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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Shea (4/6/2012) sp-6662

In Re Shea (4/6/2012) sp-6662

        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, email 

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                 THE SUPREME COURT OF THE STATE OF ALASKA 



In the Disciplinary Matter Involving                )   Supreme Court No. S-14014 

WEVLEY WILLIAM SHEA,                                ) 

                                                    )   ABA Membership No. 7705060 

                                Respondent.         )   ABA File No. 2008D091 

                                                    ) 

                                                    )   O P I N I O N 

                                                    )   No. 6662 - April 6, 2012 



                Appeal from the Alaska Bar Association Disciplinary Board. 



                Appearances:       Louise   R.   Driscoll,   Assistant   Bar   Counsel, 

                Anchorage,   for   Alaska   Bar   Association.   Wevley   William 

                Shea, pro se, Anchorage, Respondent. 



                Before:      Carpeneti,     Chief    Justice,   Fabe,   Winfree,     and 

                Stowers,    Justices.   [Christen, Justice, not participating.] 



                PER CURIAM. 



I.      INTRODUCTION 



                The Alaska Bar Association Disciplinary Board adopted an area hearing 



committee's findings of misconduct by Wevley William Shea. The Board recommended 



suspending      Shea    from   the   practice   of  law   for  25  months     and   requiring,   before 



                                                                                  1 

reinstatement, that Shea:   (1) comply with Alaska Bar Rule 29(c)(1);  (2) "demonstrate, 



        1       Alaska Bar Rule 29(b) and (c)(1) provide that an attorney suspended for 



more   than   two   years   must   petition   for   reinstatement   and   demonstrate   by   clear   and 

convincing evidence that the petitioner "has the moral qualifications, competency, and 

knowledge of law required for admission" and that the petitioner's "resumption of the 

                                                                                        (continued...) 


----------------------- Page 2-----------------------

via evidence from a psychiatrist or psychologist, that [he] is mentally fit to return to the 



practice of law"; and (3) meet Bar Rule 2, Section 1(d)'s moral character and fitness 

requirements.2      Shea   responded   by   continuing   to   deny   misconduct   on   his   part   and 



asserting     misconduct     not   only   by   the  attorneys    involved    in  the  underlying     civil 



proceedings, but also by the bar counsel prosecuting this disciplinary matter. 



                We heard oral argument on May 17, 2011.  On May 18 we issued a brief 



order suspending Shea from the practice of law effective June 17 stating, in relevant part: 



                        The Area Hearing Committee, and, by adoption, the 

                Disciplinary Board, found by clear and convincing evidence 

                that   Shea   violated   Alaska   Rules   of   Professional   Conduct 

                 1.9(a) (conflict of interest), 3.1 and 3.3 (false statements of 

                fact in court pleadings), and 4.4 (unprofessional pleadings). 

                After   reviewing   the   record   and   giving   due   weight   to   the 

                relevant   findings   of   fact,   we   agree   those   violations   were 

                proved by clear and convincing evidence. 



                        .   .  .  Applying    our   independent      judgment     to  the 

                appropriateness of [the Area Hearing Committe's, and, by 

                adoption, the Board's, recommended] sanction, we adopt the 

                recommended discipline. 



                        IT   IS   ORDERED          that   Wevley     William    Shea    is 

                suspended from the practice of law in Alaska for 25 months 

                effective June 17, 2011, subject to the stated conditions for 

                reinstatement. 



        1       (...continued) 



practice . . . will not be detrimental to the integrity and standing of the Bar, or to the 

administration of justice, or subversive of the public interest." 



        2       Bar Rule 2, Section 1(d) provides that a candidate for admission to the 



Alaska Bar Association "[b]e one whose conduct justifies the trust of clients, adversaries, 

courts    and   others   with   respect   to  the  professional   duties    owed    to  them.   Conduct 

manifesting      a  significant   deficiency     in  the  honesty,    trustworthiness,     diligence    or 

reliability of an applicant is a basis for denial of admission." 



                                                   -2-                                             6662
 


----------------------- Page 3-----------------------

                        An opinion will follow.[3] 



                We now explain the basis for our earlier suspension order. 



II.     FACTS AND PROCEEDINGS 

        A.      Background Facts4 



                1.      Shea and David 



                Shea was licensed to practice law in Alaska in 1977.  In 1994 Shea began 



representing David, an Anchorage physician, on matters relating to complaints about 



David's     workplace     conduct.    While     representing    David,    Shea   reviewed     David's 



memorandum detailing his alleged workplace relationship issues. 



                Shea   also   became   friends   with   David's   sister,   Deborah.  In   1996   Shea 



withdrew   from   David's   representation   "[d]ue   to   the   conflict   that   has   arisen." Shea 



returned David's records and said he could no longer represent David while maintaining 



his relationship with Deborah. 



                In 1999 David voluntarily surrendered his medical license "for personal 



reasons," with no admissions of misconduct. 



                2.      David and Deborah 



                David and Deborah have interests in family businesses, including a real 



estate partnership consisting of David, Deborah, and their two sisters, and a corporation 



holding a significant real estate investment. 



                In 2005 David initiated litigation regarding the partnership, seeking access 



to   the   partnership's   financial   records,   an   accounting,   and   a   valuation   of   partnership 



interests.   Deborah counterclaimed against David for intentional infliction of emotional 



        3       In re Shea , 251 P.3d 357, 358 (Alaska 2011) (footnotes omitted). 



        4       We have omitted the full names of Shea's former clients and other attorneys 



involved in the matter to protect their privacy. 



                                                 -3-                                              6662 


----------------------- Page 4-----------------------

distress, and David then sought dissolution of the partnership.               Attorney B represented 



David in the 2005 partnership litigation. 



                After David and Deborah's mother died in 2005, Attorney O represented 



David in suing his mother's estate and challenging the validity of his mother's trust.  The 



disputed trust owned a family home on part of a plot originally purchased as tenants-in- 



common by David's father and a family friend.   At some point, a member of the friend's 



family filed a partition suit for the plot; Deborah counterclaimed against members of that 



family and David, alleging in part that David's conduct and mental illness jeopardized 



her interest in the property.   Attorney T represented David in the partition litigation and 



began assisting Attorney O in the trust litigation. 



                In 2007 Deborah brought a derivative action regarding the corporation, 



alleging David and others were defrauding shareholders.                Attorney T also represented 



David in this litigation. 



                In   July   2008   David,   Deborah,   and   their   two   siblings   reached   a   global 



settlement.    They agreed to divide assets in their mother's estate and trust, wind up the 



partnership,   and     dismiss   all   pending   cases   except   for  Deborah's      case  against   the 



corporation,   although       Deborah   agreed   to   release   her   claims   against   David   in   that 



litigation.  Her case against the corporation settled in early 2009. 



                3.      Shea and Deborah 



                In 1996 Shea began helping Deborah in a medical insurance matter not 



involving her family.       Deborah did not recall whether she signed an engagement letter 



with Shea, nor was she certain if or when Shea actually represented her as an attorney 



in that matter.  Deborah recalled that about this time both Shea and David, separately "in 



passing," mentioned that Shea represented David "on a small matter." 



                Sometime in 1997 Deborah told Shea of David's "escalating abuse" and the 



damage it was causing Deborah, her mother, and her sisters. After these discussions with 



                                                   -4-                                             6662
 


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

Shea, Deborah retained another attorney to represent her.                From this point until July 



2005, Shea and Deborah continued to discuss her problems with David. 



                In July 2005, shortly after David initiated the partnership litigation, Shea 



and    Deborah     signed    an  engagement      letter  for  Shea    to  represent   Deborah.       The 



engagement letter reflected that Shea intended to "assist [Deborah and her attorney] in 



meeting, countering and destroying [David's] vicious actions and allegations" and that 



David's "vicious history of assaultive behavior on [Deborah] emotionally and physically 



has been and is being documented by [Shea]."               Shea subsequently requested records 

from the State about David's medical license surrender, but was denied access.5 



                Beginning   in   February   2007   Shea   sent   several   ethics   complaints   about 



David's attorneys to the Bar Association.  In June 2007 Shea received verbal permission 



from Bar Counsel to disclose those complaints to Deborah's other attorneys.  Shea then 



filed, in the trust litigation, redacted versions of the complaints as exhibits to a 72-page 



motion for Attorney O's disqualification as David's attorney and for sanctions, damages, 

and attorneys' fees.6 



                Superior Court Judge Mark Rindner, presiding over the trust litigation, 



struck the motion, stating it was not helpful and was the worst pleading he had seen in 



seven years on the bench, but he allowed Shea to file a new motion.                 Shea filed a new 



motion for Attorney O's disqualification and it was denied. 



        5       Records of a review organization such as the Alaska State Medical Board 



are confidential.     AS 18.23.030(a) ("[A]ll data and information acquired by a review 

organization in the exercise of its duties and functions shall be held in confidence[.]"); 

AS 18.23.070(5)(B) (defining State Medical Board as a "review organization"). 



        6       Shea accused David of having   "severe 'health related problems' " and 



called him "an ill 'evil sick man' who   is filled with 'hate.' "             Shea also maintained 

Attorney   O   "violated   his   most   basic   obligations   as   a   lawyer   to   his   client"   and   was 

"intentionally unethical, libelous and defamatory." 



                                                  -5-                                             6662
 


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

                In December 2007 Attorney T requested Shea's immediate withdrawal in 



the trust suit due to a conflict of interest. In May 2008 Shea sent letters to the Anchorage 



Police Department, Alaska Department of Public Safety, Federal Bureau of Investigation, 



and Alaska State Medical Board alleging that David was engaged in criminal conduct. 



Shea also filed, in the trust litigation, a "[m]emorandum defining corrupt judicial stalking 



and   opposition   to   motion   to   disqualify   Wev   Shea"   in   which   he   accused   David   of 



focusing "his abusive, bullying 'hate' " on Deborah; nearly four pages were devoted to 



describing Shea's own "education and professional history" in support of his claims.  In 



June 2008 Shea argued that "[David] and his counsel are involved in a conspiracy in 



furtherance of criminal conduct and fraud" and that they had engaged in "criminal acts." 



The superior court ordered Shea to withdraw from the case in June 2008. 



        B.      Bar Proceedings 



                In May 2009, after receiving grievances against Shea, the Bar petitioned for 



a formal hearing   before the Area Hearing Committee.                 The petition detailed Shea's 



involvement with David and Deborah and highlighted Shea's court filings, including the 



72-page     memorandum         for  sanctions   against   Attorney     O,   a  21-page   memorandum 



accusing David of judicial stalking, a 69-page letter to the family corporation's attorney 



with over 90 exhibits containing criminal accusations against David, and a 28-page 



response to David's motion for sanctions in the trust suit, alleging criminal conspiracy. 



                The   Bar   alleged   four   counts   against   Shea:   (1)   conflict   of   interest   by 

representing Deborah in proceedings in which her interests were adverse to David's;7 



(2) disclosure of confidential information by using information gained while representing 



        7       See Alaska R. Prof. Conduct 1.9(a) (Duties to Former Clients). 



                                                   -6-                                               6662 


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

                                                              8 

David against him, while representing Deborah;  (3) false statements of fact in court 



pleadings by alleging David and his attorneys were engaged in "numerous white collar 

federal   and   state   crimes"   as   well   as   a   criminal   conspiracy;9   and   (4)   filing   abusive 



pleadings   and   using   his   own   credibility   and   connections   to   law   enforcement   while 

representing Deborah.10        Shea denied the charges, accused David of "judicial stalking" 



by improperly instituting litigation against Deborah, and alleged David "is seriously ill 



and either cannot or will not be truthful and cannot define 'right from wrong.' " 



                 Shea     then   filed  a  motion    asking    the   Committee      to  "order    a  mental 

examination of [David] . . . pursuant to [Alaska] Civil Rule 35."11                Shea accused David 



of   having   a   mental   illness,   using   psychotropic   medication,   bullying,   stalking,   and 



engaging in "sadistic conduct."  Shea contended David's "counsel all know [David] is 



ill and a threat to Deborah . . . and others who oppose his conduct," concluded David's 



mental health was in controversy, and argued good cause existed to require a mental 



examination. The Committee denied Shea's motion. The Committee stated that because 



the Bar and Shea were the only parties before it, Civil Rule 35 did not allow a court- 



ordered mental examination of David. 



                 In   February     2010    the  Committee       held   a  five-day    formal    hearing    to 



        8        See id. at 1.6 (Confidentiality of Information), 1.8 (Conflict of Interest: 



Current Clients: Specific Rules), 1.9 (Duties to Former Clients). 



        9        See id. at 3.1 (Meritorious Claims and Contentions), 3.3 (Candor Toward 



the Tribunal). 



        10       See id. at 4.4(a) (Respect for Rights of Third Persons). 



        11       Civil Rule 35 provides, in relevant part, "[w]hen the mental . . . condition 



. . . of a party, or of a person in the custody or under the legal control of a party, is in 

controversy, the court in which the action is pending may order the party to submit to a 

. . . mental examination." 



                                                    -7-                                               6662
 


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

determine   whether   Shea   violated   ethical   duties.       At   the   hearing   Shea   argued   that 



Attorneys B, T, and O made "intentional ongoing misrepresentation[s] to multiple judges 



. . . that this gentleman, [David], knows what he's saying, and can testify to the truth." 



Shea claimed the attorneys knowingly allowed David to sign false affidavits regarding 



whether David had helped care for his mother.              Shea argued that bringing lawsuits on 



David's behalf "to destroy [Deborah] mentally, physically and financially, constitutes 



a criminal conspiracy."  Shea indicated he used the word "satanic" in his filings to mean 



David had engaged in   "evil conduct," and that the substantial litigation-related purpose 



of his statement was "to define the truth." 



                The Committee found Shea "obtained substantial confidential information 



about [David]" during his representation of David.                The Committee   also found that 



during the series of lawsuits involving David and Deborah, "[Deborah's] interests were, 



for the most part, directly adverse to [David's] interests" and that Shea never sought or 



received David's "informed consent to the representation."                 After quoting "forceful[]" 



language from Shea's filings, the Committee found each statement "was intended to state 



or imply that [David] had, in the past, abused medical colleagues, staff and others." With 



respect to Shea's criminal conduct allegations, the Committee found Shea's "statements 



that   one   or   more   attorneys   representing   [David]   were   involved   'in   a   conspiracy   in 



furtherance of criminal conduct and fraud' or in 'criminal acts' are false, and that there 



was no reasonable basis in law or fact for such assertions."  Lastly, the Committee found 



that   while   representing   Deborah,   Shea   "made   various   statements   and   took   various 



actions, the primary purpose and effect of which was to embarrass, demean, offend, 



intimidate and harm the reputations of [David] and his counsel." 



                The Committee's conclusions of law addressed all four counts.                   First, it 



concluded that Shea violated Professional Conduct Rule 1.9(a) when he represented 



Deborah and David in "substantially related" matters, possessed confidential information 



                                                   -8-                                             6662
 


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

about David, and failed to obtain David's informed consent before representing Deborah. 



Second,      the  Committee      ruled   in  Shea's    favor   on   the  disclosure     of  confidential 



information   count   because   it   could   not   "conclude,   based   on   clear   and   convincing 



evidence, that [Shea's] general references to [David]'s alleged abuse were based on 



information gained during his representation of [David]," rather than on independently 



gained   information.       Third,   the   Committee   concluded   Shea   knowingly   made   false 



material statements in violation of Professional Conduct Rules 3.1 and 3.3 when he 



alleged a criminal conspiracy.         Fourth, the Committee found Shea filed unprofessional 



documents in violation of Professional Conduct Rule 4.4 because, "when viewed in its 



entirety,    [Shea's]   conduct     .  .  .  was  replete  with  demeaning,      offensive,    insulting, 

intemperate, frivolous and outrageous conduct and statements."12 



                In May the Committee held a hearing to determine appropriate sanctions. 



The Bar sought a three- to five-year suspension or disbarment, and Shea countered that 



his license should not be suspended.            The Bar called Attorney T and David to testify 



about the harm they suffered, and submitted an affidavit from Attorney O.  Shea called 



no witnesses.  The Bar suggested there were several aggravating factors - dishonest or 



        12      The committee referenced its findings of fact that Shea had made statements 



and took actions, "the primary purpose and effect of which was to embarrass, demean, 

offend,   intimidate   and   harm   the   reputations   of   [David]   and   his   counsel,"   including: 

(1) describing legitimate legal proceedings as "judicial stalking"; (2) describing David 

and his conduct as " 'satanic,' 'evil,' 'terroristic,' 'POW business torture,' 'corrupt,' 

'perverted,' 'predatory,' 'depraved,' and 'deranged' "; (3) referring to David's counsel 

"as 'a disgrace to the legal profession,' 'unethical and corrupt,' 'dangerous to the public,' 

.  .  .  and  accusing    them    of  engaging    in  'Alaska    good    old  boy   legal   corruption,' 

'perpetuating a fraud on Alaska's judicial system,' 'intentionally abusing their practice 

of law,' . . . and filing 'hateful evil litigation' "; and (4) sending copies of various court 

filings to the Federal Bureau of Investigation, Anchorage Police Department, Alaska 

Department       of  Public    Safety,   Alaska    State   Medical    Board,    and   the   Alaska    Bar 

Association. 



                                                   -9-                                             6662
 


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

selfish motive, pattern misconduct, multiple offenses, submission of false statements 



during   the   disciplinary   process,   refusal   to   acknowledge   the   wrongful   nature   of   his 



conduct, and substantial experience in the practice of law - while the only mitigating 



factor   was   Shea's   lack   of   disciplinary   history.  Shea's   closing   argument   generally 



reiterated his position that because David is "satanic," Shea's actions were necessary to 



prevent ongoing fraud. 



                While   the   Committee's   sanctions   decision   was   pending,   Shea   filed   a 



document   titled   "Offer   of   Settlement   and   Resolution   by   Wev   Shea   with   Notice   to 



Hearing Panel of Ongoing Fraud, Perjury and Subornation of Perjury by [David], His 



Attorneys and the [Alaska Bar Association]."              Shea demanded that:       the Assistant Bar 



Counsel handling Shea's case resign; the private attorney acting as Special Bar Counsel 



handling Shea's case notify his insurance carriers of "prosecutorial incompetence"; the 



Bar's counsel attend an annual seminar on various types of abuse; the Bar apologize to 



Shea in writing; and Assistant Bar Counsel and Special Bar Counsel cooperate with law 



enforcement in criminal investigations of David and Attorneys O, B, and T, and dismiss 



the disciplinary matter against Shea.  About one week later, Shea filed a document titled 



"Motion/Memo to Dismiss [Alaska Bar Association] Petition with Prejudice Due to 



[Alaska      Bar    Association's]      'Prosecutorial      Misconduct'       Including     Intentional 



Subordination of Perjury by Assistant Disciplinary Counsel [ ] and Special Counsel [ ] 



Requiring ARPC 3.3/Civil Rule 11 Sanctions."               The Committee denied Shea's motion 



to dismiss. 



                In reaching its sanctions decision, the Committee applied the American Bar 



Association's standards for sanctions, considering: (1) ethical duties the lawyer violated; 



(2) the lawyer's mental state; (3) the extent of injuries caused by the misconduct; and 



(4)  aggravating      and   mitigating   factors.   The   Committee       incorporated     its  previous 



findings and conclusions, adding that Shea "acted with a knowing mental   state   . . . 



                                                  -10-                                            6662
 


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

repeatedly and over a number of years."             The Committee also agreed with the Bar's 



analysis regarding the aggravating and mitigating factors.               The Committee determined 



a 25-month suspension was appropriate, noting that Alaska Bar Rule 29(c)(1) added 



additional burdens prior to reinstatement. The Committee also added a proviso that prior 



to applying for reinstatement, Shea "be required to demonstrate, via evidence from a 



psychiatrist or psychologist, that [he] is mentally fit to return to the practice of law" and 



meet the moral character and fitness requirements imposed by Bar Rule 2, Section 1(d). 



Shea subsequently filed several motions for reconsideration, all of which the Committee 



denied. 



                Shea appealed to the Disciplinary Board and filed a document titled "Notice 



of   [David]'s    June   29,   2010   Assault    on  [Deborah]     with   2nd   Settlement     Offer   for 



Resolution by [Shea]" alleging that David had assaulted Deborah, and that Attorney B 



"again perjured himself in his attempt to protect sadistic bullying," repeating many of the 



allegations and demands from his first settlement offer, and adding a demand for the Bar 



to   pay   Shea   $3   million   and   Deborah   $6   million   "due   to   the   conduct"   of   the   Bar's 



witnesses throughout the proceedings. After a hearing the Board issued a two-page order 



adopting the Committee's findings, conclusions, and sanctions recommendation, and 



suggested immediate interim suspension. 



                Shea raised 26 points on appeal to this court.           His arguments follow two 



themes:    (1) the Committee erred in its determination that Shea's statements regarding 



David's involvement in a criminal conspiracy and his general attitude were false; and 



(2)  Shea's   conduct   was   necessary   to   stop   corruption   and   wrongdoing.       Before   oral 



argument   Shea   filed   a   document   titled   "Motion   and   Memorandum   to   Preserve   the 



[Alaska   Bar   Association]'s   Institutional   Integrity   and   Honor   and   the   Need   for   5th 



Amendment Protection of the [Alaska Bar Association] 'Prosecution' Attorneys."  He 



argued that "[t]he [Alaska Bar Association]'s historic inept investigation, its intentional 



                                                  -11-                                             6662
 


----------------------- Page 12-----------------------

coverup   and   intentional   prosecutorial   misconduct   with   ongoing   'serious   crimes'   is 



uncontroverted/undeniable."       Shea accused the Bar's counsel of suborning perjury and 



engaging in "prosecutorial malfeasance."   After the Bar responded, we held the motion 



in abeyance for consideration with the merits of Shea's disciplinary matter. 



               We     issued  an  order   agreeing   that   the  Board  had  proved    disciplinary 



violations by clear and convincing evidence and adopting the recommended discipline, 

indicating an opinion would follow.13 



III.	   STANDARD OF REVIEW 



               We review decisions of the Disciplinary Board pursuant to Alaska Bar Rule 

22(r).14  "We independently review the entire record in attorney disciplinary proceedings, 



though findings of fact made by the Board are entitled to great weight."15         "We apply our 



independent judgment to questions of law and questions concerning the appropriateness 

of sanctions."16   Our individual examination of each case is "guided but not constrained 



by the American Bar Association's Standards for Imposing Lawyer Sanctions and by the 

sanctions imposed in comparable disciplinary proceedings."17 



IV.	    DISCUSSION 



        A.	    Professional Conduct Rule 1.9(a) - Conflict Of Interest 



               Professional Conduct Rule 1.9(a) provides:
 



               A lawyer who has formerly represented a client in a matter
 



        13     In re Shea , 251 P.3d 357 (Alaska 2011).
 



        14     In re Brion , 212 P.3d 748, 751 (Alaska 2009).
 



        15
    In re Cyrus , 241 P.3d 890, 892 (Alaska 2010) (citing In re West , 805 P.2d 



351, 353 n.3 (Alaska 1991)). 



        16     Id. (quoting In re Hanlon , 110 P.3d 937, 941 (Alaska 2005)). 



        17     Id. at 892-93 (quoting In re Friedman , 23 P.3d 620, 625 (Alaska 2001)). 



                                               -12-	                                          6662
 


----------------------- Page 13-----------------------

                 shall not thereafter represent another person in the same or a 

                 substantially related matter in which that person's interests 

                 are   materially   adverse   to   the   interests   of   the   former   client 

                 unless the former client gives informed consent, confirmed in 

                 writing. 



We have defined "substantially related matter[s]" as matters "(1) that involve the same 



transaction or the same underlying legal dispute, or (2) where there is a substantial risk 



that   confidential   factual   information   obtained   in   the   prior   matter   would   materially 



advance a client's position in the subsequent matter."18               Matters are not "substantially 



related" under paragraph (2) "if the confidential information imparted to the lawyer has 



since been disclosed to the public or to other adverse parties."19 



                 The   Committee   found   Shea's   representation           of   Deborah    substantially 



related to his representation of David because they shared a "common element" that 



David     "had    a  past  'pattern    and   practice'   of  abuse."     The    Committee      stated   that 



"regardless of whether [Shea] actually used or disclosed any confidences or secrets he 



had   gained   during   his   representation   of   [David],   he   clearly  possessed   confidential 



information which would materially advance [Deborah]'s interests in the subsequent 



litigation."    The   Committee   also   found   that   Shea's   representation   of   Deborah   was 



"materially adverse" to David's interests because Shea had sought to "defend[] [David] 



against charges of abusive conduct" but had switched to showing on Deborah's behalf 



that David's "actions toward her were part of a 'pattern and practice' of abusive conduct 



dating   back   to   his days as a practicing physician."           Because Shea had not obtained 



informed consent, the Committee determined Shea violated Professional Conduct Rule 



1.9(a). 



        18       Alaska R. Prof. Conduct 9.1(q). 



        19       Id. 



                                                   -13-                                                 6662 


----------------------- Page 14-----------------------

               Shea argues that his representation of Deborah was not substantially related 



to  his  prior  representation  of  David   because   "[t]he  Hearing  Panel  held  [David's] 



conduct/illness was known to the public."      Shea points to the Committee's finding that 



Deborah "cited several examples of instances in which she had learned, either from 



personal observation or from independent statements made to her by doctors, hospital 



personnel and   others, that [David] had been verbally abusive to doctors, nurses and 



hospital personnel."   According to Shea, this "credible" testimony demonstrates that the 



public disclosure exception applies to his case. 



               Shea's argument fails for three reasons.      First, it is waived because Shea 



raised it for the first time in his reply brief.20 Second, even if he had not waived it, the 



public disclosure exception does not apply to matters "that involve the same transaction 



or the same underlying legal dispute."21    In representing Deborah, Shea placed at issue 



David's behavior toward other individuals. Although the alleged victims of the improper 



behavior were different, the issue of whether David acted improperly is the same. Third, 



Deborah's knowledge of allegations against David does not sufficiently show that the 



allegations "have since been disclosed to the public." To the contrary, any circumstances 



surrounding David's medical license relinquishment are confidential. We therefore agree 



with the Committee's finding that Shea violated Professional Conduct Rule 1.9(a). 



       B.	     Professional Conduct Rules 3.1 And 3.3(a)(1) - False Statements Of 

               Fact In Court Pleadings 



              Professional Conduct Rule 3.1 provides, in relevant part, that "[a] lawyer 



shall not bring or defend a proceeding, or assert or controvert an issue therein, unless 



       20     Alaska R. App. P. 212(c)(3) (stating reply brief "may raise no contentions 



not previously raised in either of the appellant's or appellee's briefs"). 



       21     Alaska R. Prof. Conduct 9.1(q)(1). 



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there is a non-frivolous basis in law and fact for doing so."           Professional Conduct Rule 



3.3(a)(1) provides that "a lawyer shall not knowingly make a false statement of fact or 



law to a tribunal or fail to correct a false statement of material fact or law previously 



made to the tribunal by the lawyer." 



                The    Board    adopted    the   Committee's      finding   that  Shea   violated    both 



provisions   by   stating   in   his   response   to   David's   motion   for   sanctions   that   David's 



counsel "were 'involved in a conspiracy in furtherance of criminal conduct and fraud,' 



and    that  they   had   engaged    in  'criminal    acts.'  "  The    Board    further   adopted    the 



Committee's finding that these statements were false, Shea had no non-frivolous basis 



in law or fact for making them, and Shea made them knowingly. 



                Shea's arguments focus primarily on conflicting testimony                in the record. 



Shea notes that David submitted an affidavit stating that his mother never kept medical 



information from him and that Deborah was reluctant to distribute funds to his mother 



for health and support, but Deborah denied both of these statements under oath.                     Our 



independent review of the record reveals no reason to credit Deborah's testimony more 



than David's testimony or his attorneys' assertions that they had no reason to question 



David's truthfulness, and "[w]e ordinarily will not disturb findings of fact made upon 



conflicting evidence."22 



                Shea's misconduct stems not from his assertion that David was not being 



truthful,   but   from   his   statements   that   David's   attorneys   were   engaged   in   criminal 



conduct.  Regardless of the veracity of David's statements, Shea had no factual basis for 



his assertions regarding David's attorneys. Giving "great weight" to the factual findings 



that Shea's statements accusing David's attorneys of conspiracy or engaging in criminal 



        22      In re Friedman , 23 P.3d at 625 (citing In re Triem , 929 P.2d 634, 640 



(Alaska 1996)). 



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acts   were   false,23  we   conclude    Shea   violated   Professional   Conduct   Rules   3.1   and 



3.3(a)(1). 



        C.      Professional Conduct Rule 4.4 - Unprofessional Pleadings 



                Professional      Conduct    Rule    4.4(a)   provides,    in  pertinent   part,   "[i]n 



representing a client, a lawyer shall not use means that have no substantial purpose other 



than to embarrass, delay, or burden a third person."  The Board adopted the Committee's 



finding that several of Shea's statements violated Professional Conduct Rule 4.4(a),24 



including the Committee's statement that Shea's acts, "viewed solely in isolation, might 



be deemed insufficient to trigger a violation of this Rule," but that Shea's "conduct, 



which   was   replete   with   demeaning,   offensive,   insulting,   intemperate,   frivolous   and 



outrageous conduct and statements, is sufficient to support a violation" of Professional 



Conduct Rule 4.4(a). 



                 Shea argues David acted so unjustly that it required and justified Shea's 



response.    Shea contends that his "statements are true and professional," and that his 



statements' "substantial purpose is to define the truth."          But giving great weight to the 



finding that Shea's purpose "was to embarrass, demean, offend, intimidate and harm the 



reputations   of   [David]   and   his   counsel,"   we   agree   that   Shea   violated   Professional 



Conduct Rule 4.4. 



        D.      Prosecutorial Misconduct 



                Shea argues the Bar's counsel committed prosecutorial misconduct and 



        23      See In re Rice, 260 P.3d 1020, 1027 (Alaska 2011) (quoting In re West , 805 



P.2d at 353 n.3). 



        24      The Committee found Shea made statements and took actions, "the primary 



purpose and effect of which was to embarrass, demean, offend, intimidate and harm the 

reputations of [David] and his counsel." 



                                                 -16-                                            6662
 


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"serious crimes" during the hearings. Shea alleges the Bar "hid evidence, [and] suborned 



and endorsed clear [Alaska Bar Association] perjury" in violation of his due process 



rights.  Shea contends counsel knew the Bar's witnesses - David and his attorneys - 



would falsely testify about David's mental illness and the underlying conspiracy.  Shea 



alleges counsel was "on notice" of the ongoing conspiracy because Shea had outlined it 



in   his   previous   filings.  Shea   claims   "[t]he   [Alaska   Bar   Association]   intentionally 



concealed   'facts   and   circumstances   as   they   existed'   and   .   .   .   intentionally   ignored, 



concealed or manipulated 'public' evidence and facts" by opposing the admission of, and 



ignoring, various letters and pleadings Shea submitted. 



                But other than pointing to Deborah's testimony, Shea provides no evidence 



to suggest the Bar's opposition to Shea's proffered evidence or the Bar's decision to call 



David and his attorneys to testify constituted anything other than good faith advocacy. 



David's   ability   to   distinguish   between   truth   and   falsehood   was   supported   by   sworn 



testimony from one of David's attorneys. 



                The     Bar   maintains    its  objections   to  the   admission     of  evidence    were 



appropriately sustained or overruled by the Committee, and Shea "has failed to point to 



any specific ruling as an abuse of discretion."  We agree with the Bar - the Committee, 



not the Bar, determined evidence admissibility and the weight it was given. 



                The Bar also points out that Shea was given ample opportunity to make his 



case, as the Committee expressly instructed Shea to take the time he needed to present 



his case. The Bar's positions were adversarial by nature, but not unfair.25             Thus Shea was 



        25      Cf. In re Brion, 212 P.3d at 753-56 (denying attorney's various due process 



appeals to suspension). 



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----------------------- Page 18-----------------------

not deprived of due process.26 



        E.	      Sanctions 



                 We apply a three-step analysis to determine attorney sanctions: 



                 We   first   address:   (1)   the   duty   violated;   (2)   the   lawyer's 

                 mental   state;   and   (3)   the   extent   of   the   actual   or   potential 

                 injury.  We next examine recommended sanctions under the 

                 [American Bar Association] Standards for misconduct found 

                 in   the   first   step. We   then   determine   how   aggravating   or 

                 mitigating factors affect the recommended sanctions.[27] 



                 1.	     Step   one   -   ethical   duties,   mental   state,   injury,   or   potential 

                         injury 



                 As discussed above, Shea violated duties to his clients, the court, and the 



legal system by:      (1) representing a client in conflict with his prior representation of a 



prior    client;  (2)  making     false   statements     of  fact  in  court   filings;   and   (3)  filing 



unprofessional documents. The Board adopted the Committee's finding that Shea "acted 



with a knowing mental state, that he did so repeatedly and over a number of years." 



Because      Shea    has   not  challenged      the  sanctions,    he   has   not  met    his  burden     of 

demonstrating that the factual findings regarding his mental state were incorrect.28                   For 



        26       Shea also contends the Bar "concealed the truth" and violated his Sixth 



Amendment confrontation rights by concealing David's mental illness, which would 

have   been   "impeachment   evidence   that   bears   on   the   credibility"   of   the   Bar's   "star 

witness."     Shea's confrontation clause argument is waived because he did not raise the 

issue until his reply brief.      Appellate Rule 212(c)(3); see also In re Rice, 260 P.3d at 

1029 (finding due process argument waived because it was first raised when the Bar had 

no opportunity to respond). 



        27      In re Cyrus , 241 P.3d at 893 (citing In re Hanlon , 110 P.3d at 941-942)). 



        28      In re Rice , 260 P.3d at 1032 n.20 ("[W]here findings of fact entered by the 



Board are challenged on appeal to this   court, . . . the respondent attorney bears the 

burden of proof in demonstrating that such findings are erroneous." (quoting In re West , 

                                                                                           (continued...) 



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----------------------- Page 19-----------------------

the same reason, we adhere to the finding that Shea "caused potential injury to [David's 



lawyers],   plus   actual   injury  to  at   least"  David. We    add   that   Shea's  lengthy  and 



duplicative filings have caused the Bar and the court system significant cost. 



               2.      Step two - ABA-recommended sanctions 



               The   applicable   ABA   standard   provides   that   "[s]uspension   is   generally 



appropriate when a lawyer knows of a conflict of interest and does not fully disclose to 



a client the possible effect of that conflict, and causes injury or potential injury to a 

client."29  Suspension is also "generally appropriate when a lawyer knows that false 



statements or documents are being submitted to the court . . . and takes no remedial 



action, and causes injury or potential injury to a party to the legal proceeding, or causes 

an adverse or potentially adverse effect on the legal proceeding."30          And suspension is 



"generally appropriate when a lawyer knowingly engages in conduct that is a violation 



of a duty owed as a professional and causes injury or potential injury to a client, the 

public, or the legal system."31   The recommended suspension is between six months and 



three years.32 



               3.      Step three - aggravating and mitigating factors 



               We agree with the Committee's finding, adopted by the Board, that six 



aggravating factors under ABA standard 9.2 apply: (1) dishonest or selfish motive; (2) a 



pattern of misconduct; (3) multiple offenses; (4) submission of false statements during 



        28     (...continued) 



805 P.2d at 353 n.3)). 



        29     STANDARDS FOR IMPOSING LAWYER  SANCTIONS   4.32 (ABA 1992). 



        30     Id. at  6.12. 



        31     Id. at  7.2. 



        32     Id. at  2.3. 



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----------------------- Page 20-----------------------

the disciplinary process; (5) refusal to acknowledge wrongful nature of conduct; and 



(6) substantial experience in the practice of law.           We agree that Shea's lack of a prior 



disciplinary record presents a mitigating factor under ABA standard 9.3. 



                4.       Recommended sanctions 



                The Board adopted the Committee's recommended 25-month suspension. 



It  also   adopted    the  Committee's      recommendation        that  before    reinstatement    Shea: 

(1)   comply   with   Alaska   Bar   Rule   29(c)(1);33   (2)   "demonstrate,   via   evidence   from   a 



psychiatrist or psychologist, that [he] is mentally fit to return to the practice of law"; and 



(3) meet the moral character and fitness requirements imposed by Bar Rule 2, Section 

      34  Although  Shea   does   not   expressly  contest   the   sanctions,   we   independently 

1(d). 

determine the appropriate level of discipline.35 



                We are "guided but not constrained" by the Board's sanctions decision.36 



We find the sanctions appropriate in this case, and therefore independently adopt them. 



        F.       Shea's Pending Motion 



                In February 2011 Shea filed a document with this court titled "Motion And 



        33      Bar Rule 29(c)(1) applies to a lawyer suspended for more than two years 



and requires a hearing in which the reinstatement applicant must demonstrate "by clear 

and   convincing   evidence   that   (s)he   has   the   moral   qualifications,   competency,   and 

knowledge of law required for admission to the practice of law." 



        34      Bar Rule 2, Section 1(d) requires attorneys' conduct to justify "the trust of 



clients, adversaries, courts and others with respect to the professional duties owed to 

them."     Section   1(d)   also   allows   for   denial   of   entry   into   the   bar   for   "deficiency   in 

honesty,   trustworthiness,   diligence   or   reliability"   and   enumerates        ten  examples   of 

conduct requiring further inquiry before allowing entry into the bar. 



        35      In re Brion , 212 P.3d at 751; In re Ford , 128 P.3d 178, 182 (Alaska 2006); 



see also Alaska Bar R. 22(r). 



        36      See In re Cyrus, 241 P.3d at 892-93 (quoting In re Friedman , 23 P.3d at 



625). 



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----------------------- Page 21-----------------------

Memorandum To Preserve The [Alaska Bar Association]'s Institutional Integrity And 



Honor And The Need For 5th Amendment Protection Of The [Alaska Bar Association] 



'Prosecution' Attorneys." 



               In   the   motion   Shea   argued   the   Bar   had   committed   several   crimes   and 



needed constitutional protection from itself.      We held the motion in abeyance pending 



our decision in this case.     Bar Counsel's conduct was professional   and appropriate. 



Shea's motion is without merit and is therefore denied. 



V.      CONCLUSION 



               We IMPOSE the sanctions recommended by the Alaska Bar Association 



Disciplinary Board, as noted above. 



                                              -21-                                          6662
 

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