You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
In the Matter of Beconovich (11/18/94), 884 P 2d 1080
<![CDATA[
NOTICE: This is subject to formal 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 )
Involving ) Supreme Court No. S-5780
) ABA File No. 1992DO50
ROBERT M. BECONOVICH )
) O P I N I O N
Respondent. )
______________________________) [No. 4146 - November 18, 1994]
Appeal from the Disciplinary Board of
the Alaska Bar Association.
Appearances: Thomas E. Fenton,
Fairbanks, for Respondent. Mark Woelber,
Anchorage, for Alaska Bar Association
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice pro tem.*
COMPTON, Justice.
A grievance was filed with the Alaska Bar Association
(Bar) against Robert M. Beconovich. He did not respond. Under
Alaska Bar Rule 22(a), his failure to respond was deemed an
admission of the allegations in the grievance. In proceedings
before the Bar Area Hearing Committee (Committee), and then
before the Bar Disciplinary Board (Board), Beconovich requested
that the deemed admissions be set aside. Both the Committee and
Board declined to do so. The Board, following the general
recommendation of the Committee, has recommended to this court
that Beconovich be suspended from the practice of law for sixty
days. Alaska Bar R. 22(n).
I. FACTUAL AND PROCEDURAL BACKGROUND
George Clancy retained Beconovich to file a law suit
concerning a defective snow machine. When asked by Clancy,
Beconovich told Clancy that he had filed the suit. He had not,
and never did. Clancy found another lawyer, who then requested
that Beconovich deliver Clancy's file. Beconovich was slow in
giving it to him. In April 1992, Clancy filed a grievance
against Beconovich.
Bar Counsel mailed a copy of the grievance and a demand
for response to Beconovich. He did not respond. Bar Counsel
sent two reminder letters to Beconovich. He did not respond. In
August, Bar Counsel filed a petition for a formal hearing,
charging Beconovich with neglect of a client's case, failure to
deliver promptly a client's property, misrepresentation to a
client, and failure to respond to a grievance. The petition also
asserted that the factual allegations were deemed admitted under
Alaska Bar Rule 22(a) for failure to respond.1 The petition was
personally served on Beconovich. He did not respond. In
December, the Clerk of the Disciplinary Board issued an order
stating that the charges in the petition were deemed admitted.
In January 1993 a pre-hearing conference was held
before the Committee. Bar Counsel argued that the charges were
deemed admitted, and therefore the only issue before the
Committee was the sanction to be imposed. Beconovich made the
analogy that the deemed admissions in his case were like that of
a civil default. He urged the Committee to set aside the
admissions and to address the merits of the underlying grievance.
The Committee ruled that under the rules it had no power to
vacate the admissions. A Sanctions Hearing was held on April 13.
At the hearing, Beconovich admitted that he had no "adequate
explanation" for his failure to answer the grievance. The
Committee recommended that Beconovich be suspended from the
practice of law for forty-five to seventy days.
Beconovich appealed to the Board. Board members J.
John Franich, Jr. and Brant McGee recused themselves. At the
Formal Hearing, Beconovich asked that Franich and McGee be
allowed to make a statement on his behalf. Chair Philip R.
Volland rejected this request. Beconovich reiterated his
objection to deeming his failure to respond to the grievance as
an admission of the underlying charges. The Board repeatedly
attempted to establish whether there was excusable neglect in
Beconovich's failure to respond to the grievance, and whether
there were meritorious defenses to the underlying charges.
Beconovich's counsel admitted that Beconovich had no "good
answer"for his failure to respond. The parties disagreed about
the potential meritorious defenses to the underlying charges.
The Board held that Beconovich "failed to submit evidence
demonstrating a meritorious defense to the grievance and . . .
failed to demonstrate excusable neglect." The Board recommended
that Beconovich be suspended from the practice of law for sixty
days.2
II. DISCUSSION
A. A RESPONDENT ATTORNEY MAY OBTAIN RELIEF
FROM THE EFFECT OF BAR RULE 22(a) BY SHOWING
A MERITORIOUS DEFENSE AND EXCUSABLE NEGLECT.
Alaska Bar Rule 22(a) states that failure to answer a
grievance "within the prescribed time, or within such further
time that may be granted in writing by Bar Counsel, will be
deemed an admission to the allegations in the grievance." This
case raises an issue of first impression: Do the Area Hearing
Committee and the Disciplinary Board have the power to relieve a
respondent attorney from the operation of Bar Rule 22(a), and if
so, what are the proper standards for such relief? There is no
Bar Rule on point.
The language of Bar Rule 22(a) appears mandatory.
However, the discretion granted to Bar Counsel to extend the time
for an answer undercuts a mandatory reading of the Rule.
Further, the structure of the Bar Rules implies a grant of power
to Committees and the Board to proceed in accordance with
generally accepted procedures. For example, Bar Rules on
attorney discipline often incorporate civil or appellate rules by
reference. See Alaska Bar R. 24(d) (discovery governed by Rules
of Civil Procedure); Alaska Bar R. 25(a) (interlocutory appeal
governed by Rules of Appellate Procedure); Alaska Bar R. 18
(statute of limitations governed by "traditional principles of
tolling, equity, and due process"). The Committees are the
principal fact-finding bodies in the attorney discipline process.
Alaska Bar R. 12(i). The Board reviews and modifies or adopts
the findings, conclusions, and recommendations of the Committees.
Alaska Bar R. 10(c)(5). These are both adjudicatory functions.
See In Re Walton, 676 P.2d 1078, 1083 (Alaska 1983) (noting that
the Bar President, who appoints members of the Committee and is a
member of the Board, serves in an adjudicatory position).
Under Bar Rule 10(c)(11), the Board has the power to
"adopt regulations not inconsistent with these Rules." Although
the Board has not adopted a specific regulation governing this
issue, we conclude from our review of the Bar Rules that the
Committee and the Board have the power, under limited
circumstances, to relieve a respondent attorney from the effect
of the attorney's failure to respond to the grievance.
Beconovich analogizes the procedural posture of his
case to that of a civil litigant seeking relief from an entry of
default under Alaska Civil Rule 55(e), as was the case in Hertz
v. Berzanske, 704 P.2d 767 (Alaska 1985). The Board analogizes
it to relief from a default judgment under Alaska Civil Rule
60(b), a situation addressed in Rapoport v. Tesoro Alaska
Petroleum Co., 790 P.2d 1374 (Alaska 1990). Both require a
showing of a meritorious defense to the underlying claim.
Rapoport, 790 P.2d at 1377 n.3; Hertz, 704 P.2d at 771 & n.5.
Relief from a default judgment under Civil Rule 60(b) requires an
additional showing of excusable neglect. Rapoport, 790 P.2d at
1377. Civil Rule 55(e) is more lenient; relief from an entry of
default may be granted for "good cause." To determine if good
cause has been shown, a court must consider "whether the
defendant has established the required meritorious defense,
prejudice to plaintiffs, the culpability of defendant's conduct,
the length of the period of default, the size of any potential
award to plaintiffs, and alternative sanctions against the
defendant." Hertz, 704 P.2d at 771. In Hertz, we held that it
was possible for the moving party to show good cause without
presenting an explanation of the reasons for the failure to
answer. Id. Indeed, one commentator notes that "[r]elief from a
default entry may be granted under Federal Rule 55(c) for 'good
cause shown.' This requires the moving party to provide an
explanation for the default or to give reasons why vacation of
the default entry would serve the interests of justice." 10
Charles A. Wright et al., Federal Practice & Procedure 2696, at
513 (2d ed. 1983) (emphasis added). Thus a moving party can show
good cause even though he cannot show excusable neglect.
We must determine whether the Hertz or Rapoport
standard is more appropriate for relief from the operation of Bar
Rule 22(a). Bar Counsel resists either analogy, but argues that
even under the Hertz standard, Beconovich has shown neither good
cause for the failure to answer nor a meritorious defense to the
underlying claims. At first glance, the interlocutory nature of
an order deeming charges admitted seems more like an entry of
default than a full default judgment. However, the affirmative
duty of the respondent attorney to cooperate in the grievance
process convinces us otherwise. "Each member of the Bar has the
duty to assist Bar Counsel in the investigation, prosecution, and
disposition of complaints filed with or by Bar Counsel." Alaska
Bar R. 9(b). When respondent attorneys fail to comply with this
imperative, they should be compelled to explain the failure. We
conclude that a respondent attorney must show a meritorious
defense and excusable neglect to warrant relief from the
operation of Bar Rule 22(a).
Before the Committee, Beconovich said that he had no
"adequate explanation"for failing to respond to the grievance.
Before the Board, Beconovich's attorney said that Beconovich had
no "good answer" to these questions. This is not excusable
neglect. We do not reach whether there are meritorious defenses
to the underlying claims.
B. DISQUALIFIED MEMBERS OF THE DISCIPLINARY BOARD
MAY TESTIFY TO RELEVANT FACTS BUT NOT THE GENERAL
CHARACTER OF THE RESPONDENT ATTORNEY.
In response to Beconovich's request that the
disqualified Board members be allowed to testify on his behalf,
the Chair of the Board stated:
I believe that the purpose of recusal
among board members in disciplinary matters
is not to mix the personal knowledge of board
members of a respondent with the deliberative
process and, more importantly, not to allow
that information to come into play in a
board's deliberations along with the
particular and unique relationship that board
members have among one another. I don't
think that a presentation by Mr. McGee or Mr.
Franich on Mr. [Beconovich's] behalf in the
course of this proceeding would be any
different than an argument that they might
make in deliberations by the board, and for
that reason I would consider it to be
inappropriate and overrule your request.
In our view a recused board member may be precluded
from testifying as to the general good character of a respondent
because of the potential for an appearance of impropriety. To
allow disciplinary board members routinely to step down and vouch
for the character of the accused attorney might serve to confirm
the skepticism of aggrieved clients as to the effectiveness of
bar grievance procedures. However, a board member recused
because of personal knowledge of relevant evidence concerning the
underlying grievance generally should be allowed to testify to
this evidence. Further, if a board member has particular
testimony relating to the character of the respondent, and this
testimony goes beyond merely vouching for the good character of
the respondent, such specific testimony should be allowed in the
interest of fairness. If Beconovich intended that the recused
Board members testify to such relevant evidence, his failure to
make an offer of proof constituted a waiver. "Ordinarily, a
party waives its right to challenge the exclusion of evidence
unless an offer of proof as to the substance of the evidence is
made at the time the evidence is excluded." Agostinho v.
Fairbanks Clinic, 821 P.2d 714, 717 (Alaska 1991); see also
Alaska R. Evid. 103(a)(2). We see no reason why this general
rule of evidence should not apply to disciplinary proceedings.
C. THE SANCTION.
We exercise our independent judgment in determining an
appropriate sanction in attorney discipline cases. In re
Schuler, 818 P.2d 138, 139 (Alaska 1991). Nonetheless, we give
"serious consideration to the recommendations of the Area Hearing
Committee and the Disciplinary Board"of the Bar. In re Stump,
621 P.2d 263, 266 (Alaska 1980). Further, "[w]e determine the
appropriate sanction . . . on a case by case basis," Burrell v.
Disciplinary Bd., 777 P.2d 1140, 1143 (Alaska 1989), guided by
the American Bar Association Standards for Imposing Lawyer
Sanctions (1986) (ABA Standards), and its methodology. Burrell,
777 P.2d at 1143; In re Buckalew, 731 P.2d 48, 51-52 (Alaska
1986). ABA Standards' methodology instructs us to look to the
nature of the ethical duty violated by the attorney, the
attorney's mental state, the extent of the actual or potential
injury to a client, and any aggravating or mitigating factors.
The Committee and Board similarly are guided by the ABA Standards
and methodology in arriving at their own recommendations.
The transcript of the Sanctions Hearing held before the
Committee on April 13, 1993 discloses that the Committee members
inquired into the actual or potential harm to Beconovich's
client, the aggravating factor of a repeat offense, and the
mitigating factor of inexperience in the practice of civil law.
The parties and the Committee refer specifically to the ABA
Standards and methodology. However, there is no discussion of
how these elements relate to the range of sanctions recommended
by the Committee. The Committee's order of April 23 merely
acknowledges that Beconovich's conduct "is governed by the
American Bar Association Standards for Imposing Lawyer
Sanctions."
The transcript of the Formal Hearing held before the
Disciplinary Board on June 8, 1993 reveals that little attention
was given to the ABA Standards and methodology. The Board "voted
unanimously to adopt the findings, conclusions and
recommendations of the [Hearing] Committee,"without a separate
application of the ABA Standards and methodology to Beconovich's
conduct. There is no discussion of how the ABA Standards and
methodology led the Board to recommend a sixty-day suspension.
Thus we are left with only the Board's incorporation of the
Committee's one sentence reference to aid us in determining
whether the sanction the Board has recommended is appropriate.
Though mindful of our authority to apply our
independent judgment in fashioning an appropriate sanction, and
thereby impose a sanction different than that recommended by
either the Committee or the Board, we are reluctant to engage in
original analysis.
III. CONCLUSION
An Area Hearing Committee or the Disciplinary Board has
the authority to set aside a deemed admission upon a showing by
the respondent attorney that his or her failure to answer the
grievance was the result of excusable neglect, and that he or she
has a facially meritorious defense to the underlying charges. In
this case, we conclude that the Board did not err in refusing to
adjudicate the merits of the underlying charges against
Beconovich. The record amply supports the Board's finding that
Beconovich had not shown that his failure to respond was the
result of excusable neglect.
If Beconovich intended that the recused Board members
testify to Beconovich's good character, the Board did not err in
excluding their testimony. Had Beconovich intended that they
testify to relevant evidence regarding the underlying grievance,
the Board would have erred had it excluded their testimony.
Since Beconovich failed to make an offer of proof regarding the
substance of the recused members' testimony, he has waived his
right to challenge its exclusion.
We are not able to determine whether the sanction
recommended by the Committee or Board should be adopted by this
court. The record does not contain an analysis of Beconovich's
conduct under ABA Standards and methodology, or any other
articulable standard. We remand the grievance to the Board for a
redetermination of a recommended sanction, utilizing either the
ABA Standards and methodology, or some other articulable
standard.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 Alaska Bar Rule 22(a) provides in part:
Failure to answer within the prescribed
time, or within such further time that may be
granted in writing by Bar Counsel, will be
deemed an admission to the allegations in the
grievance.
2 Prior to the Board's recommendation in the present
case, Beconovich was reprimanded publicly for neglecting another
client's affairs and failing to respond to that underlying
grievance. That reprimand occurred in June 1992. In the present
case, Beconovich's client neglect is not a repeat offense,
because this client neglect occurred prior to his earlier
reprimand. See In re Minor, 681 P.2d 1347, 1350 (Alaska 1983)
(respondent attorney should have an opportunity to reform his or
her behavior). However, his failure to answer this grievance is
a repeat offense because instances of his failure to answer
occurred after his reprimand in that earlier case.
]]>
