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In the Matter of J. Wiederholt (7/8/94), 877 P 2d 765
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Disciplinary Matter ) Supreme Court No. S-5736
Involving )
) ABA File Nos. 1987D126,
) 1989D067, 1990D087, 1991D059,
JON E. WIEDERHOLT, ) 1991D075, 1991D223, 1992D073
) & 1992D074
)
Respondent. ) O P I N I O N
)
ABA Membership No. 8312172 )
______________________________) [No. 4102 - July 8, 1994]
Appeal from the Decision of the Board of
Governors of the Alaska Bar Association.
Appearances: Mark Woelber, Assistant
Bar Counsel, Stephen J. Van Goor, Bar
Counsel, Anchorage, for Alaska Bar
Association. Robert C. Erwin, Anchorage, for
Respondent.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice, pro tem.*
MATTHEWS, Justice.
I. INTRODUCTION
The Disciplinary Board has recommended that attorney
Jon E. Wiederholt be disbarred because, in one case, he filed a
pleading and affidavit stating that his client's judgment had not
been satisfied when he knew that the judgment had been satisfied,
and, in another case, he forged his client's signature as an
endorsement to a check. Having independently reviewed the
evidence presented before the Hearing Committee, we agree with
the factual findings of the Disciplinary Board, and accept the
recommendation that Wiederholt be disbarred.
II. BACKGROUND
Presented to the Hearing Committee were eight
grievances. We set them out in tabular form with a brief
description of the charges, the recommendation of the Hearing
Committee, and the recommendation of the Disciplinary Board.
Grievance Description Committee Recomm. Board
Recomm.
1. Cuellar Improper sexual Reprimand
advances to a Dismiss
client Feb. - complaint
March 1987
2. Metcalfe Unauthorized 24-month suspen
signature on a sion would be Disbarment
check; threats appropriate if
to disclose conduct were in
client isolation, but 36-
confidences, May month suspension
-June 1987 is appropriate
here because of
aggravating fac
tors and multiple
grievances
(reduced to a
censure if other
3. grievances
Satterberg Profane, abusive warrant Reprimand
and threatening disbarment)
language to op
posing counsel, Reprimand
June 8 and 19,
1990
4. Maloney 30-day
Kicking opposing suspension
counsel, March
6, 1991 3-month
suspension
(reduced to a cen
5. M/V sure if other 30-day
CONST. Improper delay grievances suspension
of discovery and warrant
disruptive disbarment)
tactics in
defense of a 3-month suspen
case, July - sion (reduced to
October 1990 and a censure if
March 1991 other grievances Censure
6. Taylor warrant
Direct contact disbarment)
by letter with
an opposing
party after
receiving notice
that party was Censure
represented by
an attorney, Censure
7. Johnson Dec. 2, 1991
Writing threat
ening letter to
unrepresented
claimant on
behalf of a Censure Disbarment
8. Nesbett client, Nov. 7,
1991
Filing improper
claim on behalf
of a client to
funds deposited 2-year suspension
in court and would be
failure to dis appropriate if
close previous conduct were in
execution on isolation, but
judgment by disbarment is
client, July appropriate here
1990 because of
aggravating
factors and
multiple
grievances
This court reviews recommendations concerning attorney
discipline made by the Disciplinary Board independently while
giving deference to the findings of the Board. In re Frost, 863
P.2d 843, 844 (Alaska 1993); see also Alaska Bar R. 22(n), (r).
On questions of law and questions concerning the appropriateness
of sanctions, this court also exercises its independent judgment.
Id. at 844.
III. DISCUSSION
A. Consolidation
The first contention made by Wiederholt is that the
eight grievances presented to the Hearing Committee should not
have been consolidated in a single hearing. He argues that his
right to procedural due process was violated because
consolidation prevented the Hearing Committee from evaluating
each grievance separately on the merits. We reject these
arguments.
Consolidation of grievances against an attorney is a
routine practice in Alaska. See In re Clower, Supreme Court Case
No. S-2463, Order of March 17, 1988; In re Triem, Supreme Court
Case No. S-1066, Order of August 1, 1985; In re Simpson, 645 P.2d
1223 (Alaska 1982); In re McNabb, 395 P.2d 847 (Alaska 1964).
Consolidation has also been routinely permitted in other states.
Florida Bar v. Shapiro, 413 So. 2d 1184 (Fla. 1982); In re
Crumpacker, 383 N.E.2d 36 (Ind. 1978); Board of Overseers of the
Bar v. Murphy, 570 A.2d 1212 (Me. 1990); Office of Disciplinary
Counsel v. Campbell, 345 A.2d 616 (Pa. 1975). Although there is
some danger that multiple grievances will unduly affect a Hearing
Committee's perception of a respondent's credibility, this danger
is minimized by the de novo review of the record conducted by the
Disciplinary Board and by this court. Consolidated hearings, on
the other hand, are often more expeditious than separate hearings
on separate grievances, and the total time spent in a consol
idated hearing will usually be less than in separate hearings.
The latter is a consideration of some importance given that the
Hearing Committee and Disciplinary Board members are volunteers
who are not compensated for their services.
B. The Nesbett Grievance
Wiederholt's second argument is that the Disciplinary
Board's recommendation of disbarment in the Nesbett grievance
(set out in Appendix A) is based on an error of law. Wiederholt
argues that a judgment creditor who bids in the entire amount of
his judgment at an execution sale and is issued a bill of sale
still has an unsatisfied judgment "unless the party holding the
judgment gets something of value." This position is legally
wrong. To the extent that an offset bid is made and accepted at
a foreclosure sale, it reduces the amount of the judgment by the
amount of the bid. Fireman's Fund Mortg. Corp. v. Allstate Ins.
Co., 838 P.2d 790, 796 (Alaska 1992); Hull v. Alaska Fed. Sav. &
Loan Ass'n, 658 P.2d 122, 124 (Alaska 1983). Where the offset is
of the entire judgment, the judgment amount is reduced to zero
and is therefore satisfied. Fireman's Fund at 795 (citations
omitted).
Wiederholt cites authority to the effect that an
offset bid on an execution sale which is void is itself void,
A.D.A. Mechanical Services, Inc. v. Goehring, 707 P.2d 1034, 1035
(Colo. App. 1985), and that satisfactions of judgment can under
certain circumstances be set aside by motion of the judgment
creditor. E.g., W.F. Connelly Constr. Co. v. L. Harvey Concrete
Co., 785 P.2d 94, 97 (Ariz. App. 1989). Wiederholt does not
demonstrate, however, how these rules apply to his conduct. He
does not argue that the execution sale was void, only that his
client received no value as a result of the sale. Further, he
does not contend that he made a motion to set aside the
satisfaction resulting from the execution sale.
The essence of the Disciplinary Board's recommendation
concerning the Nesbett complaint is that Wiederholt intentionally
sought to mislead the court and the other parties of the
litigation into believing that no execution sale had ever
occurred. This conclusion is valid factually and is not based on
an erroneous legal premise.
C. The Metcalfe Grievance
Wiederholt's third argument is that the finding of the
Disciplinary Board that Wiederholt "essentially forged" his
client's, Metcalfe's, name to the check jointly made out to them
was error. (This finding of the Disciplinary Board is set out in
Appendix B.) Wiederholt contends that the term "forgery" is a
term of art under criminal law which requires an intent to
defraud which was neither charged nor proven. We conclude that
fraud was both charged and proven.
Paragraph 34 of the Metcalfe grievance alleged after
setting forth, among other things, the unauthorized endorsement
by Wiederholt of Metcalfe's name, that Wiederholt had "by his
conduct toward Ray Metcalfe as set out above . . . violated DR 1-
102(A)(4), which provides that a lawyer shall not engage in
conduct involving deceit, dishonesty, fraud, or
misrepresentation." (Emphasis supplied.) With respect to proof
of fraud, Wiederholt argues that the finding of the Disciplinary
Board that he endorsed Metcalfe's name in an effort to gain an
advantage over Metcalfe in their fee dispute "falls far short of
a finding of fraud . . . ." We disagree. In terms of the crime
of forgery, intent to defraud is an intent to engage in deceptive
conduct for the purpose of gaining a material advantage over
another person. See Morrison v. State, 469 P.2d 125, 125 (Alaska
1970); see also Alaska Criminal Pattern Jury Instruction
46.990(10). The Board's conclusion that Wiederholt was guilty of
forgery is accurate.
D. Johnson and Taylor grievances
Wiederholt's fourth and fifth contentions relate to the
Johnson and Taylor grievances respectively. Since we conclude
that the remedy of disbarment is appropriate based on the Nesbett
and Metcalfe grievances, considered together and in connection
with the Maloney and M/V CONSTRUCTOR grievances,1 these
contentions are moot.
E. Sanctions
Wiederholt's final contention is that disbarment is
inappropriate in this case in light of other cases having certain
similarities. The cases are In re West, 805 P.2d 351, 360
(Alaska 1991) (attorney counselled client to sign her deceased
husband's name on release and notarized the release knowing the
signature was false -- 90-day suspension); In re Schuler, 818
P.2d 138 (Alaska 1991) (two-year suspension where lawyer shop
lifted a number of cassette tapes); In re Buckalew, 731 P.2d 48
(Alaska 1986) (lawyer who embezzled $67,000 from trust accounts
to cover up prior malpractice disbarred); In re Walton, 676 P.2d
1078 (Alaska 1983) (eighteen-month suspension where attorney
fabricated a document which he attached to a complaint); In re
Stump, 621 P.2d 263 (Alaska 1980) (five-year suspension where
attorney falsified evidence and lied about it under oath).
Wiederholt argues that his conduct "does not reach the type of
deliberate dishonesty found in Buckalew, Walton or Stump," and
therefore, disbarment is an inappropriate remedy.
We do not accept this argument for a number of reasons.
First, comparison with Buckalew is not useful, as Buckalew was
disbarred. Second, neither Walton nor Stump involved multiple
serious grievances as this case does. Third, sanctions in other
cases can be no more than indicators of appropriate sanctions in
a given case because of inevitable factual differences concerning
not only the offense but the offender. In re Minor, 658 P.2d
781, 784 (Alaska 1983); Buckalew, 731 P.2d at 57, nn.10 & 11
(setting out factors to be considered by a court imposing
sanctions). Fourth, Walton and Stump were both decided before we
instituted our present practice of using the American Bar
Association Standards for Discipline as guidelines in determining
appropriate sanctions.
The Disciplinary Board adopted in part and modified in
part the Hearing Committee's findings and recommendations on
sanctions concerning the Metcalfe complaint and the Nesbett
complaint. We find that the Disciplinary Board's findings and
recommendations are appropriate and we adopt them as reflective
of our decision in this case. They are set out in Appendix C
with an explanatory note.
IV. CONCLUSION
For these reasons, the respondent is ordered disbarred.
Appendix A
As modified by the Disciplinary Board, the findings and
conclusions concerning the Nesbett grievance are as follows.
Except as noted, the findings are those of the area Hearing
Committee which were adopted by the Disciplinary Board. Language
which is crossed out is language of the Hearing Committee which
was deleted by the Disciplinary Board. Language which is
capitalized is language added by the Disciplinary Board.
83. Bobby Capps and his
corporation CBS, Inc. owned a drilling rig
located in Kipnuk, Alaska during 1981. Tom
Farr took the rig to the vicinity of
Kotzebue, Alaska, and allegedly used it
without Mr. Capps' permission. Mr. Capps
later found Mr. Farr in Anchorage, and Mr.
Farr agreed to pay for the rig. Mr. Capps
set the fair market value of the rig at
$28,000, and Mr. Farr signed [an] instrument
agreeing to pay $27,000 or $28,000. Mr.
Capps' testimony differs from the details set
forth in the documents supplied to the
Committee. Mr. Capps testified that he
received a confession of judgment for
$28,000, but the complaint filed by Mr. Capps
in 1982 states that he received a promissory
note for that amount. Also, Mr. Capps
testified that he received a $1,000 down
payment so that only $27,000 would be left on
the amount due. However, all of the
documents refer to a $28,000 obligation.
Regardless of these minor discrepancies, it
appears clear that Mr. Farr and Mr. Capps
agreed that Farr would pay approximately
$28,000 and would own the rig.
84. By July 1982, Mr. Farr was in
default of his agreement to purchase the rig
from Mr. Capps. Mr. Capps filed suit in Case
No. 3AN 82-5457 and obtained a judgment for
$28,000 on August 5, 1982. No mention was
made in the complaint about repossession of
the rig.
85. On August 10, 1982, execution
issued on Mr. Capps' judgment against Mr.
Farr, and on November 15, 1982, an execution
sale was held by the Alaska State Troopers of
a "Drilling Rig and Flex Trac Nodwell." The
property was sold to Mr. Capps who entered an
offset bid in the amount of $28,000. A Bill
of Sale to Mr. Capps dated November 22, 1982,
and Return of Service On Writ Of Execution
was filed by the Troopers in case 3AN 82-
5457. However, no satisfaction of judgment
was filed at that time.
86. Evidently, Mr. Capps entered
the offset bid without inspecting the
property. When he did inspect it after the
sale, he discovered that the rig was the same
one Mr. Farr had purchased from him and that
it was essentially worthless due to
deterioration and abuse.
87. In 1990, in Stepp, et al v.
Farr et al., 3AN 90-5436, Mr. Farr, Mr. Capps
and others were sued in an interpleader
action by Archie Stepp, who admitted that he
owed money to Mr. Farr but who wanted to pay
the money to all of Farr's creditors of
record. Mr. Capps retained Mr. Wiederholt,
his brother-in-law, to represent his
interests.
88. Mr. Capps met with Mr.
Wiederholt and explained to him the history
of the $28,000 judgment he had obtained
against Mr. Farr and the execution sale of
the worthless property. Mr. Wiederholt was
given a copy of the 1982 Return of Service,
which described the execution sale that had
taken place.
89. After meeting with Mr. Capps,
Mr. Wiederholt sent a demand letter dated
July 17, 1990, to the other defendants,
including Mr. Farr and Mr. Farr's attorney,
Raymond Nesbett. In the letter Mr.
Wiederholt asserted that Mr. Capps was
entitled to full payment of the $28,000
judgment. Also on that date Mr. Wiederholt
filed an answer and cross claim for Mr.
Capps, in which he asserted Mr. Capps was
entitled to full payment on the judgment.
90. On July 24, 1990, Mr.
Wiederholt filed a motion in the interpleader
action for "Verification of Claim and
Assertion Thereof Against Judgment Proceeds".
In this motion Mr. Wiederholt attempted to
levy on the interpleaded funds. In his legal
memorandum in support of the motion, Mr.
Wiederholt stated in pertinent part:
In the intervening eight
years since issuance of the
judgment against Mr. Farr et al.,
Mr. Capps and CBS, Inc. have been
unable to secure any satisfaction
of the judgment. . . . Earlier
execution efforts and attempts at
levy were unsuccessful; there were
simply no available sources of
recovery. . . .
[N]either [Capps] nor
CBS, Inc. have recovered any
satisfaction as against the August
5, 1982, judgment. . . .
There has been no
satisfaction or other remediation
of such judgment by Tom Farr, et
al. The interpleader funds reflect
the first available source of funds
from which to satisfy all or part
of the Capps/CBS claim.
91. In support of the July 24,
1990, motion, Mr. Wiederholt prepared, and
filed the affidavit of Mr. Capps which stated
in pertinent part:
[S]ince the date of said
final judgment, I have been unable
to locate . . . any assets, funds
or property which might otherwise
be subject to valid execution,
levy, or lien as might satisfy any
portion of the judgment owed. . . .
[No] part of the judgment
issued in August 5, 1982 has been
satisfied or in any way reduced by
Mr. Farr or any other party.
92. On July 31, 1990, Mr. Nesbett
wrote to Mr. Wiederholt and confronted him
with the facts of the 1982 execution sale and
offset bid. Mr. Nesbett demanded that Mr.
Wiederholt file a satisfaction of judgment on
behalf of Mr. Capps and a withdrawal of Mr.
Capps' claim in the interpleader action. By
letter of August 6, 1990, Mr. Wiederholt
stated that Mr. Capps agreed to "execute
satisfaction of judgment prepared by" Mr.
Nesbett at Mr. Nesbett's client's expense.
On August 15, 1990, Mr. Capps executed the
satisfaction of judgment prepared by Mr.
Nesbett.
93. In September 1990, Mr. Nesbett
moved for costs and sanctions against Mr.
Wiederholt and Mr. Capps because of what Mr.
Nesbett described as the filing of false
pleadings. Mr. Wiederholt opposed this
motion and attempted to justify the pleadings
he had filed on behalf of Mr. Capps by
arguing at pages 7 and 8 of his memorandum
that Mr. Capps' purchase of his "former
property" was not a satisfaction of the
judgment because the property purchased
turned out to be of no value.
94. Mr. Wiederholt's written
response was consistent with what Mr. Capps
told Mr. Nesbett. Mr. Capps said that he was
advised by attorney friends that his judgment
may have been satisfied by the sale and that
he informed Mr. Wiederholt of this advice.
Mr. Wiederholt then asked Mr. Capps if the
equipment was junk and if that was "satis
factory" with him. Mr. Capps replied that
the sale was not satisfactory to him, and Mr.
Wiederholt then concluded, "Then your
judgment isn't satisfied."
95. In his testimony to the
Committee, Mr. Wiederholt took a position
that contradicts his position in the 1990
sanctions motion. In 1990 Mr. Wiederholt had
argued that Mr. Capps was not "satisfied"
because the property he purchased at the sale
from Mr. Farr was worthless. In front of
this Committee, Mr. Wiederholt argued that in
the interpleader action he had made a good
faith argument on behalf of Mr. Capps based
on the theory that at the time of the sale,
title to the drilling rig had not passed to
Mr. Farr and that Mr. Capps had executed to
no effect on his own property. Mr.
Wiederholt expressed the opinion that somehow
Mr. Capps was entitled to both the $28,000
judgment and the drilling rig until he
received actual value worth $28,000 at which
point he would have to convey the drilling
rig to Mr. Farr.
96. The Committee finds that both
of the legal theories advanced by Mr.
Wiederholt are rationalizations thought of
after the fact and are legally indefensible.
Mr. Wiederholt has never cited any legal
authority for either theory. Most important
is the fact that neither theory was presented
to the court by Mr. Wiederholt in the
interpleader action. In that action Mr.
Wiederholt did not advance some new or
marginal legal theory, but rather stated as
fact that no execution sale had ever occurred
(1) DELIBERATELY CRAFTED HIS PAPERS AND HIS
CLIENT'S AFFIDAVIT TO LEAD THE COURT AND THE
OTHER PARTIES OF THE LITIGATION TO BELIEVE
THAT NO EXECUTION SALE HAD EVER OCCURRED AND
(2) DELIBERATELY WITHHELD MATERIAL FACTS FROM
THE COURT AND THE OTHER PARTIES TO THE
LITIGATION THAT WOULD HAVE CLARIFIED THE
PAPERS AND AFFIDAVIT ACTUALLY FILED BY MR.
WIEDERHOLT. The Committee concludes that Mr.
Wiederholt intentionally attempted to deceive
the court and the parties to the interpleader
action by offering false and misleading legal
pleadings and a false affidavit.
Appendix B
The Disciplinary Board adopted the findings of the
Committee concerning the Metcalfe grievance without change. The
findings are set forth below.
13. During 1986 and 1987, Mr.
Wiederholt represented Ray Metcalfe in a suit
brought by the Republican Party of Alaska,
concerning Mr. Metcalfe's use of the name
"Moderate Republican" to describe his
candidacy for office.
14. When Mr. Metcalfe first
contacted Mr. Wiederholt they reached an oral
fee agreement by which Mr. Wiederholt would
not charge Mr. Metcalfe for his services but
would look only to the opposing party to pay
fees in the event Mr. Metcalfe prevailed.
15. Mr. Metcalfe then prevailed at
the trial court level; however, the
Republican Party sought appellate review.
Because the matter had consumed more time
than Mr. Wiederholt had expected, he told Mr.
Metcalfe that he would not represent him on
appeal unless Mr. Metcalfe paid $1,000 to Mr.
Wiederholt. Though Mr. Metcalfe felt this
demand was in conflict with the previous fee
agreement, he stated that he would pay the
$1,000 if he had the right to recover the
$1,000 plus whatever costs he paid from the
fees which might be awarded by the court.
Mr. Metcalfe's recovery would come after Mr.
Wiederholt received the first $4,000 of
recovery. Thus, the agreement was that the
first $4,000 of awarded fees would go to Mr.
Wiederholt, the next $1,000 plus cost to Mr.
Metcalfe, and the balance of awarded fees, if
any, would go to Mr. Wiederholt.
16. After prevailing on appeal,
Mr. Metcalfe was awarded $10,010.83 in fees
on May 8, 1987. By May 22, 1987, the parties
had agreed to a partial satisfaction of the
fee judgment by which the Republican Party
delivered a $7,500 check to Mr. Wiederholt
and a promissory note for the balance of the
judgment due in one year. The check was made
payable to both Mr. Wiederholt and to Mr.
Metcalfe.
17. On May 22, 1987, Mr. Metcalfe
went to Mr. Wiederholt's office and signed
the satisfaction of judgment form. During
that meeting Mr. Metcalfe asked if he could
go and pick up the check. Mr. Metcalfe
testified that Mr. Wiederholt replied that he
would pick up the check. Then Mr. Metcalfe
asked when he would get his money from the
$7,500 being paid. At that point Mr.
Wiederholt became very angry and stated that
he had had to work so hard to win the case
that the former fee agreement was off and
that all of the money should go to Mr.
Wiederholt. Mr. Metcalfe was shocked by Mr.
Wiederholt's display of anger and his refusal
to honor the oral fee agreement. He then
left Mr. Wiederholt's office.
18. Later on May 22, 1987, Mr.
Wiederholt endorsed and deposited the check
by signing both his name and that of Mr.
Metcalfe's. At the time he signed Mr.
Metcalfe's name to the check, Mr. Wiederholt
knew that he did not have Mr. Metcalfe's
permission to use his name.
19. While Mr. Wiederholt admits to
signing Mr. Metcalfe's name without his
permission, he claims that at the time he had
no knowledge of Mr. Metcalfe's claim to a
portion of the money. Mr. Wiederholt's
testimony is unbelievable on this point.
From an examination of the check, it is
obvious that Mr. Wiederholt attempted to
simulate Mr. Metcalfe's signature on the back
of the check. Yet when asked if he attempted
to simulate the signature, Mr. Wiederholt
testified that he did not. Furthermore, Mr.
Wiederholt testified that at the time he
endorsed the check he believed that he was
entitled to all of the proceeds and that the
check was not his client's money. Yet he
attempted to deposit the check in his trust
account not his general account. Finally,
Mr. Wiederholt testified that the fee
agreement on appeal was that the $1,000
payment was not refundable under any
conditions. Yet the tape recording made by
Mr. Metcalfe of Mr. Wiederholt in May, 1987
shows that Mr. Wiederholt stated at that time
that the agreement had been that Mr. Metcalfe
could obtain a refund of his $1,000 payment
after Mr. Wiederholt recovered his investment
of time in the case.
MR. METCALFE: I'm
entitled to my $1,000 that you
promised to give me.
MR. WIEDERHOLT: Ray!
Ray! Ray! I'm not -- I didn't
promise you that, Ray. I didn't
promise you that. I promised you
would get your $1,000 back over and
above my investment.
MR. METCALFE: Over and
above 4,000.
For these reasons and based on the
demeanor of Mr. Wiederholt and Mr. Metcalfe,
the Committee concludes that Mr. Wiederholt's
testimony is false.
20. Leslie Wiederholt, Mr.
Wiederholt's wife and secretary, testified
that she too heard part of the conversation
in which the $1,000 payment was said to be
non-refundable. The Committee does not give
weight to her testimony because she was
engaged in other duties and merely overheard
parts of the conversation. Further, the
Committee concludes that she was biased based
on her statement that she never heard Mr.
Wiederholt lose his temper with a client,
which in light of the many examples offered
by the witnesses during the hearing, is
simply incredible. She also witnessed Mr.
Wiederholt forge Mr. Metcalfe's name on the
check and said she did not know it was wrong
though she knew it was unauthorized.
21. The Committee believes that
Mr. Wiederholt essentially forged Mr.
Metcalfe's name on the back of the check in
order to gain an advantage over Mr. Metcalfe
in their ongoing argument over who was
entitled to the fees. By having the check
under his control, Mr. Wiederholt would be in
a more powerful negotiating position.
22. Shortly after depositing the
check, Mr. Wiederholt and Mr. Metcalfe
engaged in a phone call which was tape-
recorded in part by Mr. Metcalfe. Mr.
Metcalfe testified that Mr. Wiederholt told
him on the phone that their former fee
agreement was off and that he would deny that
it ever existed. At that point Mr. Metcalfe
turned on the tape recorder and recorded the
balance of the conversation. The tape
recording was played for the Committee and a
transcript was provided.
23. The tape recording reveals
beyond question that Mr. Wiederholt was so
enraged at his client that he was at time out
of control. During the call Mr. Wiederholt
attempted to intimidate his client, screamed
obscenities at him and resorted to a shocking
display of unprofessional conduct.
24. Most importantly, during the
phone call Mr. Wiederholt threatened to
"expose"Mr. Metcalfe if Mr. Metcalfe did not
agree to Mr. Wiederholt's terms. Mr.
Metcalfe testified that he had done nothing
worth exposing but that he was worried that
Mr. Wiederholt might make up something. The
phone call transcript shows that Mr.
Wiederholt made the following threat:
Okay. Ray, fine. Why
don't you do this: why don't you
call up an attorney, and you tell
him to go ahead and file a
complaint against me in this, and
in the Bar Association. And when
we go before them, Ray, I will tell
them the nature of the
understanding that we had regarding
attorneys fees. I will also tell
them, Ray, and I will also make it
public, that you did what everyone
claimed you did, for the specific
purpose of using the name of the
word "Republican", in order to
defend myself.
Because, now Ray, if
you want that kind of notoriety --
if you want the notoriety of now
suing your attorney because you are
upset with the results you got, Ray
-- because you seem to
think . . . .
25. By his conduct concerning Mr.
Metcalfe as set out herein, Mr. Wiederholt
violated
DR 1-102(A) A lawyer
shall not:
. . .
(4)
Engage in conduct
involving dishonesty,
fraud, deceit, or mis
representation.
DR 1-102(A) A lawyer shall not:
. . .
(6)
Engage in any other
conduct that adversely
reflects on his fitness
to practice law.
Canon 4. A lawyer should
preserve the confidences and secrets of
a client.
DR 4-101(B) . . . [A]
lawyer shall not knowingly or
after termination of the
professional relationship to his
client:
. . .
(1) Reveal a confidence
or secret of his client.
(2) Use a
confidence or secret of his client
to the disadvantage of the client.
(3) Use a
confidence or secret of his client
for the advantage of himself or of
a third person, unless the client
consents after a full disclosure.
DR 7-101(A) A lawyer shall not
intentionally:
. . .
(3) Prejudice
or damage his client during
the course of the professional
relationship.
Appendix C
The Board's findings and recommendations on sanctions
are set forth below. Except as noted, the findings are those of
the Hearing Committee which were adopted by the Disciplinary
Board. Language which is crossed out is language of the Hearing
Committee which was deleted by the Disciplinary Board. Language
which is capitalized is language added by the Disciplinary Board.
The reference to the Taylor grievance in paragraph 11 is
superfluous to our decision. We give it no weight. In deciding
that disbarment is warranted by both the Metcalfe and the Nesbett
grievances, considered together with the Maloney and M/V
CONSTRUCTOR grievances, we do not adopt the Board's findings to
the extent that they suggest that only a censure is warranted in
the Metcalfe matter if disbarment is ordered in the Nesbett
matter.
Metcalfe
1. The Metcalfe grievance is
centered on two basic acts of misconduct:
respondent intentionally forged Mr.
Metcalfe's name on a check and deposited it
in order to gain an advantage over Mr.
Metcalfe, and respondent intentionally
threatened to expose Mr. Metcalfe's client
confidences if Mr. Metcalfe did not accede to
respondent's demands.
2. This conduct violated at least
five different discipline rules resulting in
breaches of duty to the public, his client,
and the legal system. There is no question
that respondent acted knowingly and
intentionally with the conscious purpose of
achieving his wrongful objectives.
3. Counsel for respondent has
suggested that the forgery was not a felony
because the Committee did not find that
respondent intended to defraud anyone nor
that respondent intended to commit theft.
The Committee rejects this argument.
Respondent intended to defraud the bank into
accepting the forged endorsement.
Furthermore, by depositing the check he may
or may not have intended to keep all of the
money, but he certainly intended to keep more
of the money than he was entitled to and more
than he would otherwise have received by way
of compromise with Mr. Metcalfe. This is
what the Committee meant by saying respondent
intended to gain a negotiation advantage.
The Committee finds that respondent's conduct
would constitute a C felony under Alaska law.
4. After discovering that
respondent had forged his name on the check,
Mr. Metcalfe went to the bank and signed an
affidavit of forgery. The bank intercepted
the check and did not honor it. Later Mr.
Metcalfe and respondent settled by agreeing
that Mr. Metcalfe could have a refund of the
$1,000 he claimed to be entitled to, but that
Mr. Metcalfe would forgo about $400 in
additional costs. Thus, the actual financial
injury in this case is not particularly
large.
5. The injuries which resulted
from this grievance cannot be measured merely
by the amount of money lost by Mr. Metcalfe.
Mr. Metcalfe suffered repeated and extreme
verbal abuse from respondent, and was subject
to threats and intimidation that no client
should ever have to experience from an
attorney. The bank and officials of the
Republican party became aware of the forgery
and thus respondent's conduct not only
seriously adversely reflected on his fitness
to practice law, it adversely reflected upon
the legal profession as a whole. The
Committee concludes that actual as well as
potential serious injury occurred as a result
of this grievance.
6. ABA Standard section 4.11
states that disbarment is generally
appropriate when a lawyer knowingly converts
property and causes injury or potential
injury to a client. Disbarment is also
appropriate if a lawyer engages in
intentional dishonesty, fraud or
misrepresentation that seriously adversely
reflects on his fitness to practice law.
Section 5.11. For knowingly dealing
improperly with client funds the standards
provide for suspension. ABA Standards,
Section 4.11.
Because respondent only threatened
to disclose client confidences but did not
actually reveal them, the ABA Standards are
not clear on the recommended sanction for
that aspect of the grievance; however,
because respondent was intentionally
intimidating his client in order to gain a
personal financial advantage, the Committee
regards the conduct as very serious.
Disbarment is called for when
client confidences are revealed with an
intent to benefit the lawyer. ABA Standards,
Section 4.21. Suspension is called for when
confidences are knowingly revealed causing
actual or potential injury. Id. Section
4.22. The threat here to reveal confidences
was certainly made with an intention to
benefit respondent. The commentary to
Section 4.21 of the Standards provides,
"[b]ecause the violation of a client's
confidence poses such a serious threat to the
lawyer-client relationship, disbarment should
be imposed whenever the lawyer acts with
intent to benefit the lawyer . . . ." In a
very real sense the injury to the client and
the lawyer-client relationship here is the
same as if client confidences were, in fact,
revealed.
7. As a combined sanction for the
various violations arising out of the
Metcalfe grievance, the Committee finds that,
if considered alone, twenty-four months
suspension would be the appropriate sanction
for these violations.
8. While personal or emotional
problems are listed in the ABA Standards as a
mitigating factor, the testimony developed at
the sanctions hearing concerning respondent's
particular mental problems convinces the
Committee that his problems may be more of an
aggravating factor. Respondent has no
remorse and accepts no responsibility for his
actions. This is an aggravation factor under
the standards. Section 9.2(g). If he cannot
see the errors of his ways, any hope for an
improvement in his behavior is dim at best.
According to the evidence, his prognosis for
treatment is not good. However, respondent's
misconduct in the Metcalfe [grievance] could
be considered a first offense, since it
occurred at approximately the same time as
respondent was receiving notice of the
Cuellar grievance. While In Re Buckalew, 731
P.2d 48, 54 (Alaska 1986) does not put great
weight on the mitigating factor of a lack of
prior offenses, respondent may be given some
leeway in the Metcalfe grievance on this
basis.
9. The psychological insights
offered by Dr. Wolf do not entirely explain
the dishonest acts of respondent. Rigidity
and paranoia do not equate with respondent's
willingness to lie to protect his own
interests. For example, respondent wrote to
Bar counsel, denied that he ever threatened
to expose Mr. Metcalfe, and asserted that the
$1,000 was never intended to be refundable.
Exhibit 2.10. Yet the tape recording is
clear and convincing evidence that
respondent's statements are false. He also
testified under oath that he did not attempt
to simulate Mr. Metcalfe's signature on the
check when even a brief examination of the
check shows the contrary to be true. False
statements during disciplinary proceedings
are an aggravating factor under the
standards. Section 9.22(f). When it comes
to rationalizing his own conduct or to
obtaining an objective for a client (as in
the M/V CONSTRUCTOR and Nesbett grievances),
respondent is basically a dishonest person.
Respondent has engaged in gameplaying and
semantics when dealing with opposing parties,
Bar counsel and this Committee. Unable to
understand the basic dishonesty of this
practice, respondent is proud of how well he
"plays the game"according to the testimony
of Linda Cerro in the M/V CONSTRUCTOR griev
ance. Whether or not this dishonesty is
entirely explainable by respondent's personal
ity disorder, such conduct is extremely damag
ing to the legal system and cannot be
tolerated.
10. There is no question in the
Committee's mind, nor in Dr. Wolf's mind,
that respondent is presently unfit to
practice law. Dr. Wolf's suggestion that
respondent could practice in a supervised
setting is not possible in practical terms.
No one supervises another lawyer as closely
as respondent would need to be supervised.
That kind of supervision exists only over a
law clerk or an assistant that may not
practice on his or her own. Probation as a
sanction is not practical nor morally
appropriate in the present circumstances.
11. As noted above, several
aggravating factors apply to this grievance.
This grievance involves basic dishonesty
which is a pattern of misconduct for
respondent. ABA Standards, Section 9.22(c).
The Nesbett, Maloney, Taylor and M/V
CONSTRUCTOR grievances all involved elements
of dishonesty. Respondent has committed
multiple offenses some of which are equally
or even more serious. Respondent's
personality disorder is described as "long
standing"; thus, there is every reason for
this Committee to believe that the present
grievances are not isolated incidents arising
out of specific situations. To the contrary,
these grievances are likely to be typical
examples of respondent's ongoing conduct.
Respondent's attempt to rationalize his
conduct before this Committee by false
statements also aggravates the offense.
9.22(f). As in the other cases, respondent
does not acknowledge any wrongdoing.
9.22(g). Lastly, respondent is not a
beginner in the practice of law having been
admitted in 1983, and his misconduct does not
arise out of inexperience. 9.22(i). In
light of the aggravating factors and
mitigating factors noted by the Committee,
the Committee finds that a thirty-six month
suspension is the appropriate sanction for
the Metcalfe grievance THE BOARD RECOMMENDS A
SANCTION OF DISBARMENT. If respondent is
disbarred based on other grievances, this
sanction should be reduced to a censure;
otherwise, it should be imposed to run
consecutively with the other sanctions
imposed.
Nesbett
1. In this instance the Committee
found that respondent intentionally attempted
to deceive the court and the parties to a
pending action by offering false and
misleading legal pleadings and a false
affidavit. Whether or not the witness knew
he was committing perjury, respondent
certainly should have known it. This
misconduct violated at least six disciplinary
rules.
2. Respondent breached duties
owned to the public and to the legal system.
The conduct was intentional. Though
respondent's deception was uncovered by Mr.
Nesbett before the court acted upon
respondent's pleadings, Mr. Nesbett's client
was injured by being required to pay Mr.
Nesbett's fees.
3. One of the most important
duties of a lawyer is to maintain the
standards of personal integrity upon which
the community relies. See commentary to
Section 5.0 of the ABA Standards.
Intentional violation of this duty by
dishonesty, fraud and misrepresentation that
seriously reflects adversely on the lawyer's
fitness to practice warrants disbarment. ABA
Standards Section 5.1. Disbarment is also
appropriate when a lawyer intentionally
submits a false document to the court causing
potentially serious injury. ABA Standards
Section 6.1 In this case, respondent
deliberately attempted to obtain money for a
client (respondent's brother-in-law) by
dishonest conduct in court. This incident
did not arise out of anger or respondent's
loss of self control. Respondent's initial
conduct of submitting false information to
the court seems unrelated to his personality
disorder, though his combative reaction to
being accused was typical.
There are not mitigating factors
that apply to this grievance. Agreeing to a
client's demand for certain improper behavior
is specifically not a mitigating factor.
Section 9.4(b). Even if it were, the
evidence here showed that the client was less
of a motivating factor than respondent.
Several aggravating factors are
present: dishonest or selfish motive, Section
9.22(b); a pattern of misconduct, Section
9.22(c); multiple offenses, Section 9.22(c);
false statements, or other deceptive
practices during disciplinary process,
Section 9.22(f); and absolute refusal to
acknowledge the wrongful nature of his
conduct, Section 9.22(g).
If this were an isolated first
instance, perhaps the appropriate sanction
would be a two year suspension. However, by
the time this conduct occurred, respondent
had at least three other pending grievances
including the serious charges in the Metcalfe
grievance. In light of the aggravating and
mitigating factors discussed above and in the
Metcalfe grievance, the Committee finds that
disbarment is the appropriate sanction in
this instance.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Wiederholt has not disputed the Board's action in the
Maloney and M/V CONSTRUCTOR matters.
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