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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Brion (07/17/2009) sp-6391
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- 13012 |
| ) | |
| JODY BRION, | ) ABA File Nos. 2005D191, 2006D052, |
| ) 2006D113, 2006D114, 2006D201 | |
| Respondent. | ) |
| ) O P I N I O N | |
| ) | |
| ) No. 6391 - July 17, 2009 | |
Appeal from the Alaska Bar Association
Disciplinary Board.
Appearances: Louise R. Driscoll, Assistant
Bar Counsel, Stephen J. Van Goor, Bar
Counsel, Anchorage, for Alaska Bar
Association. Jody Brion, pro se, Anchorage.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
PER CURIAM.
I. INTRODUCTION
The Disciplinary Board of the Alaska Bar Association
recommends suspending Jody Brion from the practice of law for
three years, with two of those years stayed. Brion requests a
shorter suspension. We agree with the Disciplinary Board and
order the recommended suspension and related conditions for
reinstatement.
II. FACTS AND PROCEEDINGS
In April 2007 Bar Counsel for the Alaska Bar
Association petitioned for a formal hearing on charges that, in
his representation of certain clients, Brion had violated the
Alaska Rules of Professional Conduct (Rules) relating to: (1)
reasonable diligence and promptness; (2) failure to communicate;
(3) failure to communicate properly the basis of his fees and to
provide accounts of hours billed; (4) failure to properly care
for client property; (5) failure to respond to the Bar
Association regarding client grievances; and (6) a general
failure to account properly for client funds and resulting
conflicts of interest. The petition contained allegations
specific to six different clients as well as allegations relating
to general record keeping and mismanagement of funds.
Referring to former client J.M. of Louisiana, Bar
Counsel alleged that Brion missed filing deadlines, did not
timely forward his clients spousal support payment, and failed to
file an alimony motion that his client had requested.
Referring to former client M.S. of Dutch Harbor, Bar
Counsel alleged that Brion: (1) repeatedly failed to return
client e-mails, phone calls, and faxes; (2) typically requested
documents just prior to court [discovery] deadlines; (3) failed
to meet court deadlines; and (4) submitted conflicting reports of
hours worked.
Referring to former client M.D. of Vanuatu, an island
nation in the South Pacific Ocean, Bar Counsel alleged that Brion
missed important filings and did not respond to M.D.s
communications.
Referring to former client J.C. of Georgia, Bar Counsel
alleged that Brion: (1) never provided J.C. with a fee schedule
or written fee agreement; (2) failed to respond to J.C.s requests
for information about his case; (3) repeatedly promised to file
certain motions but failed to do so; and (4) refunded the unused
portion of the retainer by a check that was returned due to
insufficient funds.
Referring to former client K.A., Bar Counsel alleged
that Brion: (1) failed to file essential papers; (2) ignored
court deadlines; and (3) did not return K.A.s phone calls
(although he billed her for the time spent listening to her
messages).
Referring to former client T.H. of Virginia, Bar
Counsel alleged that Brion: (1) never returned T.H.s phone
calls; (2) neglected to have papers served on T.H.s wife; (3)
mismanaged T.H.s retainer by not timely returning the unused
portion and failing to provide an invoice; and (4) failed to
respond to a formal bar complaint.
Bar Counsel also charged Brion with violating Rules
governing the safekeeping of client property and conflicts of
interest. In August 2006 Bar Counsel received notice that Brion
had overdrawn a trust account. During the subsequent
investigation, Brion misrepresented to Bar Counsel where he had
deposited certain checks and misrepresented the source of the
money he deposited in the trust account to correct the overdraft.
In October 2007 an Area Hearing Committee (the Panel)
convened to consider the charges against Brion, and the Panel
issued a report in November. In the cases of J.M., J.C., K.A.,
and T.H., the Panel found by clear and convincing evidence that
Brion violated Rule 1.3 (diligence) and Rule 1.4 (communication).
Similarly the Panel found Brion violated Rule 1.5(b) (written fee
agreement) in J.C.s case and Rule 15(a)(4) (responding to formal
bar complaint) in T.H.s case. The Panel also found that Brion
violated Rule 1.15 (handling client funds) in the trust account
matter. The Panel did not make findings regarding charges
relating to M.S. or M.D.
The Panel also addressed mitigating and aggravating
circumstances. In mitigation the Panel found that Brion had
shown by a preponderance of the evidence that he: (1) had no
prior disciplinary record; (2) lacked a selfish or dishonest
motive; (3) cooperated with and provided full and free disclosure
to the Bar Association; and (4) showed remorse. In aggravation
the Panel found that: (1) Brion had committed multiple offenses;
(2) the clients Brion victimized were especially vulnerable to
neglect and lack of diligence because most of them resided out-of-
state; and (3) Brion had substantial legal experience.
The Panels sanction recommendation was for three years
of suspension (staying two years of that suspension), along with
requirements that Brion participate in continuing legal education
classes and, upon returning to practice, that he hire an office
manager and find a mentor. The matter then was presented to the
Disciplinary Board of the Bar Association.
In February 2008 the Disciplinary Board held a hearing
and later issued findings, conclusions, and a recommendation.
The Board adopted the Panels report and recommended sanctions but
added two conditions to Brions reinstatement after the period of
suspension requiring retention of a certified public accountant
for his office financial matters and specifying twelve hours of
relevant continuing legal education classes.
The Disciplinary Boards decision is now before us.
III. STANDARD OF REVIEW
We review decisions of the Disciplinary Board pursuant
to Alaska Bar Rule 22(r). We review the evidence and the factual
findings of the Area Hearing Panel independently but give
deference to findings made by the Disciplinary Board.1 We review
the Boards disciplinary recommendations including the
appropriateness of sanctions independently.2
IV. DISCUSSION
Brion contends that the Disciplinary Board erred by
adopting the Panels suspension recommendation because it was
based on a faulty analysis namely that the base period of
suspension should be symmetrical to the length of time Brion
neglected his clients. Brion argues that the period of
suspension was too severe and was inconsistent with prior
disciplinary decisions. Brion also argues that the hearing
before the Disciplinary Board was rife with substantive and
procedural deficiencies. Brion devotes considerable attention to
the last point, arguing that: (1) the Disciplinary Board turned
his oral argument into a general fact finding question and answer
evidentiary hearing; (2) the Disciplinary Board relied on advice
from Bar Counsel rather than the Disciplinary Boards independent
counsel; (3) a member of the Disciplinary Board was wrongfully
disqualified due to her prior role in the case; (4) the record
and case law were not timely provided to the Disciplinary Board;
and (5) Assistant Bar Counsel used her presentation to engage in
pervasive character assassination and vilification.
A. Is the Sanction Appropriate?
1. Use of the symmetry approach; ABA standards
The Panel recommended a three-year suspension, looking
to the length of neglect [Brion] imposed on his clients and then
taking the longest delay imposed on one client ten months as
the starting point for its recommendation. It noted that this
created a sort of symmetry. From this starting point the Panel
added suspension time to reflect aggravating and mitigating
factors. The Disciplinary Board adopted the recommended
suspension without additional comment or analysis.
Brion contends the symmetry reasoning is ad hoc, and no
precedent supports it. We agree with Brion on this point. But
we also agree with the Bar Association that the Disciplinary
Board did not base its decision solely on this reasoning, but
rather relied on its own experience with discipline matters,
guidance provided by Alaska discipline decisions, and the
guidelines provided by ABA Standards for Imposing Sanctions.
ABA Standards for Imposing Lawyer Sanctions provide the
framework for sanctioning lawyers.3 The first step in the
analysis addresses 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.4 The second step looks to the ABA Standards to determine
what sanction is recommended for the type of misconduct at issue.5
The final step assesses aggravating and mitigating circumstances
to determine whether they warrant any amendment to the
recommended sanction.6 Applying this three-step analysis here,
we conclude that the Disciplinary Boards recommendation is
appropriate.
Step One: The primary duty violated was Brions duty to
his clients. His mental state was at least negligent for all the
violations. We agree with the Panels finding that ultimately in
light of the numerous times clients complained to him Brions
lack of diligence was committed knowingly. The record contains
substantial evidence of harm caused to Brions clients.
Step Two: In a case involving lack of diligence, the
ABA Standards provide that [s]uspension is generally appropriate
when: (a) a lawyer knowingly fails to perform services for a
client and causes injury or potential injury to a client, or (b)
a lawyer engages in a pattern of neglect [and] causes injury or
potential injury to a client.7 We agree that Brion acted
knowingly in some cases, while other cases demonstrate a pattern
of neglect, and that a period of suspension is an appropriate
sanction.
Step Three: We agree with the Panels findings of
aggravating and mitigating factors. We conclude that on balance
they do not warrant a sanction other than suspension, and that
the weight of the aggravating factors makes a lengthy suspension
appropriate. We therefore conclude that a three-year suspension
(with two of those years stayed) is an appropriate sanction. We
also agree with the Boards recommended conditions of
reinstatement, as they are designed to assist Brion in his return
to practice and ultimately will lower the probability of needing
to reinstate the stayed years of suspension.
2. Comparison with prior disciplinary decisions
Brion asserts that his suspension is too severe a
sanction when compared to prior suspensions recommended by the
Disciplinary Board. In particular Brion asserts his conduct was
less aggravated than that in In re Miles8 and In re Kohfield.9
The Panel considered these cases and concluded that Brions
conduct was more aggravated than Miless and comparable to
Kohfields.
The Miles case involved charges of neglect, poor
communication, failure to properly terminate representation, and
mismanagement of client funds.10 The parties stipulated to a
ninety-day stayed suspension with a two-year probation period,
which we affirmed.11 As mitigating factors the stipulation noted
that during the period of Miless misconduct: (1) her marriage
was breaking down; (2) several of her family members refused to
talk to her due to her marital problems; (3) she was in the
process of closing her law practice; and (4) she suffered severe
injuries (concussion, dislocated shoulder, knee injuries, bruised
kidneys, and a splinter in her eye) while running the Iditarod.12
Brions misconduct was more aggravated than Miless, and given the
absence of similar mitigating factors or any events sufficiently
severe or disruptive to explain his neglect and other
disciplinary violations the recommended sanction is not
inappropriate.
Brion convincingly argues that his misconduct was less
harmful and aggravated than Kohfields misconduct, which included
neglect, failure to communicate, failure to safekeep, refund, and
account for client funds, and failure to respond to grievances.13
But in that case Kohfield stipulated to an active two-year
suspension, twice as long as Brions, along with related
conditions, which we affirmed.14 And Brion fails to recognize
that in Kohfields case there were many mitigating factors not
present here, in that Kohfield: (1) had been chronically ill;
(2) had traveled long distances to visit a brother who was
seriously ill; (3) had serious computer problems that led to lost
files; (4) had to move offices; (5) was severely depressed;
(6) discovered that his roommate had sexually molested his
girlfriends daughter; and (7) found the body of his roommate who,
after having been confronted about the abuse, had killed himself.15
Brion has not shown mitigating factors of similar weight in his
case, so although Kohfields misconduct was worse, his active
suspension was longer and Brions sanction is justified.
B. Did the Board Hearing Comply with Due Process?
1. Fact-finding at oral argument
Brion first alleges that the Disciplinary Board engaged
in impermissible fact-finding at his oral argument before the
Board. He argues that this was a violation of the protections of
procedural due process in particular, that he was not given
adequate notice of what the hearing would involve and that he had
no opportunity to cross-examine witnesses or to present his own
witnesses. The Bar Association disputes Brions allegation that
he did not receive adequate notice of the timing and nature of
the proceedings. The Bar Association notes that Brion encouraged
the Disciplinary Board to ask him questions during his argument.
The Bar Association further notes that [n]othing prohibited the
Board from asking questions of Mr. Brion or bar counsel to help
the Board to determine whether the proposed sanction was
appropriate.
The Alaska Bar Rules provide the Disciplinary Board
with 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 Committees.16 The
transcript of the hearing reveals that: (1) Brion invited
questions from the Board ([I]f there is anything you want to
know, feel free to interrupt me and ask questions.); (2) the
Boards only interruption of Brions prepared remarks was to
clarify a procedural question Brion raised about appealing a
disciplinary matter; (3) the Boards questions came at the end of
Brions prepared remarks and mostly tended to clarify factual
matters, such as Brions staffing situation at the time of the
neglect, or to give him more time to explain issues he had raised
in his remarks; and (4) after Assistant Bar Counsels argument,
the Board also questioned matters she had raised. This was an
oral argument, not an evidentiary hearing, but the Boards
questions were appropriate to the setting.
2. Notice
Brion alleges that he was not given adequate notice of
what the hearing would involve. Bar Rule 10(c)(5) gives notice
of the Disciplinary Boards capacity to review and modify findings
of fact.17 The Bar Association mailed Brion a letter informing
him of the date and time of his hearing, along with a document
entitled Information for Respondent Attorneys and Respondents
Counsel in Disciplinary Cases before the Disciplinary Board.
That document included the following instruction:
As with stipulations, respondents counsel and
the respondent must be thoroughly prepared
for the Board proceeding and be ready to
answer questions concerning the underlying
facts, the legal issues presented, and the
application of the American Bar Association
Standards for Imposing Lawyer Sanctions.
Counsel and the respondent should be
particularly prepared to discuss the duties
violated, the respondents mental state, the
extent of injury or potential injury caused
by the conduct, the sanction suggested by the
Standards, and the existence of aggravating
and mitigating circumstances.
Under any standard this provides sufficient notice of the nature
of the proceedings, as well as the likelihood that the Board
would question Brion at oral arguments.
3. Cross-examination of witnesses
Brion contends that he was denied the opportunity to
cross examine witnesses who testified against him at the Board
even though he admits there were no witnesses at the hearing.
Brion contends that the source of a great deal of information
that went outside the record was Assistant Bar Counsel, who was
not available for cross examination after her diatribe. But the
transcript of Assistant Bar Counsels remarks reveals that:
(1) she did not deviate from information in the record; (2) she
gave Brion the opportunity to correct factual assertions; (3) her
remarks cannot be characterized as a diatribe;18 and (4) Brion was
given an opportunity to rebut those remarks. Brions argument
about cross-examination of witnesses is without merit.
4. Questions addressed to Bar Counsel
Brion alleges that the Disciplinary Board violated due
process by directing questions to Bar Counsel rather than to the
independent counsel assisting the Disciplinary Board. The Bar
Association contends that Brion has misconstrued the record, and
that Bar Counsel acted appropriately and did not advise the
Disciplinary Board on any matter of substance.
Brion cites to three points in the record where Bar
Counsel allegedly advised the Disciplinary Board: (1) Bar
Counsel relaying a message from the court reporter that there is
a problem with cell phones interfering with the recording and
advising all those present to turn off their cell phones; (2)
Assistant Bar Counsel interrupting proceedings to note that one
of the Board members might have been the Discipline Liaison on
the case and likely would be barred from participating in the
decision; and (3) Assistant Bar Counsel confirming that her
records showed the Board member had been the Discipline Liaison
and thus was barred from participating.
The first of these incidents is simply not, as Brion
alleges, a case of Bar Counsel acting as a legal advisor to the
Disciplinary Board. As to the second two incidents, we have said
that minimum requirements of procedural due process are not
offended by the attorney for the agency acting as advisor on
procedural matters.19 The Alaska Bar Rules make clear that a
Discipline Liaison must be excused from sitting on any grievance
or disability matter in which the Liaison has knowledge of the
matter arising from the performance of the Liaisons duties.20 It
was not a due process violation for Assistant Bar Counsel to
point out the Rule and give the Discipline Liaison the
opportunity to be excused from further proceedings.
5. Disqualificatio
n of Discipline
Liaison
Brion argues that removal of the Discipline Liaison
from the Disciplinary Board violated due process. He labels this
removal strange and troubling because the questions that the
[Discipline Liaison] asked seemed to be sympathetic to Mr. Brions
position.21
The Discipline Liaisons question began, In some of your
pleadings you put down that you recognize that your family
practice was . . . . At this point Assistant Bar Counsel
interrupted, alerting the Board that the speaker had been the
Discipline Liaison for the case. There is no indication that
this question would have been sympathetic to Brion. Nor is there
any indication of an ulterior or nefarious motive for removing
the Discipline Liaison from consideration of Brions case. The
transcript reflects only an intent to comply with Bar Rules and
to make sure that the Discipline Liaison did not bring any bias
to the decision, given that she had been exposed to evidence not
properly before the Board.
6. Failure to provide record to Board
Brion alleges that the Disciplinary Board had not been
provided with the record in his case prior to the hearing and
that the Board members therefore were unable to make an informed
decision. He also alleges that not having the record resulted in
the only source of information [being] the non-testimonial
diatribe of Assistant Bar Counsel.
Brion cites to a section of the hearing transcript to
support his claim that the Board did not receive the record. But
that section does not support his claim. Rather it demonstrates
that the Board members received the record and had time to
familiarize themselves with its content, as they cited to it in
their questions to Bar Counsel. The record also contains an
affidavit of service showing that the Bar Association sent Brion
and all members of the Disciplinary Board copies of the record on
January 3, 2008.
Brions claim is therefore meritless.
7. Failure to provide prior cases to Board
Brion alleges that prior Alaska discipline cases were
not provided to the Disciplinary Board and that these were
crucial to a reasoned decision on the severity of the discipline
(emphasis in original). In response the Bar Association argues
that: (1) the decisions were helpful, but not crucial; and
(2) the Disciplinary Board had access to the decisions.
Brion cites to several pages in the hearing transcript
to support his claim that the Disciplinary Board had not been
provided the relevant prior Alaska discipline cases. But those
pages do not support his claim. Rather they show that the Board
members were familiar with, asked follow-up questions about, and
had access to the cases.
Brions claim is therefore meritless.
8. Pervasive character assassination
Brions final allegation is that Assistant Bar Counsel
used her remarks to engage in pervasive character assassination
and vilification that was not part of the record and that he was
allowed inadequate time to rebut these remarks. Brions claim of
character assassination is without support. Assistant Bar
Counsels presentation was relatively brief, contained no
inflammatory or otherwise inappropriate remarks, and did not
stray from the record. She then answered questions from the
Disciplinary Board. Her responses to Board member questions were
similarly appropriate even commenting that Brion should correct
her on factual matters if necessary. As for Brions rebuttal, the
chair of the Disciplinary Board explained that Brion would have a
brief time to respond, but it would be very limited because
Brions opening presentation had been unusually lengthy.
Brions claim is therefore meritless.
V. CONCLUSION
We accept the Disciplinary Boards recommendation to
suspend Jody Brion from the practice of law for three years, with
two years of suspension stayed.
We also accept the Disciplinary Boards recommendations
for conditions of reinstatement. To be reinstated, Brion must
complete twelve hours of Bar Association continuing legal
education classes relating to law-office management and
accounting. During the two years following his reinstatement,
Brion also must: (1) retain an office manager (who may not be a
relative or a person with a direct financial interest in his
practice) with appropriate law-office experience to assist in
billing, case management, and trust account management; (2) hire
a licensed and insured certified public accountant to oversee all
general and trust accounts of the firm and to provide annual
written reports to the Bar; and (3) establish a mentor
relationship with an attorney approved by the Bar Association and
consult with that mentor bi-weekly, for no less than fifteen
minutes per meeting, about case management issues.
_______________________________
1 In re Frost, 863 P.2d 843, 844 (Alaska 1993).
2 Id. at 844-45; see also In re Wiederholt, 877 P.2d 765,
767 (Alaska 1994).
3 E.g., In re Ford, 128 P.3d 178, 182 (Alaska 2006); In
re Buckalew, 731 P.2d 48, 52 (Alaska 1986).
4 E.g., In re Friedman, 23 P.3d 620, 625 (Alaska 2001).
5 In re Schuler, 818 P.2d 138, 140 (Alaska 1991).
6 Id.
7 Standards for Imposing Lawyer Sanctions 4.42 (ABA
1992).
8 In re Miles, Stipulation for Discipline by Consent
Pursuant to Alaska Bar Rule 22(h), 11 (Apr. 4, 2005).
9 In re Kohfield, Stipulation for Discipline by Consent
Pursuant to Alaska Bar Rule 22(h), 24-25 (Jan. 6, 1997).
10 In re Miles at 11.
11 Alaska Supreme Court Order No. S-12042 (Sept. 14,
2005).
12 Id. at 14.
13 In re Kohfield, at 19-20.
14 Alaska Supreme Court Order No. S-07995 (April 1, 1997).
15 Id. at 24-25.
16 Alaska Bar R. 10(c)(5).
17 In re Ford, 128 P.3d at 182.
18 Websters Dictionary defines diatribe as a bitter and
abusive speech. Websters Third New Intl Dictionary 625 (3d ed.
1986).
19 In re Cornelius, 520 P.2d 76, 84 (Alaska 1974).
20 Alaska Bar R. 10(f)(3).
21 He also argues that the removal of the Discipline
Liaison was unlawful because it was based upon a recommendation
and legal advice by [Assistant Bar Counsel]. As noted earlier,
this argument has no merit.
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