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Opinion # 4443
In the Matter of Triem (10/25/96) sp-4417
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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, telephone (907) 264-0607, fax (907) 264-
0878.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of )
) Supreme Court Nos. S-6702/6732
)
FREDERICK W. TRIEM, ) O P I N I O N
)
Attorney. ) [No. 4417 - October 25, 1996]
______________________________)
Appeal from the Decision of the Disciplinary
Board of the Alaska Bar Association.
Appearances: Frederick W. Triem, pro se,
Petersburg. Mark Woelber, Assistant Bar
Counsel, Anchorage, for Alaska Bar
Association.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice pro tem.
EASTAUGH, Justice.
COMPTON, Chief Justice, dissenting in part.
I. INTRODUCTION
Frederick W. Triem, an attorney licensed to practice law
in Alaska, appeals a decision by the Board of Governors of the
Alaska Bar Association, sitting as a Disciplinary Board (Board),
which found that Triem had committed ethical violations in his
representation of Robert Zorich and in his professional dealings
with attorney Dennis McCarty. Bar Counsel cross-appeals the
Board's dismissal of a grievance against Triem filed by David
Lubin, the Board's failure to impose sanctions against Triem for
his dishonesty before the Area Hearing Committee, and the Board's
recommended sanction. We affirm the Board's findings of ethical
violations on the Zorich and McCarty grievances. We reverse the
dismissal of the Lubin grievance, find an ethical violation in that
matter, administer a public censure, and order the payment of
restitution for lost interest. In the Zorich matter, we order a
ninety-day suspension, probation, and continuing education. In the
McCarty matter, we order public censure.
II. FACTS AND PROCEEDINGS
A. Facts
1. Lubin matter
In September 1989 Lubin retained Triem to represent him
in the purchase of a limited entry fishing permit. As part of this
transaction, Lubin made an earnest money payment of $15,000 to be
held by Triem in his trust account. The purchase agreement was
contingent upon Lubin getting financing by October 25, 1989. Lubin
did not obtain financing, informed Triem of this fact on October
26, and requested return of his $15,000. Triem claimed he told
Lubin it was necessary to get verification that the loan was not
approved before the money could be returned. Additionally, Triem
contends that he told Lubin from the outset that the $15,000 would
not be returned immediately, because the seller could assert a
contingent claim against it. Lubin contacted the loan officer,
Sara Walsh, and requested that a letter be sent to Triem confirming
that his loan had not been approved. Walsh provided this
verification in a letter dated October 31, 1989. The same day
Triem notified the seller that the "deal is off"and that he was
returning the earnest money payment to Lubin. Triem did not return
the money to Lubin until January 12, 1990.
Between November 3, 1989, and January 3, 1990, Lubin made
repeated calls to Triem's office requesting return of his money.
Lubin was unable to reach Triem until January 3, when Triem told
him that return of Lubin's money must have slipped his mind. On
January 12 Triem forwarded $14,133.82, the $15,000 less a deduction
of $866.18 for attorney's fees, to Lubin's stockbroker. On January
20 Triem notified Lubin of the transfer and explained that the
delay was due to a contract clause that required a seller release.
An invoice for Triem's services was included with this
notification. Lubin subsequently demanded that Triem refund the
money withheld for attorney's fees.
2. Zorich matter
In 1981 Zorich and his wife discovered that real estate
they owned in Glenallen had been conveyed by Joseph Gural (EN1) and
Bernard Miller to Bobby Hartman, and that Hartman and his wife had
cleared trees from the lot and were living in a trailer on the lot.
Zorich retained Triem to quiet title to this property and to
recover damages. After a number of postponements, trial on this
matter was held in Glenallen on October 3, 1988. Before trial,
Hartman agreed to confess judgment for $2,000 in damages and to
execute a quitclaim deed to the Zorichs. At trial the Zorichs
prevailed, as assignees of the Hartmans, against Miller and Gural.
When the trial ended, the court directed Triem to submit within
twenty days findings of fact, conclusions of law, and a proposed
judgment. The court informed Triem that upon receipt of these
documents it would enter final judgment.
Triem contends that after the trial, in a meeting between
Triem, Zorich, and Hartman on October 15 or 16, Zorich agreed to
change the legal strategy for quieting title from pursuing a final
judgment to the reconveyance of deeds. Triem began a plan to
reconvey deeds, obtaining a quitclaim deed from Bobby Hartman and
having it forwarded to Hartman's ex-wife in Texas. Triem did not
follow up on this plan. Until Zorich made an independent inquiry
after terminating Triem's services in the spring of 1990, Triem was
unaware that the quitclaim deed had been signed, returned by Mrs.
Hartman and filed. On October 18 and December 3, 1988, Triem had
requested a reconveyance from the Fairbanks Title Company, the
trustee for the property. Fairbanks Title recorded the
reconveyance on February 6, 1989. However, because Fairbanks Title
mistakenly sent the conformed copy to the Hartmans, Triem was
unaware of the reconveyance. Triem took no further steps to
contact Fairbanks Title until December. (EN2) Triem took this
action after Zorich, who had been unable to contact Triem by phone
to get a status report, sent Triem a certified letter on October 7,
1989.
Zorich wrote to Triem regarding the status of his case
three times in early February 1990. Zorich also contacted the
court and learned that Triem had not filed the findings,
conclusions, and judgment the court had requested when the trial
ended. Zorich and Triem met several times in March 1990 and Triem
explained to Zorich that he had not filed the court papers because
he felt that a judgment was unnecessary or not in Zorich's best
interests. Zorich dismissed Triem and retained attorney Clifford
Smith. Smith filed the necessary documents and in May 1990 the
court entered judgment for Zorich for $13,500, plus $12,000 in
interest, and awarded Zorich unspecified attorney's fees.
3. McCarty matter
McCarty represented plaintiffs in a suit against Triem
and two other defendants. Triem represented himself and the other
defendants until he was disqualified by the judge on a motion by
McCarty. (EN3) Around May 16, 1991, the court ordered defendants
to make certain discovery responses. On May 31 Triem drafted a
letter to McCarty stating that the ordered discovery was enclosed.
On June 4 Triem added a postscript to this letter, which stated in
part:
I did not mail out the enclosures (PAS
discovery responses) until yesterday's mail.
Because of the volume of the discovery
responses, and the expense of sending them by
that route, I have not sent them to you by
fax. However, if you want me to do so, please
give [me] a call and I'll put them through the
phone to you. Otherwise they will be arriving
by mail, where I deposited them on my way out
yesterday afternoon.
Triem faxed this letter and postscript to McCarty's office on June
4. Upon receipt of this fax, McCarty called Triem's office and
requested that the discovery responses be faxed. Triem did not fax
the responses to McCarty, and did not notify McCarty that they
would not be faxed. Sometime on June 4 Triem retrieved from the
post office the package containing the discovery responses. Triem
did not notify McCarty that he had retrieved the package from the
mail. McCarty never received the discovery responses. Due to
their failure to comply with discovery orders, the trial judge
later defaulted Triem and the other defendants.
B. The Proceedings
1. Lubin and Zorich committee proceedings (EN4)
Lubin filed his grievance in January 1990. In 1991 Bar
Counsel informed Triem that the Bar had completed its
investigation. Bar Counsel concluded that Triem, by failing to
promptly return Lubin's money, had violated Alaska Code of
Professional Responsibility DR 9-102(B)(4); (EN5) by failing to
account to Lubin regarding his money, had violated DR 9-102(B)(3);
and by improperly withdrawing disputed attorney's fees from the
trust account, had violated DR 9-102(A)(2).
Zorich filed his grievance in 1990. Triem responded to
the grievance after receiving two time extensions. In 1991 Bar
Counsel informed Triem that he had finished his investigation of
the Zorich grievance. He found that Triem had neglected a legal
matter entrusted to him and thus had violated DR 6-101(A)(3).
The Lubin and Zorich violations, Bar Counsel stated,
required public discipline. Triem was provided the opportunity to
stipulate to discipline by public censure. Triem was informed that
if he rejected this proposal, Bar Counsel would petition for a
formal hearing. Triem rejected the proposed discipline. Bar
Counsel filed a petition for formal hearing, serving Triem in
February 1992. On September 8 the Area Hearing Committee assigned
to hear the Lubin and Zorich grievances conducted a consolidated
hearing.
Triem and Bar Counsel submitted a stipulated statement of
facts to the committee. At the September 8 hearing, Triem
testified that he informed Lubin that his money would not
immediately be returned due to the need to procure a release from
the seller. Triem further testified that after the Zorich trial,
he met with Zorich and Hartman and discussed the alternate strategy
of pursuing reconveyances of deeds to clear title to Zorich's
property. Bar Counsel noted that these explanations by Triem had
never been articulated in the two years since the grievances had
been filed, and were not part of the stipulated statement of facts.
Because the committee wanted to hear testimony from Lubin
and Zorich on these factual assertions, it held a second hearing.
At the second hearing, the committee questioned Lubin about what he
was told by Triem when he initially requested the refund of his
money. Lubin testified that Triem had not informed him that his
money would have to be held due to the possibility of a contingent
claim by the seller. The committee also questioned Zorich about
whether he had agreed to the alternate strategy of foregoing
pursuit of a final judgment. Zorich testified that he did not
remember a conversation to that effect, and that he would not have
agreed to such a proposal.
In April 1993 the committee conducted a third hearing to
hear the testimony of Lubin's loan officer, Sara Walsh. Triem
asked the committee to hear this testimony to rebut Lubin's
testimony and to support Triem's contention regarding what he had
told Lubin about return of his earnest money payment. (EN6) With
Triem's aid, Walsh wrote an affidavit before the hearing. Walsh's
affidavit, however, conflicted with her hearing testimony on the
key issue of whether Lubin understood that a refund would not be
immediately forthcoming due to the possibility of contingent
claims. At the hearing, Walsh produced an earlier version of the
affidavit which had been prepared by Triem and edited by Walsh.
This edited version indicates that Walsh marked off for removal
from the affidavit the crucial statement that "Mr. Lubin said that
under the terms of his contract he could not obtain release of the
earnest money deposit until he had notified the seller and gotten
the seller's release of the escrow deposit." Walsh testified that
she sent a copy of the edited version to Triem so it could be
corrected, that Triem subsequently sent her the ostensibly
corrected affidavit, and that she signed it, apparently without
reading it again.
After the April hearing, the committee had thirty days to
issue its report under Alaska Bar Rule 22(l). However, the
committee did not issue its report until eleven months later, on
March 22, 1994.
In the Lubin matter, the committee found that Triem had
violated DR 9-102(B)(4), DR 9-102(B)(3), and DR 9-102(A)(2). In
Zorich, the committee found that "Triem's current explanation for
his failure to promptly file findings of fact, conclusions of law
and a proposed judgment as instructed by the Court is neither
credible nor consistent." Consequently, the committee held that
Triem had neglected a legal matter entrusted to him in violation of
DR 6-101(A)(3).
As a preliminary matter, the committee noted that these
violations warranted public censure or reprimand. (EN7) The
committee also stated, however, that it believed that Triem had
been deliberately dishonest in his testimony before the committee.
(EN8) The committee recommended that Triem be suspended from
practice for up to one year.
2. McCarty committee proceedings
In 1991 McCarty filed a grievance asserting that Triem
had made false statements to him regarding the service of discovery
materials and had failed to respond timely to deadlines. After
requesting and receiving a number of extensions, Triem responded to
McCarty's grievance in December 1991. On January 14, 1992, McCarty
responded by letter to Triem's answer. In early March Triem
informed Bar Counsel that he had not received any materials from
the Bar or McCarty since he filed his December 1991 response, and
he requested that Bar Counsel furnish him with any further comments
made by McCarty. Bar Counsel did not respond to Triem's letter.
Pursuant to Alaska Bar Rule 22(d), Bar Counsel requested and
received approval for issuance of a private written admonition from
Area Discipline Division Member Leslie Longenbaugh.
In late March Triem was informed of the result of Bar
Counsel's investigation and Longenbaugh's approval of the sanction
of a private written admonition. Triem was instructed that under
Alaska Bar Rule 22(d) he did not have a right to appeal the private
admonition, but that he had thirty days to demand a formal
proceeding. Triem was informed that demanding a formal proceeding
would vacate the private admonition. Asserting that he had not
violated the Code of Professional Responsibility in his dealings
with McCarty and that he had been denied the opportunity to respond
to all of McCarty's accusations, Triem demanded a formal
proceeding. Triem argued that he had not received McCarty's
January 14, 1992 letter to Bar Counsel. Bar Counsel explained that
this was an oversight, sent Triem a copy of the letter, and gave
him thirty more days to review the letter and decide whether to
accept the private admonition. Triem did not accept the private
admonition and Bar Counsel filed a petition for formal proceedings.
After briefing was completed and without oral argument or
testimony, the Area Hearing Committee assigned to McCarty's
grievance issued its written report in December 1993 and
recommended discipline. The committee found that, by intentionally
rendering his statement to McCarty false and by failing to
affirmatively correct this statement, Triem had acted dishonestly
in violation of DR 1-102(A)(4). The committee recommended
discipline by reprimand. It denied Triem's motion for
reconsideration.
3. Disciplinary Board
Triem appealed the Lubin/Zorich and McCarty committee
decisions to the Board. The Board consolidated the cases, heard
oral argument, and issued a written decision. The Board dismissed
the Lubin case in its entirety because it found that "significant
questions have been raised about the procedures, conduct and delay
of the Hearing Committee." The Board accepted the recommendations
of the hearing committees with respect to Zorich and McCarty and
recommended the sanction of a ninety-day suspension.
III. DISCUSSION
A. Standard of Review
In the case of In re West, 805 P.2d 351 (Alaska 1991), we
discussed our role in attorney disciplinary proceedings as follows:
Though this court has the authority, if not
the obligation, to independently review the
entire record in disciplinary proceedings,
findings of fact made by the Board are
nonetheless entitled to great weight. The
deference owed to such findings derives from
the responsibility to conduct disciplinary
proceedings which this court has delegated to
the Bar Association. Where findings of fact
entered by the Board are challenged on appeal
to this court, . . . the respondent attorney
bears the burden of proof in demonstrating
that such findings are erroneous. . . . As a
general rule, moreover, we ordinarily will not
disturb findings of fact made upon conflicting
evidence. . . .
. . .
In deciding the appropriate punishment,
we need not accept the Disciplinary Board's
recommendation, but may exercise our own
independent judgment.
Id. at 353 n.3 (quoting In re Simpson, 645 P.2d 1223, 1226-28
(Alaska 1982), methodology modified by In re Buckalew, 731 P.2d 48
(Alaska 1986)).
A more succinct statement of the role of Bar Counsel and
that of this court was expressed in In re Frost, 863 P.2d 843, 844
(Alaska 1993):
Bar counsel has the burden of proving the
charges of misconduct in a petition for formal
hearing by clear and convincing evidence.
This court reviews the evidence adduced before
the hearing committee independently while
giving deference to the findings of the board.
(Citations omitted.)
In exercising our independent judgment as to the
appropriate sanction, we are guided by the American Bar
Association's Standards for Imposing Lawyer Sanctions. In re
Buckalew, 731 P.2d at 51-52. While we are guided by these
standards, we are not constrained by them. In re Frost, 863 P.2d
at 854.
B. The Board Erred in Dismissing the Lubin Complaint.
1. Bar Counsel has a right to appeal.
As a preliminary matter, Triem argues that Bar Counsel
cannot appeal the Board's "acquittal"of him because attorney
disciplinary proceedings are quasi-criminal in nature and an appeal
would violate constitutional protections against double jeopardy.
Triem's argument against the validity of an appeal by Bar
Counsel is unpersuasive. "[J]eopardy in either its constitutional
or its common law sense[] has a strict application to criminal
prosecutions only. A disciplinary proceeding . . . is not criminal
in nature, but is sui generis, being an exercise of the inherent
power and jurisdiction of this court over attorneys as officers of
the court." In re Mackay, 416 P.2d 823, 838 (Alaska 1964)
(footnote omitted), cert. denied, 384 U.S. 1003 (1966).
Triem argues that In re Ruffalo, 390 U.S. 544, 551
(1968), decided after Mackay and holding that attorney discipline
proceedings are quasi-criminal in nature, dictates that double
jeopardy protections apply to such proceedings and thus prohibit
Bar Counsel's appeal. Ruffalo, however, dealt with the specific
question of what level of due process protection a respondent
attorney was owed with respect to notice of the charges against
him. Id. at 550-51. As Bar Counsel points out, commentators and
courts treat Ruffalo as being limited to procedural due process
concerns. Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of
Lawyering sec. 8.1:102, at 923 (2d ed. Supp. 1996) (stating that
"virtually all courts have concluded that the Supreme Court's
characterization [of disciplinary proceedings as quasi-criminal]
. . . was made in the narrower context of assessing the
applicability of procedural Due Process concerns, such as
entitlement to notice of the charges"); see also, Rosenthal v.
Justices of the Supreme Court of California, 910 F.2d 561, 564 (9th
Cir. 1990), cert. denied, 498 U.S. 1087 (1991) ("A lawyer
disciplinary proceeding is not a criminal proceeding. As a result,
normal protections afforded a criminal defendant do not apply."
(citation omitted)); Mississippi State Bar v. Young, 509 So. 2d
210, 213 n.1 (Miss. 1987) ("Most states which have addressed the
matter have held that disciplinary proceedings are not so criminal
in nature as to evoke double jeopardy protections."). Double
jeopardy is a substantive due process protection and therefore is
not extended to attorney grievances under Ruffalo. (EN9)
2. The Lubin case should not have been dismissed.
In dismissing Lubin, the Board asserted that procedures,
conduct, and delay by the Area Hearing Committee created potential
prejudice to Triem which could not be set aside. The Board,
however, did not specify what procedures and conduct created
potential prejudice. Triem argues a number of due process
violations as well as prejudicial delay caused by the committee and
Bar Counsel.
Over four years passed from the filing of the Lubin
grievance to the issuance of the committee's report and
recommendation. Bar Counsel did not file a petition for formal
hearing until nine months after Triem rejected the proposed
discipline in April 1991. Triem filed a number of motions and
eventually answered this petition late. After three hearings, the
committee requested two extensions and did not issue a report until
approximately eleven months after the close of evidence.
A five-year statute of limitations governs the filing of
attorney grievances. Alaska Bar R. 18. This reflects a judgment
that five years is the outer limit of time in which responding
attorneys are able to fairly defend themselves against charges,
given the loss of memory, evidence, and witnesses that occurs over
time. The alleged misconduct in Lubin occurred between October
1989 and January 1990, and the committee completed its adjudication
of the complaint within the five years allowed for filing a
complaint. This circumstance militates against the contention that
the delay so prejudiced Triem's ability to present a defense as to
require dismissal.
The timing and source of the delays also militate against
the dismissal. Triem contributed to some of the delay by his late
filings and numerous motions. Most importantly, the longest delay,
the late issuance of the committee's report, occurred after Triem
presented his defense, and thus did not prejudice Triem's ability
to offer a defense. This eleven-month delay was unjustified, but
the persons most hurt by it were the victims of Triem's alleged
misconduct and the public, not Triem. The public's faith in the
system is harmed by lengthy adjudications of discipline matters,
but dismissing the matter would simply exacerbate the injury to the
public interest.
Therefore, we hold that the delays in the Lubin
proceedings do not warrant dismissal of the complaint. Because we
find that the other due process concerns raised by Triem, discussed
infra, are either invalid or harmless, we reverse the Board's
dismissal and independently review the record for the merits of
this complaint.
C. Triem's Due Process Rights Were Not Violated by the
Proceedings Below.
1. Function of the committee
Triem argues that the Lubin/Zorich committee violated his
due process rights by improperly taking on the dual roles of
adjudicator and prosecutor. In support of this contention, Triem
points to the second and third hearings, in which the committee
called and questioned the witnesses.
We have held that due process is not violated when a
hearing committee questions or calls witnesses, as long as no
predisposition against the respondent is shown. In re Cornelius,
520 P.2d 76, 83-84, aff'd on reh'g, 521 P.2d 497, 498 (Alaska
1974). Triem has made no showing of a predisposition of the
committee against him. (EN10) In fact, the record indicates that
the committee, in an effort to give Triem the fullest opportunity
to present his defense, allowed late filings and heard the
additional testimony of the loan officer.
2. Limitation of cross-examination
Triem contends that the Lubin/Zorich committee improperly
and unfairly limited his cross-examination of Zorich. (EN11)
Lubin and Zorich were called by the committee to address
specific factual issues, namely what Triem had discussed with them
regarding his intended actions concerning their interests. The
committee instructed Triem to focus on the discrepancies between
his testimony and the complainants' affidavits. Triem's cross-
examination of Zorich was limited to approximately five minutes.
At the expiration of the time allowed by the committee for cross,
Triem did not object or request additional time. Rather, Triem
acquiesced to the time constraints, stating, "Mr. Wagner, my time's
up. I'd love to talk longer, but I'll hold my peace. Thank you."
Although Triem cites a number of occasions on which Chairperson
Wagner set time constraints on the hearing, Triem did not make any
objection at any time during the hearing. Furthermore, despite the
fact that a third hearing was held to allow Triem the opportunity
to call Lubin's loan officer as a rebuttal witness, Triem
apparently did not request that Zorich be returned to the stand for
further cross-examination. Consequently, we hold that Triem did
not preserve any claim that his cross-examination of Zorich was
unduly limited.
3. Telephonic appearance
Triem argues that Wagner's telephonic appearance at the
second hearing violated his due process rights because Wagner's
inability to observe the witnesses prevented him from being able to
evaluate their credibility. This argument is unpersuasive given
the express provision in Civil Rule 99 for telephonic appearances
by judges: "[t]he court may allow one or more parties, counsel,
witnesses or the judge to participate telephonically in any hearing
or deposition for good cause and in the absence of substantial
prejudice to opposing parties." Alaska R. Civ. P. 99(a). The
routine nature of such appearances belies Triem's due process
concerns.
4. New charges raised at the hearings
Triem argues that the imposition of two new charges
against him at the hearing stage of the Lubin/Zorich cases violated
his due process rights. Triem asserts that these charges are
failure to communicate with his clients and dishonesty before the
committee. Despite Triem's characterization of the charges against
him, Bar Counsel only pursued and the committee only found
violations alleged in the formal petitions. It is true that
communication is an element of the charges of neglect and improper
retention of money insofar as Triem's action or inaction would not
have been improper if authorized by his clients. It is in this
respect that Bar Counsel and the committee analyzed Triem's
communications with his clients, and not as a separate charge for
failure to communicate generally.
In analyzing the testimony regarding the existence of
exculpatory conversations, the committee concluded that Triem had
been dishonest to the committee. At the end of the second hearing
the committee notified Triem that it was inclined to believe that
Triem had been dishonest in his testimony, see supra note 6. Triem
correctly argues that an attorney cannot be made to answer to
charges that arise for the first time at the hearing stage.
Ruffalo, 390 U.S. at 550-51. The charges in Ruffalo, however, were
based on misconduct that occurred prior to the hearing and the
charges were brought solely on the basis of testimony elicited at
the hearing. Id. at 549-51.
The charge of dishonesty leveled at Triem did not create
unfair surprise during a hearing on past conduct, but rather
represented the committee's evaluation of, and response to, Triem's
conduct at the hearings. (EN12) This evaluation is inherent when
the committee weighs evidence and the credibility of the witnesses
before it. Not only was Triem not unfairly surprised, he was given
an opportunity to respond to the committee's evaluation of his
testimony. Triem was allowed to put on rebuttal evidence and was
instructed to brief the propriety of sanctions for misconduct
before the committee.
Triem's alleged dishonesty before the committee was not
considered as a separate charge subject to independent sanction.
Rather, the committee merely took Triem's dishonesty into account
as an aggravating factor in determining the proper sanction. (EN13)
The ABA Standards specifically include as an aggravating factor
"submission of false evidence, false statements, or other deceptive
practices during the disciplinary process." Standards for Imposing
Lawyer Sanctions sec. 9.22(f) (1991) (hereinafter ABA Standards).
Therefore, we hold that Triem's dishonesty during the disciplinary
process is an aggravating factor which the committee could properly
consider in protecting the integrity of the hearing process.
5. Opportunity to be heard in McCarty
Triem argues that his right of confrontation and his
right to notice and an opportunity to be heard were violated by Bar
Counsel's failure to provide him with all communications from
McCarty to Bar Counsel before adjudicating the charges against him.
When this omission was brought to Bar Counsel's notice, he provided
McCarty's January 14 response letter to Triem and gave him a
thirty-day extension in which to review it before deciding whether
to accept the proposed discipline of a private admonition. Triem
was not allowed to respond to this letter to Bar Counsel, however,
but was merely given the extension to decide whether to accept the
proposed discipline or to go on to the next level of adjudication.
Triem rejected the private admonition and formal proceedings were
initiated. Triem then had ample opportunity to respond to
McCarty's letter before the Area Hearing Committee and the Board.
Triem nonetheless contends that his due process rights were
violated. (EN14)
Bar Counsel's role in the initial stage of attorney
grievances combines investigative and adjudicative functions, but
any discipline proposed by Bar Counsel can only be imposed with the
consent of the respondent attorney. Alaska Bar R. 22(d), (h). If
an attorney does not consent to a private admonition, this
discipline is not imposed and the attorney is entitled to a formal
hearing. Alaska Bar R. 22(d). If an attorney refuses to stipulate
to discipline, the burden of proof is not shifted to the attorney
"to overcome the pre-educating effect of the Bar's pre-emptive
strike,"as Triem contends; rather, the burden of demonstrating
misconduct by clear and convincing evidence stays with Bar Counsel.
Alaska Bar R. 22(e).
When Triem rejected the private admonition he was
provided the opportunity to respond to all the evidence against him
in the proceedings before the committee and the Board. Therefore,
because the Bar Rules provide for a de novo hearing following a
proposed private discipline and extend other protections to
respondent attorneys, (EN15) we hold that Triem was afforded ample
due process in Bar Counsel's initial evaluation of the McCarty
case.
6. Prejudicial delay in McCarty
Triem argues that he was prejudiced by Bar Counsel's one-
year delay in filing the formal petition in McCarty. (EN16) Bar
Counsel responds that the filing of the McCarty petition was
delayed to avoid the hardship to Triem of having to defend against
the Lubin/Zorich charges and the McCarty charges at the same time.
Triem's allegations of prejudice ignore the reality that
the facts in McCarty are undisputed. The only open issue was the
legal consequence of Triem's actions, specifically whether they
represented dishonesty, deceit, fraud, or misrepresentation, in
violation of DR 1-102(A)(4). While a one-year delay seems
unwarranted, it did not harm Triem's ability to present arguments
regarding the application of the law to the facts of his case.
Therefore, we find that the delay did not unduly prejudice Triem.
7. Use of Triem's discipline record
a. Reference to prior discipline before
adjudication on the merits
Triem argues that Bar Counsel, before the hearing
committees and the Board, improperly referred to Triem's past
discipline record and to the simultaneous unrelated disciplinary
proceedings.
It is not error to refer to an attorney's disciplinary
record during consideration of the case on the merits. In addition
to issuing factual findings and conclusions of law, hearing
committees are required to issue sanction recommendations. Alaska
Bar R. 12(i), 22(l). To determine the proper sanction, the ABA
Standards dictate consideration of aggravating factors. ABA
Standards sec. 3.0. (EN17) The aggravating factors include prior
offenses, a pattern of misconduct, and multiple offenses. ABA
Standards sec. 9.22(a), (c), (d). If a committee's recommendation
is appealed, the Board must review the findings and conclusions and
issue its own recommended sanction. Alaska Bar R. 22(n). If the
recommended sanction is disbarment, suspension, probation, or
public censure, it must be submitted to this court for independent
review. Alaska Bar R. 22(n) (citing Alaska Bar R. 16(a)(1)-(4));
Alaska Bar R. 22(r). Knowledge of prior offenses not only is
permitted, but is necessary to determine and review sanction
recommendations.
The ABA Standards, however, contemplate that aggravating
factors be considered after a finding of misconduct. ABA Standards
sec. 9.1 ("After misconduct has been established, aggravating and
mitigating circumstances may be considered in deciding what
sanction to impose."). Our Bar Rules do not bifurcate the
misconduct determination and the sanction recommendation.
Independent review of the entire record by the Board and this
court, however, provides a safeguard against any prejudicial impact
from references to prior discipline during the consideration of the
merits of the case. Furthermore, Triem's prior discipline included
ongoing supervision of his work and public notice of this
supervision. It would be unrealistic to think that the Southeast
Alaska legal community was altogether unaware of Triem's
disciplinary record.
Therefore, we conclude that it was not error to allow
references to Triem's discipline record. Additionally, because the
three proceedings could have been consolidated, Bar Counsel's
statements to the hearing committees regarding other ongoing
proceedings against Triem were also not prejudicial. Cf. In re
Wiederholt, 877 P.2d 765, 767 (Alaska 1994) (holding that
consolidating grievance proceedings is not prejudicial).
Even though we hold that the committees' procedures did
not prejudice Triem, as an exercise of our rule-making
responsibility we hold that it is preferable that Area Hearing
Committees bifurcate the misconduct determination and sanction
recommendation as much as possible.
b. Misrepresentation and misinterpretation of
Triem's disciplinary record
Triem argues that Bar Counsel misrepresented and
exaggerated his prior discipline. In the petition for a formal
hearing in the consolidated Lubin and Zorich matters, Bar Counsel
stated that "[d]uring the period he represented Mr. Zorich, Mr.
Triem was on probation under Alaska Bar Rule 16(a)(3) for engaging
in five previous instances of neglect under the Alaska Code of
Professional Responsibility, Disciplinary Rule 6-101." Bar Counsel
admitted that this was a misstatement of Triem's discipline record,
(EN18) and corrected this error in its sanctions brief submitted to
the committee. Because Bar Counsel corrected this error before the
committee made its final decision, the initial misstatement was
harmless.
Finally, Triem points out that the Board misinterpreted
his prior record when it treated Triem's "previous offenses similar
in nature to the dishonesty and neglect [alleged in McCarty and
Zorich]"as an aggravating factor in the present cases. The
hearing committee in Triem's prior disciplinary proceeding
specifically held that Triem had not been guilty of dishonesty.
Our independent review of the case cures whatever prejudicial
impact this misunderstanding of Triem's prior discipline might have
had on the Board's recommendation. Therefore, any misunderstanding
was harmless error.
8. Triem's vindictive prosecution claim
Triem contends that Bar Counsel is guilty of vindictive
prosecution in McCarty because, after Triem rejected discipline by
private admonition and after Bar Counsel had provided Triem a copy
of a draft petition for a formal hearing, an additional charge was
added to the petition. (EN19) Triem argues that this additional
charge was in response to Triem's exercise of his constitutional
rights. Bar Counsel responds that no evidence of vindictiveness
exists and that he sent the copy of the clearly marked draft
petition to Triem as a matter of professional courtesy in response
to Triem's request. Furthermore, Bar Counsel notes that even if
the petition sent to Triem had not been a draft, Bar Counsel could
have subsequently amended the petition under Bar Rule 22(e) (leave
to amend petitions should freely be given as justice requires).
"[A] prosecutorial action is 'vindictive' only if
designed to penalize a defendant for invoking legally protected
rights." United States v. Meyer 810 F.2d 1242, 1245 (D.C. Cir.
1987), cert. denied, 485 U.S. 940 (1988). In United States v.
Goodwin, 457 U.S. 368, 381 (1982), the United States Supreme Court
recognized that prosecutors may gain new information or realize the
significance of information after the initial imposition of
charges. The Court held that in such situations the addition or
modification of charges before trial does not necessarily support
a presumption of vindictive prosecution. Id. In reaching this
holding, the Court stated that "[a] prosecutor should remain free
before trial to exercise the broad discretion entrusted to him to
determine the extent of the societal interest in prosecution. An
initial decision should not freeze future conduct." Id. (footnote
omitted). Applying Goodwin, the Meyer court noted that several
courts have adopted the view that a presumption of vindictiveness
in the pretrial setting will arise if the defendant presents facts,
in addition to the modification of the charges, sufficient to show
a realistic likelihood of vindictiveness. Meyer, 810 F.2d at 1246.
Triem argues that the exercise of his legal right to
reject the private admonition and to pursue a formal hearing
provoked Bar Counsel to add a new charge against him. However, the
additional charge against Triem was added before Bar Counsel had
finalized his analysis of the case and notified Triem of the formal
charges against him. Under Goodwin, modification of formal charges
without more would not give rise to a presumption of vindictive
prosecution in the pretrial setting. 457 U.S. at 381. Therefore,
even if new charges had been added after the formal petition was
filed, Triem's argument would be unpersuasive because there are no
additional facts sufficient to show a realistic likelihood of
vindictiveness. That Triem's argument is based on differences
between a draft petition and the formal petition fortifies this
conclusion.
D. Triem Committed the Violations Found by the Hearing
Committees in the Lubin, Zorich, and McCarty Matters.
1. Triem failed to promptly return funds which Lubin
was entitled to receive, failed to appropriately
account for these funds, and improperly withdrew
attorney's fees from Lubin's funds.
Triem and Bar Counsel stipulated to the facts in the
Lubin matter. Therefore, if Triem cannot provide a justifiable
excuse for his failure to return or account for the funds, Triem
committed the ethical violations charged.
At the committee hearing, Triem testified about an
exculpatory conversation with Lubin. This conversation was not
included in the statement of stipulated facts. After hearing
additional testimony on the issue, the committee found that Triem's
testimony was not credible and concluded that Lubin's account of
the events was credible.
"As a general rule, . . . we ordinarily will not disturb
findings of fact made upon conflicting evidence." In re West, 805
P.2d at 353 n.3 (quoting In re Simpson, 645 P.2d at 1227). The
record evinces no reason to depart from this general rule. Triem
has not carried his burden of showing that the committee's factual
findings are erroneous. Therefore, we accept the committee's
findings and hold that Triem violated DR 9-102(B)(3) and DR 9-
102(B)(4).
Disciplinary Rule 9-102(A)(2) dictates that disputed fees
may not be withdrawn from a trust account until the dispute is
finally resolved. (EN20) Our independent review of the record
reveals that the committee accurately summarized the controlling
facts when it stated:
Under Triem's agreement and practice with
Lubin, attorney fees and costs were not "due"
until 10 days after Triem issued Lubin a
statement itemizing the charges. Triem did
not issue Lubin a statement itemizing the
charges before withdrawing the fees from his
trust account. Accordingly, the money should
not have been withdrawn from the trust account
because the fees were not yet "due."
Moreover, because Triem believed Lubin would
dispute the fees, he should not have withdrawn
the money from the trust account until the
dispute was resolved.
Therefore, we hold that Triem improperly deducted attorney's fees
from Lubin's earnest money payment in violation of DR 9-102(A)(2).
After an independent review of the appropriate sanction,
we conclude that these violations warrant a public censure. The
ABA Standards state that "[s]uspension is generally appropriate
when a lawyer knows or should know that he is dealing improperly
with client property and causes injury or potential injury to a
client." ABA Standards sec. 4.12. The commentary to this rule
reveals that commingling of client and personal funds and the
failure to remit client funds promptly are the most common
circumstances for which suspension is imposed. ABA Standards sec.
4.12 commentary. The commentary to ABA Standards sec. 4.13,
however, recognizes that courts typically impose the lesser
sanction of reprimands when lawyers fail to maintain adequate trust
accounting procedures or do not return clients' property promptly.
ABA Standards sec. 4.13 commentary. Triem failed to promptly
return or provide an accounting of Lubin's money, but he did not
convert client funds to his own use or commingle personal and
client funds. When Lubin objected to the deduction of fees, Triem
redeposited the money and maintained it in his trust account during
the pendency of these proceedings. Therefore, we hold that public
censure is the appropriate sanction.
In addition, we note that Lubin was denied the
opportunity to earn interest on his money during the period it was
improperly withheld by Triem. Therefore, pursuant to Bar Rule
16(c)(1), we order that Triem pay restitution for lost interest
from November 3, 1989, when Triem received official notice of
Lubin's inability to secure financing, to January 12, 1990.
Although we hold that Triem's deduction of attorney's fees from the
trust account was an ethical violation warranting public censure,
neither Lubin nor Bar Counsel have argued that the fees were
neither justified nor appropriate. Consequently, we decline to
order reimbursement of the deducted fees.
2. Triem neglected a legal matter in Zorich.
Triem and Bar Counsel stipulated to the basic facts in
the Zorich matter. As in Lubin, the only dispute concerns what
Triem discussed with his client about his representation. The
committee heard conflicting testimony about whether Triem discussed
and obtained approval for an alternate strategy of clearing title.
The committee found Zorich's testimony consistent and credible, and
found Triem's testimony not credible.
As stated above, factual findings made in the face of
conflicting evidence ordinarily will not be disturbed. In re West,
805 P.2d at 353 n.3. Triem has not shown that the committee's
findings with respect to this issue are erroneous. Additionally,
Triem's general lack of diligence in his representation of Zorich
supports and makes more plausible Zorich's account of the facts.
(EN21) Therefore, we find that Triem violated DR 6-101(A)(3),
neglecting a legal matter entrusted to him.
Triem's neglect of the Zorich matter occurred while Triem
was on probation for ethical violations involving neglect and
conduct that adversely reflected on his fitness to practice law.
Therefore, Triem has proven that public censure or a period of
probation is not effective in influencing his conduct. ABA
Standards sec. 4.42 states that suspension is generally appropriate
when a lawyer knowingly fails to perform services or engages in a
pattern of neglect and causes injury or potential injury to a
client. Although disbarment is recognized as the appropriate
sanction in more egregious cases, (EN22) the cases cited in support
of suspension reflect a level of misconduct in line with Triem's
violations. ABA Standards sec. 4.42 commentary (citing cases
involving failure to appear in court, failure to file pleadings,
and failure to prosecute). Consequently, we order that Triem be
suspended from the practice of law for a period of ninety days. We
recognize that the ABA Standards disfavor suspensions of less than
six months on the theory that such suspensions are a less effective
means of rehabilitation. Commentary to ABA Standards Rule 2.3.
However, in our view, under the circumstances of this case a
ninety-day suspension will impose considerable hardship and will be
a significant sanction for Triem, a solo practitioner in a small
community. Additionally, we adopt the committee's recommendation
that Triem be placed on probation and required to participate in
continuing legal education on time and practice management. We
remand for imposition of appropriate probationary terms and
conditions.
3. Triem engaged in dishonesty in McCarty.
The relevant facts in the McCarty matter are not
contested. The only issue is whether Triem's failure to notify
McCarty that he had taken actions to render his earlier statements
false constitutes dishonesty in violation of DR 1-102(A)(4). In
finding a violation, the committee concluded that
a statement is no less false because it was
rendered false after the statement was made.
Mr. Triem intentionally rendered his statement
to Mr. McCarty false by his act of retrieving
the discovery materials from the mail. By so
doing, he had the affirmative duty to contact
Mr. McCarty and correct his statement.
Triem contends that Bar Counsel failed to prove, by clear
and convincing evidence, the essential element of intent to commit
"dishonesty, fraud, deceit or misrepresentation." Triem argues a
contract theory to explain the exchange between himself and
McCarty. He argues that his offer to send the discovery materials
was rejected when McCarty responded with a nonconforming demand
that the materials be faxed by noon that day. Given this
explanation, Triem contends, Bar Counsel has failed to show that
Triem acted with dishonest intent.
We have held that intent is required to find a violation
of DR 1-102(A)(4). In re West, 805 P.2d at 353. However, it is
permissible to infer that an accused intends the natural and
probable consequences of his or her knowing actions. Calantas v.
State, 608 P.2d 34, 36 (Alaska 1980).
Triem's contract explanation of his actions in McCarty is
unpersuasive. Triem's letter to McCarty did not offer to send the
discovery materials; it stated that Triem already had sent them in
"yesterday's mail." In his postscript to the letter, Triem offered
to fax the materials. The dishonesty found by the committee was
not the failure to fax the materials, but Triem's retrieval of them
from the post office and his failure to notify McCarty of this
fact. It is reasonable to infer that Triem intended to render his
earlier statement false when he retrieved the discovery materials
and did not notify McCarty of this fact. (EN23) Therefore, we hold
the record provides substantial evidence that Triem had the
necessary intent to be act dishonestly in violation of DR 1-
102(A)(4).
Under the ABA Standards, false statements, fraud, and
misrepresentation can be sanctioned by disbarment, suspension,
reprimand, or an admonition. ABA Standards sec. 6.1. Reprimands
are generally reserved for cases in which lawyers negligently make
false statements or fail to take remedial actions when material
information is withheld. ABA Standards sec. 6.13. Although we
hold that Triem acted with intentional dishonesty, we impose the
sanction of public censure. We note that Triem did not submit
false documents to the court and that although his failure to
comply with discovery could be broadly interpreted as the
withholding of material information from the court, Triem was
penalized for this discovery abuse by the trial court's entry of a
default judgment against him and the other defendants.
Nonetheless, as the committee observed, "integrity is, and ought to
be, the cornerstone of attorney ethics. Deceit to gain monetary
advantage is no more or less culpable than to gain emotional
satisfaction or retribution." Conduct such as Triem's contributes
to the perpetuation of the stereotype of lawyers as unscrupulous
and unprincipled. To combat this stereotype, we hold that public
censure of Triem is warranted. (EN24)
IV. CONCLUSION
We REVERSE the Board's dismissal of the Lubin complaint
and hold, in accordance with the findings of the committee, that
Triem violated DR 9-102(B)(4), DR 9-102(B)(3), and DR 9-102(A)(2)
by failing to promptly return his client's money, failing to render
an accounting of that money, and by improperly deducting attorney's
fees. For these violations we impose the sanction of public
censure and order Triem to pay restitution to Lubin for lost
interest. We AFFIRM the Board's finding of ethical violations in
the Zorich and McCarty matters. For neglecting a legal matter
entrusted to him by Zorich in violation of DR 6-101(A)(3), we hold
that Triem must be suspended from the practice of law for ninety
days and placed on probation. We REMAND to the Board for the
determination of the terms and conditions of probation, such terms
to include the requirement of continuing legal education on
practice and time management. For intentional dishonesty to
McCarty in violation of DR 1-102(A)(4), we hold that the proper
sanction is public censure. COMPTON, Chief Justice, dissenting in part.
I agree with all aspects of the court's opinion, except
for the court's imposition of a ninety-day suspension in the Zurich
matter. To protect the public, and to insure that Triem is
effectively rehabilitated, I would impose a six-month suspension.
This court has held that the American Bar Association's
Standards for Imposing Lawyer Sanctions are an "appropriate model
for determining sanctions for lawyer misconduct"in Alaska.
In re Buckalew, 731 P.2d 48, 52 (Alaska 1986). The Standards
provide in part that suspensions "should be for a period of time
equal to or greater than six months." American Bar Association
Standards for Imposing Lawyer Sanctions sec. 2.3 (1992) reprinted
in Laws. Man. on Prof. Conduct (ABA/BNA) 01:810-11 (1995). Short-
term suspensions "are not an effective means of protecting the
public." ABA Standards sec. 2.3 commentary, ABA/BNA at 01:811.
Suspensions of at least six months help "insure that the attorney
has been rehabilitated before he or she resumes practice." Id.
("While it may be possible in some cases for a lawyer to show
rehabilitation in less than six months, it is preferable to suspend
a lawyer for at least six months in order to insure effective
demonstration of rehabilitation.").
In imposing a suspension, the court notes that probation
and public censure have proven to be ineffective in influencing
Triem's conduct. I am skeptical a ninety-day suspension will
succeed where probation and public censure have failed. A ninety-
day suspension is not so much a substantial penalty as it is an
unpaid vacation because it allows Triem merely to delay performing
requested services. (EN1) See id. ("In reality, a short-term
suspension functions as a fine on the lawyer, and fines are not one
of the recommended sanctions . . . ."). If Triem's misconduct is
serious enough to warrant a suspension from practice, then he
should be made to suffer the consequences of its actual cessation.
A six-month suspension accomplishes this end.
ENDNOTES:
1. The Zorichs purchased the lot from Gural in 1977.
2. Triem wrote to Fairbanks Title on December 30, 1989, and
received copies of the quitclaim and reconveyance deeds, which he
forwarded to Zorich on February 10, 1990.
3. Triem was disqualified on the basis that he could not be both
the attorney and a witness in the matter.
4. Bar Counsel consolidated the Lubin and Zorich grievances under
Alaska Bar Rule 22 and one Area Hearing Committee considered these
consolidated grievances.
5. In 1994, Alaska Bar Rule 15 was amended to delete the Alaska
Code of Professional Responsibility as a source for attorney
discipline. Supreme Court Order No. 1156, effective July 15, 1994.
Because the conduct at issue occurred before this amendment, we
apply the Alaska Code of Professional Responsibility.
6. Despite the fact that Triem filed Walsh's affidavit late, the
committee considered this material over the objection of Bar
Counsel "just in an excess of caution to . . . not let the
potential for a meritorious defense here be lost due to a timing
deadline." Wagner also stated that the committee decided to hear
Walsh's testimony because her affidavit "raised an issue . . .
going to . . . Mr. Triem's truthfulness before the committee."
Wagner went on to state:
Now the truthfulness before the committee
issue wasn't one that had been briefed by Bar
counsel when this thing first started and it
wasn't brought as an allegation but it was one
that the committee raised later on in the
proceedings. . . . and had to do with Mr.
Triem's testimony that he told Mr. Lubin that
the reason that he wasn't going to get his
money back at least in part had to do with
satisfying the seller . . . . But that's why
we decided that we wanted to hear from Ms.
Walsh in particular, to probe her recollection
of what exactly she -- the conversation she
had with Mr. Lubin.
7. The committee specified that the following sanctions would be
warranted: a censure or a public reprimand, probation, and
required participation in continuing legal education on practice
management or time management for the neglect in Zorich; a public
reprimand for the premature withdrawal of the attorney's fees in
Lubin; and a public reprimand or censure for the failure to
promptly return Lubin's money.
8. The committee stated, "Triem deliberately testified falsely
regarding . . . his conversation with Lubin when he stated that he
told Lubin he would not return the money until he heard from the
seller . . . ."
9. We reject Triem's additional argument that the Alaska Bar
Rules afford no right of appeal to Bar Counsel, who is only
entitled to limited discretionary review by filing a petition with
this court under Alaska Bar Rule 25(h). Alaska Bar Rule 22(p)
clearly states that Bar Counsel and respondent have a right of
appeal within ten days of an order or recommendation of the Board.
10. At various points, Triem alleges that the Lubin/Zorich
committee had a secret agenda or that Chairperson Wagner had
prematurely made up his mind. As support for these allegations
Triem points to Wagner's statement at the end of second hearing
that he was "leaning in the direction"of finding that Triem had
been dishonest in his testimony before the committee. Wagner made
this statement as a part of his instructions to Triem regarding the
required scope of his brief on sanctions. This statement was not
a premature decision on Wagner's part, however, but rather came
after two hearings. Furthermore, the committee held a third
hearing in part to allow Triem opportunity to support his testimony
before the committee. Therefore, this does not amount to a showing
of a predisposition against Triem.
11. Wagner had to be in court later that morning, and Triem
contends that Wagner notified the parties off the record that the
hearing "would be operated at high speed and with little
opportunity for Triem to conduct any cross-examination." At points
in the second hearing, Wagner did note time limitations.
12. The committee's finding of dishonesty by Triem during the
disciplinary process is adequately supported by the record and we
do not find it to be clearly erroneous.
13. The committee separately set forth preliminary sanction
recommendations, noted Triem's dishonesty before the committee and
thus concluded that "[i]t is therefore the committee's
recommendation that Attorney Triem be suspended from the practice
of law for up to one year."
14. Triem also contends that he did not get a fair trial because
Bar Rule 22 allows the imposition of discipline without a right of
appeal or a de novo hearing. Triem argues that he was denied a de
novo hearing because the committee was prejudiced by the advance
information of the Bar Counsel's proposal of a private admonition.
This is a specious argument. Upon Triem's rejection of the
proposed discipline, the private admonition was vacated. At the
formal hearing before the committee, Bar Counsel had the burden of
demonstrating misconduct by clear and convincing evidence. Alaska
Bar R. 22(e). Because Triem was given an opportunity to respond,
the committee's receipt of all the documents evaluated by Bar
Counsel did not prejudice Triem.
15. The Bar Rules provide other protections against unfairness
that may arise from the dual roles given to Bar Counsel in the
early stage of attorney grievances. See, e.g., Alaska Bar R. 22(a)
(grievance must be served on respondent who, upon request by Bar
Counsel, must respond with full and fair disclosure of all facts
and circumstances); Alaska Bar R. 22(b) (a duty of confidentiality
is imposed on complainants and all persons contacted during the
course of Bar Counsel's investigation prior to the initiation of
formal proceedings); Alaska Bar R. 22(d) (Bar Counsel must receive
the approval of an Area Division Member before imposing a written
private admonition, which may be vacated by respondent); and Alaska
Bar R. 25(d) (Bar Counsel must get approval from the Board
Discipline Liaison prior to filing a petition for a formal
hearing).
16. In a letter sent before Bar Counsel proposed private
discipline, Triem informed Bar Counsel that he was concerned about
his ability to defend the McCarty charges with the passage of time.
Triem contends that he was prejudiced by the delay in that two "key
witnesses,"his secretary and a postal worker, moved away.
17. ABA Standards, sec. 3.0 states:
In imposing a sanction after a finding of
lawyer misconduct, a court should consider the
following factors:
(a) the duty violated;
(b) the lawyer's mental state; and
(c) the actual or potential injury caused by
the lawyer's misconduct; and
(d) the existence of aggravating or
mitigating factors.
18. Triem was on probation for four consolidated cases in which
Triem was found to have violated Bar Rule 15(a)(4) (previously Rule
11(b)), for failure to answer the formal complaints against him; DR
7-101(2), for a pattern of neglect; and DR 1-102(A)(6), for conduct
that adversely reflected on his fitness to practice law.
19. The only Petition for Formal Hearing filed in McCarty was
filed in April 1993. Bar Counsel sent Triem a copy of a draft
petition in October 1992.
20. DR 9-102(A)(2) states:
(2) Funds belonging in part to a client and
in part presently or potentially to the lawyer
or law firm must be deposited [in one or more
identifiable bank accounts maintained in the
state in which the law office is situated],
but the portion belonging to the lawyer or law
firm may be withdrawn when due unless the
right of the lawyer or law firm to receive it
is disputed by the client, in which event the
disputed portion shall not be withdrawn until
the dispute is finally resolved.
21. Although Triem began to execute the alternate strategy of deed
reconveyances, he did not follow through on this plan in an
expedient manner. Triem initially requested a reconveyance from
the title company in October 1988, but did not follow up on this
request until December 1989. Similarly, although Triem sent a
quitclaim deed to Mrs. Hartman for her signature, Triem did nothing
to assure the expedient execution and filing of this deed and was
unaware that it had been filed until notified by Zorich in the
spring of 1990. Finally, Triem argues that a final judgment was
not abandoned but its entry merely delayed until a later time.
However, Triem took no steps to notify the court that a final
judgment would not be immediately pursued or to protect Zorich's
ability to pursue attorney's fees and damages at a later date.
22. ABA Standards sec. 4.41 states that disbarment is generally
appropriate when a lawyer abandons his or her practice, knowingly
fails to perform services, or engages in a pattern of neglect,
resulting in serious or potentially serious injury to the client.
23. Furthermore, as Bar Counsel notes, the Alaska Rules of
Professional Conduct recognize a number of instances in which
lawyers have the duty to correct misstatements or make disclosures
necessary to avoid a misunderstanding. Alaska R. Prof. Conduct 3.3
cmt. (failure to make disclosure to court can be equivalent to
affirmative misrepresentation); Alaska R. Prof. Conduct 4.1 cmt.
(misrepresentations can occur by failure to act); Alaska R. Prof.
Conduct 8.1(b) (lawyer in admission or disciplinary matter shall
not fail to correct misapprehension of another); Alaska R. Prof.
Conduct 8.1 cmt. (requiring affirmative clarification of any
misunderstandings).
24. Additionally, we conclude that the Board did not err in
considering Triem's failure to acknowledge his violations as an
aggravating factor. Triem argues that doing so represents an
"unconstitutional condition"requiring him to forego his right to
appeal the private admonition to avoid a higher penalty.
The Board's consideration of Triem's refusal, throughout the
course of the disciplinary proceedings, to acknowledge his ethical
violations did not compromise Triem's right to reject the private
admonition and to appeal. Triem was free to reject the private
admonition and petition for a formal hearing. Furthermore, the
routine acceptance of this aggravating factor refutes Triem's
argument. The ABA Standards include "refusal to acknowledge
wrongful nature of conduct"as an aggravating factor to be
considered in the determination of the proper sanction. ABA
Standards sec. 9.22(g). Additionally, many courts, including this
court, have recognized this as an aggravating circumstance. See,
e.g., In re Wiederholt, 877 P.2d 765, 775, app. c (Alaska 1994)
(treating absence of acknowledgment of responsibility as an
aggravating factor and noting that any hope for improvement is
dim); In re Mann, 853 P.2d 1115, 1119-20 n.15 (Alaska 1993)
(treating remorse as a mitigating factor); In re Schuler, 818 P.2d
138, 143-44 (Alaska 1991) (treating remorse as a significant
mitigating factor); Burrell v. Disciplinary Bd. of Alaska Bar
Ass'n, 777 P.2d 1140, 1144-45 (Alaska 1989) (treating attorney's
refusal to acknowledge wrongfulness as an aggravating factor).
Finally, it is reasonable to consider the ability to recognize
misconduct and to accept responsibility for it to indicate a higher
likelihood of rehabilitation.
ENDNOTES (Dissent):
1. It is not clear to me what "circumstances of this case"
suggest that a "ninety-day suspension will impose considerable
hardship and will be a significant sanction for Triem, a solo
practitioner in a small community." I find no mitigators for
"solo"practitioners, or practitioners in a "small community,"
advanced in the ABA Standards, nor are any readily apparent.
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