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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Ford (01/27/2006) sp-5979
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, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| In the Disciplinary Matter | ) |
| Involving | ) Supreme Court No. S- 11504 |
| ) | |
| WILLIAM T. FORD, | ) ABA File No. 2000D232 |
| ) | |
| Respondent. | ) O P I N I O N |
| ) | |
[No.
5979 - January 27, 2006]
Appeal from the Alaska Bar Association
Disciplinary Board.
Appearances: Robert C. Erwin, Erwin & Erwin,
LLC, Anchorage, for Respondent. Mark
Woelber, Assistant Bar Counsel, Alaska Bar
Association.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Although the superior court directed attorney William
T. Ford to deposit a $20,000 check in Fords client trust account,
Ford mailed the uncashed check back to the out-of-state payor.
Because Ford knowingly disobey[ed] an order of a tribunal in
violation of Alaska Rule of Professional Conduct 3.4(c), the
disciplinary board of the Alaska Bar Association recommended that
Ford be suspended from practice for ninety days. In exercising
our responsibility for attorney discipline in Alaska, we
independently conclude that a ninety-day suspension is
appropriate under the facts presented. We therefore order Ford
suspended for ninety days.
II. FACTS AND PROCEEDINGS
The facts in this case are undisputed. William T. Ford
is an attorney licensed to practice in Alaska. In 2000 he was
hired to represent Gary Green in a post-trial divorce proceeding.
Following entry of the final divorce decree, Greens ex-wife asked
the superior court to order the sale of property to satisfy the
$105,000 judgment. Green did not have $105,000 to post a
supersedeas bond pending appeal. Ford suggested to Green that if
Green could borrow money to at least cover the interest on the
judgment, they might negotiate a stay of execution. Green
borrowed $20,000 from a relative, who sent to Fords office a
cashiers check payable to Ford. At a superior court hearing on
the motion to sell the property, Ford offered the $20,000 on
behalf of his client to obtain a stay of execution. The superior
court agreed with that proposal and opposing counsel prepared a
proposed order directing that the $20,000 check be deposited in
Fords trust account and that the funds then be transferred to
opposing counsel. The proposed order, however, did not provide
for a stay of execution. Ford objected to this omission but the
superior court signed the order as proposed. After conferring
with his client, Ford did not deposit the check in the trust
account but returned the uncashed check to the lender. Ford then
notified opposing counsel of what he had done. When Green was
unable to obtain other funds to satisfy the court order, the
superior court referred the matter to the Alaska Bar Association.
Bar counsel petitioned for a formal hearing, alleging that Ford
had violated Alaska Rule of Professional Conduct 3.4(c).1 The
hearing committee granted the Bar Associations petition for
summary judgment on the issue of misconduct. It then held a
hearing on the issue of sanctions and determined that a thirty-
day suspension was appropriate. The disciplinary board reviewed
the hearing committees decision and adopted the committees
findings of fact and conclusions of law regarding misconduct. But
it rejected, by a vote of five-to-three, the hearing committees
proposed sanction and instead recommended a ninety-day
suspension. Ford appealed.
We initially remanded this case to the disciplinary
board because the board did not explain why it had recommended a
longer suspension than the hearing committee had proposed, and
because it had not explained how earlier violations by Ford
affected the boards analysis. On remand, the disciplinary board
made additional findings, and unanimously recommended a ninety-
day suspension.
III. DISCUSSION A. Standard of Review
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.2 We determine sanctions on a case-
by-case basis, guided but not constrained by the American Bar
Associations Standards for Imposing Lawyer Sanctions and by the
sanctions imposed in comparable disciplinary proceedings.3
B. Summary Judgment
Ford submits that he has found no case involving
professional discipline of an attorney in Alaska where the
decision on liability was decided without a hearing. He refers to
In re Friedman4 and In re Triem5 and argues that a reading of
[these cases] reveals that the Alaska Supreme Court affirmed the
findings . . . only after finding that additional evidence
bolstered the original decision in Friedman and after a hearing
was in fact held in Triem. But these decisions do not indicate
that the hearing committee is prohibited from granting summary
judgment on the issue of misconduct. Summary judgment is proper
if there is no genuine issue of material fact.6 We see no reason
why the standard governing summary judgment should be different
in the disciplinary context.7
Conduct Rule 3.4(c) provides that a lawyer shall not
knowingly violate a court order.8 Ford did not deny that he
knowingly violated the superior courts order; rather, he denied
that he did so willfully because he thought he had a duty to
follow the instructions of his client. He argued that the reason
for the action taken determines whether or not he committed
professional misconduct and that he had to return the funds to
the source from which they came as requested by his client
[because] the stated purpose for using them was refused.
But even if Ford did not want to disobey the court
order, there is no genuine factual dispute that he nonetheless
knew that he was disobeying a valid order. As the Bar
Association points out, Ford did not openly refuse to comply with
the order as allowed by Conduct Rule 3.4(c)9; and Ford does not
attempt to rely on this exception. There was therefore no
genuine issue of material fact as to whether Ford knowingly
violated the superior courts order. Accordingly, the hearing
committee did not err in resolving the issue by granting partial
summary judgment.
And, in any event, we are the ultimate finder of fact
in bar disciplinary matters.10 Ford does not deny that he
knowingly violated the superior courts order and his defense that
he had to return the money because his client directed him to do
so does not absolve Fords misconduct.11 Alaska Rule of
Professional Conduct 1.2(e) provides: When a lawyer knows that a
client expects assistance not permitted by the rules of
professional conduct or other law, the lawyer shall consult with
the client regarding the relevant limitations on the lawyers
conduct. This provision indicates that a clients wishes or
interests do not supersede a lawyers ethical obligations. We
therefore agree with the hearing committee and the disciplinary
board that Ford violated Conduct Rule 3.4(c).
We are aware that difficulties may arise if an attorney
honestly believes he or she is caught between obligations to the
client and obligations to the court. But Ford could have taken
other action. If he believed that the court order was invalid,
Conduct Rule 3.4(c) allowed for an open refusal.12 If he felt he
was obliged to disobey the superior courts order he should have
done so openly by informing the superior court that he could not
comply with the order. Moreover, if Ford felt he could not
ethically turn over the money to opposing counsel, he could have
placed the check in the registry of the court, or could have at
least retained the check while seeking appellate review. Instead
of immediately seeking a stay, he filed no superior court stay
motion and first sought a stay from us three weeks after he had
already returned the check. By unilaterally returning the check
to the out-of-state payor, Ford placed the funds beyond the reach
of the Alaska courts.
If, as Ford argues, the superior courts Order to
Deposit and Disburse was patently wrong, his best course was to
challenge the order and take procedural steps to preserve the
status quo during that challenge. He should have sought a stay
under Alaska Appellate Rule 205, and if that was denied he could
have sought an expedited ruling as to the deposit issue.
Alaska Rule of Professional Conduct 1.16(a) states that
a lawyer shall withdraw from the representation of a client if .
. . the representation will result in violation of the rules of
professional conduct or other law. If Ford believed that
complying with the superior court order would violate
professional ethics, he might also have petitioned the court to
allow him to withdraw as counsel. An attorney may challenge a
court order by motion, appeal, or other legal means, but may not
simply disregard it.
Finally, we observe that Fords dilemma resulted from
his own failure to foresee that once the funds were in his or his
clients possession, the clients former spouse might attempt to
attach the funds and might succeed in obtaining a court order
allowing execution. Ford could have avoided this potential
problem by instructing his client to have the lender deliver the
check only after the proposed deal was signed and ordered.
C. Sanctions
Ford argues that the disciplinary board simply
substituted its judgment for that of the hearing committee and
increased the sanctions to 90 days without the benefit of hearing
the witnesses, argument or observing Mr. Ford at the hearing.
(Internal citation omitted.) He further contends that due
process of law requires more than a substitution of judgment by
the [disciplinary board], in order for any weight to be given to
Board actions.
Alaska Bar Rule 10(c)(5) provides that the disciplinary
board shall have the power to review and modify the findings of
fact, conclusions of law, and recommendations of Hearing
Committees regardless of whether there has been an appeal to the
Board, and without regard to the discipline recommended by the
Hearing Committee. Nothing in this rule states or implies that
the board must conduct an independent evidentiary hearing, order
briefing, or hold oral arguments before issuing decisions. The
Bar Association notes that the existence of Bar Rule 10(c)(5)
gave notice to Ford of the disciplinary boards prerogative.
Regardless, we exercise our independent judgment in questions
concerning the appropriateness of sanctions.13 We accept or
reject the recommendation of the disciplinary board based on our
reading of the record. For reasons discussed below, we accept
that recommendation in this case.
We follow a three-step analysis in imposing attorney
sanctions.14 First, we address the first three prongs of the ABA
Standards for imposing sanctions, determining the duty violated,
the lawyers mental state, and the extent of the actual or
potential injury.15 Second, we look to the ABA Standards to
discern what sanction is recommended for the type of misconduct
found in [step 1].16 Third, after determining the recommended
sanction, we decide whether aggravating or mitigating factors
should affect that sanction.17
1. Prong One: duty violation, mental state, injury
The hearing committee found that Ford by knowingly
disobeying a court order violated the duty imposed by Conduct
Rule 3.4(c).18 The disciplinary board reviewed the record and
adopted the committees findings and conclusions. For reasons
explained above, it is clear that Ford violated Conduct Rule
3.4(c).
As to his mental state, the hearing committee found
that Ford knowingly disobeyed the court order when he returned
the funds to the lender, in compliance with the instructions from
his client, but in violation of the court order. Ford does not
contest that he knowingly violated the order. Rather he claims
that he was caught between two conflicting duties. He maintains
that the choice he made was required by his fiduciary duty to his
client which he could not ignore because of his professional
responsibility to that client under the Rules of Professional
Conduct, Rules 1.1 [Competence], 1.2 [Scope of Representation]
and 1.15 [Safekeeping Property]. We do not question Fords
sincerity in believing that the code of professional conduct
required him to return the check. Even so, such a belief does
not seem reasonable. Conduct Rule 1.15, governing safeguarding
of client property, is the rule most on point. Yet the comment
to Conduct Rule 1.15 declares that:
Third parties, such as a clients creditors,
may have just claims against funds and other
property in a lawyers custody. A lawyer may
have a duty under applicable law to protect
such third party claims against wrongful
interference by the client, and accordingly
may refuse to surrender the property to the
client.
Fords contention that he did not act willfully but only out of a
sense of obligation to his client might be more powerful if the
ethical conflict had been as strong as he suggests. But given
the statement of the comment to Conduct Rule 1.15 that a lawyer
may refuse to surrender the property to a client and given the
duty to protect third parties that was at least potentially at
stake, Ford should have realized that he was required to follow
the court order, or at least could not act unilaterally to
prevent it from being obeyed. We do not regard Fords ethical
dilemma as significantly mitigating his knowing violation of
Conduct Rule 3.4(c).
With respect to injury, the hearing committee noted
that [r]esisting court orders can interfere with the efficient
operation of the court system. The Bar Association properly
noted that Fords defiance of the legal process was the sort of
conduct that by its nature promotes public disrespect for the
legal profession.19 It is not desirable for lawyers to decide
when to comply with court orders outside the confines of the
exception provided in Conduct Rule 3.4(c).
2. Prong Two: presumptive sanction
ABA Standards 6.22 provides that suspension is
generally appropriate when a lawyer knows that he or she is
violating a court order or rule and there is injury or potential
injury to a client or a party, or interference or potential
interference with a legal proceeding. ABA Standards 2.3 states
that [g]enerally, suspension should be for a period of time equal
to or greater than six months.20
3. Prong Three: aggravating and mitigating
circumstances
The ABA Standards recognize eleven aggravating factors.21
The hearing committee found two aggravators: prior disciplinary
offenses and a pattern of misconduct. It noted that Ford does
have a recurrent record of disciplinary actions, including 3
recent matters within less than 10 years and that Ford had
previously been admonished for violating a court order. Fords
substantial experience in the practice of law is an additional
aggravator.22 The hearing committee found two mitigating factors
out of the thirteen recognized by the ABA Standards.23 The
committee found that Ford did not act with a dishonest or selfish
motive and promptly disclosed his conduct and fully cooperated
with the ensuing proceedings.
There is no magic formula for determining how
aggravating and mitigating circumstances affect an otherwise
appropriate sanction.24 Indeed, [e]ach case presents different
circumstances which must be weighed against the nature and
gravity of the lawyers misconduct. 25 As we noted above, we are
guided but not constrained by the [ABA Standards] and by the
sanctions imposed in comparable disciplinary proceedings.26 The
ABA Standards recommend that [g]enerally, suspension should be
for a period of time equal to or greater than six months.27 But
this court has in some cases imposed suspensions for less than
six months. We ordered ninety-day suspensions in Burrell v.
Disciplinary Board of the Alaska Bar Assn,28 in In re West,29 and
in In re Triem.30
4. Our prior cases
The misconduct in Burrell involved conflict of interest
and violation of a disqualification order.31 This court ordered
that Burrell be suspended from the active practice of law for 90
days with reinstatement conditioned on passage of the Multistate
Professional Responsibility Examination,32 reasoning:
Homer Burrells representation of Lynne
Burrell in a civil suit against James Hanger
constituted a conflict of interest, which is
a clear and significant violation of the Code
of Professional Responsibility. There is
also more than adequate evidence in the
record which demonstrates that Burrell
violated the terms of the superior courts
disqualification order. Actions like
Burrells seriously undermine the publics
confidence in Alaskas legal system.
Additionally, we think it of importance that
Burrell demonstrated a lack of appreciation
of the wrongfulness of his actions.[33]
In In re West, the attorney intentionally notarized his
deceased clients signature, knowing that the clients widow had
falsified the signature at [the attorneys] direction. [His]
motive was to induce the state to enter into a negotiated
property-loss settlement which would have at least temporarily
foundered if the clients fatal heart attack had been revealed.34
We concluded that Wests extensive practice experience provides
the only significant aggravating circumstance35 and agreed that
mitigating factors included mental disability or impairment at
the time of misconduct and evidence of good character and
reputation. 36 West received a ninety-day suspension.37
In In re Triem, the attorney received a ninety-day
suspension followed by probation for neglecting a legal matter
entrusted to him by his client.38 We noted that Triem has proven
that public censure or a period of probation is not effective in
influencing his conduct because he was already on probation for
neglecting another clients case.39 The court decided to impose a
ninety-day suspension instead of the six months recommended by
the ABA Standards because a ninety-day suspension will impose
considerable hardship and will be a significant sanction for
Triem, a solo practitioner in a small community.40
Fords actions in the current case are less serious than
the conduct in In re West and Burrell, and arguably no more
serious than the conduct in In re Triem. Because we are guided
by the sanctions imposed in comparable disciplinary proceedings,
it would be inappropriate to impose a longer sentence on Ford
simply because the ABA generally recommends suspension be at
least six months.
Yet we agree that a suspension is necessary. Ford
apparently believes that what he did was appropriate and he
insists that a lawyer can refuse to obey an order and be right.
Regardless of the propriety of the superior courts order, Ford
failed to follow the proper avenues of legal recourse by
appealing or seeking a stay. Fords conduct before and after the
incident demonstrates an ongoing disrespect for the legal
process.
This is not the first time the Bar Association found
that Ford knowingly violated a court order. In 1998 Ford advised
a client not to comply with an order to bring the parties
children back to Alaska for trial. Neither Ford nor his client
appeared for trial. Whether one regards this as the attorney
advising a client to ignore a court order, or as the attorney
himself failing to comply with the trial calendering order, the
disciplinary board concluded that Ford knowingly violat[ed] a
court order. As in the current case, Ford expressed no remorse
for his 1998 conduct. In defending his 1998 conduct, Ford wrote
in a letter to Bar counsel that if he had to do it all over
again, I doubt that I would have done much differently.
It is significant that Ford was admonished in 1998 for
knowingly violating a court order, the same type of violation
that is now before us. We conclude that the 1998 admonition
failed to deter Ford from knowingly violating the 2000 order.
This indicates to us that he would be equally undeterred by
public censure or probation, or any discipline short of
suspension.
There is no reported case in which we have imposed a
suspension of less than ninety days.41 Indeed, one member of this
court declared that
[a] ninety-day suspension is not so much a
substantial penalty as it is an unpaid
vacation because it allows [the attorney]
merely to delay performing requested services
. . . . If [an attorneys] misconduct is
serious enough to warrant a suspension from
practice, then he [or she] should be made to
suffer the consequences of its actual
cessation.[42]
We do not view a ninety-day suspension here as insubstantial.
Like Triem, Ford is a single practitioner and a suspension of
ninety days will likely result in significant hardship. But we
acknowledge that a sixty-day suspension might be perceived as a
vacation. A suspension shorter than ninety days would be
unlikely to deter Ford from future misconduct; a suspension
longer than ninety days would be out of line with suspensions we
have imposed for comparable violations.
IV. CONCLUSION
We therefore order Ford SUSPENDED from the practice of
law for ninety days.
_______________________________
1 Alaska Rule of Professional Conduct 3.4(c) provides: A
lawyer shall not knowingly violate or disobey an order of a
tribunal or the rules of a tribunal except for an open refusal
based on an assertion that the order is invalid or that no valid
obligation exists.
2 In re Friedman, 23 P.3d 620, 625 (Alaska 2001)
(internal quotation marks omitted).
3 Id. at 625 (internal citations omitted).
4 In re Friedman, 23 P.3d 620, 626 (Alaska 2001). In In
re Friedman the hearing committee made a finding of intent on
summary judgment. Id. at 624. We stated:
Although we are unenthusiastic about a
finding of intent on summary judgment, the
procedure followed here probably cured any
procedural deficiency: first, after hearing
Friedmans extensive testimony at the sanction
hearing, the hearing committee made
additional findings and conclusions; second,
the board independently considered the
committees proceedings, findings, and
conclusions, as well as the record.
Id.
5 In re Triem, 929 P.2d 634 (Alaska 1996). In In re
Triem the committee made a finding of intent [a]fter briefing was
completed and without oral argument or testimony. Id. at 639.
The board, on appeal, heard oral argument. Id. at 640. We
affirmed. Id. at 649.
6 Cf. Odsather v. Richardson, 96 P.3d 521, 523 n.2
(Alaska 2004) (noting that summary judgment is proper when the
record presents no genuine issues of material fact and the movant
is entitled to judgment as a matter of law).
7 Other jurisdictions addressing this issue have also so
held. See, e.g., The Florida Bar v. Mogil, 763 So. 2d 303, 308
(Fla. 2000) (holding that summary judgment was proper in
disciplinary proceeding in which attorney had conceded the issue
of guilt despite attorneys desire to have an opportunity to argue
his version of the facts in mitigation of discipline).
8 Alaska Rule of Professional Conduct 9.1(f) defines
knowingly as actual knowledge of the fact in question. And we
have stated that [k]nowing includes the conscious awareness of
the nature or attendant circumstances of the conduct . . .
without the conscious objective or purpose to accomplish a
particular result. In re Friedman, 23 P.3d at 626 (quoting
American Bar Association, Standards for Imposing Lawyer Sanctions
at 17 (1991) [hereinafter ABA Standards]).
9 Conduct Rule 3.4(c) allows an open refusal to comply
with an order based on an assertion that the order is invalid or
that no valid obligation exists.
10 In re Friedman, 23 P.3d at 626 (citing In re Frost, 863
P.2d 843, 844 (Alaska 1993)).
11 Although the client has not submitted any affidavit or
testimony that he instructed Ford to return the check, we assume
that Ford was, as he testified, acting under his clients
directions to return the check.
12 See 2 Geoffrey C. Hazard & William W. Hodes, Law of
Lawyering 30.9 (3d ed. 2005) (noting that Model Rule 3.4(c)
permits good faith noncompliance in order to test an orders
validity when done openly).
13 In re Friedman, 23 P.3d at 625.
14 Id.
15 Id.
16 In re Buckalew, 731 P.2d 48, 52 (Alaska 1986), quoted
in In re Friedman, 23 P.3d at 625 (internal quotation marks
omitted).
17 In re Friedman, 23 P.3d at 625.
18 The Bar Association argued below that Fords violation
of Conduct Rule 3.4(c) breached a duty owed to the legal system
and cited ABA Standards 6.2, which recommends sanctions for,
among other things, failure to obey any obligation under the
rules of a tribunal except for an open refusal based on an
assertion that no valid obligation exists . . . .
19 Cf. In re Friedman, 23 P.3d at 631 (noting that there
is public injury when lawyer fails to maintain personal
integrity by improperly handling entrusted funds).
20 The commentary to ABA Standards 2.3 points out that
short-term suspensions with automatic
reinstatement are not an effective means of
protecting the public. If a lawyers
misconduct is serious enough to warrant a
suspension from practice, the lawyer should
not be reinstated until rehabilitation can be
established. 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 ensure effective
demonstration of rehabilitation.
21 ABA Standards 9.22 states:
Aggravating factors include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the
disciplinary proceeding by intentionally
failing to comply with rules or orders of the
disciplinary agency;
(f) submission of false evidence, false
statements, or other deceptive practices
during the disciplinary process;
(g) refusal to acknowledge wrongful nature of
conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of
law;
(j) indifference to making restitution;
(k) illegal conduct, including that
involving the use of controlled substances.
22 See ABA Standards 9.22(i). Ford was admitted to the
Alaska Bar in 1979.
23 ABA Standards 9.32 states:
Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make
restitution or to rectify consequences of
misconduct;
(e) full and free disclosure to disciplinary
board or cooperative attitude toward
proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency
including alcoholism or drug abuse when:
(1) there is medical evidence that the
respondent is affected by a chemical
dependency or mental disability;
(2) the chemical dependency or mental
disability caused the misconduct;
(3) the respondents recovery from the
chemical dependency or mental disability is
demonstrated by a meaningful and sustained
period of successful rehabilitation; and
(4) the recovery arrested the
misconduct and recurrence of that misconduct
is unlikely.
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
24 In re Friedman, 23 P.3d at 633 (quoting In re Buckalew,
731 P.2d 48, 54 (Alaska 1986)).
25 Id. (quoting In re Buckalew, 731 P.2d at 54).
26 Id. at 625.
27 ABA Standards 2.3.
28 Burrell v. Disciplinary Bd. of Alaska Bar Assn, 702
P.2d 240, 244 (Alaska 1985). It should be noted that Burrell was
decided before we adopted the ABA Standards as a reference for
attorney misconduct cases in In re Buckalew, 731 P.2d at 52.
29 In re West, 805 P.2d 351, 359-60 (Alaska 1991).
30 In re Triem, 929 P.2d 634, 650 (Alaska 1996).
31 Burrell, 702 P.2d at 241.
32 Id. at 244.
33 Id. at 243-44.
34 In re Friedman, 23 P.3d at 633-34 (describing In re
West).
35 In re West, 805 P.2d at 358. The court noted that West
ha[d] been a member of the Alaska Bar Association since 1971.
Id.
36 Id. at 359 (quoting Bar Association hearing panel
findings).
37 Id. at 360.
38 In re Triem, 929 P.2d at 650.
39 Id. at 648.
40 Id.
41 In one case the disciplinary board recommended a sixty-
day suspension but we determined that a three-month suspension
was more appropriate. Burrell v. Disciplinary Bd. of Alaska Bar
Assn, 777 P.2d 1140, 1142, 1145 (Alaska 1989).
42 In re Triem, 929 P.2d at 650 (Compton, C.J.,
dissenting) (internal citation omitted).
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