Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Ivy (5/20/2016) sp-7106

In Re Ivy (5/20/2016) sp-7106

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  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, Attorney.                                                 )     ABA File No. 2010D233  

                               

                                                                                                      

                                                                       )  

                                                                                                  

                                                                       )     O P I N I O N  

                                                                       )  

                                                                                                                

                                                                       )     No. 7106 - May 20, 2016  



                                                                                                               

                      A             

                         ppeal from the Alaska Bar Association Disciplinary Board.  



                                                                                                                      

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

                                                                                                               

                      Cole, Fairbanks, for Deborah Ivy. Kevin G. Clarkson, Brena,  

                                                                                                                  

                      Bell      &   Clarkson,             P.C.,      Anchorage,             for     Alaska         Bar  

                      Association.  



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

                                                                            

                      Justices.  [Maassen, Justice, not participating.]  



                                          

                      BOLGER, Justice.
  

                                                                              

                      FABE, Chief Justice, dissenting.
  



I.         INTRODUCTION  



                                                                                                                                      

                      After  remand  the  Alaska  Bar  Association  Disciplinary  Board  again  



                                                                                                                                             

recommends disbarring an attorney who testified falsely in private civil litigation and in  



                                                                                                                                 

these disciplinary proceedings. Previously wedirectedtheBoard to reconsider sanctions  



                                                                                                                                           

in light of our holding that the attorney violated Alaska Rule of Professional Conduct 8.4  



                                                                                                                                           

and Alaska Bar Rule 15, but not Rules of Professional Conduct 3.3 and 3.4, because the  



                                                                                                                                           

misconduct did not arise in a representative capacity. After independently reviewing the  



                                                                                                                      

record, we now conclude that the severity of this misconduct warrants disbarment.  


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

II.        FACTS AND PROCEEDINGS
     



                                                                                                                                                1  

                      We set out the facts and proceedings relevant to this bar matter in                                        In re Ivy     .   



                                                                                                                 

Here we recapitulate those facts most relevant to the imposition of sanctions.  



                                                                                                                                         

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



                                                                                                                           

in now-settled litigation over the dissolution and unwinding of business organizations  



                                                                                                                                           

and joint property holdings of Ivy, Kyzer, their two sisters, and others.   During that  



                                                                                                                                         

litigation, relations between Kyzer and Ivy grew so acrimonious that a no-contact order  



                                                                                                                                     

was issued in December 2007.  This order prohibited in-person or telephone contact  



                                                                                                                                         

between Ivy and Kyzer without an attorney present and prohibited each party from  



                                                                                                                 

coming within 500 feet of the other's residence.  Ivy subsequently testified that Kyzer  



                                                                                                                                   

made improper contact with her on three occasions after this order issued.  In response  



                                                                                                                                           

Kyzer filed an ethics grievance with the Alaska Bar Association, claiming that Ivy  



                                                                                                                                              

fabricated these incidents, in violation of the Alaska Rules of Professional Conduct.  



                                                                                                                                             

                      Two  of  the  alleged  incidents  bear  on  the  sanctions  inquiry.                                        First,  on  



                                                                                                                                           

January 7, 2008, Ivy provided a 30-minute statement to a police officer, claiming that  



                                                                                                                                         

Kyzer had stalked her at a women's clothing store about ten days earlier. Based on Ivy's  



                                                                                                                                            

statement and because Ivy claimed to be in hiding and did not want to come to the  



                                                                                                                                   

courthouse, the officer offered to request a telephonic hearing for a domestic violence  



                                                                                                                                          

restraining  order.              The  day  Ivy  made  the  police  report  was  the  same  day  she  was  



                                                                                                                                             

scheduled to give a deposition in the litigation with Kyzer.   A few days before, on  



                                                                                                                                             

January 3, the superior court had denied Ivy's motion to stay the deposition, and on  



                                                                                           

January 4 we denied Ivy's emergency motion to stay the superior court order denying  



                                                                                                                                     

her request.  Ivy did not appear at the January 7 deposition despite having been ordered  



                                                                                                                                    

to do so.  In response to a follow-up order to appear for the deposition, Ivy's attorney  



           1  

                                                             

                      350 P.3d 758 (Alaska 2015).  



                                                                      -2-                                                                    7106  


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

                                                                                                                        

reported the alleged stalking incident to the superior court.  Ivy ultimately was deposed  



                                                                                                                               

on March 13.  At that deposition, Ivy testified about the alleged stalking incident.  She  



                                                                                                                                

described in great detail her movements among the various racks of clothing and the  



                                                                                                                               

dressing rooms, Kyzer's allegedly menacing use of his vehicle, and her response.  The  



                                                                                                                                   

second incident occurred in July 2010 when Ivy claimed that Kyzer assaulted her in a  



                                                                                                                            

courtroom and that his actions constituted criminal sexual assault. To support this claim,  



                                                                                                                       

Ivy  filed  a  Notice  of  Sexual  Assault  with  the  court  accompanied  by  an  affidavit  



                                   

describing the alleged incident.  



                                                                                                                               

                    In December 2010 Kyzer filed an ethics grievance with the Alaska Bar  



                                                                                                                                 

Association, alleging that Ivy violated several Alaska Rules of Professional Conduct by  



                                                                                                                       

falsely testifying that Kyzer stalked her and assaulted her in the courtroom.  After an  



                                                                                                                            

investigation by a special bar counsel and a hearing, the Area Hearing Committee found  



                                                                                                                               

that Ivy knowingly provided false testimony at the deposition, in her affidavit, and  



                                                         

during the disciplinary proceedings.  



                                                                                                                   

                     Specifically the Committee found that Ivy's testimony about the stalking  



                                                                                                                                

incident was "not credible," that her description of how Kyzer moved his vehicle in the  



                                                                                                                              

clothing store parking lot was "not physically possible," and that when confronted with  



                                                                                                                          

this  physical  impossibility  during  cross-examination,  Ivy  "fabricated  a  new  story,"  



                                                                                                                               

continued to testify falsely, and did not acknowledge that her account was flawed.  The  



                                                                                                                               

Committee also found that courtroom video accurately depicted the alleged assault and  



                                                                                                                                

largely  contradicted  Ivy's  claims.                    It  further  found  it  "not  reasonably  possible  for  



                                               

someone to have experienced the inadvertent and minor bump of a brother attempting  



                                                                                                                        

to be excused . . . and then to honestly or mistakenly believe that they had been sexually  



                                                                                                                       

assaulted."  The Committee also noted that Ivy testified that she had not been mistaken  



                                                                                                                      

and that she had not imagined or hallucinated the alleged courtroom assault.  



                                                                -3-                                                         7106
  


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

                        Based on clear and convincing evidence, theCommittee concluded that Ivy                                                         



violated Rules of Professional Conduct 3.3(a)(1) and (3); 3.4(b); 8.4(a), (b), and (c); and                                                             

                                                                                                                                                     2   the  

Bar Rule 15(a)(3).                    Applying this court's three-step attorney sanctions inquiry,                                                      



Committee  recommended  disbarment  given  the  ethical  violations,  Ivy's  intentional  

                                                                                                                                          



mental  state,  the  serious  actual  or  potential  injury  caused  by  her  misconduct,  the  

                                                                                                                                                        



recommended sanction under the American Bar Association Standards for Imposing  

                                                                                                                                            

Lawyer  Sanctions,3                    and  the  balance  of  aggravating  and  mitigating  factors.                                                  The  

                                                                                                                                                      



Committee also recommended awarding $61,282.75 in attorney's fees and costs, about  

                                                                                                                                                    



$26,000 less than bar counsel requested.  The Board adopted the Committee's findings  

                                                                                                                                               



and recommendations in full.  Ivy appealed.  

                                                                                  



                        In that initial appeal we agreed with the Board's findings about both the  

                                                                                                                                                        

                                                                                                                  4    We  also  agreed  that  

alleged  stalking  incident  and  the  alleged  courtroom assault.                                                                                    

                                                                                                    



sufficient circumstantial evidence established that Ivy's testimony was objectively false  

                                                                                                                                                      

                                                                                       5   Accordingly we concluded that Ivy  

and that Ivy knew her testimony was not true.                                                                                                           

                                                                               

                                                                                                              6   However because Ivy's  

violated Rule of Professional Conduct 8.4 and Bar Rule 15.                                                                                          

                                                                                                         



misconduct arose in a purely personal capacity, we concluded that Ivy did not violate  

                                                                                                                                                  



            2           See  In  re  Shea,  273  P.3d  612,  622  (Alaska  2012).   



            3           STANDARDS  FOR  IMPOSING  LAWYER   SANCTIONS,  AM.  BAR  ASS'N  (1992)  



                                           TANDARDS],                  http://www.americanbar.org/content/dam/aba/  

[hereinafter               ABA           S 

administrative/professional_responsibility/corrected_standards_sanctions_may2012_  

wfootnotes.authcheckdam.pdf.  



            4           In  re  Ivy,  350  P.3d  at  761-62.  



            5           Id .  at  762.   



            6           Id .  at  759.  



                                                                            -4-                                                                     7106
  


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

                                                                         7  

Rules of Professional Conduct 3.3 and 3.4.                                  Therefore we remanded the matter to the                          



                                                    8  

Board to reconsider sanctions.                                                                                                              

                                                       Finally we "f[ou]nd no fault" with the attorney's fees  

                              9    We  indicated  only  that  the  Board  "may  revise  the  award  if  it  

                                                                                                                                               

                  

and  costs  award. 



                                                                                    10  

determines that reconsideration . . . is warranted."                                     

                                                                 



                      Upon reconsideration, the Board again recommends disbarment and the  

                                                                                                                                             



same fee and cost award.  Ivy again appeals.  

                                                                             



III.       STANDARD OF REVIEW  

                                            



                      We  independently  review  the  entire  record  in  attorney  disciplinary  

                                                                                                                             

proceedings, but we give "great weight" to findings of fact made by the Board.11  

                                                                                                                                        When  



                                                                                                                                           

an attorney appeals the Board's findings of fact, the attorney must demonstrate that such  



                                      12  

                                                                                                                                              

                                          When reviewing questions of law and questions concerning the  

findings are erroneous. 



                                                                                                                13  

                                                                                                

appropriateness of sanctions, we apply our independent judgment. 



           7          Id .  at  762-65.  



           8          Id .  at  766.  



           9          Id.  



           10         Id.  



           11         In   re   Miles,   339   P.3d   1009,   1018   (Alaska   2014)   (quoting   In   re   Shea,  



273  P.3d  612,  619  (Alaska  2012)).  



           12         Id .   



           13         Id .   



                                                                       -5-                                                               7106
  


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

IV.       DISCUSSION  



                                                                 

          A.        Ivy's Misconduct Warrants Disbarment.  



                                                                                                      

                    When sanctioning an attorney for misconduct, we seek to "ensure a level  



                                                                                                                  14  

                                                                                                                        

of  consistency  necessary  for  fairness  to  the  public  and  the  legal  system."                                   "Our  



                                                                                                                         

paramount concern . . . must be the protection of the public, the courts, and the legal  



                  15  

profession."          



                                                                                                                  

                    The American Bar Association Standards for Imposing Lawyer Sanctions  



                                                                      16  

                                                                                                                 

(ABA Standards) and our prior cases guide us.                              First we characterize the attorney's  



                                                                                                                             

conduct in light of three variables: the ethical violation(s), the attorney's mental state at  



                                                                                                               

the time of the misconduct, and the actual or potential injury the attorney's misconduct  

           17  This three-variable characterization yields a presumptive sanction under the  

caused.                                                                                                                    

ABA Standards, which we then adjust in light of aggravating and mitigating factors18  

                                                                                                                          and  



          14       In  re  Buckalew,  731  P.2d  48,  52  (Alaska   1986).  



          15       Id .   at   56   (citing   In   re   Preston,   616   P.2d   1,   6   (Alaska   1980);   ABA  



STANDARDS,  supra  note  3,  at    III.A.1.1).  



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



          17       Id .  (citing  In  re  Cyrus,  241  P.3d  890,  893  (Alaska  2010)).  



          18       Id .  (citing  In  re  Cyrus,  241  P.3d  at  893).  



                                                             -6-                                                        7106
  


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

                                 19                                                                                                                                           20  

 our prior cases.                     Throughout this inquiry we exercise our independent judgment,                                                                               and  

we recognize the fact-specific nature of each case.                                                         21  



                             Ivy contends that her misconduct warrants a two-year suspension rather  

                                                                                                                                                                              



than the Board's recommended sanction of disbarment.   Applying our independent  

                                                                                                                                                               



judgment, we agree with the Board.  

                                                               



                             1.             Step one: ethical violation(s), mental state, and injury  

                                                                                                                                                        



                                           a.             Ethical violation(s)  

                                                                            



                             Previously  we  concluded  that  Ivy  violated  Bar  Rule  15  and  Rule  of  

                                                                                                                                                                                     

 Professional Conduct 8.4.22   Nonetheless the parties dispute which subsections of these  

                                                                                                                                                                               

rules Ivy violated, specifically whether Ivy violated Rule 8.4(b).23                                                                             The nature of Ivy's  

                                                                                                                                                                               



               19            See In re Wiederholt                         , 877 P.2d 765, 769 (Alaska 1994) ("[S]anctions in                                                          



 other cases can be no more than indicators of appropriate sanctions in a given case                                                                                             

because   of   inevitable   factual   differences   concerning   not   only   the   offense   but   the  

 offender." (first citing                       In re Buckalew                   , 731 P.2d at 57 nn.10-11; then citing                                         In re Minor              ,  

 658 P.2d 781, 784 (Alaska 1983))).                                            



               20            In re Shea, 273 P.3d at 623 (citing In re Cyrus, 241 P.3d at 892-93).  

                                                                                                                                                              



               21            In re Wiederholt, 877 P.2d at 769 (first citing In re Buckalew, 731 P.2d  

                                                                                                                                                                      

 at 57 nn.10-11; then citing Minor, 658 P.2d at 784).  

                                                                                                     



               22            In re Ivy, 350 P.3d 758, 759 (Alaska 2015).  

                                                                                                             



               23            As relevant here, Rule of Professional Conduct 8.4 provides:  

                                                                                                                                            



                             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;  

                                          

                                                                                                                                                             (continued...)  



                                                                                          -7-                                                                                  7106
  


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

violation, which determines the subsections of Rule 8.4 Ivy violated, bears on how we                                                                                                                            



characterize Ivy's misconduct and accordingly affects our analysis of sanctions.                                                                                                



                                 We conclude, as the Board did, that Ivy violated Rule 8.4(b) - as well as                                                                                                          



(a)  and (c) - because her false testimony constitutes a criminal act that reflects poorly                                                                                                              



on her integrity as an attorney.  Under Rule 8.4(b) it is professional misconduct for an     



attorney to "commit a criminal act that reflects adversely on the lawyer's honesty,                                                                                                                

                                                                                                                                          24    Ivy argues that the Board has  

trustworthiness or fitness as a lawyer in other respects."                                                                                                                                                      



no authority to conclude that she violated Rule 8.4(b) because she was never convicted  

                                                                                                                                                                                                



of perjury.  

                             



                                 Neither  the  text  of  Rule  8.4(b)  nor  the  commentary  to  it  requires  an  

                                                                                                                                                                                                                  

underlying criminal conviction.  Rather, as In re Friedman demonstrates,25  Rule 8.4(b)  

                                                                                                                                                                                                          



contemplates the criminal nature of an attorney's misconduct.  In In re Friedman we  

                                                                                                                                                                                                                 



concluded that an attorney violated former Disciplinary Rule 1-102(A)(3); that rule  

                                                                                                                                                                                                              



deemed  it professional misconduct to  "[e]ngage in  illegal conduct involving  moral  

                                                                                                                                                                                                         

                           26   We explained that, though the attorney had not been convicted of a crime,  

turpitude."                                                                                                                                                                                             



the attorney's misconduct would have constituted criminal misapplication of property  

                                                                                                                                                                                                   



under Alaska law if he had committed the underlying acts in Alaska rather than in  

                                                                                                                                                                                                                   



                 23               (...continued)  



                                                                                                                                                                                  

                                  (c) engage in conduct involving dishonesty, fraud, deceit, or  

                                 misrepresentation.  



                 24              Alaska R. Prof. Conduct 8.4(b).  

                                                                                                 



                 25              23 P.3d 620 (Alaska 2001).  

                                                                                                        



                 26              Id . at 629 n.32 (alteration in original) (quoting former Disciplinary Rule  

                                                                                                                                                                                                             

                                

 1-102(A)).  

                              



                                                                                                         -8-                                                                                                7106
  


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

                 27  

California.           But because the misconduct occurred elsewhere, it was beyond the reach                                       

of our penal laws.28                                                                                                          

                                 Like former Disciplinary Rule 1-102(A)(3), Rule 8.4(b) does not  



                                                                                                                                     

require an underlying criminal conviction for a violation to occur.  Violating the rule  



                                                                                                                                   

requires only that an attorney engage in dishonest conduct that would be criminal under  



                   29  

                        

Alaska law. 

                     Under AS 11.56.200 a person commits criminal perjury, a class B felony,30  

                                                                                                                              



when "the person makes a false sworn statement which the person does not believe to  

                                                                                                                            

be true."31       The statement must be objectively false, and the person must know that the  

                                                                                                                                       

statement is false.32   The statute encompasses all false sworn statements, not just those  

                                                     



           27        Id .  at  629  n.33.  



           28        Id.   



           29        See  Alaska  R.  Prof.  Conduct   8.4(b)  ("It  is  professional  misconduct  for  a  



lawyer  to   .   .   .   commit   a   criminal   act  that  reflects   adversely   on   the   lawyer's  honesty,  

trustworthiness  or  fitness  as  a  lawyer  in  other  respects  .  .  .  .");  In  re  Friedman,  23  P.3d  

at  629  &  nn.32-33.  



           30        AS  11.56.200(c).  

                                                   



           31        AS  11.56.200(a).  

                             



           32        LaParle v. State, 957 P.2d 330, 335 (Alaska App. 1998); Alaska Criminal  

                                                                                                                              

Pattern Jury Instruction 11.56.200 (2009).  Pattern Jury Instruction 11.56.200 provides:  

                                                                                                                             



                     To  prove  that  the  defendant  committed  [the]  crime  [of  

                                                                                                                

                     perjury], the state must prove beyond a reasonable doubt each  

                                                                                                               

                     of the following elements:  

                                                 



                      (1)  the defendant knowingly made a sworn statement;  

                                                                                                               



                      (2)  the statement was false; and  

                                                                    



                      (3)  the defendant did not believe the sworn statement to be  

                                                                                   

                     true.  

                               



                                                                   -9-                                                             7106
  


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

                                 33  

made in court.                           Under the                Rules  of Professional Conduct, the word "knowingly"                                            



                                                                                                                 34  

"denotes actual knowledge of the fact in question."                                                                    



                             We already concluded that Ivy acted knowingly when she testified falsely,  

                                                                                                                                                                                



that Ivy's testimony was objectively false, that circumstantial evidence supported the  

                                                                                                                                                                                        



finding that Ivy knew her testimony was untrue, and that Ivy "did not credibly explain  

                                                                                                                                                                               

that she mistakenly believed it was true."35                                                        Such conclusions satisfy the elements of  

                                                                                                                                                                                          



criminal perjury.   Because perjury is a dishonest act, we conclude that Ivy violated  

                                                                                                                                                                             



Rule 8.4(b).  

            



                             We further conclude that Ivy violated Rules of Professional Conduct 8.4(a)  

                                                                                                                                                                                   



and (c) and Bar Rule 15(a)(3).  Our previous decision supports these conclusions:  Ivy  

                                                                                                                                                                                       



breached the Rules of Professional Conduct, which constitutes a violation of Rule of  

                                                                                                                                                                                          



Professional Conduct 8.4(a); she engaged in dishonest conduct, which violates Rule of  

                                                                                                                                                                                           



               33            AS 11.56.240(2) (defining "sworn statement");                                                             Joseph v. State                   , 315 P.3d     



678, 686 (Alaska App. 2013).                                           AS 11.56.240 broadly defines                                            statements   to include   

"representation[s] of fact[,] . . . opinion, belief, [and] other state[s] of mind" when the                                                                                

statement "clearly relates to state of mind apart from or in addition to any facts that are                                                                                              

the   subject   of   the   representation."     AS   11.56.240(1).     Sworn   statements   include  

statements "knowingly given under oath . . . , including a notarized statement" and                                                                                                    

statements    "knowingly    given    under    penalty    of    perjury    under    AS    09.63.020."   

AS 11.56.240(2).                         AS 09.63.020 governs certified documents.                                                         



               34            Alaska R. Prof. Conduct 9.1(h); see also In re Ivy, 350 P.3d 758, 762  

                                                                                                                                                                                      

(Alaska 2015) (explaining that " 'knowingly' making false statement for purposes of  

                                                                                                                                                                                          

Rules [of Professional Conduct] requires both that statement be false and that speaker  

                                                                                                                                                                              

know so").  

              



               35            In re Ivy, 350 P.3d at 762.  

                                                                                         



                                                                                           -10-                                                                                     7106
  


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

Professional Conduct 8.4(c); and she knowingly misrepresented facts and circumstances                                               



                                                                                                                  36  

in this grievance proceeding, which violates Bar Rule 15(a)(3).                                                         



                                                                

                                    b.          Mental state  



                                                                                                                                                      

                        The record  supports the finding  that Ivy  acted  intentionally  when  she  



                                                                                                                                                               

testified  falsely  in  the  litigation  with  Kyzer  and  in  these  disciplinary  proceedings.  



                                                                                                                                     

Neither  the  Rules  of  Professional  Conduct  nor  the  Bar  Rules  define  "intentional"  



                                                                                                                                           

conduct.   The ABA Standards, which we follow, define "intent " as "the conscious  



                                                                                                          37  

                                                                                                                                               

objective  or  purpose  to  accomplish  a  particular  result."                                                  Intent  does  not  require  



                        38                                                                                                             39  

malfeasance,                                                                                                                

                           and circumstantial evidence can support a finding of intent. 



                                                                                                                                                        

                        We previously concluded that Ivy acted, at minimum, knowingly when she  



                             40  

                                                                                                                                                        

                                 We cited Ivy's motive to lie, the "incredibility of [her] testimony," the  

testified falsely. 



                                                                                                                                                 

strong  evidence  contradicting  her  accounts,  her  persistence  in  asserting  her  claims  



                                                                                                                                                      

despite such evidence, and her failure to demonstrate that her ability to perceive was  

                          41    These facts and others also support the finding that Ivy acted with  

compromised.                                                                                                                                         



intent:  Ivy made a police report accusing Kyzer of stalking on the same day she was  

                                                                                                                                                      



scheduled to give a deposition in the litigation with him - and after her requests to stay  

                                                                                                                                                      



            36          See  id.  at  761-62,  766.  



            37          ABA  STANDARDS,  supra  note  3,  at    III  (definitions).  



            38          In  re   West,  805  P.2d  351,  356  (Alaska   1991)  (citing  the  ABA  Standards).   



            39          In re Ivy, 350 P.3d at 762 & n.11 (citing  Adams v. Adams , 131  P.3d 464,  



466-67   (Alaska   2006));   In   re   Friedman,   23   P.3d   620,   626   (Alaska   2001)   ("[I]t   is  

permissible  to  infer  that  an  accused  intends  the  natural  and  probable  consequences  of  his  

or  her  knowing  actions."  (quoting  In  re  Triem,  929  P.2d  634,  648  (Alaska   1996))).  



            40          In re Ivy, 350 P.3d at 762.  

                                                                



            41          Id .  



                                                                           -11-                                                                    7106
  


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

that deposition already had been denied.                                                                                      She subsequently testified about the alleged                                                                      



stalking in great detail. And, in this appeal, she admits acting with a selfish motive when                                                                                                                                                           



giving that testimony.                                              She also continues to rationalize her previous stories rather than                                                                                                                    



acknowledge their incredibility.                                                                   



                                         Such   circumstantial   evidence   supports   the   finding   that   Ivy   sought  to  



manipulate the litigation with Kyzer and these disciplinary proceedings.                                                                                                                                                    Therefore we   



agree with the Board that Ivy acted intentionally.                                                           



                                                             c.                  Injury and potential injury                                         



                                         We also conclude that Ivy's misconduct caused serious actual or potential                                                                                                                          



injury to Kyzer and to the legal system, but not to the public or to the legal profession.                                                                                                                                                                                



The ABA Standards define injury according to the type of duty violated and the extent                                                                                                                                                               



                                                                                      42                                                                                                                                                                          43  

                                                                                               Harm ranges from "serious" to "little or no" injury.                                                                                                                       

of actual or potential harm.                                                                                                                                                                                                                 



Potential  injury is harm that is "reasonably foreseeable at the time of the lawyer's  

                                                                                                                                                                                                                                           



misconduct, and which, but for some intervening factor or event, would probably have  

                                                                                                                                                                                                                                                        

resulted from the lawyer's misconduct."44  

                                                                                                                                 



                                         Ivy contends that she did not cause serious harm to Kyzer, citing a lack of  

                                                                                                                                                                                                                                                                 



"clear and convincing evidence" in the record.   She further contends that whatever  

                                                                                                                                                                                                                           



potential injury she caused to him was "limited."  

                                                                                                                                                      



                                         As an initial matter, evidence of injury and potential injury need not reach  

                                                                                                                                                                                                                                                      



the clear and convincing evidentiary threshold.  The ABA Standards, which guide us in  

                                                                                                                                                                                                                                                                 



                    42                   ABA S                 TANDARDS,  supra  note 3, at  II, III.                                                                



                    43                  Id.  



                    44  

                                                             

                                        Id. at  III.  



                                                                                                                             -12-                                                                                                                       7106
  


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

                                 45  

assessing sanctions,                 "are designed for use in imposing a sanction or sanctions                                   following   



                                                                                                                         46  

a determination by clear and convincing evidence" of an ethical violation.                                                   Accordingly  



                                                                                                                                    

we engage in a two-part inquiry.  First we ask if clear and convincing evidence supports  

                                                                                         47  If we answer in the affirmative,  

                                                                                                                               

                                                                                 

concluding that an attorney violated the ethical rules. 

we then consider what level of discipline to impose.48   We have never before applied the  

                                                                                                                                              



clear and convincing evidentiary threshold to this latter inquiry.  

                                                                                                             



                       The extreme nature of Ivy's accusations supports our conclusion that Ivy  

                                                                                                                                             



caused Kyzer serious actual or potential injury.  Ivy accused Kyzer of criminal sexual  

                                                                                                                                       

assault, a class B felony,49  and filed an affidavit with the court supporting the allegation.  

                                                                                                                                                    



Ivy also enlisted the justice system by making a police report accusing Kyzer of stalking,  

                                                                                                                                    

a class A misdemeanor.50                    She subsequently testified about the alleged stalking incident  

                                                                                                                                     



in detail.  

                 



                       However incredible, suchaccusationsthreatento imposeaconsiderabletoll  

                                                                                                                                             



on the accused.  A class B felony conviction for criminal sexual assault in the second  

                                                                                                                                       



degree carries a presumptive sentence of 5 to 15 years with a maximum sentence of  

                                                                                                                                               



           45         In  re  Friedman,  23  P.3d  620,  625  (Alaska  2001).   



           46          ABA  STANDARDS,  supra  note  3,  at    III.A.1.3  (emphasis  added).  



           47          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  .  .  .  committed  

misconduct  as  provided  in  [Bar]  Rule   15.").   



           48          See Alaska Bar R. 15 (defining grounds for attorney discipline); see also  

                                                                                                                 

In re Buckalew, 731 P.2d 48, 52 (Alaska 1986) (adopting ABA framework for imposing  

                                                                                                                                   

attorney discipline sanctions).  

                                 



           49          AS  11.41.420(b) (sexual assault in the second degree).  

                                                                                                                     



           50          AS 11.41.270(c).  

                              



                                                                      -13-                                                               7106
  


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

                 51  

99 years.             A class A misdemeanor conviction for criminal stalking could result in a one-                                                          

year prison sentence.                   52                                                                              

                                             Threats of criminal sanctions stand to tarnish the reputation of  



                                                                                                                                                                       

the accused and to cause emotional distress for the accused and his or her loved ones.  



                                                                                                                                                                       

For protection a person might reasonably seeklegal advice, as Kyzer apparently did here.  



                                                                                                                                                  

Moreover Ivy's false accusation about the stalking delayed the litigation; her deposition  



                                                                                                                                                                  

scheduled for January was conducted in March.  This delay could have caused Kyzer to  



                                                                               

incur substantial, and unnecessary, legal costs.  



                                                                                                                                                        

                          We also conclude that Ivy's misconduct caused serious injury or serious  



                                                                                                                                                        

potential injury to the legal system.  An attorney's duties to the legal system include  



                                                                                                                                                       

abiding by the substantive and procedural rulesthat"shapetheadministration ofjustice,"  



                                                                                                                                                            

not using or creating false evidence, and generally refraining from illegal and other  



                                   53  

                    

improper conduct. 



                          Ivy argues that neither the deposition nor the affidavit caused serious harm  

                                                                                                                                                            



to the legal system because the litigation settled "[s]oon after" she testified falsely at the  

                                                                                                                                                                



deposition. But Ivy misconstrues the timeline of the litigation. After she testified falsely  

                                                                                                                                                          



about the alleged stalking incident at the deposition, the litigation continued for at least  

                                                                                                                                                             



another  two  years;  in  mid-2010  she  falsely  alleged  that  Kyzer  assaulted  her  in  a  

                                                                                                                                                                   



courtroom.  And as explained, Ivy's false testimony about the stalking incident delayed  

                                                                                                                                                       



the litigation with Kyzer. This delay, at minimum, threatened to impose a substantial and  

                                                                                                                                                               



unnecessary burden on the judicial system.  We recognize that "lengthy and duplicative  

                                                                                                                                                 



             51          AS 12.55.125(i)(3).   



             52          AS 12.55.135(a).   



             53          ABA S         TANDARDS,  supra  note 3, at  II (theoretical framework).                            



                                                                               -14-                                                                         7106
  


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

                                                                                                             54  

filings," similar to those here, can impose significant costs.                                                     And failing to timely       



                                                                                                                                                        55  

comply with discovery requests, as Ivy did, can seriously interfere with proceedings.                                                                        



Further, as the Board concluded, Ivy's false testimony about Kyzer could have led the  

                                                                                                                                                      



court to reach false conclusions about the credibility of witnesses. Such a risk also poses  

                                                                                                                                                  



serious injury to the legal system.  

                                                              



                        However the record does not support concluding that Ivy caused serious  

                                                                                                                                              



actual or potential injury to either the public or the legal profession. Duties that attorneys  

                                                                                                                                           



owe to the public emphasize the public's right "to trust lawyers to protect their property,  

                                                                                                                                           



liberty, and lives" and the expectation that lawyers act honestly and refrain from conduct  

                                                                                                                                             

that interferes with the administration of justice.56  Duties to the legal profession similarly  

                                                                                                                                            

include maintaining the integrity of the profession.57  

                                                                                               



                        We recognize that actions falling below the ABA's standard of conduct  

                                                                                                                                             

diminish the public's confidence in attorneys.58  Such conduct also threatens the integrity  

                                                                                                                                            

                                        59  But here there was little risk of such harm. The record does not  

of the legal profession.                                                                                                                              

                     



suggest that the public was aware of Ivy's misconduct.  And Ivy claims that she has not  

                                                                                                                                                      



practiced law in 15 years.   If this is true, then she has no current clients who would  

                                                                                                                                               



            54          In  re  Shea,  273  P.3d  612,  622  (Alaska  2012).  



            55          In  re  Rice,  260  P.3d   1020,   1032  (Alaska  2011).  



            56          ABA  STANDARDS,  supra  note  3,  at    II.  



            57          Id .  



            58          In  re  Hanlon,  110  P.3d  937,  947  (Alaska  2005)  ("[E]ven  minor  violations  



of   law   by   a   lawyer   may   tend   to   lessen   public   confidence   in   the   legal   profession."  

(quoting  In  re   West,  805  P.2d  351,  355  (Alaska   1991))).  



            59          Id .  



                                                                          -15-                                                                    7106
  


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

                                                                                                   60  

become aware of this disciplinary action.                                                                Therefore the record does not support serious                                                



actual or potential injury to the public or to the legal profession.                                                                



                                 2.               Step two:                  presumptive sanction   



                                 If   there   are   multiple   instances   of   misconduct,   "[t]he   ultimate   sanction  



imposed should at least be consistent with the sanction for the most serious instance of                                                                                                                          



misconduct . . . and generally should be greater than the sanction for the most serious                                                                                                              



                                 61  

misconduct."                                                                                                                                                                                   

                                          The  ABA  Standards  favor  disbarment  in  this  case.                                                                                   For  example,  



                                                                                                                                                                                                                 

Standard 5.11(b) recommends disbarment when an attorney intentionally engages in  



                                                                                                                                                                                                   

dishonest conduct that "seriously adversely reflects on the lawyer's fitness to practice  



                                                                                                                                                                                                                

 [law]," as Ivy did here.   Similarly Standard 6.11 recommends disbarment when an  



                                                                                                                                                                                                   

attorney acts "with the intent to deceive the court, makes a false statement, [or] submits  



                                                                                                                                                                                                                         

a false document . . . [that] causes serious or potentially serious injury," as Ivy also did.  



                                                                                                                                                                                                   

Therefore disbarment, the most severe sanction under the ABA Standards, is the baseline  

                                                                                                                                                   62  - a starting point which  

                                                                                                                                                                    

against which we weigh aggravating and mitigating factors 

the dissent does not appear to dispute.63  

                                                                           



                 60              The Bar Association did not refute Ivy's claim, and no evidence in the                                                                                                        



record suggests otherwise.                                          



                 61              ABA S             TANDARDS,  supra  note 3, at  II (theoretical framework).                                                     



                 62              The parties dispute whether ABA Standard 5.11(a) also favors disbarment.  

                                                                                                                                                                                                                         

This dispute is not material to our analysis; the ABA Standards already point to the most  

                                                                                                                                                                                                           

severe sanction.  See In re Schuler, 818 P.2d 138, 142 (Alaska 1991) (concluding that  

                                                                                                                              

it made "no difference" whether misconduct violated ABA Standard 5.11(a) or 5.11(b)  

                                                                                                                                                                                                     

                                                                                                                                          TANDARDS,  supra  note 3, at  II                                       

because both standards recommend disbarment); ABAS 

                                                                                                                         

("The ultimate sanction imposed should at least be consistent with the sanction for the                                                                                                                        

most serious instance of misconduct.").                       



                 63              See Dissent at 31-44.  

                                                                      



                                                                                                      -16-                                                                                                7106
  


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

                      3.         Step three:          aggravating and mitigating factors                



                      The   ABA   Standards   provide   a   nonexclusive   list   of   aggravating   and  



mitigating factors that, on balance, may counsel in favor of modifying the presumptive                                     



               64 

                                                                                                                                          

sanction.          When the ABA Standards recommend disbarment, aggravating factors are  



                                                                                                                     65  

                                                                                                                          

relevant "only to the extent that they neutralize the mitigating factors." 



                                                                                                                              

                      The Bar Association and Ivy dispute which aggravating and mitigating  



                                                                                                                                    

factors exist and how the factors affect the appropriate sanction. The Board cited several  



                                                                                                                                          

aggravating factors but only one mitigating factor and accordingly concluded that the  



                                                                                                   66  

                                                                                                        

aggravating factors outweighed the single mitigating factor. 



                                                                                                                           

                      "We  independently  review  the  entire  record  in  attorney  disciplinary  



                                                                                                                                            67  

                                                                                                                                                 

                                                                                                                               

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



                                                                                                                                          

We agree with the Board's ultimate conclusion:  The aggravating factors outweigh the  



                                                                                                                                         

single mitigating factor.  However we disagree with some of the Board's analysis.  



                                                                                                                            

                      Like the Board, we conclude that the record supports several aggravating  



                                                                                                                                                 

factors. As explained, the record establishes that Ivy acted selfishly. Ivy admits that she  



           64         See  ABA  STANDARDS,  supra  note  3,  at    III.C.9.0.  



           65         In  re  Friedman,  23  P.3d  620,  632  (Alaska  2001).   



           66         The   Board found   aggravating   factors   including   a   dishonest   and   selfish  



motive;  a  pattern  of  misconduct;  multiple  offenses;  Ivy's  repeated  false  statements  in  the  

disciplinary   hearing;   Ivy's   failure   to   acknowledge   any   wrongful   conduct;   Ivy's  

experience  as  an  attorney  (noting  her  admission  in   1984  and  her  work  at  a  law  firm);  a  

failure  to  make  any  restitution  efforts  until  Kyzer's  motion  for  them  in  the  disciplinary  

proceedings;  and  Kyzer's  potential  vulnerability  as  a  result  of  psychological  issues.   On  

appeal  the  Bar  Association   claims many of  the   same   factors   except  it  does  not   claim  

Ivy's  apparent  failure  to  make  restitution  or  Kyzer's  vulnerability.   



           67         In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (quoting In re Shea, 273  

                                                                                                                                         

P.3d 612, 619 (Alaska 2012)).  

                                       



                                                                    -17-                                                              7106
  


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

acted selfishly in her briefing; her persistent pattern of behavior, the timing of her false                                                        



                                                                                                                                                         68  

accusations, and her failureto acknowledgepastwrongsfurthersupport                                                            theconclusion.                  



These same facts and circumstances also support several other aggravating factors:  a  

                                                                                                                                                          



pattern of misconduct, multiple offenses, repeatedly making false statements in  the  

                                                                                                                                                 

disciplinary proceedings, refusing to acknowledge past wrongs, and illegal conduct.69  

                                                                                                                                                              



                        But the record does not support the Board's conclusion that psychological  

                                                                                                                                   



issues  made  Kyzer  vulnerable.                               Rather  the  Committee  noted  that  the  Committee  

                                                                                                                                       



prevented Ivy from discovering her brother's "personal information."  And we find no  

                                                                                                                                                        



evidence  that  might  otherwise  support  the  finding.                                            "[T]he  Bar  has  the  burden  of  

                                                                                                                                                        

demonstrating its initial charges against a respondent attorney."70                                                          Ivy's experience  

                                                                                                                                        



practicing law also should not be considered an aggravating factor.  The mere facts that  

                                                                                                                                                     



Ivy was admitted to practice in 1984 and once worked at a law firm bear little weight,  

                                                                                                                            



particularly when nothing in the record refutes Ivy's claim that she has not practiced in  

                                                                                                                                                         



 15 years.  

                  



                        As  for  mitigating  factors  the  Board  found  one,  no  prior  disciplinary  

                                                                                                                                      



offenses.  And it explained why it gave little weight to Ivy's claims that she suffered  

                                                                                                                                             



personal or emotional problems: Ivy "unequivocally denied any past delusional thinking  

                                                                                                                                              



or  hallucinatory  episodes";  she  "offered  no  evidence  from  any  mental  health  

                                                                                                                                                



professional"; and given her conduct in the proceedings, the validity of her claims about  

                                                                                                                                                  



the "past altercations she had been subject to at the hands of her brother" could not be  

                                                                                                                                      



ascertained - "her testimony . . . standing alone . . . was not credible." Accordingly the  

                                                                                                                                                       



            68          See supra          Part IV.A.1.b.             



            69          See  ABA S          TANDARDS,  supra  note 3, at  III.C.9.22.             



            70  

                                                                                                               

                        In re Rice, 260 P.3d 1020, 1033 (Alaska 2011).  



                                                                          -18-                                                                     7106
  


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

Board determined it was "not qualified to assess how                                                                                                                   [the alleged] problems may (or may                                                                 



not) have contributed to Ms. Ivy's wrongful actions."                                                                                                                          



                                           We agree with the Board's conclusions on mitigating factors.                                                                                                                                           The record   



                                                                                                                                                                                                                                                                                  71  

lacks evidence of a disciplinary history; this absence qualifies as a mitigating factor.                                                                                                                                                                                                  



But,  as  the  Board  found,  the  record  also  lacks  evidence  of  personal  or  emotional  

                                                                                                                                                                                                                                                     



problems.                              Ivy  affirmatively denied  such  problems,  and she produced  no  evidence  

                                                                                                                                                                                                                                                         



supporting how her alleged fear of her brother might support the finding. We give "great  

                                                                                                                                                                                                                                                                    

weight" to the Board's factual findings;72  on appeal the respondent attorney "bears the  

                                                                                                                                                                                                                                                                             

burden  of  proof  in  demonstrating  that  such  findings  are  erroneous."73                                                                                                                                                                     The  record  

                                                                                                                                                                                                                                                                 



supports the Board's findings, and Ivy does not demonstrate how the Board's findings  

                                                                                                                                                                                                                                                            



are erroneous.  Accordingly we conclude, like the Board, that this mitigating factor is  

                                                                                                                                                                                                                                                            



entitled to little, if any, weight. Finally, Ivy's pattern of dishonesty also does not support  

                                                                                                                                                                                                                                                               

her claim to good character, an available mitigating factor under the ABA Standards.74  

                                                                                                                                                                                                                                                                                          



                      71                   See  ABA S                           TANDARDS,  supra  note 3, at  III.C.9.32(a).                                                 



                      72                   In re Miles                         , 339 P.3d at 1018 (quoting  In re Rice                                                                                     , 260 P.3d at 1027);  see  



also In re Triem, 929 P.2d 634, 640 (Alaska 1996) ("As a general rule . . . we ordinarily  

                                                                                                                                                                                                                                                       

will not disturb findings of fact made upon conflicting evidence." (quoting                                                                                                                                                                        In re West                         ,  

 805 P.2d 351, 353 n.3 (Alaska 1991)));                                                                                         id. at 643 & n.12 ("The committee's finding of                                                                                                  

dishonesty by Triem during the disciplinary process is adequately supported by the                                                                                                                                                                                          

record and we do not find it to be clearly erroneous.").  

                                                                                                                                      



                      73                   In re Miles, 339 P.3d at 1018 (quoting In re Rice, 260 P.3d at 1027).  

                                                                                                                                                                                                                                                    



                      74                   See ABA S                             TANDARDS, supra  note 3, at  III.C.9.32(g).                                                                                                      Ivy also claims                

                                                        

several other mitigating factors such as an apparent delay in the filing of the grievance,                                                                                                                                                            

the attorney's fees and cost award, the fact she likely will not commit similar misconduct                                                                                                                                                        

again, and the non-representative context in which her misconduct arose.                                                                                                                                                                        We find no   

support under our prior cases or in the record for Ivy's claims.                                                                                                                   



                                                                                                                                     -19-                                                                                                                              7106
  


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

                       We now weigh these aggravating and mitigating factors against the ABA-                                              



recommended sanction of disbarment.  "[T]here is no 'magic formula' " for balancing   

                                                             75                                                                              76  in  

                                                                  Each case demands an independent inquiry                                        

aggravating and mitigating factors.                                                                        

                                                                                                       77  In balancing the factors,  

light of the "nature and gravity of the lawyer's misconduct."                                                                            

                                                                                 

we are sensitive to the risk of double counting.78                                     This double-counting risk can arise  

                                                                                                                                      



between the factors themselves; it also can arise when the ABA-recommended sanction  

                                                                                                                                       



or underlying ethical violation turns on the same facts as an aggravating or mitigating  

                                                                                                                                    



factor.  We account for this double-counting risk by weighing the factors in light of the  

                                                                                                                                                



circumstances.  

                       We conclude, similar to the dissent,79 that several of the aggravating factors  

                                                                                                                                          



are  repetitious  under  the  circumstances  here.                                    For  example,  Ivy's  misconduct  -  

                                                                                                                                                



repeatedly  lying  under  oath  -  supports  several  aggravating  factors:                                                    a  pattern  of  

                                                                                                                                                 



misconduct,  multiple  offenses,  a  dishonest  motive,  deceptive  practices  during  the  

                                                                                                                                               



                                                                                                                                                  80  

disciplinary proceedings, a refusal to acknowledge misconduct, and illegal conduct.                                                                    

                                                                                                                                    



            75         In  re  Hanlon,   110  P.3d  937,  942  (Alaska  2005)  (quoting  In  re  Friedman,  



23  P.3d  620,  633  (Alaska  2001)).  



            76         Id .  at  943.  



            77         In  re  Buckalew,  731  P.2d  48,  54  (Alaska   1986).   



            78         Cf.   Juneby   v.   State   (Juneby   II),   665   P.2d   30,   36   (Alaska   App.   1983)  



("[P]resumptive   terms   are   intended   to   be   applicable   in   typical   cases,   and   not   in  

aggravated  or  mitigated  cases  .  .  .  .");  Juneby  v.  State  (Juneby  I),  641  P.2d  823,  838-39  

(Alaska   App.   1982),   opinion   modified   and   superseded   on   reh'g   on   other   grounds,  

665 P.2d 30 (Alaska App. 1983)  (explaining how to apply aggravating and mitigating  

factors  when  imposing  criminal  sanctions).  



            79         See Dissent at 32-35.  

                                                 



            80         See ABA  STANDARDS,  supra  note  3,  at    III.C.9.22.  

                               



                                                                       -20-                                                                 7106
  


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

                                                                                                                                                                                                                                        81  

To avoid doubly aggravating the sanction for precisely the same acts,                                                                                                                                                                         we consider the                             



repetitious nature of these factors and weigh them accordingly.                                                                                                                                                               Here because Ivy's                                 



pattern of misconduct and multiple offenses (both aggravating factors) turn on precisely                                                                                                                                                                              



the same conduct, we give only Ivy's pattern of misconduct - but not multiple offenses                                                                                                                                                                                  



-  weight at the balancing stage. By contrast, we give some weight to factors that do not                                                                                                                                                                                                



turn   on   exactly   the same facts; here this includes Ivy's pattern                                                                                                                                                            of   misconduct,   her  



dishonest   motive,   the   illegal   nature   of   her   misconduct,   deceptive   practices   in   the  



disciplinary process, and her refusal to acknowledge the wrongfulness of her conduct.                                                                                                                                                                                 



                                             We also account for repetition between the facts supporting an aggravating                                                                                                                                     



factor and the facts supporting an element of the presumptive sanction or the underlying                                                                                                                                                                       



ethical violation.                                           But the mere existence of repetition does not mean we ignore the                                                                                                                                                            



aggravating factor at the balancing stage.                                                                                                          "[P]resumptive terms are intended to be                                                                                                

                                                                                                                                                                                                                                                        82          When  an  

applicable   in   typical   cases,   and   not   in   aggravated   or   mitigated   cases."                                                                                                                                                                                               



attorney's misconduct exceeds the typical case, we give some weight to the aggravating  

                                                                                                                                                                                                                                                            



factor.  

                        



                                             Ivy's misconduct exceeds the typical case:  She lied in a complex lawsuit  

                                                                                                                                                                                                                                                                            



involving multiple parties, she falsely reported that her brother had committed criminal  

                                                                                                                                                                                                                                                                        



acts  against  her,  and  she  lied  in  these  proceedings  to  evade  discipline  for  that  

                                                                                                                                                                                                                                                                                     



misconduct.   Thus though repetition exists between the aggravating factors and the  

                                                                                                                                                                                                                                                                                        

elements of the presumptive sanction (e.g., Ivy's selfish  motive)83   and between the  

                                                                                                                                                                                                                                                                                        



                       81                     Cf. Juneby I                        , 641 P.2d at 842 ("precisely the same acts" should not be used                                                                                                                                    



to "doubly aggravate[]" offense).                                                                                 



                       82                    Juneby II, 665 P.2d at 36.  

                                                                                                                         



                       83                    For example,ABAStandards 5.11(b) and6.11 apply onlywhen anattorney  

                                                                                                                                                                                                                                                                         

acts intentionally.  We concluded that Ivy acted intentionally in part because we found  

                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                           -21-                                                                                                                                    7106
  


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

aggravating factors and the elements of the underlying ethical violations (e.g., Ivy's                                             



                               84  

dishonest conduct),                                                                                                         

                                  we give some weight to these aggravating factors at the balancing  



                                                                                                                                       

stage.  But in doing so we account for the double-counting risk, which arises from the  



                                                                                                                  

similarity of the factual circumstances, by appropriately weighing the factors.  



                                                                                                                                     

                     Acknowledging the risk of double counting, we conclude that the five  



                                                                                                                            

aggravating factors - Ivy's pattern of misconduct, its illegal nature, her dishonest  



                                                                                                                      

motive, deceptive practices during the disciplinary process, and refusal to acknowledge  



                                  

the wrongfulness of her actions - outweigh the single mitigating factor, Ivy's lack of  



                                                                                                                                       

disciplinary  record.                 Therefore  we  do  not  reduce  the  presumptive  sanction  of  



                   85  

disbarment.             



                                4.         Our case law  

                                                            

                                                                                     86   Previously we have reduced an  

                     Our prior cases also support disbarment.                                                                           

                                                                    



ABA-recommended sanction given thepresenceofseveralcompellingmitigatingfactors,  

                                                                                                                                



           83         (...continued)  



                                                                                                                                  

she  acted  selfishly;  Ivy's  selfish  motive  is  also  an  aggravating  factor.                                            If  Ivy's  

                                                                                                                                 

misconduct reflected the typical case, we would not give Ivy's selfish motive any weight  

                           

at the balancing stage.  



           84        For  example,  Alaska  Rule  of  Professional  Conduct  8.4(c)  and  Bar  

                                                                                                                                     

Rule 15(a)(3) are violated only when an attorney engages in dishonest conduct.  Here  

                                                                                                                                    

such dishonest conduct also supports several aggravating factors, including a pattern of  

                                                                                                                                        

misconduct, multiple offenses, and obstruction of the disciplinary process. But because  

                                                                                                                               

Ivy's misconduct exceeds the typical case, we give these factors some weight at the  

                                                                                                                                      

balancing stage.  

                  



           85        See In re Friedman, 23 P.3d 620, 632 (Alaska2001) (when ABA Standards  

                                                                                                                            

recommend disbarment, aggravating factors are relevant "only to the extent that they  

                                                                                                                                    

neutralize the mitigating factors.").  

                                         



           86        See In re Buckalew, 731 P.2d 48, 52 (Alaska 1986) (We consider our  

                                                                                                                                      

precedents to "ensure a level of consistency necessary for fairness to the public and the  

                                                                                                                                       

legal system.").  

          



                                                                  -22-                                                             7106
  


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

 such as evident remorse, active efforts to remedy the problems caused, and voluntarily                                                                                                                    



                                                                                                                                                                                  87  

notifying authorities about the misconduct soon after it occurred.                                                                                                                                        

                                                                                                                                                                                           Such compelling  



                                                                                                                                                      

mitigating factors are entirely absent here.  Instead Ivy continues her fabrications, and  



                                                                                                                                                                                                                   

 she  actively  denies  any  misconduct.                                                                       Further  the  only  factor  counseling  against  



                                                                                                                                                                                                                         

disbarment is Ivy's lack of disciplinary record. Even for a practicing attorney this factor  



                                                                                                                         

is not particularly compelling.  Yet here Ivy apparently has not practiced for 15 years;  



                                                                                                                                                                                                                                  

accordingly  the  fact  that  she  has  not  faced  any  discipline  during  this  period  is  



                                                                                                                                                                                                                                 

unremarkable.  And though we have explained that we "place a great deal of weight on  

                                                                                                                                 88   such circumstances are not present  

                                                                                                                                                                                                                    

the absence of dishonest and selfish motives," 

here.89  



                  87                See, e.g.             ,  In re Friedman                          , 23 P.3d at 632-34 (suspending attorney for three                                                                    



years, despite ABA-recommended disbarment, for mismanaging client funds and felony                                                                                                                                      

conduct given compelling mitigating factors including remorse, evidence that attorney                                                                                                                             

had taken "significant measures" to remedy the problems caused, and good character);                                                                                                                        

In re Mann                    , 853 P.2d 1115, 1117-20 (Alaska 1993)                                                                   (suspending attorney for three years,                                             

despite   ABA-recommended  disbarment,   for   misappropriating   client   funds   given  

compelling mitigating factors including strong evidence of remorse, well-established                                                                                                        

personal and emotional problems, and voluntarily turning himself in to police within one                                                                                                                                       

month of misconduct when misconduct likely would have gone undiscovered).                                                                                                    



                  88                In re Rice, 260 P.3d 1020, 1033 (Alaska 2011).  

                                                                                                                                                  



                  89                Given the absence of compelling mitigating factors, we find the dissent's  

                                                                                                                                                                                                                 

reliance on cases like In re Schuler and  In re Stump misplaced.  Dissent at 38-40.  In re  

                                                                                                                                                                                                                                   

Schuler reducedthepresumptivesanctionofdisbarment for aconvictionofmisdemeanor  

                                                                                                                                                                                                     

theft because of the absence of any aggravating factors and the presence of several  

                                                                                                                                                                                                                     

compelling mitigating factors, including the lack of a prior disciplinary record, personal  

                                                                                                                                                                                                                  

and emotional problems for which the attorney was treated by a psychiatrist, criminal  

                                                                                                                                                                                                                  

 sanctions that imposed a 1.5-year probation and 100 hours of community service, the  

                                                                                                                                                                                                                                

attorney's  evident  remorse,  and  fact  the  attorney's  misconduct  arose  from  a  self- 

                                                                                                                                                                                                                           

destructive motive - not from a desire for personal gain, as here. 818 P.2d 138, 139-45  

                                                                                                                                                                                                                      

(Alaska 1991).  

                       

                                                                                                                                                                                                    (continued...)  



                                                                                                               -23-                                                                                                        7106
  


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

                         By   contrast,   when   aggravating   factors   outweigh   mitigating   factors   we  



                                                                                                       90  

impose the more severe sanction, including disbarment.                                                                                                        

                                                                                                            A "lack of cooperation" in the  



                                                                                                                                              

disciplinary proceedings - or deliberate interference, as here - merits "additional  

                                      91    We also have found disbarment warranted when the attorney's  

                                                                                                                                                 

                        

disciplinary action." 



misconduct threatens significant injury and when it is part of a larger scheme to defraud,  

                                                                                                                                                     



                                                    92  

as we did in In re Buckalew.                             Under such circumstances, disbarment may be warranted  

                                                                                                                                                 

even if compelling mitigating factors might otherwise favor a lesser sanction.93                                                                         Ivy's  

                                                                                                                                                          



             89          (...continued)  



                                                                                                                                                               

                         Similarly  in In  re  Stump  the  attorney  admitted  to  the  alleged  acts  of  

                                                                                                                                                     

professional  misconduct,  and  he  presented  evidence  of  several  mitigating  factors,  

                                                                                                                                                      

including emotional concerns arising from his wife's health and notification to counsel  

                                                                                                                                                        

of his misconduct. 621 P.2d 263, 263-66 (Alaska 1980). Moreover, though In re Stump  

                                                                                                                                                           

cited a preliminary draft of the ABA Standards, as the dissent notes, dissent at 40 n.30,  

                                                                                                                                                         

the court's reliance on the draft standards was minimal.  It cited the draft only to frame  

                                                                                                                                                        

the  respondent  attorney's  argument,  id.  at  265  &  n.6,  and  to  support  the  rather  

                                                                                                                                                              

fundamental assertion that we consider the facts of each case. Id. at 265-66 & n.10.  We  

                                                                                                                                          

adopted the ABA Standards six years after In re Stump ; that 1986 version recommended  

                                                                                                                                                             

sanctions based on cases decided between 1980 and 1984, data which post-dates our  

                                                                                                                                                          

decision in In re Stump .  In re Buckalew, 731 P.2d 48, 51 & n.10 (Alaska 1986).  



             90          See, e.g., In re Miles                  , 339 P.3d 1009, 1018-20 (Alaska 2014)                                       (disbarring  

                                            

attorney for defrauding client and committing criminal theft, per ABA recommendation,                                              

when several aggravating factors neutralized the single mitigating factor, cooperation in                                                                       

disciplinary proceedings).                         



             91          In re Rice, 260 P.3d at 1036.  

                                                                      



             92          731  P.2d  48,  53-56  (Alaska  1987)  (rejecting  five-year  suspension  as  

                                                                                                                                                               

insufficient for knowing conversion of client funds and forging of a judge's signature  

                                                                                                                                                  

despite compelling mitigating factors, including mental and emotional problems, given  

                                                                                                                                                         

significant risk of serious injury to client and legal system); see also In re Rice, 260 P.3d  

                                                                                                                                                            

at 1036 (explaining In re Buckalew, 731 P.2d 48).  

                                                                                        



             93          See, e.g., In   re   Buckalew ,   731   P.2d   at   53-56   (identifying as mitigating                                 

                                             

                                                                                                                                          (continued...)  



                                                                              -24-                                                                        7106
  


----------------------- Page 25-----------------------

misconductthreatened                     substantial injury, it wascalculated to influencethelitigation with                                         



Kyzer   and   these   disciplinary  proceedings,   and   the   record   lacks   evidence   of   any  



compelling mitigating factors.            



                        To conclude that disbarment is too severe, the dissent analogizes to our                                                      

                                                                                                                                  94   But simply  

brief order in           In re Purdy             approving a stipulated five-year suspension.                                                   



because we approved the stipulation does not mean we agree with all of its analysis.  

                                                                                                                                                              



Contrary  to  the  stipulation's  conclusion,  the  non-representative  context  does  not  

                                                                                                                                           



constituteamitigating factor. Likeaggravating factors, we do not mitigateapresumptive  

                                                                                                                                      



sanction when the presumptive sanction and the mitigating factor turn on exactly the  

                                                                                                                                                      

same facts.95   Under the ABA Standards the presumptive sanction accounts for the non- 

                                                                                                                                                    

representative  context.                     Similar  to  the  Alaska  Rules  of  Professional  Conduct,96   the  

                                                                                                                                                      



Standards categorizerecommended sanctions based on thecontextinwhichanattorney's  

                                                                                                                                           



misconduct arises.   For example, ABA Standards 4.0 to 4.6 guide the presumptive  

                                                                                                                                     



sanction when an attorney's misconduct implicates duties owed to clients; the more  

                                                                                                                                                  



            93          (...continued)  



                                                                                                                                               

factors mental and emotional problems, cooperation and disclosure after law partner  

                                                                                                                                     

discovered misconduct, and no record of prior misconduct).  The dissent distinguishes  

                                                                                                                                             

In re Buckalew and other cases in which we have imposed disbarment on the grounds  

                                                                                                                                                              

that the attorneys' conduct in those cases was far more culpable.   Dissent at 41-42.  

                                                                                                                                                      

While this may be true, extreme cases do not establish the minimum threshold for  

                                                                                                                                                

imposing  a  sanction.                        Rather  our  case  law  guides  us  in  evaluating  the  ABA- 

                            

recommended baseline.  



            94          Dissent at 38-39 (citing In re Purdy, No. S-08996 (Alaska Supreme Court  

                                                                                                                                                  

Order, Mar. 26, 1999)).  

                              



            95          See supra Part IV.A.3.  

                                                                    



            96          See In re Ivy, 350 P.3d 758, 762-65 (Alaska 2015) (holding that Rules 3.3  

                                                                                                                                                       

and 3.4 did 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").  

                                                                                                                                                      



                                                                          -25-                                                                     7106
  


----------------------- Page 26-----------------------

severe the conduct with respect to a client, the more severe the sanction.                                                                                                            By contrast,  



                               97  

and as here,                                                                                                                                                           

                                     ABA Standards 5.0 to 5.2 guide the presumptive sanction  when  the  



                                                                                                                                                                                                         

misconduct implicates duties owed to the public, and ABA Standards 6.0 to 6.3 guide  



                                                                                                                                                                                                                         

the presumptive sanction when the misconduct violates duties owed to the legal system.  



                                                                                                                                                                                                             

Sanctions  for  such  violations  may  include  disbarment  regardless  of  whether  the  

                                                                                          98     The context in which an attorney's misconduct  

                                                                                                                                                                                          

misconduct relates to client matters. 

arises also might affect our evaluation of the severity of harm, as it did here;99  this  

                                                                                                                                                                                                             

variable may affect the presumptive sanction.100   Under our framework, we account for  

                                                                                                                                                                                                                

the context before we arrive at the presumptive sanction.101  

                                                                                                                                                     



                 97              See supra                Part IV.A.2.                     



                 98              See, e.g.           , ABAS             TANDARDS,  supra  note 3, at  III.C.5.11(b)(recommending                                                



disbarment when attorney engages in "intentional conduct involving dishonesty . . . that                                                                                                                    

seriously   adversely   reflects   on   the   lawyer's   fitness   to   practice");   id.      III.C.6.11  

(recommending disbarment when attorney, "with the intent to deceive the court, makes                                                                                                                   

a false statement . . . and causes serious or potentially serious injury to a party, or causes                                                                                                         

a significant or potentially significant adverse effect on the legal proceeding").                                                                               



                 99              See supra Part IV.A.1.c.  

                                                                                                



                 100             Compare                      ABA               STANDARDS,                            supra               note            3,        at                III.C.5.11(b)  

                                                          

(recommending disbarment regardless of whether misconduct presents risk of serious                                                                                                                   

harm),  with id.                      III.C.6.11 (recommending disbarment only if misconduct presents risk                                                                                                  

of serious harm).         



                 101             At  most,  In  re  Purdy  presents  another  example  of  mitigating  factors  

                                                                                                                                                                                                    

outweighing aggravating factors.   The stipulation in In re Purdy, unlike here, found  

                                                                                                                                                                                                       

evidence of several mitigating factors, which we previously have found compelling:  

                                                                                                                                                                                                                         

cooperation in the disciplinary proceedings (assisting bar counsel in its investigation,  

                                                                                                                                                                                     

consenting to discipline), a good reputation for sound judgment, honesty, and public  

                                                                                                                                                                                                       

service (as evidenced by letters of public support), other sanctions (criminal sentence,  

                                                                                                                                                                                                

extended probation at place of employment, harmful publicity), and evident remorse. In  

                                                                                                                                                                                                                  

re Purdy, No. S-08996 (Stipulation for Suspension, filed Mar. 8, 1999, at 10-11).  The  

                                                                                                                                                                                                            

                                                                                                                                                                                     (continued...)  



                                                                                                      -26-                                                                                                7106
  


----------------------- Page 27-----------------------

                     Further   the   severity   of   Ivy's   misconduct   and   the   lack   of   compelling  



mitigating factors distinguishes                   In re Purdy         .    Purdy lied in an administrative matter            



involving    only    herself    in    an    effort    to    get    a    personal    advantage    vis-à-vis    the  

                    102   Ivy lied in a complex lawsuit involving multiple parties, including her  

government.                                                              



brother; she lied to the police, in a deposition, and to the court in an affidavit - all in an  

                                                                                                                                     



effort to get her brother in trouble and to obtain an unfair advantage over her brother in  

                                                                                                                                      



that litigation.   Given the seriousness of and risk of harm from Ivy's lies about her  

                                                                                                                                   



brother, Purdy's lies pale in comparison.   The important distinction is that without  

                                                                                                                            



discussing  Purdy's  stipulated  facts  and  the  three-step  ABA  analysis  for  Purdy's  

                                                                                                                           



suspension, including aggravating and mitigating factors, drawing useful comparisons  

                                                                                            



is difficult.  Only if the analytic framework - including the ABA starting point and the  

                                                                                                                                    



aggravating and mitigating factors - is irrelevant does In re Purdy 's outcome become  

                                                                                                                             

relevant to the result here.103  

                                  



                     We  demand  that  attorneys  act  with  integrity  whether  or  not  they  are  

                                                                                                                                   



representing a client:  

                                   



                     Once admitted [to the bar], the requirement of good moral  

                                                                                                          

                     character does not cease to exist. . . . Society allows the legal  

                                                                                                            

                     profession the privilege of self-regulation.  Thus, it is of the  

                                                                                                               



           101       (...continued)  



                                                                                                                                   

stipulation  cited  only  three  aggravating  factors,  two  of  which  overlap  with  the  

                                                                                                                                     

presumptive sanction and the ethical violation:  a dishonest/selfish motive, a pattern of  

                                                                                                      

misconduct, and a prior private admonition for misconduct.  Id.  



           102       In re Purdy, No. S-08156 at 1-4 (Alaska Supreme Court Order, Nov. 18,  

                                                                                                      

1998).  



           103       In re Purdy, No. S-08996.   The dissent also points to In re Stepovich,  

                                                                                                                        

143 P.3d 963 (Alaska 2006).  Dissent at 41-42.  But like In re Purdy, the brief decision  

                                                                                                                            

in In re Stepovich does not provide insight into the court's rationale; thus that case also  

                                                                                                                                  

does not facilitate meaningful comparison.  

                                                 



                                                                 -27-                                                           7106
  


----------------------- Page 28-----------------------

                       utmost  importance that the public have confidence in the                                           

                       profession's ability to discipline itself . . . .                         [104]  



Under  the ABA Standards and our case law, Ivy's lack of integrity, self-interested  

                                                                                                                               



motives, and evident disregard for how her misconduct gravely threatened others and the  

                                                                                                                                                   



legal system warrants disbarment.  

                                        



            B.         The Record Supports The Board's Attorney's Fees And Costs Award.  

                                                                                                                                          



                       Ivy contends that, at minimum, the Board's attorney's fees and costs award  

                                                                                                                                              



should be "dramatically reduced." Previously we found "nofault withtheattorney's fees  

                                                                                                                                                  

award."105           We determined that the Board complied with Alaska Bar Rule 16(c)(3),  

                                                                                                                                        



which  authorizes  disciplinary  boards  to  award  attorney's  fees  and  costs  upon  

                                                                                                                                  

consideration of ten statutorily enumerated factors.106  And we explained that even if Ivy  

                                                                                                                                                  



had properly raised the issue of attorney's fees and costs, it was "not apparent from th[e]  

                                                                                                                                                



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."107                                                            We  

                                                                                                                                                 



accordingly acknowledged that the Board "may revise the award," but we did not require  

                                                                                                                                            

the Board to do so.108  

                             



                       As before Ivy does not demonstrate why the Board's award is flawed.  

                                                                                                                                                          



Under Bar Rule 16(c)(3), the amount of an award does not turn on who prevailed on a  

                                                                                                                                                      



given issue.  Instead the Rule requires the Board to consider, among other factors, "the  

                                                                                                                                                 



            104        In re Buckalew             , 731 P.2d        at 56.
   



            105        In re Ivy, 350 P.3d 758, 766 (Alaska 2015).
  

                                                                                                      



            106        Id.  at 765-66 & n.35.
                



            107        Id.  at 765-66 & n.34 (issue of attorney's fees waived because it was not
  

                                                                                                                                                  

addressed in opening brief).           



            108        Id . at 766.  

                                  



                                                                        -28-                                                                   7106
  


----------------------- Page 29-----------------------

reasonableness  ofthenumber ofhours expended byBar Counsel                                                    and the      reasonableness  



                                        109  

of   the   costs   incurred"                                                                                                                 

                                             as  well  as  "the  relationship  between  the  amount  of  work  

                                                                                                                                110    The Bar  

                                                                                                                                                

                                                                                                                     

performed by Bar Counsel and the significance of the matters at stake." 



Association made sound arguments that related to an issue of first impression: Never  

                                                                                                                                           



before had we considered whether Rules of Professional Conduct 3.3 and 3.4 apply in  

                                                                                                                          



the non-representative context, neither rule refers to a client relationship, and neither  

                                                                                                                                  



necessarily implies a representative context.                                       Simply because Ivy prevailed in her  

                                                                                                                                                



argument that Rules 3.3 and 3.4 did not apply does not render the attorney's fee and cost  

                                                                                                                                                



award too high.  

                              



                       Moreover, under Bar Rule 16(c)(3), the Board also shall consider "the  

                                                                                                                                               

duration ofthecase,"111 "thereasonableness ofthedefensesraisedby theRespondent,"112  

                                                                                                                           

                                                                                             113   We give "great weight" to the  

and the respondent's "vexatious or bad faith conduct."                                                                                           

                                                                             

Board's findings of fact;114  such findings include facts related to the attorney's conduct  

                                                                                                                                         



in the disciplinary proceedings.  Here the Board found that the disciplinary matter had  

                                                                                                                                    



lasted  for  more  than  two  years  and  that  Ivy  had  acted  unreasonably,  including  by  

                                                                                                                                                 



refusing "to admit the falsity of her affidavit and deposition testimony" and by asserting  

                                                                                                                                       



a "defense of not 'knowingly' . . . offer[ing] false testimony" - despite presenting no  

                                                        



            109        Alaska Bar R. 16(c)(3)(C) (emphases added).
                       



            110        Id.  (H).
  



            111        Id. (B).
  

                              



            112        Id. (F).
  

                              



            113        Id. (G).
  

                              



            114        In re Miles        , 339 P.3d 1009, 1018 (Alaska 2014) (quoting                                     In re Shea        , 273
   



P.3d 612, 619 (Alaska 2012)).  

                                         



                                                                       -29-                                                                  7106
  


----------------------- Page 30-----------------------

credible   evidence   in   that   regard.     Such   actions,   as   the   Board   found,   undoubtedly  



increased Bar Counsel's expenses and made the proceedings unnecessarily complex.                                                                                                                                                                                                                                                         



                                                   Therefore, as before, we uphold the fee and cost award.                                                                                                                                     



V.                        CONCLUSION   



                                                   Deborah Ivy is DISBARRED from the practice of law effective 30 days                                                                                                                                                                                                    



from today.                                    Ivy must also comply with the Board's fee and cost award.                                                                                                                                                                                 



                                                                                                                                                                          -30-                                                                                                                                           7106
  


----------------------- Page 31-----------------------

                                  

FABE, Chief Justice, dissenting.  



                                                                      

                    I respectfully disagree with the court's decision to disbar Deborah Ivy.  I  



                                                                                                                             

agree that Ivy violated Alaska Rules of Professional Conduct 8.4(a), (b), and (c) by lying  



                                                                                                                          

about the stalking incident in the parking lot and the alleged sexual assault by her brother  



                                                                    

in the courtroom.  And she violated Alaska Bar Rule 15 by continuing to maintain her  



                                                                                 

fabricated version of these events before the Board.  But it is my view that disbarment  



                                                                                                                           

of Ivy for being untruthful in the course of her own highly emotional personal family  



                                         

litigation is unnecessarily severe.  



                                                                                                                                  

                    All of the various aggravators applied by the court essentially boil down to  



                                                                                                                   

this:  Ivy was untruthful during her combative personal family dispute and consistently  



                                                                                                                               

maintained her false account during the Bar proceedings.  Thus the very falsehoods that  



                                                                                                               

were necessary elements of the two core violations of the rules have impermissibly  



                                                                         

provided the basis for the aggravating factors.  



                                                                                                                         

                    Moreover, the court has ignored the significant mitigating factor of Ivy's  



                                                                                                                       

personal  and  emotional  problems,  resulting  from  years  of  a  contentious  personal  



                                                                                                                                

relationship with her brother.  And Ivy's falsehoods did not arise in the context of her  



                                                                                                                  

representation of a client.  Finally, there is no example in all of our prior disciplinary  



                                                                                                                                 

decisions  that  would  support  disbarment  in  Ivy's  case.                               Though  Ivy's  conduct  is  



                                                                                                                                   

unworthy of our profession and merits the severe sanction of a five-year suspension, it  



                                              

does not warrant disbarment.  



                                                                                                                                  

                    As a separate matter, Ivy's attorney's fee obligation should be reduced in  



                                                                                                                  

light of the fact that she prevailed on the issue of the application of Rules of Professional  



                           

Conduct 3.3 and 3.4.  



                                                               -31-                                                         7106
  


----------------------- Page 32-----------------------

I.	             IVY'S   CONDUCT   WARRANTS   A   SUSPENSION   OF   FIVE   YEARS  

                INSTEAD OF DISBARMENT.                



                A.	             The   Aggravating  Factors   Applied   Against   Ivy   Were   Necessary  

                                Elements Of Her Violation.                  



                                The court concludes that "five aggravating factors - Ivy's pattern of                                                                                                  



misconduct,   its   illegal   nature,   her   dishonest   motive,   deceptive   practices   during   the  



disciplinary process, and refusal to acknowledge the wrongfulness of her actions -                                                                                                                    

outweigh the single mitigating factor, Ivy's lack of disciplinary record."                                                                                                      1  

                                                                                                                                                                                                               

                                                                                                                                                                                     But all of  



                                                                                                                                                                                              

these  aggravating  factors  are  based  on  the  same  conduct  for  which  Ivy  is  being  



                                                                                                                                                                              

disciplined and thus are not properly applied as aggravators.   The sole basis for the  



                                                                                                                                                                                                      

conclusion that Ivy violated Alaska Rules of Professional Conduct 8.4(a), (b), and (c)  



                                                                                                                                                                                                        

and Alaska Bar Rule 15(a)(3) is the finding that Ivy lied about the alleged instances of  



                                                                                                                                                                                                   

stalking and assault both in her court case and before the Bar once the grievance was  



            2  

filed.                                                                                                                                                                                         

                 And the aggravating factors rely on precisely the same conduct as that for which  



                                                                                                                                                                                                   

Ivy is being disciplined: (1) a "pattern of misconduct" (by lying under oath on more than  



                                                                 

one occasion in the course of her personal litigation with her brother); (2)  the "illegal  



                1	              Op. at 22.               



                2               Rule 8.4(a) states that it is professional misconduct for a lawyer to "violate                                                                             



or attempt to violate the Rules of Professional Conduct."  Here, she allegedly violated  

                                                           

the   rules   only   by   lying   under   oath   about   the   alleged  incidents   with   her   brother.   

Rule 8.4(b) designates it misconduct to "commit a criminal act that reflects adversely on                                                                                                              

the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects."                                                                                                           Again,  

thecriminalactreflecting adversely on Ivy's honesty and trustworthinesswas her perjury  

                                                                                                                                                                                            

regarding  those  same  incidents.                                                     Rule  8.4(c)  similarly  prohibits  attorneys  from  

                                                                                                                                                                                                

"engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation."  Yet  

                                                                                                                                                                                                    

again,  Ivy's  alleged  lies  are  the  only  conduct  involving  dishonesty.                                                                                                  Finally,  Bar  

                                                                                                                                                                                                   

Rule   15(a)(3)   prohibits  "knowing   misrepresentation   of   any   facts   or   circumstances  

surrounding a grievance." Ivy committed this violation by continuing to lie. But for her                                                                                                              

lying about the incidents with her brother, Ivy could  not  have been found to have  

                                                                                                                                                                                                 

violated any of these Rules; her lying is therefore a necessary element of each offense.  

                                                                                                                                                                                                               



                                                                                                  -32-	                                                                                          7106
  


----------------------- Page 33-----------------------

nature" of her conduct (by lying under oath in the course of her personal litigation with                                                                                                                                    



her brother); (3) a "dishonest motive" (by lying under oath in the course of her personal                                                                                                                         



litigation with her brother in                                             which monetaryreliefwas at stake); (4) "deceptive practices                                                                            



during the disciplinary process" (by maintaining the truth of her false statements made                                                                                                                                   



in the course of her personal litigation with her brother during the disciplinary process);                                                                                                                      



and (5) a "refusal to acknowledge the wrongfulness of her actions" (by maintaining the                                                                                                                                           



truth of her false statements made in the course of her personal litigation with her brother                                                                                                                          

                                                                                       3  These aggravating factors do little more than restate  

during the disciplinary process).                                                                                                                                                                                      



the underlying violation:  that Ivy lied about the stalking incident in the parking lot and  

                                                                                                                                                                                                                               



the alleged sexual assault both in the courtroom and during the disciplinary process.  

                                                                                                                                                                                                             



                                    Both of Ivy's falsehoods are therefore necessary elements of Ivy's two  

                                                                                                                                                                                                                              



disciplinary violations and the basis of all of the aggravating factors applied by the court.  

                                                                                                                                                                                                                                            



In the criminal law context, the legislature has directed that "[i]f a factor in aggravation  

                                                                                                                                                                                                         



is a necessary element of the present offense . . . that factor may not be used to impose  

                                                                                                                                                                                                                     

                                                                                                                                                     4  Thus, conduct that constitutes  

a sentence above the high end of the presumptive range."                                                                                                                                                     

                                                                                                                                   



an element of the offense itself cannot be applied against the offender as an aggravating  

                                                                                                                                                                                                         



factor.  The same rationale should apply in the attorney discipline context.  When an  

                                                                                                                                                                                                                                  



attorney misappropriates funds, we do not apply "misappropriation of funds" as an  

                                                                                                                                                                                                                                  



aggravating factor in the violation. Relying on dishonesty as an aggravating factor when  

                                                                                                                                                                                                                           



the underlying offense is dishonesty is also impermissible.  

                                                                                                                                                                 



                                    Other  jurisdictions  have  explicitly  applied  this  reasoning  to  attorney  

                                                                                                                                                                                                                 



discipline cases.  For example, in People v. Kolhouse, a case from Colorado, the court  

                                                                                                                                                                                                                                            



refused to count a respondent's failure to comply with requests for information and  

                                                                                                                                                                                                                              



                  3                 Op. at 22.                  



                  4  

                                                                                    

                                    AS 12.55.155(e).  



                                                                                                               -33-                                                                                                                   7106  


----------------------- Page 34-----------------------

refusal   to   acknowledge   the   wrongful   nature   of   her   conduct   as   aggravating   factors   



because those factors were "based on the same conduct underlying one of Respondent's                                                                                                                                                                                           



rule violations" and there were "no additional allegations or evidence" that supported                                                                                                                                                                                     

                                                                                                      5  And in In re Whitt, the Supreme Court of Washington held  

application of those factors.                                                                                                                                                                                                                                                                                     



that because submission of false evidence was part of the factual basis for one of the  

                                                                                                                                                                                                                                                                                                                      



respondent's violations, it could not also be applied against the respondent as a "separate  

                                                                                                                                                                                                                                                                                            

aggravating factor."6  

                                                                                 



                         5                        309 P.3d 963, 966 (Colo. O.P.D.J. 2013).                                                                                                                     



                         6                        72 P.3d 173, 180 (Wash. 2003). The appellate level of the State Bar Court                                                                                                                                                                                  



of California has also consistently adhered to the "long established principle that it is  

                                                                                                                                                                                                                                                                                                                           

inappropriate to use the same conduct relied on to establish a disciplinary violation to                                                                                                                                            

establish an aggravating circumstance."                                                                                                             In re Silverton                                       , Nos. 95-O-10829, 99-O-13251,                                          

2004 WL 60709, at *16 (Review Dep't of the State Bar Ct. of Cal., Jan. 6, 2004); see  

                                                                                                                                                                                                                                                                                                                      

also In re Sampson                                                        , No. 90-O-17703, 1994 WL 454888, at *12 (Review Dep't of the                                                                                                                                                                                

 State Bar Ct. of Cal., Aug. 16, 1994) ("It appears that the hearing judge used the same                                                                                                                                                                                     

conduct constituting the . . . violation as a finding in aggravation of the same charge.                                                                                                                                                                                                                                              

This is inappropriate.");                                                                   In re Burckhardt                                                    , No. 88-O-15079, 1991 WL 16498, at *6                                                                                                                  

(Review Dep't of the State Bar Ct. of Cal., Feb. 4, 1991) (holding that because a finding  

                                                                                                                                                                                                                                                                                                   

of aggravation for conduct involving bad faith, dishonesty, and concealment "reflect[ed]                                                                                                                                                                                                

the same conduct . . . that is properly the basis for the finding of [the] violation," the                                                                                                                                                                                                                            

"finding in aggravation [was] duplicative");                                                                                                                             In re Trillo                                 , No. 85-0-13726, 1990 WL                                                                   

92610, at *9 (Review Dep't of the State Bar Ct. of Cal., May 3, 1990) (declining to adopt                                                                                                                                                                                                                     

a finding that a respondent made misrepresentations to his clients because the court had                                                                                                                                                                                                                             

"already adopted such a finding of culpability and [did] not believe it appropriate to  

                                                                                                                                                                                                                                                                                                                          

assign  aggravation  to  the  identical  conduct");  In  re  Mapps,  Nos.  87-0-12533,  

                                                                                                                                                                                                                                                                                

 87-0-11669, 1990 WL 92624, at *7 (Review Dep't of the State Bar Ct. of Cal., Mar. 27,  

                                                                                                                                                                                                                                                                                                                       

 1990)   (noting   that   because   the   court   had   already   concluded   that   a   respondent   had  

embezzled clients' funds, constituting moral turpitude, the same conduct could not be  

                                                                                                                                                                                                                                                                                                                         

"count[ed] . . . again as a separate aggravating factor").  

                                                                                                                                                                                                                



                                                                                                                                                          -34-                                                                                                                                                  7106
  


----------------------- Page 35-----------------------

                                                                                                                                                                             7  

                                Here, despite "[a]cknowledging the risk of double counting,"                                                                                   the court has          



improperly applied the same facts that formed the basis of the disciplinary violations as                                                                                                               



separate aggravating factors.                                         



                B.	             The Court And The Board Have Ignored A Significant Mitigating                                                                                     

                                Factor: Ivy's Personal And Emotional Problems.                                                                               



                                The court is incorrect in concluding that "as the Board found, the record                                                                                    



                                                                                                                                                            8  

also lacks evidence of [Ivy's] personal or emotional problems."                                                                                                                               

                                                                                                                                                                  In fact, the Board  



                                                                                                                                                                                              

recognized that "it appeared . . . that Ms. Ivy exhibited some evidence of personal and/or  



                                                                                                                                                                                             

emotional  problems  regarding  her  relationship  with  her  brother."                                                                                                  But  the  Board  



                                                                                                                                                                                                      

nevertheless determined that it was "not qualified to assess how these problems may (or  



                                                                                                                                                                                                     

may not) have contributed to Ms. Ivy's wrongful actions" and thus discounted her  



                                                                                                                                                                                      

personal and emotional problems as mitigating factors. Yet the American Bar Standards  



                                                                                                                                                                                    

for Imposing Lawyer Sanctions expressly recognize "personal or emotional problems"  



                                                     9  

                                                                                                                                                                                         

as a mitigating factor.                                    The Board apparently conflated this factor with the separate  

                                                                                          10 because it seemed to fault Ivy for failing to offer  

                                                                                                                                                                                                  

mitigating factor of "mental disability" 



"evidence from any mental health professional" and observed that Ivy had denied a  

                                                                                                                                                                                                          



history of "delusional thinking or hallucinatory episodes."  

                                                                                                                  



                                Here, Ivy was in the midst of contentious family litigation when she lied  

                                                                                                                                                                                                    



about her brother's actions, and by her account, the antagonistic relationship with her  

                                                                                                                                                                                                     



                7               Op.  at  22.  



                8               Op.  at   19.  



                9               STANDARDS  FOR  IMPOSING  LAWYER  SANCTIONS    III.C.9.32(c)  (AM.  BAR  



ASS'N   1992)  [hereinafter  ABA  STANDARDS].  



                10             Id.    III.C.9.32(i).  



                                                                                                  -35-	                                                                                          7106
  


----------------------- Page 36-----------------------

brother had persisted "for decades."                                       11  At the formal disciplinary hearing, Ivy testified         



to the "verbal [and] emotional abuse" that Kyzer allegedly committed against her in the                                                                                       



past, asserting that she was "very frightened of ever being alone with him."                                                                                 And as we        



noted the first time this matter was before us, the siblings' relationship had become "so                                                                                     

                            12  that the superior court issued a mutual no-contact order between Kyzer  

acrimonious"                                                                                                                                                            



and Ivy in 2007, and a provision in their 2008 settlement agreement prohibited contact  

                                                                                                                                                                     



between the siblings.  While involvement in any litigation process "can produce anger,  

                                                                                                                                                                        



anxiety, stress, hurt, hard feelings, or other strongly negative emotional reactions that  

                                                                                                                                                                            

diminish  [a]  client's  psychological  wellbeing,"13                                                          family  disputes  "often  involve  

                                                                                                                                                   

participants under especially intense emotional stress which can cloud their judgment."14  

                                                                                                                                                                                      



And here, the acrimony in the litigation exceeded even the typical stress attendant to a  

                                                                                                                                           



family  dispute.                       The  close  connection  between  Ivy's  improper  conduct  and  her  

                                                                                                                                                                            



contentious relationship with her brother places her behavior in context - a context that  

                                                                                                                                                                             

                                                                                                                                                       15   The court's  

sheds meaningful light on Ivy's conduct without justifying or excusing it.                                                                                            

                                                                                                                                                    



              11            In  re  Ivy,  350  P.3d  758,  759  (Alaska  2015).  



              12            Id.  at  759.   



              13            Bruce  Winick,   Symposium,   Therapeutic  Jurisprudence   and   the  Role   of  



                                                         AL.  W.  L.  REV.   105,   108  (2000).   

Counsel  in  Litigation,  37 C 



              14            Andrew  Schepard,  An  Introduction  to  the  Model  Standards  of  Practice  for  



Family  and  Divorce  Mediation,  35  FAM.  L.  Q.   1,  2  (2001).   



              15            "Although  personal  or  emotional  problems  .  .  .  are  mitigating  factors that  



may  reduce  a  disciplinary  sanction  against  an  attorney,  they  do  not  justify  or  excuse  the  

attorney's  misconduct.   Nor  do  they  shield  the  attorney  from  professional  responsibility.  

Rather,  they  are  offered  and  considered  merely  as  explanations  of  the  lawyer's  conduct  

in  order  to  temper  the  imposed  sanction."   In  re  Rau,  533  N.W.2d  691,  694  (N.D.  1995)  

(internal  citations  omitted).   



                                                                                      -36-                                                                                7106
  


----------------------- Page 37-----------------------

failure to consider that stress as a mitigating factor takes Ivy's conduct out of context and                                                                                                                                               



ignores the personal and emotional problems that she was experiencing.                                                                                                                                         



                   C.                 Our Prior Decisions Do Not Support Disbarment In This Case.                                                                                                                                     



                                      Finally, the sanction of disbarment in this case is wholly inconsistent with                                                                                                                        



our prior disciplinary decisions.                                                             In the past, we have taken into account the fact that                                                                           



                                                                                                                                                                                                                          16  

attorney misconduct has occurred in a personal, non-representative capacity.                                                                                                                                                                 

                                                                                                                                                                                                                                 Yet the  



                                                                                                                                                                 17  

                                                                                                                                                                                                                                    

court has failed to give weight to this factor in Ivy's case.                                                                                                            The ABA Standards reflect  



                                                                                                                                                                                                                                          

the greater severity of misconduct committed within the practice of law, noting that "the  



                                                                                                                                                                                                                                                  18  

                                                                                                                                                                                                                                                         

most important ethical duties are those obligations which a lawyer owes to clients." 



                                                                                                                                                                                           19  

                                                                                                                                                                                                                                       

Our own decisions and those of other states reflect this distinction.                                                                                                                             The fact that Ivy's  



                                                                                                                                                                                                                                          

misconduct took place within the circumstances of her personal litigation, and was  



                   16                 In re Schuler                         , 818 P.2d 138, 142, 144 (Alaska 1991) (observing that "[i]t                                                                                                  



is also worthy of note that Schuler's conduct did not take place in connection with . . .                                                                                                                                                      

 services performed in the practice of law" and contrasting this case with another in which                                                                                                                                          

"[t]he misconduct occurred in connection with services performed by [the attorney] in                                                                                                                                

the practice of law");                                        cf. In re Miles                           , 339 P.3d 1009, 1020 (Alaska 2014) (noting that                                                                                   

duplicitous acts by an attorney were "particularly" damaging when committed "while                                                                                                                                                 

acting in her capacity as an attorney").                                                                          



                   17                 Op. at 25-26.  

                                                         



                   18                 ABA STANDARDS, supra note 9, at  II.  

                                                                                                                                                         



                   19                 We have observed that "[t]here are few more egregious acts of professional  

                                                                                                                                                                                                                    

misconduct  . . . than the misappropriation  of  [a] client's funds held in trust."  In  re  

                                                                                                                                                                                                                                               

Buckalew, 731 P.2d 48, 55 (Alaska 1986) (quoting In re Beckman, 400 A.2d 792, 793  

                                                                                                                                                   

(N.J. 1979)); see also In re Richmond, 996 So. 2d 282, 289 (La. 2008) (recognizing that  

                                                                                                                                                                                                                                            

because an attorney "was acting in his personal capacity . . .  [and there was therefore]  

                                                                                                                                                                                                                          

no potential for client harm from [his] misconduct, his actions may be viewed as less  

                                                                                                                                                                                                                                           

egregious than the actions at issue" in cases involving attorneys acting in representative  

                                                                                                                                                                                                              

capacities).  



                                                                                                                     -37-                                                                                                               7106
  


----------------------- Page 38-----------------------

wholly unrelated to representation of a client, supplies important context.                                                                                                At the very   

least, that context may mitigate the risk of Ivy harming clients.                                                                               20  



                               While I agree that attorneys can be subject to disbarment for violations  

                                                                                                                                                                               



committed outside of a representative capacity, we have approved such a severe sanction  

                                                                                                                                                                                   



in only one case, where an attorney was convicted as an accessory after the fact to a first- 

                                                                                                                                                                                          

degree murder.21                           In other cases in which attorneys have committed offenses in their  

                                                                                                                                                                                           



personal capacities, we have adopted far less stringent sanctions.  For example, in In re  

                                                                                                                                                                                                 



Schuler,  we  accepted  a  two-year  suspension  for  a  district  attorney  convicted  of  

                                                                                                                                                                                                

misdemeanor theft for the second time despite the ABA-recommended disbarment.22  

                                                                                                                                                                    



                              And  another  disciplinary  case,  In  re  Purdy,  is  particularly  instructive  

                                                                                                                                                                             



because the respondent's dishonest conduct and perjured testimony occurred outside of  

                                                                                                                                                                                                 

                                                          23    Frances Purdy forged vehicle title documents, misused her  

a representative capacity.                                                                                                                                                                     

                                      



notary  seal,  and  committed  an  act  of  perjury  in  an  Anchorage  Parking  Authority  

                                                                                                                                                                               



               20              Moreover,   we   have   held  that   the   non-representative   context   of   Ivy's  



conduct rendered Rules of Professional Conduct 3.3 and 3.4 inapplicable and therefore                                                                                            

rejected the Board's recommendation of disbarment to the extent that it was based on                                                                                                            

those rules.                In re Ivy           , 350 P.3d 758, 762-65 (Alaska 2015).                                                     Yet, on remand the Board                      

refused Ivy's request to present additional argument on the proper disciplinary sanction.                                                                                         

Instead,    it    summarily    recommended    the    same    sanction    of    disbarment,   despite  

correspondence from Ivy's attorney indicating that she "wanted to be heard."                                                                                     



               21             In re Webb, 602 P.2d 408 (Alaska 1979), abrogated by In re Buckalew, 731  

                                                                                                                                                                                              

P.2d at 48 (adopting the ABA's sanctions standards).  Ivy's conduct does not approach  

                                                                                                                                                                                 

the conduct for which the attorney in In re Webb was disbarred.  

                                                                                                                                                     



               22              818 P.2d 138 (Alaska 1991).  

                                                                                  



               23             No. S-08156 (Alaska Supreme Court Order, Nov. 18, 1998).  

                                                                                                                                                                           



                                                                                              -38-                                                                                        7106
  


----------------------- Page 39-----------------------

                                                                                                                                           24  

proceeding in an attempt to evade paying a parking ticket for expired tags.                                                                    Purdy was   



                                                                                                                                                        25  

convicted of and sentenced for misdemeanor forgery based upon this misconduct.                                                                               Bar  



                                                                                                                                                               

Counsel and Purdy entered into a Stipulation for Discipline by Consent, which called for  

                                           26                                                                27  which contained a detailed  

                                               and we approved that stipulation,                                                                     

                                                                                         

                      

a five-year suspension, 



analysis of Purdy's conduct and the applicable aggravating and mitigating factors under  

                                                                                                                                                         

theABAstandards.28  Thestipulation recognized thatdisbarment isgenerally appropriate  

                                                                                                                                               



where  a  lawyer  engages  in  serious  criminal  conduct,  involving  falsely  swearing,  

                                                                                                                                                 



misrepresentation, or fraud, or where a lawyer engages in any other intentional conduct  

                                                                                                                                                     



involving dishonesty, fraud, deceit, or misrepresentation.  And among the aggravating  

                                                                                                                                              



and mitigating factors applied in Purdy's case were Purdy's prior disciplinary offense,  

                                                                                                                                                     



her dishonest or selfish motive, her criminal conviction, her expression of remorse, and  

                                                                                                                                                             



her cooperativeattitudetoward disciplinary authorities. But theBar and Purdy stipulated  

                                                                                                                                                  



that "[a]dditional factors that may be considered in mitigation include the following:  

                                                                                                                                                



Ms. Purdy's conduct did not cause monetary loss to any person; the conduct did not  

                                                                                                                                                              



                                                                                                                                              29  

affect any client; and the conduct did not occur within the practice of law."                                                                       

                                                                                                                                     



                         Similarly,  in In  re  Stump,  we  approved  a  five-year  suspension  for  an  

                                                                                                                                                               



attorney who falsified evidence for use on his own behalf in civil litigation in which he  

                                                                                                                                                                



             24          In re Purdy           , No. S-08996 (Stipulation for Suspension, filed Mar. 8, 1999,                                            



at 2-5).   



             25          Id. at 4.  

                                     



             26          Id. at 11.  

                                     



             27          In re Purdy, No. S-08996 (Alaska Supreme Court Order, Mar. 26, 1999).  

                                                                                                                                                        



             28          In re Purdy, No. S-08996 (Stipulation for Suspension, filed Mar. 8, 1999,  

                                                                                                                                                         

at 10).  

     



             29          Id. (emphasis added).  

                                                     



                                                                              -39-                                                                        7106
  


----------------------- Page 40-----------------------

                                                                                                                                                              30  

wasadefendant and subsequently affirmed the authenticity of that evidenceunder oath.                                                                                



                                                                                                                                                                    

Purdy and Stump both testified falsely under oath in their non-representative capacities.  



                                                                                                                                                            

Here, Ivy also lied in her personal litigation; yet, rather than a five-year suspension, the  



                                                                                                                                                   

court has ordered her disbarment.  Such a disparity is unsupported and unjust.  



                                                                                                                                        

                         Further, even when attorneys have committed violations in representative  



                                                                                                                                                                

capacities involving dishonest misappropriation of client funds that directly harmed a  



                                                                                                                                               

client, the resulting sanctions have been much less severe than Ivy's. In In re Stepovich,  



                                                                                                                                   

In re Friedman, and In re Mann, all cases involving attorneys who misappropriated  



                                                                                                                                                             

client  funds,  we  reduced  sanctions  from  the  ABA-recommended  disbarment  to  

                                                              31  despite the fact that we have recognized that "[t]here  

                                                                                                                                                    

suspensions of two or three years, 



are few more egregious acts of professional misconduct . . . than the misappropriation  

                                                                                                                           

                                                              32   And in In re Rice, we approved a suspension of four  

of [a] client's funds held in trust."                                                                                                                     

                                                   



years  for  an  attorney  who  misappropriated  client  funds  and  "cause[d]  [his  clients]  

                                                                                                                                                    



potential harm, which is sufficient under the ABA Standards to justify even the harshest  

                                                                                                                                                   



                                                                                                                                                              33  

sanctions, . . . and . . . arguably cause[d] actual harm to public trust in the legal system."                                                                      

                                                                                                                                               



We justified the harsher four years - as opposed to the three-year suspensions given in  

                                                                                                                                                              



             30          621 P.2d 263 (Alaska 1980),                             abrogated by In re Buckalew                            , 731 P.2d 48        



(Alaska 1986).                  While   In re Stump                   and other earlier cases were abandoned by our                                        

decision in  Buckalew  to adopt the ABA Standards, our decision in                                                           Stump  nevertheless  

relied on the Standards and should be considered instructive here.                                                         Id.  at 265 n.6 & n.10         

(referencing   the   1979   draft   ABA   Standards   for   Lawyer   Discipline   and   Disability  

Proceedings).  



             31          In re Stepovich, 143 P.3d 963 (Alaska 2006); In re Friedman, 23 P.3d 620  

                                                                                                                                                           

(Alaska 2001); In re Mann, 853 P.2d 1115 (Alaska 1993).  

                                                                                                 



             32          In re Buckalew, 731 P.2d at 55 (quoting In re Beckman, 400 A.2d 792, 793  

                                                                                                                                                           

(N.J. 1979)).  

                          



             33          260 P.3d 1020, 1035 (Alaska 2011).  

                                                                                               



                                                                             -40-                                                                       7106
  


----------------------- Page 41-----------------------

Friedman   and  Mann  - in part because the Bar found that Rice exhibited a "lack of                                                     



               34                                                35  

remorse"                                                                                                                    

                  and had not turned himself in.                     In all of these cases, the attorneys committed  



                                                                                                                         

one of the most serious forms of professional misconduct, yet they received suspensions  



                                                                                                                                 

ranging from two to four years.  Although Ivy's misconduct was limited to the context  



                                                                                                                                

of her contentious and painful personal litigation, she is to be disbarred from the practice  



     

of law.  



                                                                                                                                         

                      Moreover, a review of cases in which we have approved disbarment of  



                                                                                                                                    

attorneys reveals the extent to which Ivy's disbarment represents a departure from  



                                                                                                                               

precedent.  In In re Buckalew, we recommended disbarment as an appropriate sanction  



                                                                                                                                         

for an attorney who fabricated a false settlement document, forging the signatures of  



                                                                                                                                      

another attorney and a superior court judge, and embezzled $67,000 fromtwo client trust  

               36     In  In  re  Miles,  we  found  disbarment  warranted  when  the  attorney  

accounts.                                                                                                                     



misappropriated more than $20,000 of a deceased client's funds and then deceptively  

                                                                                                                          

                                      37  And in In re Wiederholt, we disbarred an attorney after eight  

concealed that conduct.                                                                                                             

                         



separate parties filed grievances against the attorney for conduct including putting an  

                                                                                                                                        



unauthorized signature on a check, making improper sexual advances to a client, kicking  

                                                                                                                                 



opposing  counsel,  improperly  delaying  discovery,  threatening  to  disclose  client  

                                                                                                                                  



confidences,  contacting  an  opposing  party  after  being  notified  that  the  party  was  

                                                                                                                                     



represented by an attorney, and filing an improper claim on behalf of a client to funds  

                                                                                    



           34        Id.  at 1033.        



           35        Id. at 1035.  

                                          



           36         731 P.2d at 48.       



           37  

                                                                        

                      339 P.3d 1009 (Alaska 2014).  



                                                                   -41-                                                             7106
  


----------------------- Page 42-----------------------

                                       38  

deposited in court.                         Ivy's conduct simply does not rise to the egregious level of the                                                               



actions that resulted in disbarment of these attorneys.                                   



                           We   have   recognized   that   the   ABA   Standards   promote   uniformity   and  

                                                                               39   This "goal was one of the major driving forces  

prevent "[i]nconsistency of sanctions."                                                                                                                              

behind promulgation of the ABA Standards."40   The introduction to the Standards notes  

                                                                                                                                                                       



that "[i]nconsistent sanctions, either within a jurisdiction or among jurisdictions, cast  

                                                                                                                                                                         

doubt on the efficiency and the basic fairness of all disciplinary systems."41   Here, the  

                                                                                                                                                             



court's order disbarringIvyis entirelyinconsistent with our previousdisciplinedecisions  

                                                                                                                                                               



and thereby undermines the fundamental purpose of our reliance on the ABA Standards.  

                                                                                                                                                                                   



II.	          ATTORNEY'S FEES  

                                                 



                           Finally, I disagree with the court's decision to affirm the attorney's fee  

                                                                                                                                                                           



award of $61,282.75 against Ivy.  An evaluation of the ten enumerated factors to be  

                                                                                                                                                                            



considered  under  Alaska  Bar  Rule  16  when  determining  an  appropriate  award  of  

                                                                                                                                                                            

attorney's fees does not support the award.42                                                      Although the Board found that Ivy's  

                                                                                                                                                                      



              38	           877 P.2d 765, 766 (Alaska 1994).                        



              39	  

                                                                                                        

                           In re Buckalew, 731 P.2d at 52 n.13.  



              40	          Id.  



              41	          ABA S          TANDARDS,  supra  note 9, at  I.A.                                     



              42	          Rule 16(c)(3) lists the following factors to be considered:                                                             



                                                                                                                

                           (A)	          the complexity of the disciplinary matter;  



                           (B)	          the duration of the case;               



                                                                                                                                                                 

                           (C)	          the reasonableness of the number of hours expended by Bar Counsel  

                                                                                                                                      

                                         and the reasonableness of the costs incurred;  



                                                                                                                                                            

                           (D)	          the reasonableness of the number of Bar Counsel used;  

                                                                                                                                                      (continued...)  



                                                                                    -42-	                                                                              7106
  


----------------------- Page 43-----------------------

attorney "tested the limits of zealous advocacy" and made the disciplinary proceedings                                                  



unnecessarily complex, apparently applying the factor relating to "the reasonableness of                                                                   

                                                                        43  at least one of Ivy's defenses was well-taken.  

the defenses raised by the Respondent,"                                                                                                                         



We  ruled  in  Ivy's  favor  in  concluding  that  the  Alaska  Rules  of  Professional  

                                                                                                                                      



Responsibility 3.3 and 3.4 were inapplicable to her case.  This seems to suggest that her  

                                                                                                                                                        



attorney's advocacy was appropriately zealous on that issue.  And the attorney's fees  

                                                                                                                                                       



were never reduced to reflect that Ivy was successful in her argument that Rules 3.3 and  

                                                                                                                                                        

3.4 did not apply.44                 For that reason alone, the fees must be reduced.  It is unclear why  

                                                                                                                                                      



Ivy should be required to pay attorney's fees for time spent litigating the question of the  

                                                                                                                                                         



applicability of Rules 3.3 and 3.4 when she was successful in that effort. Her obligation  

                                                                                                                                            



should be reduced accordingly.  

                                                           



III.	       CONCLUSION  



                        I respectfully dissent from the court's decision to disbar Ivy.  I believe a  

                                                                                                                                                            



five-year suspension from the practice of law is the correct sanction for Ivy's conduct  

                                                                                                                                               



            42	         (...continued)  



                                                                                                              

                        (E)	        Bar Counsel's efforts to minimize fees;  



                                                                                                                                                     

                        (F)	        the reasonableness of the defenses raised by the Respondent;  



                                                                                                                                  

                        (G)	        vexatious or bad faith conduct by the Respondent;  



                                                                                                                            

                        (H)	        the relationship between the amount of work performed  by Bar  

                                                                                                                                     

                                    Counsel and the significance of the matters at stake;  



                                                                                                                                                             

                        (I)	        the financial ability of the Respondent to pay attorney's fees; and  



                                                                                                                            

                        (J)	        the existence of other equitable factors deemed relevant.  



            43  

                                   

                        Rule 16(c)(3)(F).  



            44  

                                                                                                                

                        In re Ivy, 350 P.3d 758, 762-65 (Alaska 2015).  



                                                                           -43-	                                                                    7106
  


----------------------- Page 44-----------------------

and   is   most   consistent   with   our   prior   discipline   decisions.     And   regardless   of   the  



sanction, Ivy's obligation to pay attorney's fees should be reduced.                                                                                                                                    



                                                                                                                                 -44-                                                                                                          7106
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC