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In Re Ivy (5/1/2015) sp-7002

         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-15450  

                                                             )  

DEBORAH IVY,                                                 )    ABA File No. 2010D233       

                                                             )  

                            Respondent.                      )    O P I N I O N  

                                                             ) 

                                                             )    No. 7002 - May 1, 2015  



                   Appeal from the Alaska Bar Association Disciplinary Board.  

                                                            



                   Appearances:  Charles E. Cole, Law Offices of Charles E.  

                   Cole, Fairbanks, for Respondent.  Kevin G. Clarkson, Brena,  

                                                                   

                   Bell & Clarkson, P.C., Anchorage, Special Bar Counsel for  

                   Alaska Bar Association.  



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

                   Justices. [Maassen, Justice, not participating.]  



                   BOLGER, Justice.  



I.        INTRODUCTION  



                   The Alaska Bar Association Disciplinary Board recommends disbarment  



of Deborah Ivy for making false statements as a party to litigation in violation of Alaska  

                                                                     



Rules of Professional Conduct 3.3, 3.4, and 8.4 and Alaska Bar Rule 15.  We agree the  

                                                                                                               



record establishes that Ivy made false statements in violation of Professional Conduct  



Rule 8.4 and Bar Rule 15.  But we conclude that Rules 3.3 and 3.4 do not apply because  

                                             



they  are  intended  to  govern  attorneys  acting  as  advocates  and  not  in  their  personal  

                                                                                                        


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

                                                                                

capacities.    We  therefore  remand  this  matter  to  the  Board  for  reconsideration  of  its  



recommended sanction.  



II.       FACTS AND PROCEEDINGS  



                                              

                                                                                   

                    Deborah Ivy and her brother, David Kyzer, were involved for several years  



                                                                                                               1  

in   now-settled   litigation,   including   the   Kyzer   Partnership   Litigation    and   the  



                                             2  

                                                                                         

Kyzer/McManamin Litigation.                     This litigation involved the dissolution and unwinding  



                                                    

of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and  

others.3  In the Kyzer Partnership Litigation, Ivy counterclaimed against Kyzer, alleging,   



among  other  things,  that  Kyzer  created  a  hostile  work  environment  and  committed  



"intentional tortious acts," by behaving abusively toward her for decades.  Relations  



                                                                                                

between Kyzer and Ivy grew so acrimonious during the litigation that a no-contact order  



was issued in December 2007, prohibiting in-person or telephone contact between the  



parties without an attorney present and prohibiting each party from coming within 500  



feet of the other's residence.  



                                      

                    During the course of the litigation, Ivy alleged and testified that Kyzer  



                         

made improper contact with her on three occasions, two of which are relevant to this  



                                                                                               

appeal.  Kyzer filed a grievance with the Alaska Bar Association alleging Ivy fabricated  



                                                                                          

these incidents and violated the Professional Conduct Rules by testifying falsely about  



them.  



          1         This was superior court case number 3AN-05-09242 CI.  



          2         This was superior court case number 3AN-07-10578 CI.  



          3         In the Kyzer Partnership Litigation, Kyzer sued Ivy   individually and on  



behalf of The Kyzer Group.  In the Kyzer/McManamin legislation, the plaintiffs were  

John McManamin, Nancy McManamin, Robin McManamin, and Jerry Ulmer.  The four  

Kyzer siblings, The Kyzer Group, and Deborah Ivy, LLC were the defendants.  



                                                             -2-                                                        7002
  


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

                     The first such incident allegedly occurred December 29, 2007, when Ivy  



                                                                                                    

claims Kyzer stalked her at a women's clothing store.  Ivy was scheduled to have her  



                                                                               

deposition taken in the McManamin litigation in January.  Ivy did not appear at the  



                                                                                                               

scheduled date; the deposition did not occur until March 13, 2008. At the deposition, Ivy  



                             

testified about the alleged stalking.  According to Ivy, she was shopping at the store from  



                                        

approximately 3:15-3:45 p.m., saw Kyzer in his car outside the store, and completed her  



                                                                                   

shopping while continuing to look out the window  at Kyzer.  Ivy claimed that after  



                                         

completing her purchase, she hurried to her car, and while she was backing out, Kyzer's  



                                    

vehicle pulled up next to her so close that she thought they would collide.  She testified  



                                                                          

she could see Kyzer in his car "focused, intent, locked in to me" and her "reaction was  



just to flee."  Ivy stated that she and Kyzer then drove off in different directions.  



                     Ivy testified she could not recall whether she contacted the police that day.  



                                                                      

 She stated she did not file a police report that day and could not recall whether she asked  



                                                                                                                    

anyone else to file one for her.  She recalled contacting the police multiple times about  



                          

the incident but could not remember when.  But she provided a detailed statement to a  



                                                          

police officer over a week later.  The police report states, "[I]f what she provided could  



be  corroborated,  it  still  would  not  amount  to  criminal  activity."    The  police  officer  



                                        

encouraged her to apply for a domestic violence restraining order.  The police report  



                                                                                                    

stated that Ivy's attorney at the time called the police officer after hearing from Ivy about  



                                                                                                    

their conversation.  The officer told Ivy's attorney that he would be willing to request a  



telephonic  hearing  for  the  restraining  order  because  Ivy  was  afraid  to  come  to  the  



courthouse.  



                                                                                     

                     Ivy also alleged Kyzer assaulted her in  a courtroom on June 29, 2010,  



before a hearing in the Kyzer/McManamin Litigation.  According to Ivy's affidavit:  



                                                                -3-                                                          7002
  


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

                               Just prior to the commencement of the hearing, I was  

                    standing behind the bar, waiting to come forward and join my  

                    attorneys . . . , who were in front of the bar . . . .  



                               . . . David Kyzer surreptitiously approached me from  

                                     

                    the rear, and using force, repeatedly thrust his groin into my  

                                                                                       

                    buttocks area.  



                               . . . .  



                               . . . I not only felt his groin and crotch (penis), but he  

                                                                 

                    also pushed [his] entire frontal area extremely hard against  

                                                                      

                    me, from his upper chest/lower neck all the way through his  

                                                                              

                    legs   (which   were   so   entangled   that   he   tripped   while  

                                                         

                    disengaging himself).  



                               . . . His pushing/pressure during the attack caused me  

                                   

                    pain . . . .  



                               . . . .  



                               . . . While he was attacking me, his mouth was near my  

                                               

                    ear, and he was talking into my ear, calling me "Debbie."  



                               . . . .  



                               . . . I [cried] out[,] "[D]on't touch me."  



                    Ivy  alerted  her  attorney,  who  reported  to  the  judge  that  Kyzer  had  

                                               



"physically accost[ed]" Ivy.  The judge reminded the parties about the requirements of  



the no-contact order and proceeded with the hearing.  



                    Two days after the hearing, Ivy emailed her attorney details of the alleged  

                                                                



assault.  This email appears to be the first documented allegation the assault was sexual.  

                                                                                   



Ten  days  later  Ivy's  attorney  filed  a  "Notice  of  Sexual  Assault"  with  the  court,  

                                                                                             



accompanied by Ivy's affidavit.  Subsequently, both Kyzer and Ivy obtained a copy of  

                                                                                                                         



the courtroom security video of this incident.  



                    In December 2010 Kyzer filed a grievance with the Alaska Bar Association  

                                                                                                             



against Ivy, alleging she violated Alaska Professional Conduct Rules 3.1, 3.3(a)(1) and  

                                       



                                                                -4-                                                         7002
  


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

                                                                                                                                   4  

                                                                                            

(3), and 8.4(a) through (c) by falsely testifying that Kyzer stalked and assaulted her. 



                                                                                                     

Special Bar Counsel Kevin Clarkson was appointed to review the grievance.  He found  



                                             

there was probable cause to believe Ivy committed the alleged violations.  The Board  



                                                                                                              

Discipline Liaison approved the filing of a Petition for Formal Hearing, and the Petition  



                                         

was filed in March 2012.  The Petition charged Ivy with the same violations as Kyzer's  



                                                                                                                        

grievance, except it did not charge her with violating Rule 3.1.  It also charged Ivy with  

violating Rule 3.4(b) and Alaska Bar Rule 15(a)(3).5  



                    An Area Hearing Committee was appointed to conduct the hearing, which  

                                                                                                         



was held in February and March 2013.  The Committee found Kyzer had not stalked Ivy  

                                                            



and  suggested  Ivy  may  have  fabricated  the  incident  in  an  effort  to  avoid  her  2008  



deposition.  The Committee found Ivy's testimony about the alleged stalking was not  



credible and her description of the movements of Kyzer's vehicle in the clothing store  



parking lot was "not physically possible." The Committee stated, "When confronted with  



                                                                                                              

this physical reality during cross-examination, Ms. Ivy fabricated a new story . . . ."  The  



Committee found Ivy continued to testify falsely at the hearing and did not admit her  



previous testimony was mistaken.  



                                                                                                                      

                    The Committee credited testimony from Kyzer and his wife that they were  



                                                               

driving a different vehicle that day to run errands (for which they provided receipts), did  



not go to the women's clothing store, and returned home to watch a football game before  



                                                                                         

Ivy arrived at the store.  The Committee also credited the testimony of the Kyzers' two  



          4         Ivy also had alleged under oath that Kyzer trespassed on her property.       



Kyzer's grievance charged Ivy with fabricating this incident as well.                                    Because there was  

conflicting evidence concerning this incident, Ivy was found not to have violated any  

rule by testifying about it, so it is not at issue on appeal.  



          5         Bar  Rule  15(a)(3)  makes  "knowing  misrepresentation  of  any  facts  or  



circumstances surrounding a grievance" grounds for discipline regardless of whether the  

                                                                                                

conduct "occurred in the course of an attorney-client relationship."  



                                                                -5-                                                         7002
  


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

sons, who testified Kyzer was home in the afternoon to watch a pre-game show and  



football game.  And it relied on the testimony of two store clerks who helped Ivy that     



day; they testified Ivy never told them she was in a hurry and did not look worried or  



nervous.    The  Committee  found  by  clear  and  convincing  evidence  Ivy  knowingly  



provided false testimony at the deposition and hearing.  



                   The Committee also found there was clear and convincing evidence Ivy  



                  

knowingly  provided  a  false  affidavit  about  the  alleged  courtroom  assault.                                      The  



                                  

Committee  found  the  courtroom  security  videotape  accurately  depicted  the  events  



leading up to the court hearing and that although Kyzer's "hip or buttocks may have  



                                                                           

brushed Ms. Ivy's right hip" as he passed by her to take his seat, the other allegations in  



Ivy's affidavit were false. The Committee concluded:  



                   It is not reasonably possible for someone to have experienced  

                                           

                   the inadvertent and minor bump of a brother attempting to be  

                                                                                

                   excused  and  then  to  pass  by  his  sister,  as  is  seen  on  the  

                   courtroom security videotape . . . , and then to honestly or  

                                                                                                     

                   mistakenly believe that they had been sexually assaulted . . . .  



                                                                                 

                   The Committee noted that Ivy testified she had not been mistaken about the  



incident and denied imagining or hallucinating it.  Instead, the Committee found she  



continued to fabricate new evidence at the disciplinary hearing, producing pants she  



                                                      

claimed to have worn that day and contending they contained marks evidencing the  



                                               

sexual assault.  The Committee found, "She also newly claimed that she had gone to a  



doctor who had diagnosed a bruised 'pubic bone' as a result of her encounter."  



                   The  Committee  concluded  Ivy  violated  Professional  Conduct  Rules  



                                                                                                                      

3.3(a)(1)  and  (3);  3.4(b);  8.4(a),  (b),  and  (c);  and  Alaska  Bar  Rule  15(a)(3).    The  



Committee recommended that the appropriate sanction was disbarment.  Ivy appealed  



                                                                            

the Committee's decision to the Board of Governors in July 2013; the Board adopted the  



Committee's findings and recommendation for disbarment in full.  Ivy appeals.  



                                                             -6-                                                      7002
  


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

       

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."6  



                                

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



                                                                                                        7  

                                                                                                           "We apply our  

burden of proof in demonstrating that such findings are erroneous." 



independent judgment to questions of law and questions concerning the appropriateness  

                                   

of sanctions."8  



IV.       DISCUSSION  



          A.        We Agree With The Board's Findings Of Fact.  

                



                    Ivy  challenges  the  factual  findings  concerning  the  alleged  assault  and  



                                                                                                       

stalking incidents made by the Committee and adopted by the Board.  With respect to the  



alleged stalking incident, we note the Committee had the opportunity to observe the  



witnesses  presented  by  both  parties  and  make  findings  about  their  credibility.    The  



                                                                      

Committee determined Ivy was not credible, whereas the Kyzers and the store clerks  



testified credibly.  We generally will not disturb factual findings by an area hearing  



                                                                                                     9  

                                                                                                          And  Ivy  fails  to  

committee  when  the  findings  are  based  on  conflicting  evidence. 



                                                 

demonstrate that the Committee erred in weighing the witnesses' credibility.  We concur  



with the Board's findings about the alleged stalking incident.  



          6         See In re Disciplinary Matter of Miles, 339 P.3d 1009, 1018 (Alaska 2014)         



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

quotation marks omitted).  



          7  

                                                                             

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

2011)) (internal quotation marks omitted).  



          8         Id. (quoting In re Shea , 273 P.3d at 619) (internal quotation marks omitted).  



          9         Id.  



                                                               -7-                                                         7002
  


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

                     The  Board's  findings  concerning  the  events  in  the  courtroom  are  well  



supported by the courtroom video of the encounter between Kyzer and Ivy and the  



                                                                 

testimony presented to the Committee.  We therefore adopt the Board's findings about  



the courtroom incident.  



                                                            

                     Ivy also argues the Bar Association did not prove by clear and convincing  



                                                                                                                  

evidence that she "knew" that her testimony was false. In response, the Bar Association  



contends  the  Board's  factual  findings  regarding  each  incident  were  supported  by  



                                                                          

sufficient circumstantial evidence suggesting Ivy subjectively knew her testimony was  



false.  



                     The   Rules   of   Professional   Conduct   define   "knowingly"   as   "actual  



                                                                                                 

knowledge of the fact in question," adding that "[a] person's knowledge may be inferred  

from circumstances."10  Accordingly, "knowingly" making a false statement for purposes  



of the Rules requires both that the statement be false and that the speaker know so.  But  



even the speaker's subjective knowledge of a sworn statement's falsity can be proven  



                                                     11  

through circumstantial evidence.                         



                                                                                                             

                     We agree there was sufficient circumstantial evidence to establish that Ivy  



                                                                                                                

knew her testimony was untrue.  The incredibility of Ivy's testimony about the alleged  



                                                                                            

stalking, the testimony of six witnesses who contradicted her account, and her motive to  



                                                                                 

lie collectively permit the inference she knew her testimony was false.  Concerning the  



           10        Alaska R. Prof. Conduct 9.1(h).  



           11         Cf. Adams v. Adams,  131 P.3d 464, 466-67 (Alaska 2006) ("[W]e note that   



actual knowledge can be inferred from circumstantial evidence.  Otherwise, it would be                                       

nearly impossible to establish actual knowledge in the context of a claim of fraudulent                   

misrepresentation unless the affirming party admitted that it knew of the fraud.");                                              Jerrel  

v.  State,  851  P.2d  1365,  1370-71  (Alaska  App.  1993)  (holding  that  circumstantial  

evidence of state of mind could be used to establish whether defendant believed her  

statements were true).  



                                                                   -8-                                                             7002
  


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

courtroom incident, Ivy contends that she made a reasonable mistake due to her fear of     



Kyzer. But even after Ivy had the opportunity to see the video of what actually occurred,            



she  continued  to  insist  that  Kyzer  thrust  against  her   repeatedly  and  caused  her  



"excruciating" pain.                  She did not acknowledge a mistake or misperception.  And she did  



not introduce any evidence that her ability to perceive events was compromised by a  



mental or physical impairment.  



                                                                                                

                        We agree with the Board's conclusion that Ivy's testimony is objectively  



false and that she did not credibly explain that she mistakenly believed it was true.  



                                                                                                                               

            B.	         Rules 3.3 And 3.4 Do Not Apply To An Attorney's Actions In Her  

                        Personal Capacity.  



                        The Alaska Rules of Professional Conduct are organized in several sections,  



including Client-Lawyer Relationship, Counselor, Advocate , Transactions With Persons  



                                                                                                                                     12  

Other  Than  Clients,  and Maintaining  The  Integrity  Of  The  Profession .                                                               Rule  3.3,  



regarding  "Candor  Toward  the  Tribunal,"  is  in  the  section  titled  Advocate.    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."  Rule 3.3(a)(3) provides that a lawyer shall not  



knowingly "offer evidence that the lawyer knows to be false."  



                        Rule 3.4, regarding "Fairness to Opposing Party and Counsel," is in the  



                                                                        

same  section,  titled  Advocate.                            Rule  3.4(b)    provides,  "A  lawyer  shall  not  falsify  



evidence" or "counsel or assist a witness to testify falsely."  



                        Rule 8.4, regarding "Misconduct" is in the section titled Maintaining the  



Integrity of the Profession .  This rule provides in pertinent part:  



            12          There are additional sections entitled  Law Firms And Associations , Public  



Service, and Information About Legal Services .  



                                                                            -9-	                                                                         7002  


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

                                It is professional misconduct for a lawyer to:  



                                                                                           

                                (a)   violate   or        attempt        to    violate      the   Rules         of  

                                                                                                    

                     Professional Conduct, knowingly assist or induce another to  

                     do so, or do so through the acts of another;  



                                                                                           

                                (b) commit a criminal act that reflects adversely on the  

                                                                                                    

                     lawyer's honesty, trustworthiness or fitness as a lawyer in  

                     other respects;  



                                (c)  engage  in  conduct  involving  dishonesty,  fraud,  

                     deceit, or misrepresentation . . . .  



                                                                                       

                     Ivy argues she did not violate Rules 3.3 and 3.4 because these rules are  



                                   

limited to a lawyer's conduct when representing a client.  The Alaska Bar Association  



                           

contends  Rules  3.3  and  3.4  apply  to  all  attorney  conduct,  whether  the  attorney  is  



                                                                      

representing a client or acting in a personal capacity.  To resolve this dispute, we must  



                          

"interpret each part or section of [the rules] with every other part or section, so as to  

create a harmonious whole."13  



           13        Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell                                 , 215 P.3d 1064,  



 1076 (Alaska 2009) (quoting State, Dep't of Commerce, Cmty., & Econ. Dev., Div. Of                                          

Ins.  v.   Progressive  Casualty  Ins.  Co. ,  165  P.3d  624,  629  (Alaska  2007))  (internal  

quotation marks omitted); see also  People  v. Santiago, 925 N.E.2d 1122, 1129-30 (Ill.                    

2010) (construing a Rule of Professional Conduct in the context of the Rules as a whole                                  

"in order to make them harmonious and consistent.");                                   Carlson v. Workforce Safety &  

Ins. ,   765   N.W.2d   691,   700-01   (N.D.   2009)   (stating   that   "canons   of   statutory  

construction" apply to the interpretation of the Professional Conduct Rules and that  

"[r]ules are construed as a whole, giving meaning to each word and phrase, if possible");  

                                                                              

LK Operating, LLC v. Collection Grp., LLC , 331 P.3d 1147, 1158 (Wash. 2014) (en  

banc) ("When interpreting the meaning of any [Professional Conduct Rule], we apply  

                                                                     

settled principles of statutory construction. Our goal is to give effect to the intent behind  

                                                                                                           

the rule, which we discern, where possible, from the plain language of the rule at issue  

                                                                                                                

in the context of the [Professional Conduct Rule] as a whole." (citation omitted)).  



                                                                 -10-                                                           7002
  


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

                                                                                                             

                     The Alaska Rules of Professional Conduct  are based on the Model Rules  

                                                                                                                14  The Alaska  

of Professional Conduct adopted by the American Bar Association (ABA). 



Bar Association relies on cases holding that other jurisdictions' versions of Model Rules  

                                        



                                                                              15  

3.3 and 3.4 apply to an attorney's personal conduct.                               These cases rely on strong policy  

             



arguments  supporting  high  ethical  standards  for  all  attorneys,  whether  inside  the  



                           16  

courtroom or not. 



                     However, the ABA adopted some clarifying commentary to Rule 3.3 in  

                                                                                                                    



         17                                                                                                                18 

2002,       which we added to the Alaska Rules of Professional Conduct in 2009.                                                The  

                                        



Commentary  now  suggests  that  the  rule  is  limited  to  the  conduct  of  a  lawyer  in  a  



representational capacity before a court or another tribunal:  



          14        See   AM .   BAR  ASS 'N ,   STATE  ADOPTION  OF  THE  ABA   MODEL  RULES  OF  



P R O F E S S IO N A L        C O N D U C T        A N D      C O M M E N T S         1     (2011),          available            at  

http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/comments.authcheckd  

am.pdf.  



          15        See, e.g., People v. Albright, 91 P.3d 1063, 1067-68 (Colo. 2003) (applying     



Rule 3.3 to misrepresentations about personal assets and income in lawyer's personal  

bankruptcy  filing);  In  re  Disciplinary  Action  Against  Fuller , 621  N.W.2d  460,  469  

                                                                                                  

(Minn. 2001) (per curiam) (applying Rule 3.4 to attorney's submission of misleading  

                       

evidence in disciplinary proceeding).  



          16        See Disciplinary Counsel v. Robinson, 933 N.E.2d 1095, 1102-03 (Ohio  



2010)  (per  curiam)  ("[I]n  applying  Prof.  Cond.  R.  3.4(a)[,]  .  .  .  we  recognize  that  

respondent's conduct, be it in a personal or professional capacity, demonstrates a lack  

                                                                                                       

of respect for the law that he has been sworn to uphold, thereby undermining public  

                                                               

confidence in our justice system.").  



          17  

                                                                                                               

                    See Margaret Colgate Love, The Revised ABA Model Rules of Professional  

                                                                           

Conduct: Summary of the Work of Ethics 2000, 15 GEO .  J.  LEGAL ETHICS 441, 442-44,  

464-66 (2002).  



          18        See  Alaska Supreme Court Order No. 1680 (Oct. 28, 2008);                                    see also AM .  



BAR ASS 'N , supra note 14.  



                                                               -11-                                                          7002
  


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

                              This  Rule  governs  the  conduct  of  a  lawyer  who  is  

                    representing a client in the proceedings of a tribunal. . . .  It  

                    also applies when the lawyer is representing a client in an  

                    ancillary  proceeding  conducted  pursuant  to  the  tribunal's  

                    adjudicative authority, such as a deposition.  

  

                              . . . .  



                              This Rule sets forth the special duties of lawyers as  

                    officers of the court to avoid  conduct that undermines the  

                                                                  

                    integrity of the adjudicative process.  A lawyer acting as an  

                                  

                    advocate in an adjudicative proceeding has an obligation to  

                    present the client's case with persuasive force.  Performance  

                    of that duty while maintaining confidences and secrets of the  

                                                                                                     

                    client, however, is qualified by the advocate's duty of candor  

                                                                        

                                          [19] 

                    to the tribunal.  



                                                                                                         

Our same order added clarifying commentary to Rule 4.1, regarding "Truthfulness in  



                                  20  

Statements to Others."                The text of that rule is not relevant to this dispute.  But the  



                         

commentary to Rule 4.1 now provides in part, "For dishonest conduct that does not  



                                         

amount to a false statement or for misrepresentations by a lawyer other than in the course  

of representing a client, see Rule 8.4."21  



                                                                                                                      

                    The Preamble to the Alaska Rules of Professional Conduct states that the  



commentary  to  each  rule  "explains  and  illustrates  the  meaning  and  purpose  of  the  



          22  

                                                                                                          

Rule."        "The [comments] are intended as guides to interpretation, but the text of each  



          19        Alaska R. Prof. Conduct 3.3 cmt.  



          20        See Alaska Supreme Court Order No. 1680 at 190-91 (Oct. 28, 2008).  



          21        Alaska R. Prof. Conduct 4.1 cmt. 1.  



          22        Alaska R. Prof. Conduct, Scope.  



                                                             -12-                                                        7002
  


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

                                   23  

Rule is authoritative."                Nonetheless, all of the cases that have considered the 2002 ABA  



                                                          

amendments conclude that the new commentary to Rule 3.3 is intended to limit the broad  



language of that rule.   



                      For example, the Iowa Supreme Court considered the application of rules  



                              

identical to Rules 3.3 and 3.4 to a lawyer's failure to disclose two pending contingent-fee  



                                                                                      24  

                                                                                                                                 

cases in a proceeding for dissolution of his marriage.                                      The court recognized that the  



                                                                                              

comments  to  Rule  3.3  suggest  the  rule  applies  only  to  an  attorney  acting  in  a  



                                         25  

                                                                                      

representational capacity.                   The court also noted that the application of this commentary  



                                                                                                                 

was  supported  "by  the  fact  that  [the]  rule  is  found  in  a  section  of  the  rules  [titled]  



                      26 

                                                                                                             

 'Advocate.' "            The Iowa court ultimately concluded that Rules 3.3 and 3.4 do not apply  



                                                                                                                                         27  

                                              

to  an  attorney  who  is  not  representing  a  client  in  a  court  or  similar  proceeding. 



           23         Id.  



           24         Iowa Supreme Court Attorney Disciplinary Bd. v. Rhinehart , 827 N.W.2d  



 169, 172, 176-77 (Iowa 2013).  



           25         Id. at 176 ("We have noted lawyers 'are required to obey the disciplinary   



rules when acting pro se or in a personal capacity.' Nevertheless, some rules target only      

the   conduct   of   an  attorney  while  serving  as  an  advocate  representing  a  client.  For  

example,  the  comments  to  [Rule  3.3]  indicate  the  rule  applies  only  to  an  attorney  

representing clients in the proceedings of a tribunal . . . ." (quoting Iowa Supreme Court  

                                                                                    

Attorney Disciplinary Bd. v. Stowers , 823 N.W.2d 1, 13 (Iowa 2012))).  We note that  

                                      

Rhinehart involved an attorney representing himself pro se.  Rhinehart, 827 N.W.2d at  

                                                    

 171.  While we find the Iowa Supreme Court's analysis supportive of the proposition that  

                                 

Rule 3.3 does not apply to an attorney acting in a non-representational capacity, i.e., as  

                                                                                                                                   

a witness, we do not express an opinion on whether an attorney acting pro se is acting  

                                   

in  a  representational  or  personal  capacity  for  purposes  of  determining  Rule  3.3's  

applicability.  



           26         Id.  



           27         Id. at 177.  



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

                                                                                       

Reviewing the same commentary, the Supreme Courts of Colorado, Minnesota, and the  

Northern Mariana Islands have reached similar conclusions in cases involving Rule 3.3.28  



                                                      

                    In the language of the Preamble, the commentary to Rule 3.3 "explains" the  



                                                                                                                      

"meaning" of  the rule:  the rule is limited to dishonest misconduct by a lawyer acting in  



                                                                                            

a representational capacity before a tribunal. This meaning is supported by the inclusion  



                                                                             29  

                                                                                                                

of Rules 3.3 and 3.4 in the section titled "Advocate."                           The commentary to Rule 4.1 also  



                                                                                       

suggests that a lawyer engaging in dishonest misconduct in a personal capacity may be  

disciplined under Rule 8.4.30  Limiting Rules 3.3 and 3.4 to representational conduct thus  



          28        People  v.  Head ,  332  P.3d  117,  128-29  (Colo.  2013)  (noting  that  the  



commentary to Rule 3.3, while not binding, was persuasive); In re Disciplinary Action  

                         

Against Albrecht , 845 N.W.2d 184, 191 (Minn. 2014) (per curiam) (concluding that Rule  

                                  

3.3  only  applies to a lawyer representing a client); In  re Disciplinary Proceeding of  

                                                                                     

Yana, No. 2012-SCC-0017-ADA, 2014 WL 309314, at *3, *12 (N. Mar. I. Jan. 28,  

2014) (per curiam) (quoting MODEL RULES OF  PROF 'L  CONDUCT R.   3.3   cmt. 1 (2011)  

(concluding that the scope of Rule 3.3 is limited to "the conduct of a lawyer who is  

representing a client in the proceedings of a tribunal," including a lawyer acting pro se);  

                                                                

see also State ex rel. Okla. Bar Ass'n v. Dobbs, 94 P.3d 31, 52 (Okla. 2004) (holding that  

                                                                                             

Rule 3.3 "addresses professional misconduct as an advocate for making false statements  

         

to a tribunal, not false statements by a lawyer as a witness" (emphasis in original)).  



          29        Although  the  heading  of  this  section  is  not  determinative,  it  may  be  



                                                                                                   

considered to resolve doubt as to the drafter's intent.  See Tweedy v. Matanuska-Susitna  

                                                                    

Borough Bd. of Adjustment & Appeals , 332 P.3d 12, 18 (Alaska 2014) ("[T]he title of  

                                                    

a statutory provision or code . . . can be an interpretive tool . . . where the legislative  

meaning  is  in  doubt");  see  also  2A  N 

                                                             ORMAN  J.    SINGER   &   J.D.   SHAMBIE  SINGER ,  

S                                                                                       

  UTHERLAND STATUTES AND STATUTORY CONSTRUCTION  47:14 (7th ed. 2007) (stating  

that section headings may "help illuminate legislative intent").  We apply this principle  

                                                                                  

of statutory interpretation when interpreting legislative intent, and it is equally applicable  

                                                                                   

when interpreting model rules and commentary.  See Rhinehart,  827 N.W.2d  at 176-77  

                                                                                                  

(applying this interpretive tool to the headings of professional rules of conduct).  



          30        Alaska R. Prof. Conduct 4.1 cmt 1.  



                                                              -14-                                                         7002
  


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

                                                                                              

prevents overlap with Rule 8.4 without rewarding attorneys who commit dishonesty as  



                                     31  

parties or witnesses.                     



                                                                                        

                         We  conclude  that  Rules  3.3  and  3.4  do  not  apply  to  Ivy's  misconduct  



because these rules are intended to govern attorneys when they are acting as advocates  



                                                                           

and not in their personal capacities.  We remand the question of sanctions in light of this  



holding.  



                   

             C.          The Disciplinary Hearing Complied With Due Process.  



                                                                              

                         Ivy also claims her state and federal constitutional due process rights were  



                                                                                                                                               

violated in the disciplinary proceeding.  She appears to argue the disciplinary process is  



                                                                      

inherently biased because a finding of misconduct allows the Board to order the payment  



                                                                                                                                            32  

                                                                                                                                                 But we  

of attorney's fees, resulting in a financial benefit for the Bar Association. 



                                                                                                       

cannot conclude that the specter of attorney's fees alone prevented members of either the  



                                                                                                                                                             33  

                       

Committee or the Board from serving as neutral and disinterested decision-makers. 



            31           Cf. Adamson v. Municipality of Anchorage                                       , 333 P.3d 5, 16 (Alaska 2014)     



("When we interpret a statute, we presume that no words or provisions are superfluous                

and that the legislature intended 'every word, sentence, or provision of a statute to have  

some purpose, force, and effect.' " (quoting Monzulla v. Voorhees Concrete Cutting , 254  

                                        

P.3d 341, 345 (Alaska 2011))).  



            32           Ivy's reply brief also seems to suggest that the composition of the area  



                                                                                                            

hearing committee is inherently biased.  Because she did not address this topic in her  

                                                                                              

opening brief, we will not consider it.  Alliance of Concerned Taxpayers, Inc. v. Kenai  

Peninsula Borough , 273 P.3d 1128, 1134 n.19 (Alaska 2012) ("Attention to [an] issue  

[inadequately  briefed  in  the  opening  brief]  in  a  reply  brief  does  not  resuscitate  it."  

                                                       

(quoting Braun v. Alaska Commercial Fishing & Agric. Bank , 816 P.2d 140, 145 (Alaska  

                                                                                                                 

 1991) (internal quotation marks omitted))).  



            33  

                                                                                            

                         See Alaska Bar R. 12(g)(1), (5) ("A Hearing Committee member may not  

consider a matter when . . . (s)he is a party or is directly interested [or] (s)he believes  

                                                                                                                                         

that, for any reason, (s)he cannot give a fair and impartial decision."). We note that Ivy  

                                                                                                                                       (continued...)  



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

                                

Nor does Ivy allege she was denied any other procedural protections, and we agree with  



                                                                            

the Bar Association that "a full six days of formal hearing" provided ample due process.  



                

          D.        The Attorney's Fees Award Was Not Erroneous.  



                    Ivy also appeals the award of attorney's fees to the Bar Association.  She  



argues that in calculating the award, the Board failed to consider that she prevailed on one  



                                                                  

of the charges alleged in the Petition:  that she falsely testified that Kyzer trespassed on  



her property.  But Ivy gives this issue only cursory treatment, mentions it only in her  



                                                                                                                      

statement  of  the  case,  and  cites  no  legal  authority  requiring  the  Board  to  reduce  its  



attorney's fee award in light of the Bar's failure to carry its burden of proof on only one  

of several serious counts.34  



                                                                                                                       

                    Bar Rule 16(c)(3) provides that when a finding of misconduct is made, the  



                                                                                                              

attorney may be ordered to pay the costs, "including attorney's fees, of the proceedings  



          33         (...continued)  



could have challenged any of the hearing members for cause but did not.  See Alaska Bar  

                                                                                                                    

R. 12(h).  



          34        Ivy  also  argues  that  if  this  court  reverses  the  Board's  conclusions  

                                                                                                   

concerning  Professional  Conduct  Rules  3.3  and  3.4,  we  should  similarly  vacate  the  

                                                                                                                    

attorney's fee award.  But Ivy argues the attorney's fees should be vacated only in her  

reply brief, and accordingly, this argument is waived for failure to raise in her opening  

                                                                                                               

brief.   See Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska  2010) (citing "our well- 

                                                                                               

established rule that issues not argued in opening appellate briefs are waived"); Hitt v.  

                                           

J.B.  Coghill,  Inc.,  641  P.2d  211,  213  n.4  (Alaska  1982)  ("Appellant  set  forth  other  

grounds for reversal in her statement of points on appeal, one of which she argued in her  

                                                                           

reply brief, but argued none of them in her opening brief.  Accordingly, these points are  

                                                                                        

waived.").  Even if this issue were properly raised, it is not apparent from this record how  

                                                                                

the  Bar  Association's  fees  and  costs  would  have  been  different  had  it  based  its  

                                                                                  

investigation and proceeding solely on Ivy's violation of Rule 8.4.  



                                                               -16-                                                         7002
  


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

                                                     35  

or investigation or any parts thereof,"                 upon consideration of a number of factors.  The  

                            



                                                                      36  

Board considered the factors required by the rule.                        And we have previously approved  



                                                                        37 

                                                                           Accordingly, we find no fault with  

attorney's fees awards recommended by the Board. 



                                       

                                                                                                       

the attorney's fees award.  However, the Board may revise the award if it determines that  



                                                                                          

reconsideration of the award is warranted in light of our ruling on Professional Conduct  



Rules 3.3 and 3.4.  



V.       CONCLUSION  



                   We agree with the Board's findings and its conclusion that Ivy violated  



Professional Conduct Rule 8.4.  But we disagree with the Board's conclusion that Ivy  



                                                                

violated Professional Conduct Rules 3.3 and 3.4.  We therefore REMAND this matter to  



the Board to reconsider the question of sanctions.  



         35        Alaska Bar R. 16(c)(3).  



         36        See Alaska Bar R. 16(c)(3)(A)-(J).  



         37        See, e.g., In re  Disciplinary  Matter  of Friedman, 23 P.3d 620, 624-25, 635  



n.74 (Alaska 2001) (assessing $3,213 in costs and attorney's fees incurred by bar counsel  

in the proceedings against Friedman for mishandling client funds).  



                                                           -17-                                                    7002
  

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