusion that McGhee is, in fact, directly adverse to
Mr. Cyrus's legal position. However, it would be unfair to
judge Mr. Cyrus's ethical duties in hindsight. Obviously, Mr.
Cyrus had not read our decision when he wrote his brief. The
question is whether, at the time Mr. Cyrus wrote his brief, he
knew that McGhee was directly adverse to his position.
(a) Mr. Cyrus's response to our order to show cause
In his response to our order to show cause, Mr. Cyrus asserts
that he did not tell us about the McGhee decision because he believed that
McGhee did not control the outcome of Tyler's case. Mr. Cyrus contends
that "McGhee is unique because of its fact pattern" and, because of this, he
did not believe (and still does not believe) that McGhee was "controlling
authority" in Tyler's case. To back up his argument, Mr. Cyrus points out
that at least one superior court judge shared his views concerning McGhee:
[J]ust four months previous to my writing [Tyler's] brief ... , a
detached neutral judicial officer of the Anchorage Superior
Court in a litigated case of mine ... ruled that McGhee was not
controlling authority on a similar issue regarding the
propriety of an attack on a prior conviction. ...
[I]f an attorney [knows of] a written judicial opinion
verifying his belief that a case is not applicable, ... it is not
possible to [condemn the] attorney [for] intentionally
withholding controlling authority. Simply [put], if attorneys
could disagree as to [whether a case is] controlling authority,
there should not be a violation [of Professional Conduct Rule
3.3(a)(3)].
"Response to Order to Show Cause" dated June 18, 2001
(File No. A-7779), pages 5-6 (emphasis in the original).
The superior court case that Mr. Cyrus refers to
is Sjoblom v. State, File No. 3AN-00-8344 Civ. Susan
Sjoblom was Mr. Cyrus's client. After Sjoblom was
convicted of felony DWI (i.e., third-offense DWI), Mr. Cyrus
filed a motion in district court on her behalf, seeking to set
aside one of her prior misdemeanor DWI convictions. Mr.
Cyrus claimed that Sjoblom had received ineffective
assistance of counsel in that prior case. Ultimately, Mr.
Cyrus negotiated a deal with the Municipality of Anchorage
that embodied the same strategy he pursued in McGhee: the
Municipality agreed to concede the ineffective assistance of
counsel issue (so that Sjoblom's prior conviction would be set
aside), and Sjoblom agreed to immediately plead no contest
to that same charge (so that she would again be convicted of
the prior DWI).
Having accomplished this, Mr. Cyrus returned
to superior court (the court having jurisdiction over
Sjoblom's felony DWI conviction) and asked the court to
reduce her felony conviction to a misdemeanor. His
argument was the same one he presented in McGhee: Mr.
Cyrus argued that Sjoblom should no longer be considered a
third offender because, now, one of her prior DWI
convictions was no longer "prior". That is, even though
Sjoblom had been re-convicted of the same DWI offense, her
conviction should be considered "new" because it was entered
after her arrest in the felony case.
Mr. Cyrus did not tell the superior court about
the McGhee decision, and the State's attorney did not find it.
Superior Court Judge Dan A. Hensley discovered McGhee on
his own, but he concluded that it was factually
distinguishable:
McGee v. State [sic], not cited by either party,
addresses a similar issue, but is distinguishable on its facts.
McG[h]ee negotiated a deal manipulating the date of a DWI
conviction and then moved to modify the terms of an
administrative license revocation based on that prior
conviction. The [supreme] court held that a license
revocation could be set aside only for manifest injustice, and
found that McG[h]ee's manipulation did not qualify.
But [the portion of the post-conviction relief statute],
AS 12.72.010(3), on which Ms. Sjoblom relies here, does not
employ a manifest injustice test. Under its terms
Ms. Sjoblom need only prove that her prior conviction was
set aside C nothing more. Statutes imposing criminal
liability must be construed narrowly. I find that the statute
provides no basis for this court to make an independent
evaluation of the merits of Ms. Sjoblom's motion in the 1996
case or the validity of the deal setting aside her conviction.
"Decision and Order" of Judge Dan A. Hensley dated December 11, 2000, p. 3 (citations
omitted).
To summarize: Mr. Cyrus offers two defenses to our order to show cause.
First, he argues that even though we relied on McGhee when we dismissed Tyler's
appeal, we were wrong to do so. Mr. Cyrus contends that because of McGhee's
procedural context (an attack on the ruling of an administrative agency), the case had
little or no relevance to the proper decision of Tyler's criminal appeal. Second,
Mr. Cyrus argues that even if this court was right when we concluded that McGhee was
dispositive of Tyler's appeal, this conclusion was reasonably debatable. Based on Judge
Hensley's analysis in Sjoblom, Mr. Cyrus points out that competent attorneys and judges
might reasonably conclude that McGhee was factually distinguishable from Tyler's case
C and that, therefore, McGhee did not control the outcome of Tyler's appeal. Mr. Cyrus
argues that if reasonable attorneys could conclude that McGhee was not controlling
authority in Tyler's appeal, he was under no obligation to cite the case in his brief.
Of the two defenses advanced by Mr. Cyrus, this second one is clearly the
stronger. Judge Hensley's decision in the Sjoblom case shows that Mr. Cyrus was not
alone in thinking that McGhee should be limited to an administrative context and should
not be viewed as controlling authority in criminal cases that raise the same re-conviction
issue. And if reasonable attorneys and judges could disagree on the question of whether
McGhee was controlling authority in Tyler's case, then regardless of whether this court
correctly interpreted McGhee when we decided Tyler's appeal, it would be improper to
fault Mr. Cyrus for taking another reasonable view of the matter.
We agree with Mr. Cyrus that, for present purposes, it does not matter
whether our decision in Tyler was correct, or whether our decision in Tyler is arguably
inconsistent with Judge Hensley's decision in Sjoblom, or whether Judge Hensley was
right or wrong when he concluded that McGhee did not control Sjoblom's case. Instead,
as Mr. Cyrus correctly points out, Judge Hensley's decision shows that reasonable judges
might differ as to whether McGhee precludes the type of post-conviction claim presented
by Sjoblom or the appellate claim made by Tyler C the claim that if a defendant is
convicted of felony DWI but later wins a plea withdrawal in one of the prior DWI cases,
then even if the defendant is re-convicted of that prior offense, the superior court must
set aside the felony DWI conviction. Thus, Mr. Cyrus might reasonably have concluded
that the McGhee decision did not control the outcome of Tyler's appeal.
But Mr. Cyrus's defense to our order to show cause also hinges on his
assertion that Professional Conduct Rule 3.3(a)(3) only requires attorneys to reveal
"controlling" court decisions and statutes. This is not correct.
(b) As used in Professional Conduct Rule 3.3(a)(3), "directly
adverse" is not synonymous with "controlling" or "dispositive"
Fortified by Judge Hensley's decision in Sjoblom, Mr. Cyrus
argues that "if attorneys could [reasonably] disagree as to [whether
McGhee was] controlling authority", then his failure to cite McGhee can
not constitute a violation of Professional Conduct Rule 3.3(a)(3). The
problem with Mr. Cyrus's argument is that Rule 3.3(a)(3) does not speak of
an attorney's failure to cite "controlling authority". Instead, it speaks of an
attorney's failure to cite authority in the "controlling jurisdiction" if that
authority is "directly adverse to the [lawyer's] position".
McGhee was decided by our state supreme court, so it clearly
constitutes "authority in the controlling jurisdiction". The next question is
whether McGhee was "directly adverse" to Mr. Cyrus's position in Tyler's
appeal. The legislative history of Professional Conduct Rule 3.3(a)(3) and
the commentaries on the rule show that "directly adverse" does not mean
"controlling". It refers to a broader range of cases and statutes.
The meaning of "directly adverse" is explained in Formal
Opinion No. 280 issued by the American Bar Association's Committee on
Professional Ethics and Grievances. The Committee had been asked to
clarify the "duty of a lawyer ... to advise the court of decisions adverse to
his client's contentions that are known to him and unknown to his
adversary". The Committee wrote:
We would not confine the [lawyer's duty] to "controlling
authorities"' C i.e., those decisive of the pending case C but, in accordance
with the tests hereafter suggested, would apply it to a decision directly
adverse to any proposition of law on which the lawyer expressly relies,
which would reasonably be considered important by the judge sitting on
the case.
. . .
Canon 22 should be interpreted sensibly, to preclude the obvious
impropriety at which the Canon is aimed. In a case involving a [settled
question of law], there would seem to be no necessity whatever of citing
even all the relevant decisions in the jurisdiction, much less those from
other states or by inferior courts. [But w]here the question is a new or
novel one, such as the constitutionality or construction of a statute, on
which there is a dearth of authority, the lawyer's duty may be broader.
The Committee then defined the duty of disclosure:
The test in every case should be: Is the decision which opposing counsel has overlooked
one which the court should clearly consider in deciding the case? Would a reasonable
judge properly feel that a lawyer who advanced, as the law, a proposition adverse to the
undisclosed decision, was lacking in candor and fairness to him? Might the judge
consider himself misled by an implied representation that the lawyer knew of no adverse
authority?
This ethics opinion was issued in June 1949. The Committee was not
discussing current Professional Conduct Rule 3.3(a)(3), but rather a predecessor rule,
Canon 22 of the Canons of Professional Ethics adopted by the American Bar Association
in 1908. However, the Committee has since declared that the same test applies to
Professional Conduct Rule 3.3(a)(3).
In March 1984, the American Bar Association's Committee on Ethics and
Professional Responsibility issued Informal Opinion No. 84-1505, in which the
Committee discussed a lawyer's duty under Rule 3.3(a)(3) to disclose a decision of a
controlling court "which may be interpreted as adverse to his client's position". The
Committee concluded that the lawyer was obligated to disclose the decision, although the
lawyer could "[o]f course ... challenge the soundness of the other decision, attempt to
distinguish it from the case at bar, or present other reasons why the court should not
follow or even be influenced by it." The Committee explained that this question was
governed by the test the Committee had earlier announced in Formal Opinion 280:
Rule 3.3(a)(3) of the Model Rules of Professional Conduct provides, "A lawyer
shall not knowingly fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the client and
not disclosed by opposing counsel." This provision is virtually identical to its
predecessor, DR 7-106(B)(1) of the Model Code of Professional Responsibility. Both
provisions continue essentially unchanged the theme of Canon 22 of the Canons of
Professional Ethics adopted by the American Bar Association in 1908.
Under Canon 22, this Committee issued two opinions bearing on the question
presented. In 1935 the Committee decided that a lawyer has a duty to tell the court in a
pending case of decisions, unknown to his adversary, that are adverse to his client's
contentions. We said, "He may, of course, after doing so, challenge the soundness of the
decisions or present reasons which he believes would warrant the court in not following
them in the pending case." In 1949, the Committee, in Formal Opinion 280, first
interpreted Opinion 146 to limit the duty of disclosure to only those decisions which
were "directly adverse." We then continued:
We would not confine the Opinion to "controlling authorities" C i.e.,
those decisive of the pending case C but ... would apply it to a decision
directly adverse to any proposition of law on which the lawyer expressly
relies, which would reasonably be considered important by the judge sitting
on the case.
The Committee then concluded that, in the case before them, the lawyer was duty-bound
to disclose a court decision that could reasonably be interpreted as directly contrary to his
position:
Under one interpretation of the decision, it is clearly "directly adverse to the position of
the client." And it involves the "construction of a statute on which there is a dearth of
authority."
. . .
The issue is potentially dispositive of the entire litigation. [A lawyer's] duty as an officer
of the court to assist in the efficient and fair administration of justice compels plaintiff's
lawyer to make the disclosure immediately.
In a strikingly similar case, Seidman v. American Express Company, 523 F. Supp.
1107 (E.D. Pa. 1981), the court, applying DR 7-106(B)(1), came to the same conclusion
on the duty to disclose as does the Committee in this opinion. There a trial court
commended defendant's lawyer for calling attention, after oral argument, to a recent case
that severely undercut the position defendant had taken at oral argument ... .
Under the interpretation of Rule 3.3(a)(3) espoused in these ABA ethics
opinions, a court decision can be directly adverse to a lawyer's position even though
the lawyer reasonably believes that the decision is factually distinguishable from the
current case or the lawyer reasonably believes that, for some other reason, the court will
ultimately conclude that the decision does not control the current case.
This interpretation of a lawyer's duty to cite adverse authority was adopted
by the New Jersey Supreme Court in In re Greenberg, 104 A.2d 46, 48-49 (N.J. 1954).
It was also anticipated (four years before the ABA issued Ethics Opinion 280) by the
California Supreme Court in Schaeffer v. State Bar of California, 160 P.2d 825 (Cal.
1945).
In Schaeffer, a lawyer relied on a decision of the California Supreme Court
to argue that his opponent's complaint was flawed and should be dismissed. The lawyer
failed to mention that the California Court of Appeal had issued a decision expressly
rejecting the lawyer's interpretation of the supreme court case. When the court of
appeal's decision was discovered, the lawyer declared that he omitted telling the trial
judge about that decision because he thought that the court of appeal's discussion of the
point was dictum, and that there was still no controlling authority contrary to his
interpretation of the supreme court case. The California Supreme Court viewed the
matter differently:
In view of [the attorney's] familiarity with the [court of
appeal] case, he should ... have directed the trial court's
attention to the decision and [openly] argued [his]
contentions ... that the case was not controlling.
Schaeffer, 106 P.2d at 829.
See also Mannheim Video, Inc. v. Cook County,
884 F.2d 1043 (7th Cir. 1989), in which the Seventh Circuit
indicated that it would have upheld sanctions against a lawyer
who engaged in similar conduct:
[C]ounsel argues that [sanctions would be inappropriate
because] he believes that [the] Ciotti [decision] is not
controlling. ... Hill [v. Norfolk & Western Railway, 814 F.2d
1192, 1198 (7th Cir. 1987),] and Bonds [v. Coca-Cola
Company, 806 F.2d 1324, 1328 (7th Cir. 1986),] made clear
that an attorney should not ignore potentially dispositive
authorities; the word "potentially" deliberately included those
cases arguably dispositive. Counsel is certainly under
obligation to cite adverse cases which are ostensibly
controlling and then may argue their merits or inapplicability.
Id. at 1047.
This same interpretation of a lawyer's duty has
also been endorsed by legal commentators. For instance, in
their work The Law of Lawyering (2nd ed. 1998), Professors
Geoffrey C. Hazard and W. William Hodes write:
The requirement that the authority be directly adverse has
caused some problems of interpretation. Almost any adverse
precedent can be distinguished ... . Some might argue,
therefore, that precedent which can be distinguished is not
"directly" adverse and need not be revealed in the first place.
This interpretation trivializes the rule and does not adequately
protect the court.
Formal [Ethics] Opinion 280 (1949) sounded the right
note on this issue when it suggested that the standard should
be whether the omitted authorities "would be considered
important by the judge sitting on the case," or whether the
judge might consider himself "misled" if he remained
unaware of them.
Id. at § 3.3:206, p. 592.
Similarly, in his book Professional
Responsibility (3rd ed. 1992), Professor Ronald D. Rotunda
writes:
[T]he rule does not speak of "controlling authorities." ...
ABA Formal Opinion 280 (June 18, 1949) rejects the narrow
view that a lawyer must only cite decisions that are decisive
of the pending case. Rather, the disclosure rule applies to ...
"a decision directly adverse to any proposition of law on
which the lawyer expressly relies, which would reasonably
be considered important by the judge sitting on the case. ... "
Id., "Disclosure of Adverse Legal Authority", p. 163.
In their work Professional Responsibility in a
Nutshell (2nd ed. 1991), Professors Robert H. Aronson and
Donald T. Weckstein echo this view of Professional Conduct
Rule 3.3(a)(3) in even stronger language:
It has been settled that a lawyer has an obligation to
avoid knowingly making a false statement of law ... . Thus,
to assert that a particular proposition is the law in the
controlling jurisdiction, when that proposition appears to
have been completely or partially undermined by a recent
case, is a misrepresentation of the state of the law, tantamount
to making a false statement of law, and is different only in
degree, not in kind, from citing an overruled case.
Of course, if the recent adverse case is distinguishable
... or is otherwise construable as not controlling, these points
can and should be raised.
Id., "Disclosure of Adverse Legal Authority", pp. 347-48.
(c) Using this definition of directly adverse, did Mr. Cyrus know
that McGhee was directly adverse to the position he was advancing in
Tyler's appeal?
Turning to the facts of Tyler's appeal, and using the test
explained in the previous section, it is evident that the supreme court's
decision in McGhee was directly adverse to the position that Mr. Cyrus
was arguing in Tyler's appeal.
McGhee is the only Alaska Supreme Court decision (to our
knowledge) that addresses the question raised in Tyler's appeal C the effect
of a withdrawn plea and a re-conviction of DWI when a defendant faces
harsher penalties if the defendant is found to be a repeat offender. The
result reached in McGhee is the opposite of the result that Mr. Cyrus
advocated in Tyler's appeal. And, although the matter was obviously
debatable, one could reasonably interpret McGhee as being directly
inconsistent with, or at least substantially undercutting, the argument that
Mr. Cyrus was making in Tyler's case. Further, even if Mr. Cyrus thought
that McGhee was distinguishable because of its procedural context, Tyler's
appeal involved a novel issue on which there was a dearth of authority, and
McGhee was the only Alaska decision that came close to addressing this
issue.
Given these circumstances, McGhee was directly adverse to
Mr. Cyrus's position for purposes of Professional Conduct Rule 3.3(a)(3).
In the words of ABA Formal Ethics Opinion 280, McGhee is a decision
"which would reasonably be considered important" by this court, a decision
"which the court should clearly consider in deciding [Tyler's] case".
We recognize that advocacy invariably includes a process of
separating wheat from chaff, of deciding which arguments and legal
authorities are important to a case. Moreover, as we stated earlier, an
attorney's ethical duties must not be judged in hindsight. When an attorney
consciously decides not to cite a court decision or a statute, the attorney's
choice should not C and does not C become a violation of Professional
Conduct Rule 3.3(a)(3) simply because the court later concludes that the
omitted decision or statute is directly adverse to the attorney's position.
Rather, an attorney violates Rule 3.3(a)(3) only if the attorney knew that
the omitted legal authority was directly adverse to the attorney's position.
But in Mr. Cyrus's response to our order to show cause, he
does not claim ignorance of McGhee's potential importance to Tyler's
appeal. Rather, he claims that he was not obliged to bring McGhee to our
attention because he honestly believed that McGhee was factually
distinguishable from Tyler's case and that, therefore, McGhee did not
control our decision.
As explained above, this does not excuse Mr. Cyrus's failure
to cite McGhee. When an attorney knows of a decision that is "directly
adverse" under the test we have explained, and when opposing counsel fails
to cite that decision, Rule 3.3(a)(3) requires the attorney to reveal the
decision even though one could reasonably argue that it does not control
the case at hand.
We assume that reasonable attorneys and judges might
conclude that McGhee did not dictate our decision in Tyler's case (because
of its different procedural setting). Nevertheless, McGhee was directly
adverse to Mr. Cyrus's position within the meaning of Professional
Conduct Rule 3.3(a)(3). Mr. Cyrus was the attorney who litigated
McGhee: he knew about the case, and he understood its relevance to
Tyler's appeal. Even assuming that Mr. Cyrus had a good faith and
reasonable belief that McGhee could be distinguished, he was obliged to
bring McGhee to our attention once he realized that the State's attorney had
failed to cite the case.
We readily acknowledge that appellate litigation is a contest,
not a seminar. The lawyers who appear before us do so as adversaries and
advocates. Our adversary system is based on the belief that the fairest
results and the best rules of law are discovered through vigorous
presentation of opposing viewpoints. But attorneys are officers of the
court, and they owe a duty of candor to the court:
Although a lawyer's paramount duty is to pursue the client's
interests vigorously, that duty must be met in conjunction
with, rather than in opposition to, [the lawyer's] other
professional obligations. ... Implicit in the lawyer's role as
officer of the court is the general duty of candor.
American Bar Association, Annotated Model Rules of Professional Conduct (4th ed.
1999) (citation and internal quotation marks omitted), Rule 3.3, "Legal Background", p.
315.
This duty of candor includes the obligation imposed by Professional
Conduct Rule 3.3(a)(3) C the obligation to disclose legal authorities that the court
should, in fairness, consider when making its decision, even when these authorities are
adverse to the lawyer's position. As explained in the Comment to Alaska's Professional
Conduct Rule 3.3(a),
A lawyer is not required to make a disinterested exposition of
the law, but must recognize the existence of pertinent legal
authorities. ... The underlying concept is that legal argument
is a discussion seeking to determine the legal premises
properly applicable to the case.
Comment to Rule 3.3, third paragraph, "Misleading Legal Argument".
In Great Britain, barristers are under "an unquestioned obligation" to cite all
relevant law, both favorable and unfavorable.[16] Professional Conduct Rule 3.3(a)(3)
does not impose such a broad duty on Alaska attorneys. But although our state's duty of
disclosure is narrower, enforcement of this duty remains important.
The process of deciding appeals involves the joint efforts of counsel and the
court. As the Supreme Court of New Jersey has noted, "[i]t is only when each branch of
the profession performs its function properly that justice can be administered to the
satisfaction of both the litigants and society".[17] Only then can an appellate court
"[develop] a body of decisions ... that will be a credit to the bar, the courts[,] and the
state."[18]
When a lawyer practicing before us fails to disclose a decision of the
Alaska Supreme Court (or one of our own published decisions) that is directly adverse to
the lawyer's position, the lawyer's conduct will, at the very best, merely result in an
unneeded expenditure of judicial resources C the time spent by judges or law clerks in
tracking down the adverse authority. At worst, we will not find the adverse authority and
we will issue a decision that fails to take account of it, leading to confusion in the law
and possibly unfair outcomes for the litigants involved. This potential damage is
compounded by the fact that our decision, if published, will be binding in future cases.[19]
In addition, we note that at least one court has suggested that a lawyer's
failure to disclose adverse authority also implicates the lawyer's duty to the client. In a
criminal case, a lawyer must abide by the defendant's decision whether to pursue an
appeal. See Professional Conduct Rule 1.2(a). Under Professional Conduct Rule 1.4(b),
the lawyer has a concomitant obligation to explain matters to the defendant "to the extent
reasonably necessary to permit the [defendant] to make informed decisions" on this
issue. In Matter of Thonert, 733 N.E.2d 932 (Ind. 2000), the Indiana Supreme Court
found that an attorney violated Professional Conduct Rule 1.4(b) when the attorney
counseled his client to pursue an appeal of a DWI conviction but failed to apprise the
client of adverse authority:
By failing to advise his client of a ruling in the controlling
jurisdiction that was adverse to the legal arguments
contemplated for his client's ... appeal, and instead choosing
only to advise the client of an earlier appellate decision
favorable to his position, [Thonert] effectively divested his
client of the opportunity to assess intelligently the legal
environment in which his case would be argued and
[impeded his client's ability] to make informed decisions
regarding whether to go forward with [the appeal].
Id. at 934.
Professional Conduct Rule 3.3(a)(3) is based on the notion that "[t]he
function of an appellate brief is to assist, not mislead, the court."[20] We endorse the
words of the Florida Court of Appeal in Forum v. Boca Burger, Inc., 788 So.2d 1055
(Fla. App. 2001):
Although we have an adversary system of justice, it is
one founded on the rule of law. Simply because our system
is adversarial does not make it unconcerned with outcomes.
... We do not accept the notion that outcomes should depend
on who is ... [most] able to misdirect a judge.
. . .
Much is written about "professionalism" today. It is on
the agenda at every [legal] symposium or continuing
education conference, and our professional journals are filled
with pleas for greater attention to punctilious conduct in all
things. But ... we [must now] pass from exhortation to
[action].
Id. at 1062.
Although we accept Mr. Cyrus's assertion that he honestly and reasonably
believed that McGhee could be distinguished from Tyler's case, Mr. Cyrus does not
contend that he was unaware of McGhee's potential importance to the decision of Tyler's
appeal. McGhee was the only Alaska appellate decision that discussed, or came close to
discussing, the issue that Mr. Cyrus knew would determine the validity of Tyler's
Cooksey plea. And the result in McGhee was the opposite of the result advocated by Mr.
Cyrus in Tyler's case.
Mr. Cyrus knew that McGhee could reasonably be interpreted as rejecting
or casting substantial doubt on his position. McGhee was therefore directly adverse
authority for purposes of Professional Conduct Rule 3.3(a)(3), and Mr. Cyrus was
obligated to bring McGhee to our attention when he realized that the State had not cited
it. Mr. Cyrus failed in that duty.
We acknowledge that Professional Conduct Rule 3.3(a)(3) has not
previously been interpreted by the appellate courts of this state. Given that fact, Mr.
Cyrus might plausibly have been unaware of the definition of directly adverse, and he
might honestly have thought that Rule 3.3(a)(3) only required him to cite adverse
authority if that authority unquestionably controlled the litigation. But, as we have
explained here, the American Bar Association and various courts and commentators have
adhered to a broader definition of directly adverse for more than half a century. While
Mr. Cyrus's misunderstanding of the rule may be a mitigating circumstance, it does not
justify his conduct.
Conclusion: Mr. Cyrus is ordered to pay a $250 fine
Alaska Appellate Rule 510(c) authorizes this court to fine an
attorney "for failure to comply with [the appellate] rules or any other rules
promulgated by the Supreme Court". We have concluded that Mr. Cyrus
violated Civil Rule 11 when he filed his brief without making a reasonably
diligent inquiry into the facts governing Tyler's right to pursue the appeal.
We have also concluded that Mr. Cyrus violated Professional Conduct Rule
3.3(a)(3) when, in his opposition to the State's motion to dismiss the
appeal, he knowingly failed to alert us to the supreme court's decision in
McGhee v. State.
This is not the first time that Mr. Cyrus has engaged in
misconduct in this case. Last October, this court fined Mr. Cyrus $200
because he intentionally delayed filing Tyler's appeal for five weeks,
waiting until the 90th day following the distribution of the judgement. Mr.
Cyrus had no reason for this delay. He apparently assumed (correctly) that
we would not wish to penalize a criminal defendant for an attorney's
dilatory conduct, and that we would therefore accept Tyler's appeal as long
as it was filed by the 90th day. (See Appellate Rules 502(b) and 521,
which prohibit us from accepting an appeal that is filed more than 60 days
late C i.e., more than 90 days after the distribution of the trial court's
judgement.)
This earlier misconduct could be viewed as an aggravating
circumstance. On the other hand, we are willing to assume that Mr.
Cyrus's misstatement of the jurisdictional facts of Tyler's appeal stemmed,
not from an intent to mislead, but from faulty memory and failure to
exercise diligence in checking his memory against the record. Similarly,
we assume that Mr. Cyrus did not act in bad faith when he chose not to cite
McGhee. That is, although Mr. Cyrus consciously decided not to mention
the McGhee decision in his brief to this court, we assume that he honestly
believed that McGhee was distinguishable and that Rule 3.3(a)(3) only
required him to disclose controlling authority.
Alaska Appellate Rule 510(c) authorizes us to impose a fine
of up to $500 for violation of the rules of court. Having considered all of
the circumstances, we conclude that we should impose a total fine of $250
for these two violations. Mr. Cyrus shall pay the $250 to the Clerk of the
Appellate Courts within 30 days of the issuance of this opinion.
1 AS 28.35.030(n).
2 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). In Cooksey, the Alaska
Supreme Court established a procedure whereby a defendant could, with the consent of the
government and the court, plead no contest and still preserve an issue for appeal, so long as
the issue was dispositive of the defendant's case.
3 864 P.2d 533, 537 (Alaska 1993).
4 786 P.2d 384, 387 (Alaska 1990).
5 743 P.2d 368, 371 (Alaska 1987).
6 McGhee took and failed a breath test. See id. at 1217; AS 28.15.165.
7 See AS 28.15.165(d), which incorporates the escalating suspension periods set forth in
AS 28.15.181(c).
8 See McGhee, 951 P.2d at 1217.
9 See id. at 1218.
10 Id. at 1217.
11 See Tyler v. State, 24 P.3d 1260 (Alaska App. 2001).
12 Tyler's opening brief states: "At a court trial, Tyler admitted to driving while
intoxicated and being intoxicated at the time of driving. The sole issue was the validity of
[Tyler's] prior misdemeanor convictions." Opening Brief of Appellant, File No. A-7779,
page 3.
13 See Oveson v. Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978).
14 Id. at 658. See also Cooter & Gell v. Hartmarx Corporation, 496 U.S. 384, 110 S.Ct.
2447, 110 L.Ed.2d 359 (1990), in which the United States Supreme Court endorsed the same
interpretation of Federal Civil Rule 11. The court stated:
The central purpose of Rule 11 is to deter baseless filings in district court[.]
Rule 11 imposes a duty on attorneys to certify that they have conducted a
reasonable inquiry and have determined that any papers filed with the court are
well grounded in fact [and] legally tenable[.]
Id., 496 U.S. at 393, 110 S.Ct. at 2454.
15 See McGhee, 951 P.2d at 1217.
16 See Charles W. Wolfram, Modern Legal Ethics (1986), § 12.8, p. 682 n. 5.
17 In re Greenberg, 104 A.2d 46, 49 (N.J. 1954).
18 Id.
19 See Robert H. Aronson and Donald T. Weckstein, Professional Responsibility in a
Nutshell (2nd ed. 1991), p. 348; Geoffrey C. Hazard and W. William Hodes, The Law of
Lawyering (2nd ed. 1998), p. 591.
20 Cicio v. City of New York, 469 N.Y.S.2d 467, 469 (N.Y. App. 1983).
B35B 1763
