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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

In Re Cyrus (11/5/2010) sp-6523

        Notice:   This opinion is subject to correction before publication in the PACIFIC REPORTER. 
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                 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). 

                                                  -2-                                             6523
 

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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. 

                                                 -3-                                           6523
 

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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, 

                                                  -4-                                             6523
 

----------------------- Page 5-----------------------

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...) 

                                               -5-                                            6523 

----------------------- Page 6-----------------------

                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. 

                                                  -6-                                             6523
 

----------------------- Page 7-----------------------

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 

                                                   -7-	                                            6523
 

----------------------- Page 8-----------------------

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. 

                                                    -8-                                              6523
 

----------------------- Page 9-----------------------

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. 

                                                 -9-                                           6523
 

----------------------- Page 10-----------------------

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...) 

                                                    -10-	                                                 6523 

----------------------- Page 11-----------------------

               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). 

                                                -11-                                            6523 
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