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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

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,


In the Disciplinary Matter Involving ) Supreme Court No. S- 13012
JODY BRION, ) ABA File Nos. 2005D191, 2006D052,
) 2006D113, 2006D114, 2006D201
) 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.

          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
          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
          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
          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.
          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
          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
          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
          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
          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
          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
          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
          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
          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.
          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

     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,

     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.

     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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