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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McGee v. Alaska Bar Association (7/24/2015) sp-7023

McGee v. Alaska Bar Association (7/24/2015) sp-7023

         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  



BRANT MCGEE,                                             )  

                                                         )    Supreme Court No. S-15636  

                           Petitioner,                   )  

                                                         )    ABA File No. 2013D160  

         v.                                              )  

                                                         )    O P I N I O N  

ALASKA BAR ASSOCIATION,                                  )  

                                                         )    No. 7023 - July 24, 2015  

                           Respondent.                   )  

                                                         )  



                  Original Application from a decision by Bar Counsel for the  

                  Alaska Bar Association.  



                  Appearances:  Brant McGee, pro se, Anchorage, Petitioner.1  

                                                                    

                  Louise  R.  Driscoll,  Assistant  Bar  Counsel,  Alaska  Bar  

                  Association, Anchorage, for Respondent.  



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

                               

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  When an ethics grievance against a lawyer is filed with the Alaska Bar  



Association,  Bar  Counsel  may,  after  a  preliminary  review,  determine  that  a  formal  



investigation is unwarranted and close the file.  The complainant may request that the  

                                                                                                          



decision be reviewed by the Bar's Discipline Liaison - designated by the Bar's Board  

                                                                                               



         1        McGee is an inactive member of the Alaska Bar Association.  


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

of Governors - and if the Discipline Liaison agrees with Bar Counsel, then no further  

                                                                                               



action is taken and the matter is closed.  In Anderson v. Alaska Bar Ass'n we held that  

                                    



                                                                                  2  

we will directly review a grievance-closing decision.   In that case we reviewed the  

                                         



grievance closure for abuse of discretion and concluded that Bar Counsel had not abused  

his discretion in determining that a formal investigation was unwarranted.3  



                    We now consider a complainant's application for relief contending that Bar  

                                                                        

                                                                                         



Counsel erred in closing the complainant's grievance without a formal investigation.  

                                                                                                   



Resolving this matter requires explaining more fully how we review a grievance closure.  

                                                                                      



First,  we  expect  Bar  Counsel  will  base  a  grievance  closure  on  the  facts  of  record,  

                                                       



applicable law and policy, practicality, and professional experience and judgment; when  

                        



Bar  Counsel  does  so  we  will  afford  Bar  Counsel  broad  discretion.    Second,  when  



                                                                 

reviewing a grievance-closing decision for abuse of discretion, we look to ensure that the  



                                                                                                                        

decision is not arbitrary, capricious, or the result of a breakdown in the process.  On that  



               

standard  we  see  no  abuse  of  discretion  in  Bar  Counsel's  decision  to  close  this  



complainant's grievance without a formal investigation.  



II.       DISCUSSION  



          A.        Legal Framework  



                    Former Alaska Bar Rule 22(a) implied that if a properly filed grievance  



contained  "allegations  which,  if  true,  would  constitute  grounds  for  discipline"  Bar  

                                                                              4  Bar Rule 22(c) provided that after  

                                                                                  

Counsel was required to open a formal investigation. 



          2         91 P.3d 271, 272 (Alaska 2004).  



          3         Id.  



          4         Former Alaska  Bar  R.  22(a)  (Jan. 1985); Alaska Supreme Court Order No.  



614 (Dec. 6, 1984).  



                                                               -2-                                                         7023
  


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

                                                                                               

a formal investigation had been opened, Bar Counsel could dismiss the grievance if  



                                                                                                         5  

"there is no probable cause to believe that misconduct has occurred."    



                    We amended Rule 22(a) in 2003 to confirm Bar Counsel's prosecutorial  



                                                                                                                    

discretion when deciding whether to open a formal investigation, and Rule 22(a) now  



                                                                              

requires Bar Counsel to open a formal investigation only when a properly filed grievance  



                                                                          6  

                                                                             But we also added a provision that a  

"contains allegations that warrant investigation." 



complainant could request review of Bar Counsel's grievance-closing decision by the  



                                                                                                              

Bar's Discipline Liaison, who could direct that a formal investigation be opened on one  



                                                        7                                                                  8  

or more of the grievance allegations.   We did not change Rule 22(c)'s language.  



                                            

                    In Anderson v. Alaska Bar Ass'n we held that there was no right to appeal  



                                                                                        

grievance-closing decisions to the superior court, but that based on "the presumption of  



                                               

reviewability pertaining to all final administrative orders, and the inherent authority of  



                                                                                                                                  9  

        

this court to regulate the practice of law," we would directly review such decisions. 



Citing but not discussing Vick v. Board of Electrical Examiners, we stated our "review  

                                                                                                   



should  be  deferential,  namely,  whether  bar  counsel  abused  his  or  her  discretion  in  



          5         Alaska Bar R. 22(c) (Jan. 1985); Alaska Supreme Court Order No. 614   



(Dec. 6, 1984).  



          6         Alaska Bar R. 22(a); Alaska  Supreme Court Order No. 1454 (July 23,  



2003).  



          7         Alaska Bar R. 22(a); Alaska Supreme Court Order No. 1454 (July  23,  

                                                                                                                      

2003); see also Alaska Bar R. 10(f) (regarding appointment and duties of the Discipline  

                                                       

Liaison).  



          8  

                     See Alaska Supreme Court Order No. 1454 (July 23, 2003) (amending only  

Alaska Bar R. 22(a)).  



          9         91 P.3d 271, 272 (Alaska 2004).  



                                                               -3-                                                         7023
  


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

determining    that    the    allegations    contained  in  the    grievance    do    not    warrant   an  



                     10  

investigation."          



                   In the cited portion of  Vick we had stated:  



                            When  an  agency  functions  to  protect  the  public  in  

                   general,  as  contrasted  with  providing  a  forum  for  the  

                   determination  of  private  disputes,  the  agency  normally  

                   exercises       its   discretion       in    deciding       whether        formal  

                   proceedings         should      be    commenced.              In    matters      of  

                   occupational licensure the decision to initiate proceedings for  

                   revocation or suspension is comparable to the function of a  

                                                                                                   

                   public prosecutor in deciding whether to file a complaint.4  

                                                  

                                                                         

                   Questions of law and fact, of policy, of practicality, and of  

                   the allocation of an agency's resources all come into play in  

                   making such a decision.  The weighing of these elements is  

                                         

                   the very  essence of what is meant when one speaks of an  

                                 

                   agency exercising its discretion.  



                   _______________________________________________  

                            4         Prosecuting power includes not only criminal  



                                      

                   prosecution,  but  also  civil  proceedings  such  as  license  

                   suspension and revocation.  DAVIS , ADMINISTRATIVE  LAW  

                   TEXT ,      4.09   at   110   (1972).      The   analogy   to   public  

                                                                         

                   prosecution is broad, but not precise.  But in many instances  

                                                                          

                   the consequences to the licensee can be more serious than  

                   those  which  would  result  from  a  criminal  prosecution,  

                                                                                        [11] 

                   depending, of course, upon the particular setting.  



Assuming that a grievance has been processed in accordance with applicable rules and  



                               

procedures, the  Vick analysis applies.  



                                                                                                  

                   We expect that when considering whether a grievance warrants a formal  



investigation,  Bar  Counsel  will  consider  the  following:    the  known  facts;  whether  



          10       Id. (citing  Vick v. Bd. of Elec. Exam'rs, 626 P.2d 90, 93 (Alaska 1981)).  



          11       626 P.2d at 93.  



                                                           -4-                                                     7023  


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

additional material facts reasonably could be brought to light with a formal investigation;  

                                                                                              



applicable law and policy; and the practicality of pursuing a grievance in light of the  

                                       

need to prove an ethical violation by clear and convincing evidence,12 including relevant  



                                  13  We further expect that Bar Counsel will apply experience and  

allocations of resources.                             



professional  judgment  when  weighing  these  various  considerations  in  a  grievance- 



                                                                             

closing decision.  When Bar Counsel does this, we will afford broad discretion in making  



                      

that decision.   We will conclude there is an abuse of discretion only if, based on the  



record  and  the  reasoning  expressed  by  Bar  Counsel,  the  decision  is  arbitrary  and  



capricious or it is clear the grievance process has broken down.  



         B.        McGee's Grievance And Application For Relief  



                                                                                                            

                   Brant McGee filed a grievance with the Alaska Bar Association against an  



                                                                          14  

attorney  in  the  Office  of  Public  Advocacy  (OPA).                         The  grievance  arose  from  an  



ongoing dispute between McGee and OPA about OPA's former  contracts with a private  



criminal  defense  investigator.    McGee  has  contended  the  contracting  process  was  



corrupt,  the  investigator  is  a  demonstrated  liar,  and  OPA  nonetheless  wrongfully  



                                                

continued using the investigator.  He also has contended that OPA attorneys, including  



         12        See Alaska Bar R. 22(e) ("Bar Counsel will have the burden at any hearing  



of demonstrating by clear and convincing evidence that the Respondent has, by act or  

                                                                                                       

omission, committed misconduct [that is grounds for discipline].").  



         13        We do not suggest that an otherwise meritorious grievance should not be  

                                                                                                       

formally investigated based solely on an asserted lack of resources.  



         14        OPA  provides  legal  representation  at  public  expense  in  a  variety  of  



contexts.  AS 44.21.400-.410.  Among other duties, OPA represents indigent criminal  

defendants when the Public Defender Agency has a conflict of interest, provides legal  

                                                                                                      

representation to indigent respondents in guardianship proceedings, and provides legal  

representation and guardian ad litem services to children in both custody and child in  

need of aid cases; it also serves in the role of public guardian.  AS 44.21.410(a).  



                                                           -5-                                                    7023
  


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

some  in  administrative  and  supervising  positions  within  the  agency, were  guilty  of  

                                                                                                                    



ethical violations either during the contracting process or when allowing the investigator  

                                                                                     



to continue working for OPA when he might be impeached devastatingly at trial to OPA  

                                                                                                                       



clients' detriment.  McGee's concerns previously led to proceedings described below and  

to Bar Counsel's consideration of five other grievances against OPA attorneys.15  



                    In  March  2012  an  Administrative  Law  Judge  (ALJ)  issued  a  14-page  



decision that OPA's 2011 request for investigator proposals had been unduly restrictive  

                                                         



and there was at least an appearance that the ultimate contract winner, the then-current  

                                                                                              



investigator, had been favored.  (In the matter before the ALJ, McGee represented an  



                                                                                                                    

investigator who did not meet the qualifications in the request for proposal.)  The ALJ  



                                                                                                   

remedially ordered that the contract not be renewed in June 2012; the ALJ also ordered  



                                                                                    

the Department of Administration's Chief Procurement Officer to investigate an earlier  



2006 contract with the investigator to determine whether corrective administrative action  



or a referral to the Department of Law was necessary.  



                                                                                               

                    In November 2012, in response to the ALJ's order and McGee's follow-up  



demand  that  OPA's  former  investigator  be  barred  from  future  contracts,  the  Chief  



                     

Procurement Officer issued a 14-page report.  He concluded that although there had been  



problems with OPA's contracting process, McGee's allegations about the investigator  



                                                    

were mostly untrue and those that were true did not rise to the level that debarment was  



appropriate.  



                                                                                             

                    After      McGee's          subsequent          16-page        letter     to     the    Department's  



Commissioner contradicting the Chief Procurement Officer's report and describing it as  



                                                                                                             

a "whitewash," the Department of Law responded with a 14-page letter in April 2013.  



          15  

                                                                                         

                    These grievances were closed without formal investigations.  Our review  

of these grievance closures was not sought.  



                                                              -6-                                                            7023  


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

It reiterated that although there were some longstanding systemic problems in OPA's  



contracting  process,  no  knowing  or  intentional  procurement  violations  had  been  

                                      



uncovered  in  the  investigation  and  no  civil  or  criminal  penalties  would  be  pursued  

                                                                                                    



against OPA employees or the investigator.  



                    Later  in   2013   McGee  filed   the  Bar  grievance  that   is  the  basis  of  his  



                  

application for relief.  In a May 2014 letter Bar Counsel advised McGee that a formal  



investigation would not be opened, stating in relevant part:  



                                                                                     

                             You alleged that [the OPA attorney] violated a series  

                    of rules dealing with a lawyer's duties to his client.  These  

                                                                                 

                    alleged violations resulted from allowing [the investigator] to  

                                                                             

                    provide investigative services to OPA criminal defense staff  

                    and   OPA   contract   attorneys.      You   alleged   that   [the  

                    investigator]  obtained  a  contract  to  provide  investigative  

                    services  through  a  flawed  bidding  process  because  [the  

                    investigator] misrepresented his investigative experience and  

                                                                    

                    training when he responded to a request for proposal.  After  

                    contracting  for  services,  [the  investigator]  submitted  time  

                                            

                    sheets that you believe misrepresented time he actually spent  

                                                      

                    in performance of services for OPA.   You alleged that his  

                                                                              

                    mendacity makes [the investigator] a target for devastating  

                    cross examination and impeachment.  



                              . . . .  



                              [The attorney] did not create the request for proposal  

                    or enter into the OPA contract with [the investigator] in 2006.  

                                 

                    At  most,  he  inherited  a  problem  that  you  identified.  [He]  

                    sought to remedy the problem when he suspended the use of  

                                                                                                    

                    [the  investigator's]  services  during  the  investigation.    But  

                    [he] did not create the problem with which defense counsel  

                                 

                    may have to grapple. . . .  



                              . . . .  



                             A lawyer's duties to clients encompass the duties to  

                                                              

                    preserve client property, preserve client confidences, avoid  

                    conflicts  of  interest,  act  with  reasonable  diligence  and  



                                                             -7-                                                        7023
  


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

                    promptness  in  representing  a  client,  provide  competent  

                    representation,   and   act   with   candor.                       Issues     of    [the  

                    investigator's] candor based on his resume and questionable  

                                                                          

                    time  sheets  do  not  warrant  opening  an  investigation  into  

                                       

                    whether  [the  OPA  attorney]  has  breached  duties  to  OPA  

                    clients.  



                              . . . .  



                              .   .   .   I   cannot   justify   opening   a   grievance   for  

                                                                                   

                    investigation   of   [this   attorney]   on   the   basis   of   your  

                    speculation that . . . OPA could utilize [the investigator's]  

                    services.  



                              [The investigator's] contract as an OPA investigator  

                                       

                    has   been   the   subject   of   an   administrative   hearing,   a  

                                            

                    Department of Administration investigation, a Department of  

                                           

                    Law investigation and several grievances.  [The investigator]  

                                                                                    

                    no longer has a contract with OPA.  If this case were to go to  

                                                                                                    

                    hearing, in my opinion, we would not meet our burden [of]  

                    proof in order to show a violation of rules of professional  

                    conduct.  The disciplinary process is time-consuming, and at  

                    the  hearing  and  Disciplinary  Board  stages  it  relies  on  

                                                                                                

                    volunteer  labor.    It  has  always  been  our  policy  to  decline  

                                    

                    prosecution of cases in which we believe that we could not  

                                                                   

                    meet our burden of proof at hearing.  Under the fairly unique  

                                                                            

                    and   complicated   circumstances   of   this   case,   a   hearing  

                    committee could not reasonably conclude that [this attorney]  

                                                                                    

                    breached ethical rules of conduct.  



                    McGee requested that the Discipline Liaison review the grievance-closing  

                                                                            



decision,  and  provided  the  Discipline  Liaison  another  11  pages  of  argument.    The  



Discipline Liaison concurred with the  decision to close the matter without a formal  



investigation.  



                    McGee then sought our review of the grievance-closing decision.  Although  



styled as a petition for review under Alaska Appellate Rules 402 and 403, relating to our  

                                                                                                              



                                                               -8-                                                        7023
  


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

review of court orders, review of a grievance-closing decision is more appropriately an  



original application for relief under Rule 404(a)(1):  



                                                                       

                              An original application for relief may be filed with the  

                    appellate  court  or  a  judge  or  justice  thereof  in  any  matter  

                    within its jurisdiction, whenever relief is not available from  

                                                                                

                    any other court and cannot be obtained through the process  

                                                                                        

                    of appeal, petition for review, or petition for hearing. Grant  

                         

                    of  the  application  is  not  a  matter  of  right  but  of  sound  

                    discretion sparingly exercised.  



                    We will consider McGee's petition for review as an original application for  



relief.  



          C.        Resolution Of McGee's Application For Relief  



                                                                                

                    McGee argues that when deciding not to open his grievance for formal  



                                                                       

investigation Bar Counsel used the wrong legal standard.  McGee contends Bar Counsel  



refused  to  open  a  formal  investigation  because  McGee  had  not  proved  an  ethical  



                                                                 

violation by clear and convincing evidence at the grievance intake stage.  We agree with  



McGee that the grievance process does not require  presenting clear and convincing  



evidence of an ethical violation at the grievance intake stage.  But we do not read the  

grievance-closing letter in the same manner as McGee.16  



                    The grievance-closing letter reflects that, in addition to McGee's submittals  



                                                                                                      

and arguments, Bar Counsel considered:  (1) the ALJ decision and underlying record  



                                         

regarding  the  allegations  of  impropriety  in  OPA's  contracting  process;  (2)  the  



                                                                               

Department of Administration's report about OPA's contracting process and McGee's  



          16        McGee  may  be  influenced  in  part  by  some  inartful   language  by  the  



Discipline Liaison            in   one of the other grievance files, mentioned                        above at note        15,  

affirming Bar Counsel's decision not to open a formal investigation because McGee had  

not "overcome the evidentiary standard required to proceed with this grievance."  Bar  

                                                             

Counsel actually had declined to open a formal investigation in that matter for essentially  

                                                           

the same reasons Bar Counsel declined to open a formal investigation in this matter.  



                                                              -9-                                                        7023
  


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

allegations of wrongdoing by OPA's contract investigator and attorneys; and (3) the  



                                                                                                             

Department   of   Law's   response   to   McGee's   assertion   that   the   Department   of  



                                                                                          

Administration's investigative report was a "whitewash." We conclude that Bar Counsel  



reasonably could determine that a formal investigation would not bring to light any new  



material facts relevant to McGee's grievance.  



                     The  letter  also  reflects  the  application  of  experience  and  professional  



judgment  based  on  the  existing  record  and  relevant  considerations:    Bar  Counsel  



                                                                                 

provided a reasonable explanation that the known facts did not suggest a connection  



                                                                                                                

between OPA's use of the investigator and any possible ethical violation by  the attorney  



involved in this matter, that a violation would have to be proved to an area hearing  



                                                                                                          

committee by clear and convincing evidence, and that there was no good reason to use  



Bar resources to present a case to volunteer area hearing committee members when there  



                                                                               

was  very  little  likelihood  of  proving  an  ethical  violation.    The  Discipline  Liaison  



reviewed McGee's grievance file and the grievance-closing decision, as requested by  



McGee, and concurred that a formal investigation was unwarranted.  McGee has not  



                                  

suggested that either Bar Counsel or the Discipline Liaison was improperly motivated  



                                

or influenced in the decision-making process, and it is clear that there was no breakdown  



in the grievance process.  



                             

                     Bar Counsel has discretion to close a grievance when further pursuit is  



                     17  

unwarranted.             Bar Counsel's decision to close McGee's grievance without a formal  



           17        We  earlier  noted  that  Bar  Rule  22(c)   allows  Bar  Counsel  to  dismiss  a  



grievance after initiating a formal investigation if Bar Counsel determines that "there is            

no  probable  cause  to  believe  that  misconduct  has  occurred."    In  light  of  our  2003  

amendment to Rule 22(a), we interpret Rule 22(c)'s language to mean that, even after  

                                                                                                      

initiating a formal investigation, Bar Counsel may dismiss a grievance when further  

pursuit is not warranted in light of all the considerations applicable to closing a grievance  

                                                                                                                 (continued...)  



                                                                -10-                                                          7023
  


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

investigation was not arbitrary or capricious, and we see no breakdown in the grievance         



process warranting interference with Bar Counsel's decision.  



III.          CONCLUSION  



                           McGee's application for relief is DENIED.  



              17           (...continued)  



without a formal investigation, as discussed in this opinion.  



                                                                                       -11-                                                                               7023  

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