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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Cyrus (11/5/2010) sp-6523
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-13694
)
) ABA File Nos. 2008D180, 2008D219,
EUGENE B. CYRUS, ) 2008D224, 2008D234, 2008D235, and
) 2008D251
)
Respondent. ) O P I N I O N
)
) No. 6523 - November 5, 2010
Original Application 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. Eugene B. Cyrus, pro se, Chugiak.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
WINFREE, Justice.
I. INTRODUCTION
Eugene B. Cyrus, an attorney presently on interim suspension, challenges
sanctions recommended by the Disciplinary Board of the Alaska Bar Association. The
recommended sanctions include: (1) suspending Cyrus from the practice of law for five
years, with two of those years stayed; and (2) following the three years of served
suspension, three years of probation with attendant conditions, including that Cyrus
practice law solely as an employee of an agency or firm. Cyrus agrees that a suspension
followed by a probationary period is an appropriate sanction, limiting his argument to a
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request that an additional year of the suspension be stayed so that he may practice in pro
bono matters under the supervision of a law firm or agency.
II. FACTS AND PROCEEDINGS
On April 3, 2006, we suspended Cyrus from the practice of law for six
months, effective May 3, 2006, and publicly censured him for professional misconduct
based on five complaints similar to those underlying this case.1 We reinstated Cyrus's
license to practice law on March 23, 2007.2 This case arose from six complaints the Bar
received from six state district court judges regarding problems each experienced in
dealing with Cyrus in court proceedings between March and December of 2008. Bar
Counsel opened the six complaints for investigation and sent separate letters notifying
Cyrus of his duty to respond. Cyrus did not respond to any of these letters. Pursuant to
Alaska Bar Rules 15(a)(4) and 22(a), Cyrus's failures to respond were grounds for
discipline and served as admissions to the allegations contained in the complaints.
In December 2008 the Bar requested that we place Cyrus on interim
suspension pursuant to Bar Rule 26(e) pending resolution of the complaints. On
January 28, 2009, we placed Cyrus on interim suspension, but stayed that order with
respect to a trial that Cyrus was then concluding.3 On February 3, 2009, we modified that
order to allow Cyrus to close or transfer open files, making the interim suspension
effective March 5, 2009.4
On February 19, 2009, the Bar initiated a petition for a formal hearing on
the complaints against Cyrus, alleging that Cyrus had violated the Alaska Rules of
1 Alaska Supreme Court Order No. S-12247 (Apr. 3, 2006).
2 Alaska Supreme Court Order No. S-12590 (Mar. 23, 2007).
3 Alaska Supreme Court Order No. S-13372 (Jan. 28, 2009).
4 Alaska Supreme Court Order No. S-13372 (Feb. 3, 2009).
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Professional Conduct and Alaska Bar Rules relating to: (1) competent representation of
clients;5 (2) failure to act with "reasonable diligence and promptness" in his
representation of clients;6 7
(3) failure to communicate with clients; (4) failure to make
"reasonable efforts to expedite litigation" consistent with the interests of his clients;8 and
(5) failure to answer disciplinary charges.9 On March 12, 2009, Cyrus responded to the
petition.
During an April 2009 pre-hearing conference before the Area Hearing
Committee selected to hear the matter, Cyrus admitted to almost all of the misconduct
alleged in the petition and waived the liability phase of proceedings.10 The Committee
convened a sanctions hearing in June 2009. During this hearing Cyrus admitted that the
allegations of the complaints were accurate, his actions "jeopardized [the] interest[s]" of
his clients, and he could not realistically run his own practice. Cyrus suggested that he
be allowed to practice under the supervision of a firm or agency capable of managing his
caseload, explaining that "a probationary period, with the right terms, that would have
an office manager, is probably the . . . the right way to go . . . so I can use the skills that
I have to help somebody."
In August 2009 the Committee issued its findings and conclusions,
ultimately recommending to the Disciplinary Board that (1) Cyrus be suspended from the
5 Alaska R. Prof. Conduct 1.1.
6 Alaska R. Prof. Conduct 1.3.
7 Alaska R. Prof. Conduct 1.4.
8 Alaska R. Prof. Conduct 3.2.
9 Alaska Bar R. 15(a).
10 Cyrus disputed an allegation relating to his conduct in one of the six matters
and Bar Counsel agreed to remove the allegation from the petition.
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practice of law for three years with six months stayed, and (2) Cyrus's reinstatement be
conditioned on proof of his employment with an agency or law firm that can adequately
supervise his practice and control his caseload. The Committee stated:
This sanction is consistent with discipline that has been
imposed for similar misconduct. See, e.g.,In re Beconovich,
Alaska Supreme Court Order Nos. S-5780/7110 (March 14,
1996) (three year suspension with sixteen months stayed for
neglect, failure to communicate and failure to respond to
disciplinary charges in four cases); In re Cavanaugh, Alaska
Supreme Court Order No. S-7504 (Feb. 15, 1996) (three year
suspension for neglect, failure to communicate and failure to
respond to disciplinary charges in four cases).
On September 17, 2009, the Disciplinary Board held a hearing to consider
the Committee's recommendation. During this hearing, Cyrus reiterated that he did not
dispute the allegations of the complaints and re-articulated his request to be placed on
supervised probation: "[M]y proposal is . . . that if I'm fortunate to find somebody that
will supervise my practice and caseload, that I should be allowed to be on probation . . . .
I would like three years with more time suspended on the condition that I work for
somebody."
In a September 17, 2009 written decision, the Board adopted the
Committee's findings and conclusions but not the Committee's recommended sanctions.
The Board instead recommended to us the following disciplinary sanctions:
(1) suspension from the practice of law for five years, with two of those years stayed; and
(2) following the three years of served suspension, three years of probation, during which
Cyrus must practice law solely as an employee of an agency or firm, commit no further
disciplinary violations, pay all fines and sanctions, obtain annual certification of
employment from his employer, and notify the Bar Association within ten days of any
change in his employment status.
The Bar served Cyrus with the Board's decision on November 12, 2009,
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and on November 16, 2009, filed the Board's findings, conclusions, and
recommendations with this court. Although Cyrus did not perfect an appeal under Bar
Rule 22(p),11 he submitted briefing challenging the Board's recommended discipline in
one limited aspect. Cyrus initially argued that he should be allowed to engage in pro
bono work under the supervision of an attorney or agency during the future portion of his
unstayed suspension. He later modified his request to cover only the last year of his
three-year unstayed suspension.
III. STANDARD OF REVIEW
We review decisions of the Disciplinary Board pursuant to Alaska Bar Rule
22(r).12 We independently review the entire record in attorney disciplinary proceedings,
though findings of fact made by the Board are entitled to great weight.13 "We apply our
independent judgment to questions of law and questions concerning the appropriateness
of sanctions."14 We examine each case individually, "guided but not constrained by the
American Bar Association's Standards for Imposing Lawyer Sanctions and by the
sanctions imposed in comparable disciplinary proceedings."15
11 Either Bar Counsel or a respondent may appeal a disciplinary
recommendation by the Board by filing a notice of appeal in our court within ten days
of service of the decision. Alaska Bar R. 22(p). In the absence of an appeal, we will not
impose discipline different from the Board's recommendation without giving the parties
notice and an opportunity to be heard. Alaska Bar R. 22(r).
12 Bar Rule 22(r); In re Brion, 212 P.3d 748, 751 (Alaska 2009).
13 In re West, 805 P.2d 351, 353 n.3 (Alaska 1991) (citingIn re Simpson, 645
P.2d 1223, 1226-28 (Alaska 1982)).
14 In re Hanlon, 110 P.3d 937, 941 (Alaska 2005) (citing In re Friedman, 23
P.3d 620, 625 (Alaska 2001)).
15 In re Friedman, 23 P.3d at 625 (citing In re Frost, 863 P.2d 843, 844
(continued...)
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In imposing attorney sanctions, we undertake a three-step analysis. We first
address: (1) the duty violated; (2) the lawyer's mental state; and (3) the extent of the
actual or potential injury.16 We next examine recommended sanctions under the ABA
Standards for misconduct found in the first step.17 We then determine how aggravating
or mitigating factors affect the recommended sanctions.18
IV. DISCUSSION
A. Overview
Cyrus does not dispute the Committee's factual findings, the Board's
adoption of those factual findings, the Committee's sanction analysis, or the Board's
adoption of that analysis. Cyrus concedes that a 30- to 36-month suspension is "certainly
reasonable for a 'second offender' mismanaging his office practice," does not argue that
the Board's recommendation of a five-year suspension with two years stayed is
inappropriate, and does not oppose the Board's recommendation for a three-year
probation term with related conditions of practice. Cyrus requests only that we add a
"special condition" allowing him, during the third year of his unstayed suspension
period, to practice law under the supervision of a law firm or agency serving the poor or
disadvantaged. The Bar opposes Cyrus's proposed modification of the Board's
recommended sanction. Therefore, following our independent review of the record, we
must answer two intertwined questions prior to our imposition of sanctions: (1) are the
sanctions recommended by the Board appropriate, and (2) should we grant Cyrus's
15 (...continued)
(Alaska 1993).
16 In re Hanlon, 110 P.3d at 941-42.
17 Id. at 942.
18 Id.
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request to practice under special conditions during the third year of unstayed suspension?
B. Appropriateness Of The Recommended Sanctions
1. The ethical duties violated, Cyrus's mental state, and the injury
or potential injury caused
Cyrus does not contest the factual findings reached by the Committee and
adopted by the Board, and we accept them. Our consideration of the initial stage of the
ABA analysis is thereby considerably simplified.
As to the first prong, the ethical duties violated, the Committee found that:
Cyrus had violated duties owed (1) to his clients by (a) failing to communicate with
them, (b) failing to appear at hearings, and (c) failing to file pleadings; and (2) to the
legal system by (a) causing unnecessary delay in court proceedings, and (b) failing to
respond to disciplinary charges. Cyrus acknowledges and admits that he violated these
ethical duties.
The second prong, Cyrus's mental state, is easily ascertained: Cyrus admits
that in light of his prior disciplinary suspension for similar misconduct, he saw these new
violations coming and acted with the culpable mental state of "knowingly."
The third prong, the injury or potential injury caused, is also readily
apparent. Cyrus's neglect and failure to communicate resulted in delay and post-
ponement of resolution of his clients' cases. Cyrus acknowledges this resulted in at least
potential harm to his clients.
In sum, the uncontested facts show that Cyrus knowingly violated ethical
duties to his clients and the legal system, which caused at least the potential for injury to
his clients.
2. ABA-recommended sanctions for Cyrus's misconduct
Our next step is to look to the ABA Standards to discern what sanctions are
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recommended for the type of misconduct found in our initial inquiry.19 The ABA
Standards state that suspension is generally appropriate when a lawyer causes injury or
potential injury to a client by knowingly failing to perform services for a client or
engaging in a pattern of neglect.20 Suspension also is generally appropriate when a
lawyer causes interference or potential interference with a legal proceeding by knowingly
violating a court order or rule.21 The Standards suggest such a suspension last from six
months to three years before the lawyer may apply for reinstatement.22 But the Standards
further state that "[d]isbarment is generally appropriate when a lawyer . . . has been
suspended for the same or similar misconduct, and intentionally or knowingly engages
in further acts of misconduct that cause injury or potential injury to a client, the public,
the legal system, or the profession."23
3. Aggravating and mitigating factors
The final step in our analysis is to determine whether aggravating or
mitigating factors should affect the sanction recommended by the ABA Standards.24 We
agree with the Committee's finding, adopted by the Board, that four aggravating factors
under ABA Standard 9.2 apply: (1) prior disciplinary offenses; (2) a pattern of
misconduct; (3) multiple offenses; and (4) substantial experience in the practice of law.
We also agree with the Committee's finding, adopted by the Board, that one mitigating
19 Id. at 942.
20 STANDARDS FOR IMPOSING LAWYER SANCTIONS § 4.42 (ABA 1992).
21 Id. at § 6.22. See also In re Hanlon, 110 P.3d at 942.
22 STANDARDS FOR IMPOSING LAWYER SANCTIONS at § 2.3.
23 Id. at § 8.1.
24 In re Hanlon, 110 P.3d at 942.
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factor under ABA Standard 9.3 applies: Cyrus did not have a dishonest or selfish motive;
rather, his conduct stemmed from taking on more work, much of it pro bono in nature,
than he could handle in an attempt to help as many clients as possible.
4. Recommended sanctions
When the Board issued its findings, conclusions, and recommendations, it
adopted the Committee's findings and conclusions but rejected without explanation the
Committee's recommended sanctions that (1) Cyrus be suspended from the practice of
law for three years with six months stayed, and (2) Cyrus's reinstatement be conditioned
on proof of his employment with an agency or law firm that can adequately supervise his
practice and control his caseload. Instead, the Board recommended more severe
sanctions: (1) suspending Cyrus from the practice of law for five years, with two of those
years stayed; and (2) following the three years of served suspension, three years of
probation, during which Cyrus must practice law solely as an employee of an agency or
firm, commit no further disciplinary violations, pay all fines and sanctions, obtain annual
certification of employment from his employer, and notify the Bar Association within ten
days of any change in his employment status.25
The Board's recommended sanctions are appropriate. While each
individual incident of misconduct might not have been particularly egregious, Cyrus's
pattern of neglecting his clients and delaying court matters, after previous discipline for
the same conduct, is disconcerting. We agree with Bar Counsel that Cyrus's absence of
25 The Board is not required to explain why it chooses to reject disciplinary
sanctions recommended by an Area Hearing Committee, but we note that such an
explanation generally will assist us in our review of the Board's own recommendation.
Here we can determine from the transcript of the hearing before the Board that it was
rightfully concerned with the Committee's recommendation to impose conditions of
practice outside the context of probation. Because Cyrus does not challenge the terms
of the Board's probation recommendation, we do not need to examine the parameters of
probation authorized by Bar Rule 16(a)(3) at this time.
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a dishonest or selfish motive for his misconduct appropriately mitigates the sanction from
disbarment to suspension. But Cyrus admits that controlling his calendar is a weakness
he cannot overcome and states, "unless somebody controls my caseload, I'd probably go
down the same way [in the future]." Thus, a lengthy disciplinary suspension and
subsequent probation is warranted to protect the public, the courts, and the legal
profession.26
C. Cyrus's Request For Conditional Suspension To Allow Him To
Provide Pro Bono Legal Services
Cyrus acknowledges that he has "problems [with] office management []
resulting in risk to clients of their cases not be[ing] properly handled," but contends that
"the cause of the problem can be cured by a supervised caseload . . . ." He therefore
requests that he be allowed to practice law under the supervision of a law firm or agency
serving the poor or disadvantaged during the final year of his three-year suspension.
Cyrus analogizes his proposal to the Emeritus Attorney program described in Alaska Bar
Rule 43.2.27
26 In addition to the cases cited by the Area Hearing Committee, see In re
Brion, 212 P.3d 748, 750-53 (Alaska 2009) (imposing three-year suspension with two
years stayed for multiple instances of neglect and failure to communicate and comparing
discipline with other cases).
27 Under this Rule, an inactive or retired member of the Alaska Bar
Association who is not otherwise engaged in the practice of law may provide free civil
legal services under the supervision of a qualified legal services provider. Bar Rule 43.2
provides in part that:
A member who wishes to perform pro bono work as an
emeritus attorney on behalf of a qualified legal services
provider shall file a sworn statement with the Alaska Bar
Association that states:
. . . .
(continued...)
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While Cyrus's commitment to helping those unable to afford legal services
is commendable, "[o]ur paramount concern, here as always, must be the protection of the
public, the courts, and the legal profession."28 When the Bar began receiving the judicial
complaints forming the basis of this disciplinary matter, little more than one year had
passed since Cyrus's reinstatement following his 2006 suspension for similar
misconduct. Clients who are unable to afford counsel should not be subject to a lesser
standard of legal representation from a lawyer who fails to comply with the rules of
professional conduct. Given Cyrus's repeated neglect of client matters, his failure to
timely appear at court proceedings, and his admission that he is unable to manage his
calendar, we cannot ignore the risk of continued misconduct and harm to future clients
posed by permitting Cyrus to practice. We therefore reject Cyrus's request that an
additional year of suspension be stayed so that he may practice in pro bono matters under
the supervision of a law firm or agency.
V. CONCLUSION
We IMPOSE the sanctions recommended by the Alaska Bar Association
Disciplinary Board, with Cyrus's suspension applied retroactively to the date of his
interim suspension in March 2009.
27 (...continued)
(5) that the emeritus attorney has not been
publicly disciplined within the last fifteen (15)
years in any jurisdiction.
28 In re Buckalew, 731 P.2d 48, 56 (Alaska 1986).
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