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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Miles (12/12/2014) sp-6975

In Re Miles (12/12/2014) sp-6975

         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  

                                                                                   

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



In the Disciplinary Matter Involving                     )  

                                                         )    Supreme Court No. S-15366  

MELINDA D. MILES,                                        )  

                                                         )    ABA File No. 2010D144  

                           Respondent.                   )  

                                                         )    O P I N I O N  

                                                         )  

                                                         )    No. 6975 - December 12, 2014  



                  Appeal from the Alaska Bar Association Disciplinary Board.  

                                                        



                  Appearances:  John M. Murtagh, Anchorage, for Respondent.  

                  Louise R. Driscoll, Assistant Bar Counsel, and Stephen J.  

                  Van   Goor,   Bar   Counsel,   Anchorage,   for   Alaska   Bar  

                                                                                 

                  Association.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, and Bolger,  

                  Justices.  Maassen, Justice, not participating.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  An  attorney  misappropriated  a  deceased  client's  funds  -  rightfully  



belonging to the decedent's estate - and hid this misappropriation through deception  



while providing legal services to the estate's personal representative.  Throughout more  

                                                                                             



than three years of disciplinary proceedings, the attorney maintained that the funds had  

                                                             



been gifted to her and that she was following the decedent's wishes in deceiving the  



estate.  The Alaska Bar Association's Disciplinary Board found that no gift had been  


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intended or accomplished and that, among other violations, the attorney committed the  



criminal act of theft, misappropriation, or wrongful conversion.  The Board recommends  



that we disbar the attorney.  After independently reviewing the record, we agree with the  



Board and impose the recommended sanction.  



II.       FACTS AND PROCEEDINGS  



                   Like many disciplinary matters, this case is fact-specific.  We therefore  



outline the facts in detail.  



          A.       Melinda Miles And The Moren Brothers  



                                                                                

                   Melinda Miles was admitted to the Alaska Bar in 1989.  During the relevant  



                                     

time period Miles was a sole practitioner handling a variety of legal matters, including  



                                                                                             

will preparation and other estate planning and probate services.  In 2006 Miles became  



acquainted with Donald Moren, who built a fence for her as a handyman.  According to  



Miles they became close friends and she occasionally performed legal work for him.  



                                                                                               

                   In May 2008, for a fee, Miles formed Progressive Diversified Services,  



                                                                                                          

LLC (Progressive) for Donald.  Progressive's Articles of Organization list Donald as  



                                                                                                  

both the company's organizer and its registered agent.  The next day Miles signed a  



                                                                 

notarized "Special Power of Attorney" form, prepared on her office letterhead, declaring  



                       

that she, as the "registered agent" of Progressive, appointed Donald as her "attorney-in- 



fact to act in [her] capacity to . . . cash and sign checks, make deposits and withdrawals,  



close the account, and otherwise have sole signatory authority and sole authority to  



manage  as  he  sees  fit  the  Key  Bank  banking  account  for  Progressive  Diversified  



                                                                                                                

Services, LLC."  The form states that the "rights, powers, and authority" given to Donald  



                                                                                                     

"shall remain in full force and effect as long as that referenced bank account is open."  



                                                                                                  

That same day two bank accounts were opened at KeyBank under Progressive's name  



- one business checking account with an opening deposit of $15,000, and one business  



                                                                                                   

savings account with an opening deposit of $100,000.  The account signature cards list  



                                                             -2-                                                      6975
  


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Miles as the sole signer for each account, and each card was signed by Miles.  On each  

                                                                                                     



card, between Miles's name and signature, under the word "Title," are the handwritten  

                                                              



words "Registered Agent."  



                   About  two  weeks  later  Donald  signed  paperwork  removing  him  as  



                                                                                 

Progressive's registered agent and making Miles the new registered agent.  The "Special  



Power of Attorney" form signed earlier by Miles was received by KeyBank in July.  



                                                 

Later Miles signed, in two places, a new signature card for Progressive's bank accounts.  



Next to both signatures, in handwriting, Miles is designated as Progressive's registered  



                       

agent.  On this signature card, Donald, as Progressive's "owner," is newly added as a  



second signer on the accounts.  



                   In May 2009 Donald died unexpectedly.  He had no will, and his mother,  



                                                                                                 

Mary, was his sole heir.  Donald's brother, Patrick, had power of attorney to act on  



Mary's behalf.  In early June Patrick contacted Miles because he learned Miles had  



                                                           

assisted Donald in setting up Progressive, and Patrick wanted assistance being appointed  



personal representative of Donald's estate in Alaska.  



                   Miles did not know Donald had died until Patrick contacted her, and she  



immediately   began   recording   the   time   she   spent   reviewing   Donald's   file   and  



                                                                                      

communicating with Patrick.  On June 11 she recorded time for "[b]ank research."  The  



next day Miles went to KeyBank and wrote herself counter checks for the remaining  



balance in each Progressive bank account:  $1,162 from the business checking account  



and  $20,072  from  the  business  savings  account.    Miles  then  deposited  the  smaller  



                                                                                  

checking account balance into her law office trust account and the larger savings account  



                                                                              

balance into the account of a rental property company she owned.  Over the next week  



Miles moved $20,000 from her rental company account to her personal account and  



                                                          

began spending the money.  Miles also changed the mailing address for Progressive's  



bank statements from Donald's address to her own address.  



                                                           -3-                                                     6975
  


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                           The same day Miles deposited the counter checks, she wrote to Patrick  that   



she  had  "done  quite  a  bit  of  checking  into  Donald's   affairs"  and  "wanted  .  .  .  to  



memorialize what [she had] discovered thus far."  Setting out a "rough inventory" of   



Donald's assets, Miles listed the smaller Progressive checking account balance of $1,162         



and other possessions, including Donald's vehicle, boat, guns, electronics, and storage     



unit of unknown contents.                              Miles did not mention the Progressive savings account.                                                           She  



advised Patrick of a procedure in Alaska for handling small estates, broached the subject  



of billing the estate for her services, and attached an invoice.  



                           Patrick  responded  with  a  request  that  Miles  procure  information  about  



Donald's  assets,  including  "[i]nformation  from  any  banks  in  which  Don[ald]  had  



                                                                 

accounts."  At the end of July  Miles emailed Patrick a list of the items in Donald's  



storage unit.  Patrick responded by email a week later:  



                           My primary concern at this time is to obtain all information  

                                                                                                              

                           regarding Don[ald]'s bank assets. If you are unable to obtain  

                                                                                                          

                           [information] from Key Bank or  any  other bank in which  

                                                                                                                                         

                           Don[ald] had assets . . . , I want to commence action in . . .  

                                                                     

                           Alaska to effect my appointment as personal representative  

                           of Don[ald]'s estate.  



Miles responded by email that same day:  



                                           

                           A long time ago I told you about the bank account at Key  

                           Bank.    There  is  that  one  account.    I  do  not  have  the  

                           information in front of me as I have been in court . . . .  I have                                  

                           confirmed that there are no accounts at First National, and  

                           Mat Valley and Denalia Alaska [sic].  This only leaves . . .  

                                                                              

                           Wells Fargo. . . .  I can check that tomorrow . . . .  I will let  

                                                                                                                                    

                           you know if [Donald] did not end up closing that account as  

                                                                                                                       

                           he told me he planned to.  It may be where he has additional
  

                           funds.
  



                           About a week later an attorney working with Patrick sent Miles an email,
  

                                                         



stating:  "I just wanted to touch base regarding Don[ald]'s estate. . . .  Any updates  

                                                                               



                                                                                     -4-                                                                             6975
  


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regarding other bank accounts?" A few days later Miles wrote a letter to Patrick, stating:  



                   [T]his is not how I usually investigate a probate.  Usually, I  

                   gather all of the mail, and review all of the bookmarks from  

                   the decedent's computer.  That way, we know which banks  

                   . . . to approach.  This has been more of a fishing expedition  

                   . . . . I knew a little about Donald's finances but not a lot . . . .  

                                               



                             Information from any banks in  which Don[ald] had  

                   accounts:    I  have  checked  all  of  the  major  banks  in  the  

                   Anchorage/Mat Su area.  The most uncooperative was Wells  

                                                                                            

                   Fargo.  But, I have confirmed that Donald did not have an  

                   account there anymore.  The only accounts at a bank I have  

                   found is KeyBank.  I previously sent you that information.  

                   I have closed out that account, mainly because after I told you  

                                                   

                   the amount in that account an automatic payment for his cell  

                                                                              

                   phone came through.[1] (Emphasis omitted.)  



                                         

                   At some point in the next seven months, Patrick retained Alaska attorney  



                                                                    

Nelson Page to assist him with Donald's estate and obtained information from KeyBank  



                                                                         

about both Progressive accounts.  In March 2010 Page contacted Miles about the two  



                                     

accounts, asking why the funds were withdrawn, where the funds then were located, and  



the basis of Miles's authority to write the checks from the accounts.  A week later Miles  



responded:  



                                                       

                             Not until I pulled Donald's file did I recall that I was,  

                                                        

                   of course, a signatory on his two accounts.  One account that  

                   he wanted to use on a daily basis, and another account, that  

                   in light of the attorney/client privilege, I will only state that  

                   he wanted to be certain that the money went to me if anything  



          1        The cell phone charge was deducted from the Progressive checking account  



on the day Miles first began billing the estate - for reviewing Patrick's initial letter to  

                 

her.  Miles did not complete the "[b]ank research" for which she billed the estate until  

over  a  week  later.    Nine  days  after  the  cell  phone  charge  cleared  the  Progressive  

checking account - the same day Miles removed all of the funds from both Progressive  

                                            

accounts - she informed Patrick of the checking account's balance.  



                                                            -5-                                                      6975
  


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

                    happened  to  him.    You  may  or  may  not  know  that  that  

                                                                  

                    account  even  used  my  social  security  number,  and  not  

                                          

                    Donald's.  



                              . . . .  



                             Once  I  realized  that  I  was  the  signatory  on  these  

                    accounts, I sought legal counsel from an ethical standpoint.  

                    I at no time or in any way wish to miss-handle [sic] these  

                           

                    funds.  If you think otherwise please let me know.  



Page responded in May that Patrick, as the personal representative of the estate, was  

                                     



gathering Donald's assets and requested that Miles give Page "all property and funds  



from Donald Moren that are in your possession, custody, or control" for later distribution  

                                                                                                   



under the law.  



                    Two  weeks  later  Miles  mailed  Page  a  check  for  $1,162.    In  the  



accompanying letter, Miles wrote:  



                    Please let me know your position on the bank account that  

                    Donald held with me as principal and with my social security  

                                                                                        

                    number.  The main reason Donald structured that account that  

                    way was to protect the money from his brothers.  He also  

                                   

                    claimed  that  one  day,  we  would  make  money  in  joint  

                    ventures although  that never came to fruition as Donald's  

                                                

                    time here was cut short.  



Two days later Page responded that the money was Donald's to begin with and had to  

                                                                              



be remitted to the estate, but Miles could submit to the estate the particulars of any claim  

                                                                                



to the money.  Nearly three weeks later, in mid-June, Miles responded:  



                    I  have  no  intentions  of  violating  my  responsibilities  as  a  

                    friend nor as an attorney. . . .  I am familiar with probate law  

                                                                 

                    . . . .  Donald wanted none of his estate upon his death to pass  

                                                                                     

                    to his brothers.  Donald's intent was to set up a nonprobate  

                        

                    transfer of any funds in that account to me, and not to his  

                                     

                    family.  I was clear that I could not guarantee that outcome  

                                                           

                    without a Last Will and Testament.   His failure to do that  

                                                                            

                    additional step before his untimely death does not preclude  



                                                             -6-                                                        6975
  


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

                      his   wishes   and   intent   from   being   followed,   however.  

                      Moreover,  the  law  on  nonprobate  transfers  supports  that  

                      outcome as well.  



                      In late June Page responded, "It is apparent that you personally received  



substantial  sums  from  a  business  account  owned  by  Donald  Moren.                                                    I  have  been  

                                                                                                                               



operating under the impression that the funds at issue are still in your trust account.  If  

                                                                                  



this is not the case, please advise me immediately."  Page demanded documentation  

                                   



regarding  any  bank  accounts  Donald  owned  or  controlled,  including  information  



regarding any joint account and any documentation of Miles's authorization to receive   



the funds. Page stated, "[Y]our correspondence suggests to me that you took the money    



and retained it for your personal benefit . . . ."  No further correspondence between Miles  



and Page or Patrick is in the record.  



           B.         Bar Grievance And Disciplinary Proceedings  



                      In late July 2010 Patrick filed a grievance against Miles with the Alaska Bar               



Association.    Donald's  sole  heir,   his  mother,  died  in  September.    Miles  responded,  



stating that Donald was "a close and personal friend" for whom she had occasionally  

                                  



completed minor legal work for a discounted rate, but never for free, and that when  



                                                                                                         

Donald died she "did not hear about it right away, because  although close personal  



                                                                                                                              

friends, [she and Donald] were not actually running around together, and he hadn't come  



to visit and chat in over a month."  Regarding the Progressive accounts, she stated:  



                                                                                          

                      In May 2008, Donald asked me to open a bank account with  

                                                                

                      me as primary and him as secondary so that he could give  

                      that   money   to   me   and   keep   his   brothers,   who[m]   he  

                                                          

                      understood to be his beneficiaries, from obtaining it.  Donald  

                      told  me  that  he  was  estranged  from,  and  did  not  like  his  

                      brothers  and  did  not  want  them  to  obtain  or  inherit  his  

                                                                                                        

                      money.   I told Donald that the correct format would be to  

                                         

                      make a will.  He stated that he would rather just open up a  

                                                                       

                      bank account for our use.  I say "our" because he intended me  

                                                                                     



                                                                      -7-                                                               6975
  


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

to have access to this money, and he trusted me.  At no time  

                                                        

did I think this was unethical as Donald was a personal friend  

                       

of mine and did not have any close friends or other family  

                                               

members that he would trust to have a joint account with.  So  

                                                                                      

I opened this account as primary, under my name and social  

                                                   

security number, and Donald was placed on the account as  

                                                                          

secondary.  



          On at least one occasion, I asked Donald to prepare a  

                                                 

[w]ill,  but  he  would  ask  how  much  it  cost,  then  refuse  to  

                                 

carry through with it.  



          . . . .  



          There  were  two  accounts  at  Key  Bank,  Donald's  

primary  account,  and  then  the  account  already  mentioned  

                            

which  contained  money  that  had  been  gifted  to  and  made  

available  to  me  at  Donald's  explicit  insistence.    I  believe  

(although  I  am  not  100%  certain)  that  Donald's  primary  

account was in his name as the primary signator, and that I  

was secondary.  The second account was in my name and  

                                             

under my social security number, and the money in it had  

                                        

been gifted to and made available to me by Donald.  I never  

                             

solicited this gift from Donald; it was his idea to do this, and  

I agreed, albeit reluctantly, although I was appreciative of his  

   

generosity and kindness.  



          I   disclosed        the     first    bank      account        to    Patrick  

immediately.    I  did  not  disclose  the  second  account  as  I  

considered it mine, and the moneys in it to be mine. . . .  I  

                      

have kept [the money].  



          . . . [M]y belief is that Donald gave me the contents of  

                                                               

the bank account when he expressed his intent that it was  

available to me to spend and that I should use it if I wanted.  

                                                                         

Thus,  I  have  not  felt  it  appropriate,  and  in  fact  it  would  

                                      

contravenes          [sic]     Donald's        fervent       wishes       which       he  

                    

expressed to me, for that money to go into his estate to be  

                     

divided by his estranged family.  



                                           -8-                                                        6975
  


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

                                                                                               

Miles also described Patrick to be "as difficult and menacing as Donald had previously  



                                             

described him" and stated that she had done only "non-lawyer-specific tasks" for Patrick,  



                                                                        

like inventorying a storage unit and collecting information on Donald's account and  



debts.    Finally,  Miles  asserted  that  during  the  summer  of  2009  she  "made  several  



                                                                                

attempts to obtain ethical guidance on these matters," by (1) speaking "in detail" with a  



                                                             

"good  friend  and  ethical  attorney,  Jill  Dean,"  and  (2)  attempting  to  speak  with  a  



                                                                                     

professor in Seattle, Washington, whose information was on the Alaska Bar website, but  



                                                                                                              

with  whom  she  had  "only  played  phone  tag."    Miles  also  asserted  that  she  had  not  



intended to violate any ethical guidelines.  



                    In late October 2011 bar counsel filed a petition for a formal hearing before  



an area hearing committee.  The petition alleged that Miles committed the following  



eight counts of misconduct, misnumbered as one through six, eight, and nine:  



                                                          

1)        representing  Patrick  regarding  Donald's  estate  despite  Miles's  own  personal  

          conflicting interest in Donald's assets, in violation of Alaska Rule of Professional  

          Conduct 1.7(a)(2);  



                                                                                                           

2)	     acquiring a pecuniary interest in her client, Donald's, Progressive bank accounts  

          without       following        required       client-protective          procedures,        in    violation       of  

          Rule 1.8(a);  



                                                                                                                     

3)	     acquiring  a  possessory  or  other  pecuniary  interest  in  the  Progressive savings  

          account which was adverse to her other client, Patrick, in violation of Rule 1.8(a);  



                                                                                                         

4)	     failing to hold the property of a client or other third persons - the Progressive  

          savings account funds - separate from Miles's own property, when she deposited  

          those funds into her own account, in violation of Rule 1.15(a);  



                                                                                                                     

5)	     failing to promptly notify those with an interest in the Progressive savings account  

                                    

          funds when they came into her possession, account for those funds, and deliver  

          them to those entitled to the funds, in violation of Rule 1.15(d);  



6) 	    failing to hold the disputed Progressive savings account funds separate from other  

          funds  until  entitlement  to  the  funds  had  been  determined,  in  violation  of  

                                                                                                        

          Rule 1.15(e);  



                                                             -9-	                                                       6975
  


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

8)	     committing the criminal act of theft, misappropriation, or wrongful conversion,  

                                                                                                   

          in violation of Rule 8.4(b); and  



9)	     engaging   in   conduct  involving   dishonesty   and   deceit  by  transferring the  

                                                                                         

          Progressive savings account funds into her own account and failing to disclose  

                                                                                     

          that transfer to her client Patrick, in violation of Rule 8.4(c).  



Miles admitted the allegations in counts one and six, and the Bar ultimately did not  



pursue counts two and nine.  



                    In February 2012 Miles submitted an affidavit reiterating her claim that the  

                                                         



funds were her property because Donald previously  had  stated his intent to gift the  

                                                                                         



contents of the savings account to her.  Miles also stated that Donald "possessed equal  



or superior knowledge about his intent and plan so [Miles] did not require him to put his  

                                                                                                               



understanding of his plan in writing, nor did [she] advise him to review his plan with  



independent  counsel."    Miles  also  explained  that  her  "statements  to  Patrick  [while  



                                         

representing him] . . . were impacted by Donald's intent that he wanted none of his estate  



. . . to pass to his brothers."  



                                                                 

                    In April, just prior to her first disciplinary hearing before the Area Hearing  



Committee,  Miles  finally  tendered  to  Donald's  estate  $20,072,  the  amount  she  had  



                                                                                                              

withdrawn from the Progressive savings account.  This was nearly three years after she  



                                                                                      

placed  the  money  in  her  own  account  and  nearly  two  years  after  the  estate's  initial  



                                                                

demand for the funds.  After tendering the money to the estate, Miles did not present the  



estate with a claim to any of it.  



                    For reasons not relevant to our decision, the Area Hearing Committee held  



                                                            

two hearings.  We describe the relevant testimony without differentiating between those  



hearings.  



                                                                                                                   

                    Regarding her friendship with Donald, Miles testified that after her car had  



                                                                                                     

been stolen by a former romantic partner he had helped her feel safe by driving her home  



                                                                         

and going with her to her office for two to three days as her "body guard."  Miles stated  



                                                              -10-	                                                        6975
  


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

that Donald also "staked out" her former partner's house for a few mornings and helped  



Miles find a new car.  Miles stated that she "probably had a crush" on Donald and that  



                                                                                       

he had offered to buy her a $600 ring, but she would not let him and instead bought it for  



                                                                                                           

herself.  Miles stated that although she previously had indicated that she interacted with  



Donald approximately 15 to 20 times over the course of their friendship, there may have  



                                                                                                                        

been additional occasions when Donald "would just stop by . . . and [she would] be too  



busy."  



                    Regarding  her  business  relationship  with  Donald,  Miles  testified  that  



Donald  was  "entrepreneurial  minded"  and  had  a  lot  of  "outlandish  ideas,"  and  that  



                                                                                                             

although  Donald  suggested  they  "could  be  in  business  together,"  she  never  did  so  



                                                                                      

because she was "leery of some of his ideas."  Regarding Progressive, Miles stated that  



                                                                                                                  

she "tried really hard to make a line between" Donald as a friend and Donald as a client,  



so she billed him about $250 to form the company.  



                                                                                               

                    Regarding the bank accounts, Miles testified that Donald had asked her:  



"If I set up the bank account with you, with rights of survivorship, does that mean my  



                                                                       

brothers won't get any of [the money]?"  Miles stated that she had told Donald she was  



                                                                                                            

not sure and that she told him several times he should make a will, but he replied that he  



                     

did not know who his beneficiary would be or with "flippant responses" such as, "I don't  



                        

plan on having any money when I die."  Miles stated that she then believed Donald had  



                                                                            

set up the savings account as a joint personal bank account with a right of survivorship  



in her favor.  



                                                                                                                        

                    Explaining why she had never noticed that the savings account was not, in  



fact,  a  joint  personal  bank  account  with  a  right  of  survivorship  and  was  instead  



Progressive's business savings account, Miles testified:  



                                                                                               

                    Donald said that he wanted to set up two accounts.  One, that  

                    he said I should divulge to his brothers, if anything happened  



                                                             -11-                                                        6975
  


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

to him; and one, that he wanted to keep from them. . . .  [H]e  

                                                     

would use one, and then the other one we would keep money  

in.  And he also said, . . . [if] we do a business, I would have  

                                                  

access to that money, like  a  seed money.  Or, if I needed  

                                          

anything. . . .  [H]e wanted to think of himself as kind of  

helping to take care of me.  



          .  .  .  I  didn't  .  .  .  go  to  Key  Bank  and  open  up  the  

                                                                 

accounts.   I sat in my office and I would be working, and  

                                                                      

Donald  came  in  and  said,  "Sign."    And  I  felt  that  my  

                                            

responsibilities, ethically, were not to be involved in anything  

                                                             

like that.  So it wasn't like I sat there and reviewed it . . . .  

                                                                                

[A] friend says, "Sign.  I'm gonna set up a joint bank account  

                         

with you, with rights of survivorship.  Sign."  So, I signed.  



          . . . [W]here it says, . . . "Registered agent," . . . it is  

                                                                   

handwritten later.  That wasn't on there when I signed. . . .  



          . . . [W]hen I did that [P]ower of Attorney, . . . giving  

                                                                              

Donald  the  right  to  use  the  account,  I  thought  I  was  the  

primary and he was the secondary.  And, for some reason,  

they needed something like that.  And he told me to put in  

there,   .   .   .   you're   a   registered   agent   of   Progressive  

                                      

Diversified.  And . . . I just thought it was him being self- 

important, I guess.  



          And, I was, like, "Okay. If that's what the bank wants,  

                                                                    

there you go.  Good bye."  



          . . . .  



          . . . [With  the later signature card, it was] the same  

                            

thing. . . .  He said something like, "The bank screwed up . . .  

                      

[a]nd we need to sign again."  



          And, again, I felt like my responsibility, ethically, is  

not to be involved in that. . . .  So, I'll help you, you're a dear  

       

friend.  So again I sign, but, I thought it was . . . just rights of  

                                                          

survivorship.    Joint  owners  with  rights  of  survivorship.    I  

thought I was the primary, which wa[s] why I had to give him  

                                                                              

that power of attorney.  



                                          -12-                                                         6975
  


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

                                . . . .  



                                I felt like, since I had to do the Power of Attorney, that  

                                                                                                 

                     was really my money.  But I would never take something  

                     from Donald that he wanted.  



                                . . . .  



                                .  .  .  I  just  felt  like,  as  a  friend,  I  shouldn't  be  .  .  .  

                                                   

                      [looking at the account paperwork], and to stay away from  

                     the gift, I shouldn't be doing that.  



                     When asked why she never withdrew any money from the savings account  

                                                                                  



during Donald's lifetime, Miles responded:  



                      [I]f we would have done a business deal, I would have.  And  

                                                                                                               

                     I know that if I . . . [were] in financial straights, I could have  

                                                   

                      . . . .  [B]ut . . . [Donald] used to make a lot of money. . . .  

                                                                                                                   

                     And then he was disabled. . . .  [T]he time he got that hundred  

                     thousand dollars, I think he owed a lot of money . . . .  He  

                                                                    

                     bought  a  brand  new  truck. .  .  .    I  would  never  just  spend  

                                                                         

                     Donald's money.  But, I think if I ever wanted it or needed it,  

                                                                                    

                     I could have had some.  



                     When asked why Donald wanted to gift the money to her, in particular, she  



testified that Donald  thought they someday would do business together.  Miles also  

                                    



thought she "was probably [Donald's] best friend at that time," though they "didn't  



necessarily socialize after hours" because Miles had three young children.  She stated  

                                                       



that Donald was charismatic and had many friends, but she also "felt like, in many ways,  

                                                                                                                     



he was kinda lonely."  Miles stated that she attended neither the barbeque where Donald  

                                                                                                



had died nor the later celebration of Donald's life.  



                     Miles also testified that when she started helping Patrick, she did not realize  



he was one of the brothers from whom Donald wanted to keep his assets, and once she  



realized her mistake, she tried to get everything done as quickly as she could.  Miles   



stated that Donald said the smaller account was supposed to be revealed to Donald's   



                                                                  -13-                                                             6975
  


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

brother  "because  [Donald]  knew  he'd  keep  looking  for  money  until  he  found  



                                                                             

something."  Miles further stated:  "[S]ince it was my money, I felt like I didn't need to  



                                                                                                                  

disclose the second account.  I felt that legally I didn't need to disclose the first account  



[either], but I would, because that's what Donald wanted."  She stated that she did not  



                                                                                                              

tell Patrick about the second account because she was honoring Donald's wishes and felt,  



                                                                                                             

at the time, that she was "taking the high road."  Miles also stated that Donald felt that  



                                                      

his brothers controlled his mother, so they would get the money in the event of his death.  



                                                                                                         

                    Jill Dean, the attorney with whom Miles had discussed her ethical qualms,  



                                                 

also testified.  Dean stated that on more than one occasion during the summer of 2009,  



                                                     

Miles said she had a joint account with a deceased friend who had been a client and was  



                                                  

not  sure  what  to  do  about  it.              Based  upon  Dean's  understanding  that  it  was  a  joint  



account,  Dean  had  advised  Miles  to  "hold  onto  the  money"  because  she  was  the  



surviving beneficiary and therefore had the best claim to the money.  



                                                                                                                    

                    Five character witnesses testified on Miles's behalf: a rector at her church,  



who  had  known  her  for  about  three  years;  her  career  coach,  who  had  acted  in  that  



capacity for approximately six months; a fellow animal rescue volunteer, who had known  



                                                                           

her since 2005; a friend and fellow dog musher, who had known her since 1998; and a  



former client, who had known her since 2011.  The career coach testified that Miles had  



                            

"expressed regret [about] the whole situation," recognized the "error in judgment on her  



part," and was working on becoming more detail-oriented.  The four remaining witnesses  



testified that Miles had a reputation for truthfulness.  



                                                                     

                    Two of Donald's close friends, William O'Brien and Robert Madson, also  



                                                                                      

testified.    O'Brien  stated  that  he  first  met  Donald  in  the  1990s  and  that  they  were  



                                                                                                            

roommates when Donald died.  He stated that he and Donald hung out and went fishing  



                                                                                                              

and boating together.  He stated that Donald was using the Progressive money to run a  



                                                                                     

business selling boats, and that all he could remember Donald saying about Miles was  



                                                               -14-                                                         6975
  


----------------------- Page 15-----------------------

                                                                                                             

that she had helped him form Progressive and he had fixed a fence for her at some point.  



                                               

He stated that Miles had never visited their residence, and that he believed Donald had  



                                                                                                    

only a professional relationship with her.  He stated that he did not believe Donald had  



                                                                                                                

any business ventures with Miles or a close friendship with her.  He added that Donald  



was always coming up with business ideas and trying to "enlist" O'Brien to join him.  



                                                                                                                     

When asked whether Donald would give money to Miles, O'Brien stated, "No, I can say  



that I'm positive he wouldn't do that."  



                    Madson testified that he knew Donald for 36 years.  He stated that his  



                                                                    

brothers, Donald, and he all grew  up  in  the  same small town in Minnesota; they all  



hunted, fished, and vacationed together; and Donald's mother was Madson's seventh  



grade teacher.  He stated that Donald joined Madson in Alaska in the 1980s, and that  



                                                                                                  

they hunted, fished, and hung out together.  He stated that Donald had quite a few close  



                                                                                                               

friends,  but  Miles  was  not  one  of  them.    Madson  stated  that  although  Donald  had  



mentioned Miles on a couple of occasions because he had "legal dealings" with her,  



                                                                                                                

Madson had never seen Donald socialize with her, and Madson "[did]n't even know  



                                                  

what [Miles] look[ed] like."  He described Donald as "a wheeler-dealer" when it came  



                                   

to business and stated that Donald was "real[ly] close" with his mother and "always  



                                                                       

talked about her, and . . . any way . . . he could help her."  He stated that Donald would  



                                      

have wanted his money  to go to his mother.  Regarding Donald's relationship with  



                          

Patrick, Madson stated, "[Donald] didn't talk about him much, let's just put it that way."  



                    The Area Hearing Committee found that Miles had committed the four  



remaining contested counts of misconduct described in the petition:  counts three, four,  



                                                                                             

five, and eight.  This included the specific finding that "Miles committed a criminal act  



                                         

of theft, misappropriation, or wrongful conversion."  The Committee found "as a matter  



of fact and law that no gift was accomplished by Donald's purported statement of an  



intent to make a gift of funds to Miles."  It also expressed "reasonable doubt whether  



                                                             -15-                                                        6975
  


----------------------- Page 16-----------------------

Donald had actually made statements to Miles intending to gift her money through a non- 

                                                                                                          



probate transfer from a joint account" and stated that Miles's claims regarding such  

                                                                                                                    



statements were "uncorroborated and self-serving."  



                      The Committee found "the overall evidence to be clear and convincing that  

                                                                              



by the time Miles withdrew the funds and closed the accounts, she had actual knowledge  

                                                   



that  they  were  business  accounts  .  .  .  solely  owned  by  Donald."                                     It  also  found  that  

                                                                                                                           



"Miles's testimony that at the time she withdrew the money she believed the account was  



a joint personal account with right of survivorship [was] simply not credible on the   



record before [the Committee]."  In fact, "[e]ven if Miles believed that Donald intended  

                                                                                                                  



to open a joint personal account with her, she was immediately - and repeatedly -  

                                                       



confronted with obvious, and unmistakable evidence that Donald had, in fact, opened  



                                            

only business accounts at Key Bank in the name of his solely-owned company . . . ."  



The Committee found "more incredulous [sic] . . . Miles's claim that after Donald's  



death,  she  continued  to  believe  that  the  Key  Bank  savings  account  was  a  personal  



                                                                                                               

account, even after she 'pulled Donald's file,' " remembered that she was a signer on the  



two  accounts,  "performed  'bank  research,'  "  obtained  counter  checks  from  both  



                                                          

accounts, and disclosed to Patrick the existence of only one account.  Ultimately, the  



Committee found:  



                                                                            

                      Taken as a whole, . . . the record evidence . . . [is] clear and  

                      convincing that any "mistaken impression" that Miles had  

                                                                           

                      about the nature of the Key Bank accounts had been dispelled  

                                                                                        

                      by the time she withdrew the funds and closed the accounts  

                                                                                               

                     - that after Donald's death, Miles had actual knowledge that  

                                                                                    

                      the Key Bank accounts were business accounts in which she  

                      had no ownership interest.  



                                 . . . .  



                                                                         

                                 . . . Miles knew that the[] funds had not been conveyed  

                      to her . . . .  



                                                                   -16-                                                             6975
  


----------------------- Page 17-----------------------

                                                                                             

                    When evaluating the proper sanction for Miles's violations, the Committee  



found  that  Miles's  misconduct  resulted  in  "at  least  the  potential  for  serious  harm"  



                                                                                                          

because Miles had "deprived [Donald's estate] of its major asset" - over $20,000 -  



"for almost three years and could have permanently deprived the [e]state" of that asset  



but for Patrick's perseverance.  Given its finding that Miles's conduct was knowing, the  



                                                                                                    

Committee preliminarily concluded that the appropriate sanction for her conduct was  



                                                                                                                

disbarment.  The Committee found only one mitigating factor: cooperation with the Bar.  



                                      

The Committee rejected Miles's argument that "delay in the disciplinary proceedings"  



                                                               

should be a mitigating factor, and found that the "evidence of Miles'[s] reputation for  



                                              

honesty [did] not mitigate the circumstances of the violations committed."  Finally, the  



Committee  found  that  "any  mitigating  factors  [were]  more  than  neutralized  by  the  



                                                                                                   

[aggravating] factors . . . [of]  dishonest or selfish motive; refusal to acknowledge [the]  



                

wrongful  nature  of  [the]  conduct;  substantial  experience  in  the  practice  of  law;  and  



indifference to making restitution."  The Committee therefore recommended that the  

Disciplinary Board impose on Miles the sanction of disbarment.2  



                                                                                                      

                    The Board adopted the Committee's findings of fact, conclusions of law,  



                                 3  

                                                                                                           

and recommendation.                 Miles appeals the findings that she committed the violations in  



          2         Area hearing committees submit written reports containing findings of fact,  



conclusions of law, and recommendations to the Disciplinary Board.  See Alaska Bar R.  

12(i)(4).    The  Board  may  accept  those  reports  or  adopt  its  own,  and  may  impose  

                                                               

reprimands or forward its own findings of fact, conclusions of law, and recommendations  

to this court for more serious discipline.  See Alaska Bar R. 10(c)(5)-(8).  



          3         Three  days  before  the  Board  held  Miles's  October  2013  disciplinary  



hearing, Miles moved to admit the results of a polygraph examination conducted just one  

                       

week prior.  The examiner's opinion was that:  



                    Miles was truthful when she stated . . . 1) Donald Moren had  

                                     

                    told her the Key Bank account was a joint account with right  

                                                                                    

                                                                                                              (continued...)  



                                                              -17-                                                         6975
  


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

counts three, four, five, and eight, and requests that we impose the lesser sanction of  



suspension from the practice of law for no more than three years.   



III.	     STANDARD OF REVIEW  



                    "We  independently  review  the  entire  record  in  attorney  disciplinary  

proceedings, though findings of fact made by the Board are entitled to great weight."4  



When  the  Board's  findings  of  fact  are  appealed,  "the  respondent  attorney  bears  the  



                                                                                                       5  

burden of proof in demonstrating that such findings are erroneous."   "[W]e ordinarily  



                                                                                                        6  

will  not  disturb  findings  of  fact  made  upon  conflicting  evidence."     "We  apply  our  



                                                                                                       

independent judgment to questions of law and questions concerning the appropriateness  



          3	        (...continued)  



                    of  survivorship,  2)  she  failed  to  disclose  it  because  she  

                         

                    believed she owned it, and 3) she did not know until June 12,  

                                                                       

                    2009[,] that the account was a business account.  



The Board found that "even if the polygraph's conclusion that . . . '[Miles] did not know  

                                                                                                                 

until June 12, 2009[ - the day she withdrew the Progressive savings account funds -]  

                                          

that the account was a business account' is correct, it does not undercut the findings and  

                                                                 

conclusions of the . . . Committee."  We agree with the Board.  It makes little difference  

                        

if Miles did not know "until" June 12, 2009, that the account was a "business account."  

                                                                                                    

What matters is whether Miles believed  on  that day - and beyond -  that she was  

                                                                                                                

unquestionably entitled to the money in the account.  



          4  

                              

                    In  re  Disciplinary  Matter  of  Shea ,  273  P.3d  612,  619  (Alaska  2012)  

(internal quotation marks omitted);  cf. Alaska Bar R. 22(r) ("The Court will review  

findings of fact, conclusions of law, and recommendations of discipline made by the  

Board . . . .").  



          5  

                                                                                                    

                    In re Disciplinary Matter of Rice , 260 P.3d 1020, 1027 (Alaska  2011)  

(internal quotation marks omitted).  



          6         Id. (alteration omitted) (internal quotation marks omitted).  



                                                              -18-	                                                        6975
  


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

                     7  

of sanctions."   



IV.       DISCUSSION  



          A.        Counts Five And Eight  



                    Miles's challenge to the Board's ultimate finding that she committed the  



                                      8               9  

                 

violations  in  counts  five   and  eight   is  premised  upon  her  argument  that  we  should  



                                                                                                      

overturn at least one of the following underlying factual findings:  (1) no gift of the funds  



in  the  Progressive  savings  account  was  intended  or  accomplished  from  Donald  to  



          10 

                                                                

Miles,       and (2) at the time Miles withdrew the funds from the account, she knew she had  



no ownership interest in them.  



          7         In re Shea , 273 P.3d at 619 (internal quotation marks omitted); see also  



Alaska Bar R. 22(r) ("The Court will decide . . . the type of discipline to be imposed  

                                                                                            

 . . . .").  



          8         Count five alleged that Miles failed to promptly notify those with an interest  



in the Progressive savings account funds when they came into her possession, account  

                                                     

for those funds, and deliver them to those entitled to the funds, in violation of Alaska R.  

                                                                                   

Prof. Conduct 1.15(d).  



          9  

                                                            

                    Count  eight  alleged  that  Miles  committed  the  criminal  act  of  theft,  

misappropriation,             or    wrongful        conversion,          in    violation       of    Alaska       R.     Prof.  

Conduct 8.4(b).  



          10        The Area Hearing Committee found "as a matter of fact and law that no gift  



                                                                                                            

was accomplished by Donald's purported statement of an intent to make a gift of funds  

to  Miles."    It  also  expressed  "reasonable  doubt  whether  Donald  had  actually  made  

statements to Miles intending to gift her money through a non-probate transfer from a  

                                                                                     

joint   account"   and   stated   that   Miles's   claims   regarding   such   statements   were  

                                                                                             

"uncorroborated and self-serving."  The Committee added that "Donald never opened  

a joint account with Miles" and that "two of [Donald's] close friends testified that Miles  

                                                                                   

was not [Donald's] close friend . . .  [and] did not socialize with him, and that Donald  

would not have give[n] her any of his money."  Based upon the Committee's reasoning,  

                                                                       

we treat its finding that no gift was accomplished as a finding of fact that Donald lacked  

donative intent.  



                                                             -19-                                                        6975
  


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

                    To accomplish a gift, "donative intent must be clear, unmistakable, and  



                      11 

                                                                                              

unequivocal."             Miles testified that she was "most definitely" wrong in believing that the  



money  from  the  savings  account  belonged  to  her.    She  admitted  that  she  had  no  



documentation "beyond the bank accounts" memorializing Donald's alleged intent to gift  



                                  

the funds to her, and that no aspect of the bank accounts expressly entitled her to the  



funds.  Miles's testimony regarding Donald's alleged "donative intent" is lacking and  



contradicted by the evidence:  Miles testified that Donald posed a hypothetical question  



                                    

regarding setting up a joint account with her, she answered that he should create a will,  



                                                     

and he shrugged off that answer.  According to Miles, Donald then told her - though  



                                                     

it is unclear when or in what terms - that he was setting up a joint personal account with  



                                                                                                                

rights of survivorship in Miles's favor.  Donald instead created business accounts with  



                                                                                                    

Miles as a signer under her putative authority as the business's registered agent, had  



                                                                                          

Miles sign a "Power of Attorney" form giving him "sole signatory authority and sole  



                                                                                                                  

authority to manage [those accounts] as he [saw] fit," added himself onto the accounts  



                                              

as a signer under his authority as the business's owner, ran a business using the accounts,  



                                                                                 

and spent the majority of the money.  Donald's close friends testified that Donald would  



                                                                                                          

not have given money to Miles. Miles has therefore failed to carry her burden of proving  

erroneous the Board's finding that no gift was accomplished.12  



          11        Roberson v. Manning , 268 P.3d 1090, 1094 (Alaska 2012).  



          12        We note that even if Donald had intended to gift the money to Miles, a gift     



from a client to an attorney is subject to special scrutiny.  See, e.g., Alaska R. Prof.  

Conduct 1.8(c); Commentary Alaska R. Prof. Conduct 1.8 ("[T]he doctrine of undue  

                                                                                             

influence . . . treats client gifts as presumptively fraudulent. . . .  If effectuation of a  

                                                                                                

substantial gift requires preparing a legal instrument such as a will or conveyance the  

client  should  have  the  detached  advice  that  another  lawyer  can  provide.    The  sole  

                                                                                    

exception to this Rule is where the client is a relative of the donee.").  



                                                               -20-                                                         6975
  


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

                    Miles  next  argues  we  should  find  she  did  not  possess  the  mental  state  



required for the crime of theft because, even if there actually was no gift, she believed  



Donald had completed a gift to her and she did not know that the funds in the savings  



             

account belonged to someone else.  But it stretches credulity that Miles, having been an  



                                                                        

attorney in Alaska for 20 years and offering legal services in estate planning and probate,  



                                                                                                        

failed to recognize a single one of the numerous signals that Donald had not, in fact,  



                                                                                   

completed a gift to her. Further, Miles's own actions are inconsistent with her professed  



belief that a gift had been completed:  On the day the accounts were opened in her name,  



                                                       

she prepared and signed the "Power of Attorney" form giving Donald "sole signatory  



                                                                                                

authority and sole authority to manage [the accounts] as he [saw] fit," and she withdrew  



no money from the accounts during Donald's lifetime.  Miles's explanation that she  



"would never just spend Donald's money," but that she thought she could have spent  



                   

some if she wanted or needed to do so, conflicts with her argument that she believed a  



                                                                                                                    

gift to her had been completed and that it was her money.  Miles's assertion that she  



                                                                                                        

believed both accounts belonged to her also conflicts with her decisions to reveal one and  



                                                                                                 

hide the other and to never present the estate with a claim of right to the money in either  



account.  Miles has therefore failed to carry her burden of proving erroneous the Board's  



                                                                                   

finding that Miles knew the money did not belong to her when she wrongfully converted  



it to her possession.  



          B.        Counts Three and Four  



                                                                                      

                    Given the egregiousness of count eight and our ultimate conclusion that  



                                                          

disbarment is the appropriate sanction in this case, we do not need to consider Miles's  



arguments regarding counts three and four.  



          C.        Sanctions  



                    "Our individual examination of [the appropriate sanction in] each case is  



                                                                                                             

guided but not constrained by the American Bar Association's Standards for Imposing  



                                                             -21-                                                       6975
  


----------------------- Page 22-----------------------

                                                                                

Lawyer Sanctions[,] . . . the sanctions imposed in comparable disciplinary proceedings,"  

and the Board's sanction recommendation in this case.13  



                                                                                                                                       14  

                                                                                    

                       "We apply a three-step analysis to determine attorney sanctions."                                                    First,  



                                                                                                                            

we examine:  (1) the duty or duties violated; (2) the attorney's mental state regarding  



                                                                                                                                   15 

                                                                                                                                       Second,  

these violations; and (3) the "extent of the actual or potential injury" involved. 



                                  

for the misconduct examined in the first step, we determine what sanctions the American  

                                                                                                                             16  Finally, we  

Bar Association's Standards for Imposing Lawyer Sanctions recommend. 



determine "how aggravating or mitigating factors affect the recommended sanctions,"  

if at all.17  



                       Miles admitted to representing one client regarding a former client's estate  

                                                       



despite her own personal conflicting interest in the former client's assets and to failing  

                                                                                                                               



to hold more than $20,000 in disputed funds separate from other monies until entitlement  

                                                                                          



to the funds had been determined.  Miles also failed to promptly notify those with an  

                                                                                                 



interest in the funds when they came into her possession, failed to account for the funds,  

                                                                                                                               



and  failed  to  deliver  the  funds  to  those  entitled  to  them.    Most  egregiously,  Miles  

                                                              



            13         In re Disciplinary Matter of Shea                         , 273 P.3d 612, 619, 623 (Alaska 2012)   



(internal quotation marks omitted); cf. Alaska Bar R. 16(a) ("A finding of misconduct  

by the Court or Board will be grounds for (1) disbarment by the Court; or (2) suspension  

                                                   

by the Court for a period not to exceed five years; or (3) probation imposed by the Court;  

                                           

or (4) public censure by the Court . . . .").  



            14         In re Shea , 273 P.3d at 622.  



            15         See id.  



            16         Id.  



            17         See id. (internal quotation marks omitted).  



                                                                       -22-                                                                 6975
  


----------------------- Page 23-----------------------

committed the criminal act of theft, misappropriation, or wrongful conversion.18  

                                                                                                                           



                    In  committing  the  criminal  act  of  theft,  misappropriation,  or  wrongful  

                                                                                    



                                                                         19  

conversion, Miles's mental state was knowing.                                We agree with the  Board  that the  

                                                                                                                        



potential injury was great.  Miles could have permanently deprived Donald's estate of  

                                                    



over  $20,000  and  withheld  the  money  for  almost  three  years,  during  which  time  



Donald's sole heir died.  Additionally, Miles used her position to attempt to blind her  



                                                                                                         

current client - the estate's personal representative - to her theft of one of the estate's  



                                                                                               

major assets.  Such a duplicitous act by a member of the Bar, particularly while acting  



                                                                                                       

in her capacity as an attorney, damages the reputation of the legal profession and the  



legal system at large.  



                    The American Bar Association's Standards for Imposing Lawyer Sanctions  



                                

state:    "Disbarment  is  generally  appropriate  when  .  .  .  a  lawyer  engages  in  serious  



                                                                                      

criminal conduct a necessary element of which includes . . . misappropriation[] or theft  



         20  

. . . ."     We agree with the Board that only one mitigating factor applies in this case:  



                                                                                        21  

cooperative attitude toward the disciplinary proceedings.                                    This mitigating factor is  



entirely neutralized by the five aggravating factors which clearly apply:  dishonest or  

                                                                    



selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial  



          18        Because we do not consider Miles's arguments regarding counts three and   



four, we do not consider those counts in our sanctions analysis.  



          19        See AS 11.46.100(1) ("A person commits theft if with intent to deprive  

                                                             

another of property or to appropriate property of another to oneself or a third person, the  

                                                                                      

person obtains the property of another . . . .").  



          20        AM . BAR ASS 'N , STANDARDS FOR IMPOSING  LAWYER  SANCTIONS  5.11(a)  



(1992).  Given that this is the highest level sanction possible, we do not need to review  

                                                                                                              

the recommended sanctions for Miles's other misconduct.  



          21        See id.  9.32 (listing mitigating factors).  



                                                              -23-                                                         6975
  


----------------------- Page 24-----------------------

experience in the practice of law, indifference to making restitution, and illegal conduct.22  



Given the egregiousness of Miles's conduct and the aggravating factors involved, we  



agree with the Board that disbarment is appropriate in this case.  



V.        CONCLUSION  



                                                                      

                   Melinda D. Miles is DISBARRED effective 30 days from today.  Miles is  



directed that effective today:  (1) her court filings shall be limited to notices of her  



                                                                                          

impending disbarment and either withdrawals or substitutions of counsel; (2) she shall  



                                                                                                  

not take any new client matters; (3) she shall take immediate action to close or transfer  



                                                                                       

to another attorney her open client matters; and (4) she shall cooperate with the Alaska  



                                                                                              

Bar Association to ensure that her open client matters are closed or transferred by her  



disbarment date, including making full disclosure to Bar Counsel of the status of her  



client files.  The filing of a petition for rehearing shall not affect the disbarment date,  



                                                                                  

although the court will consider any such petition on an expedited basis.  In the event  



                                                                                                 

Miles files a petition for rehearing, the Alaska Bar Association shall respond within five  



days of service of the petition.  



         22        See id.  9 .22 (listing aggravating factors).  



                                                           -24-                                                        6975  

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