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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Stepovich (12/16/2016) sp-7139

In Re Stepovich (12/16/2016) sp-7139

           Notice:   This opinion is subject to correction before publication in the P                        ACIFIC  REPORTER.  

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           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  Nos.  S-15945/15961  

MICHAEL  A.  STEPOVICH,                                            )          ABA  File  No.  2011D206  

                                                                   )  

                                                                                                   

                                 Respondent.                       )          O P I N I O N  

                                                                   )  

                                                                                                                            

                                                                   )          No. 7139  - December 16, 2016  



                                                                                                                

                      Appeal from the Alaska Bar Association Disciplinary Board.  



                                                                                                                  

                      Appearances:   J.  John Franich,  Franich  Law  Office, LLC,  

                                                                                                                      

                      Fairbanks, for Respondent. Louise R. Driscoll, Assistant Bar  

                                                                                           

                      Counsel, Anchorage, for the Alaska Bar Association.  



                                                                                                               

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

                                       

                      Justices.  



                                             

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                           

                                                                                                                                  

                      A  few  months  after  reinstatement  to  the  Alaska  Bar  from  a  two-year  



                                                                                                                                     

suspension, an attorney violated Alaska Rule of Professional Conduct 1.8(c) by drafting  



                                                                                                                                                

a friend's will that named him as the contingent beneficiary.  The friend died leaving a  



                                                                                              

considerable estate, but the attorney inherited nothing.  



                                                                                                                                 

                      The Bar brought a disciplinary action against the attorney and stipulated  



                                                                                                                                         

that his violation of Rule 1.8(c) was negligent, punishable by public censure.  The Bar's  



                                                                                                                                 

Disciplinary Board, however, found that sanction too lenient in light of the attorney's  



                                                                                                                                

prior  disciplinary  record.                    The  Board  recommended  that  we  impose  a  six-month  


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

suspension from practice; it also noted that the misconduct at issue occurred during a                                                                                                                                       



year of stayed suspension that had been imposed as part of the earlier discipline.                                                                                                   



                                   We conclude that the attorney acted not negligently but knowingly, and                                                                                                             



after considering relevant aggravating and mitigating factors we impose a 12-month                                                                                                                    



suspension. But because the violation is not the same as or similar to the misconduct for                                                                                                                                



which the attorney was suspended before, we do not also impose the stayed year.                                                                                                                                     



II.              FACTS AND PROCEEDINGS                  



                                   The   underlying   facts   are   undisputed;   the   only   issue   on   appeal   is   the  



appropriate sanction for the attorney's violation of Rule 1.8(c).                                                                                  



                 A.                Facts  



                                   Michael Stepovich and a client had been friends for several decades, and  

                                                                                                                                                                                               



when  the  client  was  diagnosed  with  cancer  he  asked  Stepovich  to  draft  his  will.  

                                                                                                                                                                                                                                   



Although probate is outside Stepovich's normal practice areas, he had helped other  

                                                                                                                                                                                                                  



friends with  "very  simple" wills,  and he agreed  to  help  the client because of their  

                                                                                                                                                                                                                   

friendship.1                                                                                                                                                                               

                                Stepovich knew that the client "was in bad shape," though the client kept  



                                                                                                   

the specifics of his illness to himself.  



                                                                                                                                                                                                                  

                                   Stepovich drafted the will in May 2009. The client had acquired "an estate  



                                                                                                                                             

with assets of more than $800,000" through his work and his real-estate holdings.  He  



                                                                                                                                                                                                            

was married but had no children.  His mother was still living, and he also had a brother  



                                                                                                                                                                                                                    

and sister with whom he had "problems."  In his will he left each of his siblings their  



                                                                                                                                                                                                                      

choice of six shot glasses from his collection; he left his mother nothing because she was  



                                                                                                                                                                                                              

"taken care of" as the beneficiary on a six-figure bank account she would receive outside  



                                                                                                                                                                                                             

of probate; and he left the remainder of his estate to his wife. The will named the client's  



                 1                 Stepovich testified that his practice was "80 percent criminal practice, and  

                                                                                                                                                                                                                       

then 20 percent . . . personal injury."  

                                                                                                 



                                                                                                             -2-                                                                                                             7139  


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

                                                                                                                                                                                                                                                                                                                            2  

"good friend, Michael Stepovich," as the sole contingent beneficiary.                                                                                                                                                                                                                                                             According to   



 Stepovich,   the   client   convinced   him   to   be   the   contingent   beneficiary   even  though  



 Stepovich resisted, advising the client to choose someone else and saying that if by                                                                                                                                                                                                                                                                                                



chance he inherited he would just give the money away.                                                                                                                                                                                                       



                                                            Stepovich had helped the client with other legal matters such as landlord-                                                                                                                                                                                                                  



tenant issues, and he had helped the client's wife dissolve a prior marriage.                                                                                                                                                                                                                                                                         He never   



charged the client or his estate for any of his professional services.                                                                                                                                                                                                                                      



                                                            The client died about six weeks after signing his will.                                                                                                                                                                                              Because his wife                                            



survived, the contingent beneficiary, Stepovich, received nothing. Probate proceedings                                                                                                                                                                                                                                                      



were nonetheless contentious, as the client's mother contested the will.                                                                                                                                                                                                                                                     Eventually she   



and   the   client's   wife   successfully   petitioned   to  remove   Stepovich   as   the   personal  



representative of the estate.                                                                                              The court enforced a settlement agreement in 2012, ending                                                                                                                                                                               



the probate proceedings.                                                                                         



                              B.                            Proceedings  



                                                            The Alaska Bar Association filed a petition for formal hearing in December                                                                                                                                                                                                               



2013, alleging that Stepovich had violated the conflict of interest provision, Alaska Rule                                                                                                                                                                                                                                                                                   



of Professional Conduct 1.8, "when he prepared [the client's] [w]ill and named himself                                                                                                                                                                                                                                                                          

the sole contingent beneficiary who could potentially inherit a substantial estate."                                                                                                                                                                                                                                                                                         3   In  



                                                                                                                                                                                                                                                                                                                                            

July 2014 Bar Counsel and Stepovich entered a Stipulation for Discipline by Consent,  



                                                                                                                                                                                                                                                                                                                                                             

agreeing that he violated Rule 1.8(c) and did so negligently. The recommended sanction  



                              2                             A contingent beneficiary is one "designated by the testator to receive a gift                                                                                                                                                                                                                                     



if the primary beneficiary is unable or unwilling to take the gift."                                                                                                                                                                                                                           Beneficiary, B                                                    LACK 'S  

LAW  DICTIONARY  (10th ed. 2014).                                                                                                                             



                              3                             The record does not indicate how the matter came to the Bar's attention.  

                                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                           -3-                                                                                                                                                                              7139
  


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

for   such   a   violation,   according   to   the   American  Bar  Association's   Standards   for  



                                                                                                                       4  

Imposing Lawyer Sanctions (the ABA Standards), is public censure.                                                          



                                                                                                                                        

                       Stepovich had been disciplined before; during his 32 years of practice  



                                                                                                                                       

leading up to the matter at issue here he received sanctions for three separate incidents  



                                                                                                                                          

of misconduct.  On December 22, 2008, about six months before he drafted the client's  



                                                                                                                                                 

will, he had been reinstated to active status following a three-year suspension of his  



                                                   5                                                                     6  

                                                                                                                            

license with one year stayed.                          In that matter, the Disciplinary Board                               concluded that  



                                                                                                                                    

Stepovich violated Alaska Rule of Professional Conduct 1.15(a) and (b) by knowingly  



                                                                                                                                                

misappropriating client funds, a violation the Board believed "was more extensive and  



                                                                                                                      

more longstanding than the stipulation [for discipline] made clear."  



                                                                                                                                                 

                       Bar Counsel presented the parties' stipulation in the present matter to the  



                                                                                                                                 

Disciplinary Board in September 2014, but the Board rejected it. TheBoard "determined  



                                                                                      

that, given the . . . previous misconduct, and the nature of the misconduct in this case,  



       

. . . the proposed discipline [of public censure] is too lenient.  Of particular concern to  



                                                                                                                                    

the [B]oard [was] the degree to which the mental state in this matter involved negligence  



                                    

versus knowledge."  



            4          STANDARDS  FOR  IMPOSING  LAWYER   SANCTIONS    4.33 (A                                              M. B    AR  ASS'N   



2015).   The ABA Standards use the term "reprimand" interchangeably with "public                                                         

censure."   Id.   2.5.   



            5          See In re Stepovich, 143 P.3d 963, 963-64 (Alaska 2006). The stayed year  

                                                                                                                                               

was to be imposed if Stepovich "engaged in the same or similar misconduct" during the  

                                                                                                                                                 

year following his reinstatement.  Id. at 964.  

                                                                      



            6          See  Alaska Bar R. 10(a) ("The Board  of Governors of the Bar, when  

                                                                                                                                            

meeting to consider grievance and disability matters, [is] known as the Disciplinary  

                                                                                                                                

Board of the Alaska Bar Association.").  

                                                                       



                                                                        -4-                                                                  7139
  


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

                         The matter was referred to an Area Hearing Committee (Committee) for                                                                 



                                                  7  

development of the record.                                                                                                                           

                                                      The Committee heard testimony on the sanction in January  



                                                                                                                                                 

2015 and issued written findings and conclusions. It found Stepovich grossly negligent,  



                                                                                                                                              

a mental state it acknowledged is not found in the ABA Standards; the Committee  



                                                                                                                                                     

explained that "[n]aming one[self] as a contingent devisee in a client's will is an obvious  



                                                                                                                                                     

conflict of interest that should have been recognized as a problem even absent specific  



                                                                                                                                                            

knowledge of Rule 1.8(c)."  But the Committee concluded that Stepovich's stayed year  



                                                                                                                                                             

of suspension from the earlier discipline matter should not be imposed, reasoning that  



                                                                                                                                                            

the "same or similar" conduct that would trigger its imposition referred only to new trust  



                                                                                                                                                                 

fund violations.  The Committee recommended that Stepovich be publicly censured.  



                                                                                                                                                        

                         The Disciplinary Board conducted another hearing and again found public  



                                                                                                                                               

censure  too  lenient;  it  concluded  that  the  appropriate  sanction  was  a  six-month  



                                                                                                                                                              

suspension.   The Board chair, Geoffrey Wildridge, explained on the record that the  



                                                                                                                                              

Board agreed with the Committee's "determination that negligence was the appropriate  



                                                                                                                                                                     

mental state" and "that it was actually gross negligence in this case, to be more specific."  



                                                                                                                                                           

Wildridgefurther explained that theBoard disagreed withtheCommittee'sdecision "that  



                                                                                                                                                             

the conduct in this matter was not the same [as] or similar [to] the conduct that got  



                                                                                                                                                 

[Stepovich] in trouble the last time around."  But in the Board's view the fact Stepovich  



                                                                                                                                                           

was "on probation for a prior transgression, a prior ethical violation[,] when this took  



                                                                                                                                                              

place" was "an aggravating factor," and the Board "direct[ed] Bar counsel to alert the  



                                                                                                                                                  

Supreme  Court  to  the  fact  that  this  transgression  occurred  during  that  one-year  



                          

suspension."  



             7           Hearing Committees consisting of three members are appointed under                                                              



Alaska Bar Rule 12 to conduct evidentiary hearings in discipline matters and make                                                                        

recommendations to the Disciplinary Board.                              



                                                                               -5-                                                                        7139
  


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                                                        The Board's written Decision and Recommendation, signed by the new                                                                                                                                                                                                                            



Board president approximately a month later, differed somewhat from the decision                                                                                                                                                                                                                                                   



announced orally.                                                            First, the written decision noted the Committee's determination that                                                                                                                                                                                                        



 Stepovich's conduct had been "grossly negligent" but did not expressly agree with it, as                                                                                                                                                                                                                                                                       



the Board had orally. Second, the written decision noted the Committee's determination                                                                                                                                                                                                                         



that the conduct at issue was not the "same [as] or similar to" that of Stepovich's earlier                                                                                                                                                                                                                                                   



violation but did not expressly disagree with it, as the Board had orally.                                                                                                                                                                                                                                         Instead, the  



written decision stated that "whether or not Mr. Stepovich's violation of [Rule] 1.8(c) is                                                                                                                                                                                                                                                                       



viewed   as   involving   conduct which                                                                                                                      is the 'same or similar'                                                                                  to   his prior                                       trust fund   



violation," it was "an aggravating factor which must be afforded significant weight,"                                                                                                                                                                                                                                               



particularly becausethenew"violation                                                                                                                            occurredwhilethesanction                                                                                         for theprior violation                             



                                                                                 8  

was still in force."                                                                                                                                                                                                                                                                                                        

                                                                                            The decision recommended that this court impose a six-month  



                                                                                                              

 suspension from practice.  



                                                                                                                                                                                                                          9  

                                                                                                                                                                                                                                                                                                                                       

                                                        Stepovichappeals theBoard's decision.                                                                                                                                   Heargues thatthepropersanction  



                                                                                                                                                                                                                                                                                                                                      

is "a public reprimand" - "the sanction to which the parties stipulated and the sanction  



                                                                                                                                                                                                                                                                                                                                                        

that was recommended by the area hearing committee."  The brief submitted by Bar  



                                                                                                                                                                                                                                                                                                                                                  

Counsel also does not support the Board's decision.  It surveys the controlling ABA  



                            8                           The differences between the Board's oral and written decisions are not                                                                                                                                                                                                                            



critical to our opinion today but are unexplained and therefore concerning.                                                                                                                                                                                                                                                    See, e.g.                               ,  

 Ogden v. Ogden                                                      , 39 P.3d 513, 518 (Alaska 2001) ("[A] trial court abuses its discretion                                                                                                                                                                                  

when it adopts, without explanation or change, proposedfindings offact and conclusions                                                                                                                                                                                                                                  

of law that substantially deviate from the court's earlier oral decision.");                                                                                                                                                                                                                                cf. McDougall   

v.  Lumpkin, 11 P.3d 990, 998 (Alaska 2000) ("Counsel agreeing to draft written findings                                                                                                                                                                                                                                               

and   conclusions   for   the   superior   court   is   essentially   a   scribe   who   must   accurately  

memorialize the court's oral findings and conclusions.").                                                                                                                                                                                       



                            9                           See Alaska Bar Rule 25(g) (providing that an attorney "may appeal from  

                                                                        

a recommendation or order of the Board" in a disciplinary matter).  

                                                                                                                                                                                                                                                     



                                                                                                                                                                               -6-                                                                                                                                                                  7139
  


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

Standards before concluding that it is up to the court to determine whether Stepovich's                                                                             



conduct "warrants a public censure which will not limit [his] right to practice or a                                                                                                      



disciplinary suspension for a period of time to be determined by the [c]ourt."                                                                                                      Bar  



Counsel cautions that "[a]ny period                                          ofsuspensionshould                           not beregardedas insubstantial          



in these circumstances" and strongly implies that any suspension longer than 90 days is                                                                                                   



                             10  

unwarranted.                      



                                                        

III.           STANDARD OF REVIEW  



                                                                                                                                                                                          11  

                                                                                                                                                                     

                             The Alaska Bar Rules govern our reviewofDisciplinaryBoard decisions. 



                                                                                                                                                                 

"We review the evidence and the factual findings of the Area Hearing [Committee]  



                                                                                                                                                                                  12  

                                                                                                                                                                                        

independently but give deference to findings made by the Disciplinary Board."                                                                                                           In  



                                                                                                                                                                      13 

                                                                                                                                                                           

determining the appropriate sanctions, we apply our independent judgment.                                                                                                  And we  



                                                                                                                                                                                 

exercise that independent judgment to "determine sanctions on a case-by-case basis,  



                                                                                                                                                                         

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



               10            We   note   our   serious   concern   that   Bar   Counsel's  brief   departs   from   the  



Board's  decision  in  several  respects,  depriving  the  court o                                                              f  a  zealous a   dvocate  for  the  

Board's  position.   See  Alaska  R.  Prof.  Conduct  pmbl.  ("As  advocate,  a  lawyer  zealously  

asserts  the  client's  position  under  the  rules  of  the  adversary  system.").   



               11            See In re Brion, 212 P.3d 748, 751 (Alaska 2009) (citing Alaska Bar R.  

                                                                                                                                                                                        

22(r)).  



               12            Id. ; see also In re Rice, 260 P.3d 1020, 1027 (Alaska 2011) ("Though [we  

                                                                                                                                                                                     

have] the authority, if not the obligation, to independently review the entire record in  

                                                                                                                                                                                         

disciplinary proceedings, findings of fact made by the Board are nonetheless entitled to  

                                                                                                                                                                                         

great weight." (quoting In re West, 805 P.2d 351, 353 n.3 (Alaska 1991))).  

                                                                                                                                                  



               13            In re Rice, 260 P.3d at 1027; In re Brion, 212 P.3d at 751.  

                                                                                                                                                   



                                                                                            -7-                                                                                   7139
  


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

Lawyer    Sanctions   and    by    the    sanctions    imposed    in    comparable    disciplinary  

proceedings."14  



IV.	      DISCUSSION  



          A.	      A Suspension Longer Than Six Months Is Appropriate.  

                                                                                      



                   We use "a three-step analysis" when determining sanctions in attorney  

                                                                                                                   

discipline cases.15         The first step requires us to address "(1) the duty violated; (2) the  

                                                                                                                          

lawyer's mental state; and (3) the extent of the actual or potential injury."16  

                                                                                                                     

                                                                                                           In the second  



                                                                                                              

step we "examine recommended sanctions under the ABA standards for misconduct  

                                 17   In the third step we "determine how aggravating or mitigating  

                                                                                                                

found in the first step." 

factors affect the recommended sanctions."18  

                                                



                    1.	      The ABA Standards for Imposing Lawyer Sanctions support a  

                                                                                                                             

                             suspension longer than six months.  

                                                                        



                             a.	       Duty  



                   The relevant language of Rule 1.8(c) is flatly prohibitive:  "A lawyer shall  

                                                                                                                        



not . . . prepare on behalf of a client an instrument giving the lawyer or a person related  

                                                                                                                     



to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related  

                                                                                                                     



          14       In  re  Friedman,  23  P.3d  620,  625  (Alaska  2001)  (first  citing   In  re  Mann,  



853  P.2d  1115,  1116  (Alaska  1993);  then  citing  In  re  Frost,  863  P.2d  843,  844-45,  854  

(Alaska   1993)).  



          15       In re Cyrus, 241 P.3d 890, 893 (Alaska 2010) (citing In re Hanlon, 110  

                                                                                                                         

P.3d 937, 941-42) (Alaska 2005)); STANDARDS   FOR  IMPOSING  LAWYER  SANCTIONS   3.0  

                                                   

(AM.  BAR  ASS'N  2015).  



          16       In  re  Cyrus,  241  P.3d  at  893  (citing  In  re  Hanlon,   110  P.3d  at  941-42).  



          17       Id.  



          18       Id.   



                                                             -8-	                                                      7139
  


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

                                                               19  

to the client."                                                         Stepovich does not dispute that he violated the rule.                                                                                                                                                                                                  



                                                                                             b.                             Mental state   



                                                               Stepovich and Bar Counsel originally stipulated that the violation was                                                                                                                                                                                                                                                         



negligent, and the Committee agreed.                                                                                                                                            But the Committee qualified its finding:                                                                                                                                                         



                                                              If "gross negligence" were a mental state under the [ABA]                                                                                                                                                                                           

                                                               Standards, the Committee would characterize [Stepovich's]                                                                                                                                                            

                                                              knowledge   as   gross   negligence.     Naming   one[self]   as   a  

                                                              contingent devisee in a client's will is an obvious conflict of                                                                                                                                                                                                             

                                                              interest that should have been recognized as a problem even                                                                                                                                                                                                    

                                                              absent specific knowledge of Rule 1.8(c).                                                                                                                                                           



As noted above, the Board expressly agreed with the "gross negligence" aspect of this                                                                                                                                                                                                                                                                                                           



characterization in its oral decision but did not say so in the later written version; it did,                                                                                                                                                                                                                                                                                           



however, expressly concur with the Committee's finding of negligence.                                                                                                                                                                                                                                                                           



                                                              The severity of the sanction depends in part on whether the conduct was                                                                                                                                                                                                                                                          

                                                                                                                                                                     20              The ABA Standards define negligence as "the  

negligent, knowing, or intentional.                                                                                                                                                                                                                                                                                                                                                          



failure of a lawyer to heed a substantial risk that circumstances exist or that a result will  

                                                                                                                                                                                                                                                                                                                                                                                                



                               19                             The rule further provides: "For purposes of this paragraph, related persons                                                                                                                                                                                                                                     



include a spouse, child, grandchild, parent, grandparent, or other relative or individual                                                                                                                                                                                                                                                                         

with whom the lawyer or the client maintains a close familial or domestic relationship."                                                                                                                                                                                                                                                                                                                            

Alaska R. Prof. Conduct 1.8(c).                                                                                                                        



                               20                             We  find  it  unnecessary  to  discuss  intentional  misconduct.                                                                                                                                                                                                                                        Although  

                                                                                                                                                                                                                                                                                                                                                               

 Stepovich  intended  to  draft  the  will  naming  himself  as  contingent  beneficiary,  his  

                                                                                                                                                                                                                                                                                                                                                                                                  

conduct was not intentional for purposes of the ABA Standards.  The ABA Standards  

                                                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                                                                                                                                                    

define intent as "the conscious objective or purpose to accomplish a particular result."  

                                                                                                                                                                                                                                                                                                                               

       TANDARDS FOR IMPOSING LAWYER SANCTIONS : DEFINITIONS (AM. BAR ASS'N  2015).   

 S                                                                                                                                                                                                                                                                                                                                                 

The ABA Standards' conflict of interest section repeatedly defines the relevant intent as                                                                                                                                                                                                                                                                                                               

"the intent to benefit the lawyer or another"; that is, the "particular result" the lawyer                                                                                                                                                                                                                                                                                       

intends to accomplish must be self-benefit.                                                                                                                                                            Id.   4.3.                                   As discussed later in this opinion,                                                                                   

we do not disturb the Committee's finding that Stepovich had no selfish or dishonest                                                                                                                                                                                                                                                                                

motive; he did not intend to benefit himself "or another" other than his client.                                                                                                                                                                                                                                                                                      See infra   

 section IV.A.1.e.iv.   



                                                                                                                                                                                                   -9-                                                                                                                                                                                     7139
  


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

 follow, which failure is a deviation from the standard of care that a reasonable lawyer                                                                                                                        



                                                                                         21  

would   exercise   in   the   situation."                                                                                                                                                                              

                                                                                                  The  ABA  Standards  define  knowledge  as  "the  



                                                                                                                                                                                                               

 conscious awareness of the nature or attendant circumstances of the conduct but without  

                                                                                                                                                                                  22   ABA Standards  

                                                                                                                                                                                                                                     

                                                                                                                                                                

the conscious objective or purpose to accomplish a particular result." 



  4.33 states that a "[r]eprimand is generally appropriate when a lawyer is negligent in  

                                                                                                                                                                                                                             



 determining whether the representation of a client may be materially affected by the  

                                                                                                                                                                                                                          



 lawyer's own interests," whereas  4.32 statesthat "[s]uspension isgenerally appropriate  

                                                                                                                                                                                                     



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

                                                                                                                                                                                                                           



possible effect of that conflict."  

                                                                                     



                                   Thus, todeterminewhether Stepovich's conduct wasnegligentor knowing,  

                                                                                                                                                                                                          



we must consider whether he had knowledge of the nature of his conduct and whether  

                                                                                                                                                                  



he  knew  his  conduct  created  a  conflict  of  interest.                                                                                         Stepovich  argued  before  the  

                                                                                                                                                                                                                         



 Committee that he "should have known, [but he] didn't know."  But the Committee  

                                                                                                                                                                                                     



 appropriately characterized the circumstances as presenting an "obvious conflict of  

                                                                                                                                                                                                                            

                        23  and Stepovich's own testimony is conflicting. After testifying that he "didn't  

 interest,"                                                                                                                                                                                                     



                  21                STANDARDS  FOR  IMPOSING  LAWYER   SANCTIONS : D                                                                                      EFINITIONS (AM. B                                AR  



ASS'N 2015).  

                   



                  22               Id.  



                  23               See In re Miles                       , 339 P.3d 1009, 1019 (Alaska 2014) (disbarring an attorney                                                                         



who knowingly misappropriated client funds in part because she "failed to recognize a                                                                                                                                           

 single one of the numerous signals that" her conduct was wrongful);                                                                                                                      Neb. State Bar                

Ass'n   v.   Zakrzewski ,  560   N.W.2d   150,   156   (Neb.   1997)   (holding   that   for   attorney  

 discipline "knowingly" includes "conduct that is so carelessly and recklessly negligent                                                                                                                  

 as to lead only to the conclusion that it was done knowingly").                                                                  



                                    Stepovich argued that the violation "was not obvious to the lawyer that [he]                                                                                                         

hired to assist him in probating the estate" because that lawyer never mentioned it.                                                                                                                                  This  

 argument is unpersuasive, as the evidence shows only that the other attorney did not say                                                                                                                                 

                                                                                                                                                                                               (continued...)  



                                                                                                            -10-                                                                                                     7139
  


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

know" about the conflict, he went on to say, "The chances of it ever getting that far I                                                                                                             



didn't even see that"                            - seemingly recognizing that there could be a problem if "it ever                                                                          



 [got] that far."                  Stepovich also testified that he counseled his client against naming him                                                                                  



as beneficiary and told the client he could have another attorney advise him - sound                                                                                                    

advice that also appears to recognize a conflict.                                                           24  



                               Ultimately,thereis no question that Stepovich knewthat thewill hedrafted,  

                                                                                                                                                                                     



in his capacity as a lawyer, identified himself as the contingent beneficiary.  And we  

                                                                                                                                                                                               



agree  with  the  Committee  that  the  conflict  created  by  this  knowing  conduct  was  

                                                                                                                                                                                            



"obvious."  Stepovich's counsel argued before the Committee that Rule 1.8(c) "should  

                                                                                                                                                                                    



have been a rule that he was conscious of, aware of, and avoided, but he actually was not,  

                                                                                                                                                                                              



and that is negligence."  In determining the appropriate state of mind the Committee  

                                                                                                                                                                            



apparently accepted this construct and focused - mistakenly - on whether Stepovich  

                                                                                                                                                                               



was aware of Rule 1.8(c) or had learned its substance in law school or continuing legal  

                                                                                                                                                                                           



education courses. But the question under the ABA Standards is not whether Stepovich  

                                                                                                                                                                               



knew  of  a  particular  ethics  rule,  but  whether  he  knew  the  nature  of  his  conduct.  

                                                                                                                                                                                                        

Ignorance of the rules is no excuse and in fact is itself blameworthy.25  

                                                                                                                                                                   



               23(...continued)  



                                          

anything about it.  



               24              See In re McKechnie                           , 670 N.W.2d 864, 870 (N.D. 2003) ("Knowledge can                                                                 



be inferred from the lawyer's conduct in the circumstances." (citing                                                                                         In re LaQua, 548  

N.W.2d 372, 376 (N.D. 1996))).  

                                                        



               25              Alaska  R.  Prof.  Conduct  pmbl.  ("Every  lawyer  is  responsible  for  

                                                                                                                                                                                             

observance of the Rules of Professional Conduct."); Standing Policy On Informal Ethics  

                                                                                                                                                                                        

G u i d a n c e ,                       A L A S K A                    B A R              A S S O C I A T I O N                           ( O c t .               2 5 ,           2 0 1 3 ) ,  

                                   

https://www.alaskabar.org/servlet/content/standing_policy_informal_ethics_guidance  

                                                                                                                                                                                               

.html (noting that it is "an attorney's own duty to be aware of the requirements of the  

                                                                                                                                                                                         

Rules of Professional Conduct"); see also Attorney Grievance Comm'n of Md. v. Stein,  

                                                                                                                                                                       (continued...)  



                                                                                              -11-                                                                                        7139
  


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

                              We conclude that these facts establish at least knowledge: Stepovich knew                                                                              



that the will he drafted identified himself as the contingent beneficiary and created an                                                                                                   



obvious   conflict   of   interest,   the   potential   consequences   of   which   he   paused   to  



contemplate.   We conclude that Stepovich acted knowingly.                                                   



                                             c.            Injury  



                              Alaska's comment to Rule 1.8 provides:                                                     "If effectuation of a substantial             



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



                                                                                                                                26  

have the detached advice that another lawyer can provide."                                                                                                                             

                                                                                                                                     The injury we address here  



                                                                                                                                                                            

is the frustration of the client's right to "detached advice," which in turn raises questions  



                                                                                                                                                                           

of undue influence and the will's validity. Stepovich argued to the Board that "although  



                                                                                                                                                                                        

there  was  potential  harm,  there  was  no  actual  harm"  because  "[c]onfusion  is  not  



                                                                                                                                                                                        

something that people can . . . draft out of any instrument," and "[t]he only way that any  



                                                                                                                                                                                    

harm would be done is if the contingency actually came to pass."  But even if some  



                                                                                                                                                                                             

confusion is likely in a probate case, an attorney should not add to it by conduct that is  



                                                       

proscribed by the ethics rules.  



                                                                                                                                                                              

                              Other courts have identified some of the dangers created when an attorney  



                                                                                                                                                                          

prepares a will in which the attorney is named as beneficiary, including "the attorney's  



               25(...continued)  



                                                                                                                                                                                           

819 A.2d 372, 379 (Md. 2003) ("Respondent's defense of ignorance of the rule is no  

                                                                                                                                                                                    

defense at all. Lawyers admitted to practice in [Maryland] are deemed to know the Rules  

                                                                                                                                                                                   

of  Professional  Conduct  and  have  the  obligation  to  act  in  conformity  with  those  

                                                                                                                                                                                   

standards as a requirement to practice law."); In re Kalled, 607 A.2d 613, 616 (N.H.  

                                                                                                                                                                                           

 1992) ("The lack of professional responsibility exhibited by the respondent disturbs us  

                                                                                                                                                                                             

greatly.  For example, . . . the respondent alleges that he was not aware that it was a  

                                                                                                                                                                                           

violation of the New Hampshire Rules of Professional Conduct for him to prepare an  

                                                                                                                                                                                            

instrument, i.e., a will, from which he would benefit until Rule 1.8(c) was pointed out to  

                          

him by the committee.").  



               26             Alaska R. Prof. Conduct 1.8 cmt. Gifts to Lawyers.  

                                                                                                                           



                                                                                            -12-                                                                                     7139
  


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

incompetency to testify, . . . the attorney's ability to influence the testator, . . . jeopardy                                             



to probate of the entire will if its admission is contested, . . . harm to other beneficiaries[,]                                   



                                                                                                                                                         27  

and   the   undermining   of   the   public   trust   and   confidence   in   the   legal   profession."                                                      



                                                                                                                                                

Furthermore, "[s]eldomis the client's dependence upon, and trust in, his attorney greater  



                                                                                                                                                       

than when, contemplating his own mortality, he seeks the attorney's advice . . . in the  

                                       28   Once deceased, of course, "[t]he client will have no opportunity  

                                                                                                                                       

preparation of a will." 

to protect himself from the attorney's negligent or infamous misconduct."29  

                                                                                                              



                        While  a  will  contest  may  have  been  likely  in  this  case  regardless  of  

                                                                                                                                                        



Stepovich's involvement, his client suffered a real injury when he did not receive the  

                                                                                                                                                       



"detached  advice"  to  which  he  was  entitled.                                           And  whether  future  harm  to  the  

                                                                                                                                                     



administration of the client's estate was actual or only potential does not matter under the  

                                                                                                                                                       



ABA Standards, which in this context address "injury or potential injury to a client" as  

                                                                                                                                                        

equally important concerns.30  

                                                       



                                    d.          A six-month suspension is the starting point.  

                                                                                                                           



                        Given the knowing violation that caused "injury or potential injury" to the  

                                                                                                                                                       



client, we find the appropriate sanction under ABA Standards  4.32: "Suspension is  

                                                                                                                                                         



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

                                                       



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

                                                                                                             



injury to a client."  The ABA Standards further provide that suspension, to be effective,  

                                                                                                                                           



            27          Stein,  819  A.2d  at  376.    



            28          Disciplinary  Counsel  v.  Galinas,  666  N.E.2d   1083,   1086  (Ohio   1996).  



            29          Id.  



            30          See   STANDARDS   FOR  IMPOSING   LAWYER   SANCTIONS      4.32   (AM.   BAR  



ASS'N  2015).
  



                                                                          -13-                                                                     7139
  


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

                                                                                                                        31  

"should be for a period of time equal to or greater than six months."                                                        Though we have        



                                                                       32  

sometimes imposed                   shorter suspensions,                                                                                

                                                                          wemorerecentlyobservedthat "ifsuspension  



                                                                                              33  

                                                                             

is indicated, a six-month suspension is the baseline." 



                                                                                                       

                                    e.          Aggravating and mitigating factors  



                                                                                                                                                       

                        Our next step is to determine whether the suspension should be shorter or  



                                                                                               34  

                                                                                                                                            

longer because of aggravating and mitigating factors.                                               "[T]here is no 'magic formula'  



                                                                                                                                         

for  determining  how  aggravating  and  mitigating  circumstances  affect  an  otherwise  



                                                                                                                                                      

appropriate  sanction.                     'Each  case  presents  different  circumstances  which  must  be  



                                                                                                                            35  

                                                                                                                                                      

weighed against the nature and gravity of the lawyer's misconduct.' "                                                           In this case we  



                                                                                                                                                  

consider  the  following  aggravating  factors  from  ABA  Standards    9.2:                                                             (1)  prior  

                                       36                                                                    37   and  (3)  the  attorney's  

                                                                                                                                        

                                                                                                

                                            (2)  the  vulnerability  of  the  victim; 

disciplinary  offenses; 

                                                                             38  We also consider the following mitigating  

substantial experience in the practice of law.                                                                                           

                                                                       



            31          Id.   2.3     .  



            32          In re Ford        , 128 P.3d 178, 184 (Alaska 2006) (noting our imposition of 90-                                            



day suspensions in three prior cases).  

                                                       



            33          In re Cummings, 211 P.3d 1136, 1140 (Alaska 2009) (applying the six- 

                                                                                                                                                    

                                                                                        

month "baseline" of  2.3 to a judicial discipline case).  

                                      



            34  

                                                                                                                                                     

                        See In re Cyrus, 241 P.3d 890, 893 (Alaska 2010) (citing In re Hanlon, 110  

                                                 

P.3d 937, 941-42) (Alaska 2005)).  



            35          In re Friedman, 23 P.3d 620, 633 (Alaska 2001) (quoting In re Buckalew,  

                                                                                                                                         

731 P.2d 48, 54 (Alaska 1986)).  

                                             



            36          STANDARDS  FOR  IMPOSING  LAWYER  SANCTIONS  9.22(a) (A                                                  M.B     AR ASS'N  



2015).  



            37          Id.   9.22(h).   



            38          Id.   9.22(i).  

                                  



                                                                          -14-                                                                    7139
  


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

factors from ABA Standards  9.3:                            (1) absence of a dishonest or selfish motive;                             39  



                    40  

                                                                                                                        

(2) remorse;            (3) full and free disclosure to the disciplinary board or a cooperative  

                                                              41  and (4) inexperience in the practice of law.42  

                                                                                                                                 

                                           

attitude toward discipline proceedings; 



                                          i.         The "prior offenses" aggravator  

                                                                                          



                     Stepovich has prior discipline arising out of three separate incidents over  

                                                                                                                                    



a span of 20 years.  The Board's discussion of prior discipline appeared to take into  

                                                                                                                                    



account only the immediately preceding trust fund violation, which Bar Counsel argued  

                                                                                                                                



to the Board was "[d]istant and different," involving "different issues, different rule  

                                                                                                                                    



violations than the one that's here."  According to the commentary to ABA Standard  

                                                                                                                            



 9.22, "[i]n evaluating whether prior offenses constitute an aggravating factor, courts  

                                                                            



generally  look  to the timing  of the current offense in  relation  to  the  prior  offense,  

                                                                                                                             



similarities in the misconduct, the number of prior offenses, and the relative recency of  

                                                                                                                                       

the prior offense."43  The commentary notes that "[c]ourts also have found that a prior  

       



offense can be too remote in time to be considered aggravating," leading them to apply  

                                                                                                                                  

"remoteness of prior offenses" as a mitigator under ABA Standard  9.32(m).44  But "[i]n  

                                                                                                                                   



           39        Id.    9.32(b).  



           40        Id.    9.32(l).  



           41        Id.    9.32(e).  



           42        Id.    9.32(f).  



           43        STANDARDS    FOR    IMPOSING    LAWYER                           SANCTIONS               9.22    cmt.  Prior  



Disciplinary  Offenses  Generally  at  418  (AM.  BAR  ASS'N  2015).  



           44        Id.   cmt.   Timing   of   Prior   Disciplinary   Offenses   at  420;  see   also   id.  



           

   9.32 cmt.  Remoteness  of  Prior  Offenses  at  495  ("The  remoteness  of  a  prior  disciplinary  

offense   is   often   considered   when   a   court   is   weighing  the   significance   of   a   prior  

disciplinary  offense  as  an  aggravating  factor  under  Standard  9.22(a).").   



                                                                  -15-                                                            7139
  


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

other instances, courts will still find a prior offense to be an aggravating factor, but lessen                                                                                   

its weight due to remoteness in time."                                              45  



                             When we consider the "prior offenses" aggravator in this case, remoteness  

                                                                                                                                                                       



does not lessen the weight we give it.  While the earliest offenses date back decades,  

                                                                                                                                                                            



Stepovich wrote the will at issue six months after reinstatement following the serious  

                                                                                                                                                                               



trust fund violation, while a stayed year of suspension was still pending.  The trust fund  

                                                                                                                                                                                     



violation cannot be characterized as remote or distant.   And while the instances of  

                                                                                                                                                                                          



Stepovich's misconduct are not all similar, a lawyer  with a history of professional  

                                                                                                                                                                    



discipline  should  be  familiar  with  the  Rules  of  Professional  Responsibility  and  

                                                                                                                                                                                      



particularly apt to tread carefully in circumstances that are ethically uncertain.  

                                                                                                                                                       



                                                           ii.            The "substantial legal experience" aggravator  

                                                                                                                                                            



                              Stepovich's substantial legal experience also aggravates his misconduct.  

                                                                                                                                                                                                 



Although he had limited experience in probate matters, an attorney with his 32 years of  

                                                                                                                                                                                           

practice should nonetheless have recognized the conflict at issue here.46                                                                                           And Alaska  

                                                                                                                                                                                



Rule of Professional Conduct 1.1, "Competence," required Stepovich to ensure he had  

                                                                                                                                                                                       



"thelegal knowledge, skill,thoroughness and preparationreasonably necessary"to write  

                                                                                                                                                                                    

his client's will.47  

                          



               45            Id.   9.22 cmt. Timing of Prior Disciplinary Offenses at 421.                                                               



               46             Stepovich testified that he had some probate experience. He explained that  

                                                                                                                                                                                       

he "learned from one of [his] mentors . . . to set up estates" in wrongful death cases and                                                                                             

that he had written simple wills for friends, though if they got complicated he advised  

                                                            

them to seek advice elsewhere.                                              He does not                   argue that the will at issue here was                                       

complicated, or that its complexity contributed to his misconduct.                                                     



               47            Alaska  R.  Prof.  Conduct  1.1  ("A  lawyer  shall  provide  competent  

                                                                                                                                                                      

representation to a client. Competent representation requires the legal knowledge, skill,  

                                                                                                                                                                                     

thoroughness and preparation reasonably necessary for the representation.").  

                                                                                                                                    



                                                                                           -16-                                                                                     7139
  


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

                                                                                                                                    iii.                             The "victim's vulnerability" aggravator                                                                                                               



                                                                  The Committee found that Stepovich's client "may have been vulnerable                                                                                                                                                                                                                                              



at the time [Stepovich] drafted the will in question."                                                                                                                                                                                                          The Committee explained that the                                                                                                                          



client "was gravely ill with cancer, and while [Stepovich] may not have known how ill                                                                                                                                                                                                                                                                                                                                          



he was, [Stepovich] was aware he was ill."                                                                                                                                                                         The Disciplinary Board did not discuss this                                                                                                                                                          



finding.   We conclude that the client was vulnerable and therefore give weight to this                                                                                                                                                                                                                                                                                                                                



factor.   



                                                                                                                                    iv.                              The "motive" mitigator                                                   



                                                                  Though his client was vulnerable, Stepovich did not take advantage of that                                                                                                                                                                                                                                                                            



vulnerability. There is no dispute about his motive; the parties agree it was not dishonest                                                                                                                                                                                                                                                                                                



or selfish. Stepovich did not expect to inherit, and he testified that he agreed to be named                                                                                                                                                                                                                                                                                                              



as contingent beneficiary only because the client, his long-time friend, insisted on it. The                                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                                                                                                                                                   48  

lack of a dishonest motive is a weighty mitigator; we have treated it as such in the past.                                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                                      

                                                                                                                                   v.                                The "remorse" mitigator  



                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                  The  Committee  also  found  that  Stepovich  was  remorseful,  and  the  



                                                                                                                                                                                                                                                                                                                                                                                                                                               

Committee was in the best position to judge the sincerity of the testimony on this issue.  



                                                                                                                                                                                                                                                                                                                                                                                                                          

While the commentary to ABA Standard  9.32 notes that "[a] lawyer's remorse for  



                                                                                                                                                                                                                                                                                                                                                                                                                                

misconduct can be considered in mitigation," it also says that "remorse is insufficient to  



                                                                                                                                                                                                                                                    49  

                                                                                                                                                                                                                                                                                                                                                                                                      

outweigh  very  serious  underlying  misconduct."                                                                                                                                                                                                                      But  remorse  is  typically  among  



                                 48                              In re Rice,                                         260 P.3d 1020, 1033 (Alaska 2011) ("[W]e are inclined to place                                                                                                                                                                                                                             



a great deal of weight on the absence of dishonest and selfish motives.");                                                                                                                                                                                                                                                                                                  In re Cyrus                                                 ,  

241 P.3d 890, 894 (Alaska 2010) (mitigating disbarment, recommended under the ABA                                                                                                                                                                                                                                                                                                                               

 Standards, to suspension because of the absence of a dishonest or selfish motive, even                                                                                                                                                                                                                                               

where the attorney had prior disciplinary offenses, substantial experience in the practice                                                                                                                                                                                                                                                                                                         

of law, and additional aggravating factors).                                                                                                                               



                                 49                               STANDARDS FOR IMPOSING  LAWYER   SANCTIONS    9.32 cmt. Remorse at                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                                                                                            -17-                                                                                                                                                                                                   7139
  


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

"several   compelling   mitigating   factors"   we   consider   in   determining   an   appropriate  

 sanction.50  



                                                                                                                                           

                                                                     vi.              The "cooperation" mitigator  



                                                                                                                                                                                                                            

                                   Stepovich argues that his cooperation during the disciplinary process is a  



                                                                                                                                                                                                                       

mitigating factor, and the Committee agreed. But Stepovich came forward only after the  



                                                                                                                                                                                                                     

Bar had begun its investigation; in past cases we have concluded that cooperation at that  



                                                                                        51  

                                                                                                                                                                                                         

 stage is not a significant mitigator.                                                         In In re Buckalew the offending attorney reported  



                                                                                                                                                                                                         

to the Bar that he had falsified a settlement agreement and embezzled from trust accounts  



                                           52  

                                                                                                                                                                                                                     

to pay his client.                                But the attorney made this disclosure only after his law partner had  



                 49(...continued)  



                               M. B        AR  ASS'N  2015).   

492, 494 (A 



                 50               See In re Ivy                      , 374 P.3d 374, 385 (Alaska 2016) (noting that "we have                                                                                      



reduced  an  ABA-recommended  sanction  given  the  presence  of  several  compelling  

                                                                                                                                                                                                

mitigating factors,such                                     as evident remorse,activeefforts to                                                      remedy theproblems                                    caused,  

and voluntarily notifying authorities about the misconduct soon after it occurred" and                                                                                                                               

 separately noting that "we 'place a great deal of weight on the absence of dishonest and  

                                                                                                                                                                                                                     

 selfish motives' " (quoting                                          In re Rice                , 260 P.3d at 1033));                                 In re Disciplinary Matter of                                       

Friedman, 23 P.3d 620, 633 (Alaska 2001),                                                                           as corrected on denial of reh'g                                                      (June 7,   

2001) (reducing from disbarment to three-year suspension to reflect "absence of a prior                                                                                                                          

disciplinary record; good character or reputation; delay in disciplinary proceedings . . . ;                                                                                                                              

and remorse"); In re Mann, 853 P.2d 1115, 1119 (Alaska 1993) (reducing recommended  

                                                                                                                                                                                          

 sentence from disbarment to three-year suspension in consideration of "personal or                                                                                                          

emotional    problems;    timely    good    faith    effort    to    make    restitution    or   to    rectify  

consequences ofmisconduct;                                                 full and freedisclosureto disciplinaryboard                                                                    or cooperative   

attitude toward proceedings; interim rehabilitation; imposition of other penalties or                                                                                                                                   

 sanctions; remorse; and remoteness of prior offenses").                                                                                        



                 51               In re Hanlon, 110 P.3d 937, 943-44 (Alaska 2005) (finding an aggravator,  

                                                                                                                                                                                                  

not a mitigator, when the attorney initially deceived the Bar only to "cooperate" later);  

                                                                                                                                                                                                               

In re Buckalew, 731 P.2d 48, 55 (Alaska 1986).  

                                                                                                           



                 52                731 P.2d at 49.  

                                                                  



                                                                                                          -18-                                                                                                    7139
  


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

                                     53  

discovered the fraud.                    We held that in those circumstances the attorney's " 'voluntary                              



disclosure' carrie[d] little weight. . . .                            While cooperation and disclosure are to be                                    

strongly encouraged, not every act of that sort deserves full mitigative effect."                                                        54  



                                                                                                                                               

                       We acknowledge that Stepovich could not have been expected to come  



                                                                                                  

forward before the Bar filed its petition if he only then became aware that his conduct  



                                                                                                                                                   

violated Rule 1.8. But it would be unacceptably anomalous to hold that ignorance of the  



                                                                                                                                                     

ethics rules - which itself is an ethical violation - could suspend an attorney's duty to  



                                                                                                                                                      

cooperate with the Bar.  Stepovich's cooperation is a mitigating factor, but we give it  



          

little weight.  



                                                                                                                                       

                                               vii.       The "inexperience in the practice of law" mitigator  



                                                                                                                                           

                       The ABA Standards list as a mitigating factor "inexperience in the practice  

                                                                                                              55   For the same reasons  

                                                                                                                                           

                                                                                                

of law" rather than inexperience in the relevant area of practice. 



that Stepovich's "substantial experience in the practice of law" is an aggravating factor,  

                                                                                                                                             



his lack of significant experience in probate law is not a mitigator.  

                                                                                                    



                                               viii.      Weighing the aggravators and mitigators  

                                                                                                                     



                       Three significant aggravating factors apply:   prior offenses, substantial  

                                                                                                                                     



experience in the practice of law, and a vulnerable victim.   Three mitigating factors  

                                                                                                                        



apply:   lack of a dishonest or selfish motive, which is significant, and remorse and  

                                                                                                                                                 



cooperation, which both carry less weight. The Disciplinary Board did not comment on  

                                                                                                                                                    



how it weighed each factor, noting in its written decision only that "[t]he serious nature  

                                                                                                                                             



of the prior ethical violation is an aggravating factor which must be afforded significant  

                                                                                                                                      



            53         Id.  at  55.  



            54         Id.  



            55          STANDARDS  FOR  IMPOSING  LAWYER  SANCTIONS    9.32(f)  (AM. BAR  ASS'N  



2015)  (emphasis  added).   



                                                                        -19-                                                                   7139
  


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

weight." TheBoard                                         increased theCommittee's                                                    recommended sanction ofpubliccensure                                                           



to a six-month suspension, apparently based only on Stepovich's most recent prior                                                                                                                                                          



offense.     We   agree   that   the   prior  offenses   are   entitled   to   the   most   weight   as   an  



aggravator.   



                                       2.                 A 12-month suspension is significant and appropriate.                                                                           



                                       In reachingan                           appropriatesanctionwealso                                                         consider relevant caselaw. The                                                



parties direct us to only one instance in which an Alaska lawyer was disciplined for                                                                                                                                                             



violating   Rule   1.8(c);   the   confidential   proceeding   apparently   involved   a   negligent  



violation and "[m]itigating factors [that] reduced [the attorney's] discipline . . . from a   



public    reprimand    to    a    written   private    admonition."       Besides    these    important  



distinguishing details, the facts of the case are not available, and we therefore find it                                                                                                                                                            



unhelpful to our analysis.                                                  



                                       Bar   Counsel   cites   cases   from   two   other   jurisdictions   that   resulted   in  



reprimands.   In  Florida Bar v. Miller                                                                     , an attorney drafted a will for a client friend who                                                                             



                                                                                                                                                        56  

asked that the attorney be the contingent beneficiary.                                                                                                                                                                                              

                                                                                                                                                                The attorney drafted the will as  

                                                                                                                                57  The court issued only a public reprimand  

                                                                                                                                                                                                                             

requested and eventually inherited $200,000. 



becauseofsignificant mitigating circumstances, including "forty years [oflegal practice]  

                                                                                                                                                                                                                                 

with an unblemished record" and the fact that the attorney did not expect to inherit.58  

                                                                                                                                                                                                                                                             



Furthermore, because the Rules Regulating the Florida Bar were not yet in effect when  

                                                                                                                                                                                                                                          



                   56                  555 So. 2d 854, 855 (Fla. 1990).                                           



                   57                 Id.  



                   58                 Id.  



                                                                                                                       -20-                                                                                                                 7139
  


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

the will was prepared, the court was guided only by ethical considerations that were                                                                      

merely advisory.                59  



                         On similar facts but after promulgation of the Rules Regulating the Florida  

                                                                                                                                                      



Bar, the Florida Supreme Court suspended an attorney for 90 days in Florida Bar v.  

                                                                                                                                                               



Anderson , noting that Miller  did not inform the sanction because it was not decided  

                                                                                                                                                    

under the rules.60  The court imposed a suspension in Anderson despite the absence of  

                                                                                                                                        



aggravating circumstances or "real injury" and despite the fact that the attorney was only  

                                                                                                                                                           

attempting to effectuate his client's intent through the "inartful" devise.61  

                                                                                                                          



                         We also distinguish the other case cited by Bar Counsel.  The attorney in  

                                                                                                                                                               



In re Boulger drafted a will for a friend and included himself as a beneficiary, contingent  

                                                                                                                                               

on the earlier deaths of his friend's two sons.62   The attorney argued that his conduct did  

                                                                                                                                                             



not violate North Dakota's version of Rule 1.8(c) at all because the contingency was so  

                                                                                                                                                               

unlikely to occur that the bequest could not constitute a "substantial" gift.63  The court  



disagreed; it pointed out that "the intent of the rule is to [e]nsure the client receives  

                                                                                                                                                   

                                                                                                                           64    But the court still  

 'detached advice' from a lawyer with no interest in the matter."                                                                                           

                                                                                                            



found that the conflict of interest "did not result in injury to [the attorney's] client" and  

                                                                                                                                                            



that the negligent conduct warranted a private reprimand under a standard analogous to  

                                                                                                                                                                



             59          Id.
   



             60          638 So. 2d 29, 30 (Fla. 1994).
  

                                                                      



             61  

                                                  

                         Id. at 29-30.  



             62          637 N.W.2d 710, 711 (N.D. 2001).                       



             63  

                                              

                         Id. at 712.  



             64          Id.  



                                                                              -21-                                                                       7139
  


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

ABA Standards  4.33.                 65  Unlike this case, however, in                    Boulger  no factors aggravated  



the violation and several factors mitigated it.                         66  



                      The court did not explain its conclusion in Boulger that the conduct at issue  

                                                                                                                                     



was  only  negligent,  a  conclusion  that  differs  from  ours,  as  explained  above.  

                                                                                                                                              



Furthermore, we purposely depart from cases decided on similar facts that find no injury  

                                                                                                                                   

to the client.67           Courts recognizing the harm caused when a client does not receive  

                                                                                                                                 



"detached advice" in the writing of a will have imposed sanctions including indefinite  

                                                                     

suspensions.68  



                      As noted above, we follow the ABA Standards to hold that a six-month  

                                                                                                                            



suspension is an appropriate starting point for a knowing violation of Rule 1.8(c) that  

                                                                                                                                      



           65        Id.  at  714.   



           66        Id.  



           67        Id. at  714 ("Boulger's misconduct did not result in injury to his client.");  



Florida Bar  v.  Anderson ,  638   So.  2d  29,  29-30  (Fla.   1990)  (adopting  findings  of  fact  

including   that   "[n]o   real   injury   resulted   from   [the   attorney's]   actions"   but   that  

"[p]otential injury to the legal system or legal profession was reasonably foreseeable").  

                                                                                                                      



           68         See, e.g., In re Polevoy, 980 P.2d 985, 987-88 (Colo. 1999) (suspending for  

                                                                                                                                        

one year and one day an attorney who drafted a self-benefitting will for a vulnerable  

                                                                                                                           

client, though dishonesty was not proven); In re McCann, 669 A.2d 49, 58-59 (Del.  

                                                                                                                                    

 1995) (suspending for one year an attorney who drafted a self-benefitting will and  

                                                                                                                                      

committed several other violations, including falsifying evidence); Attorney Grievance  

                                                                                                                            

Comm'n of Md. v. Stein, 819 A.2d 372, 379 (Md. 2003) (indefinitely suspending an  

                                                                                                                                        

attorney named as a residuary legatee in his client's will and listing the potential harms  

                                                                                                                                   

from the violation of Rule 1.8(c)); In re Kalled, 607 A.2d 613, 615-16 (N.H. 1992)  

                                                                                                                                   

(suspending  for  five  years  an  attorney  who  prepared  a  self-benefitting  will  for  a  

                                                                                                                                          

vulnerable client and charged excessive fees to another client, though "there was no  

                                                                                                                                        

finding that these violations involved dishonesty, fraud, deceit or misrepresentation");  

Disciplinary Counsel v. Galinas, 666 N.E.2d 1083, 1087 (Ohio 1996) (indefinitely  

                                                                                                                        

suspending an attorney who, in accordance with the client's wishes, wrote himself in as  

                                                                                                                                         

beneficiary and executor of his client's estate).  

                                                                               



                                                                   -22-                                                             7139
  


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

                                                                   69  

causes actual or potential harm.                                        But this sanction is further aggravated in this case by                                                     



Stepovich's prior disciplinary history, his experience in the practice of law, and the                                                                                            



vulnerability of the victim. The most significant of these is the prior discipline. As noted                                                                                  



above, the Disciplinary Board and the Committee appear to have considered as an                                                                                                     



aggravator only Stepovich's most recent violation, overlooking the older instances of                                                                                                



misconduct.   The aggravator is therefore more significant than the Committee and the                                                                                              

                                        70    But we do agree with the Board that the "prior ethical violation  

Board recognized.                                                                                                                                                     



[resulting in the 2006 suspension] is an aggravating factor which must be afforded  

                                                                                                                                                                      



significant weight," particularly because the violation of Rule 1.8(c) occurred during  

                                                                                                                                                                           



what was in effect a one-year probationary period.  

                                                                                                               



                             The most significant factor on the other side of the balance is Stepovich's  

                                                                                                                                                                



lack of a dishonest or selfish motive, on which "we are inclined to place a great deal of  

                                                                                                                                                                                     

weight."71               Weighing all aggravators and mitigators in the balance, the significance of  

                                                                                                                                                                                     



the prior-offenses aggravator in this case persuades us to increase the sanction by another  

                                                                                                                                                                          



              69             See S        TANDARDS   FOR   IMPOSING   LAWYER   SANCTIONS    4.32 (A                                                                     M. B      AR  



ASS'N 2015) ("Suspension is generally appropriate when a lawyer knows of a conflict  

                

                                                                                                                                                                                  

of interest and does not fully disclose to a client the possible effect of that conflict, and  

                                                                                                                                                                                      

causes injury or potential injury to a client."); id. at  2.3 (providing that suspensions, to  

                                                                                                                                                          

be effective, "should be for a period of time equal to or greater than six months").  



              70             We cannot discern from the record whether the Board and the Committee  

                                                                                                                                                                  

were aware of Stepovich's older offenses and chose to give them little weight or were  

                                                                                                                                  

simply unaware of them.  We consider them relevant; prior disciplinary actions arising  

                                                                                                                                                                           

out of three separate incidents necessarily carry more weight than would a single prior  

                                                                                                                                                                               

offense.  See id.   9.22 cmt. Timing of Prior Disciplinary Offenses at 421 ("[C]ourts  

                                                                                                                                                                   

[may] still find a prior offense to be an aggravating factor, but lessen its weight due to  

                                                                                                                                                      

remoteness in time.").  

                                



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

                                                                                                                     



                                                                                        -23-                                                                                  7139
  


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

six months, and we therefore suspend Stepovich from the practice of law for a total of     



 12 months.   



                 B.	              This Violation Is Not The "Same [As] Or Similar To" The Preceding                                                                                            

                                  Trust-Account Violation.   



                                  Our 2006 order suspending Stepovich from the practice of law provided,                           



in part, that "[i]f [he] is reinstated, for the next year he will be subject to the stayed                                                                                                              



suspension as follows:                                       If he engages in the same or similar misconduct, and if the                                                                                         



Disciplinary Board or the Court imposes discipline for the new misconduct, the present                                                                                                                 



matter may be remanded directly to the Court for review and imposition of the one-year                                                                                                             



                                                   72  

stayed   suspension."                                                                                                                                                                   

                                                             The  ABA  Standards  go  further:                                                          Section  8.1  recommends  



                                                                                                                                                                                              

disbarment if a lawyer either knowingly violates a prior disciplinary order or knowingly  



                                                                                                                                                                                             

engages in misconduct that is the same as or similar to that for which that lawyer has  



                                                                                                                                                                                                      

been suspended, if the violation or the "further similar acts of misconduct . . . cause  



                                                                                                                                                                                                                            

injury or potential injury to a client, the public, the legal system, or the profession."  



                                                                                                                                                                                                            

Because  we  impose  discipline  for  Stepovich's  violation  of  Rule  1.8(c),  we  must  



                                                                                                                                                                                          

determine whether this violation is the same as or similar to the one that immediately  



                                                                                   

preceded it.  We decide that it is not.  



                                                                                                                                                                                 

                                  In the 2006 case, Stepovich stipulated that he knowingly misappropriated  



                                                                                                                                                                                                                            

client funds and failed to preserve client property in violation of ABA Standards  4.12.  



                                                                                                                                                                                                                 

Misappropriation of client funds is clearly antagonistic to a client's interests, but the  



                                                                                                                                                                                                                      

Board in the 2006 case did not characterize Stepovich's conduct as a failure to avoid a  



                            

conflict of interest.  



                                                                                                                                                                                                                  

                                  Hearing this subsequent case, the Committee found that the conduct in the  



                                                                                                                                                                                                        

two cases was dissimilar because the wording of the 2006 suspension order "was limited  



                 72  

                                                                                                                                                

                                 In re Stepovich, 143 P.3d 963, 964 (Alaska 2006).  



                                                                                                        -24-                                                                                                          7139  


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

to further trust fund violations."                                                                           As noted above, the Board announced orally that it                                                                                                                       



disagreed with the Committee's finding on this issue but in its later written decision                                                                                                                                                                         



ostensibly took no position on it, finding that the prior ethical violation "must be afforded                                                                                                                                                                   



significant weight, whether or not" the violations were the "same or similar." On appeal                                                                                                                                                                              



Bar Counsel supports Stepovich's position, asserting that his Rule 1.8(c) violation is                                                                                                                                                                                               



"dissimilar in nature and involves a different disciplinary rule" and that the previous                                                                                                                                                                       



stipulation "limited the conditional imposition of the one year suspension to further trust                                                                                                                                                                                  



fund (Rule 1.15) violations."                                                                    



                                            This is our first occasion to consider the meaning of "same or similar" in                                                                                                                         

                                         73        The most obvious cases of "the same or similar" misconduct involve  

this context                           .                                                                                                                                                                                                                          

repeated violations of the same ethical rules74  or similar patterns of misbehavior.75                                                                                                                                                                                        The  

                                                                                                                                                                                                                                                                             



                      73                    See In re Cyrus                                      , 241 P.3d 890, 891, 894 (Alaska 2010) (stating that we                                                                                                                         



earlier had "suspended Cyrus . . . and publicly censured him for professional misconduct                                                                                                                                                              

based on five [similar] complaints" and noting that both cases involved the same conduct                                                                                                                                                                          

"of   neglecting   his  clients   and   delaying   court   matters,"   but   not   defining   "same"   or  

"similar").  



                      74                    See, e.g., Iowa State Attorney Disciplinary Bd. v. Silich, 872 N.W.2d 181,  

                                                                                                                                                                                                                                                                             

 192 (Iowa 2015) (agreeing with Board that prior public reprimand "for lack of diligence,  

                                                                                                                                                                                                                                                           

failure to comply with a court ruling, inadequate communication, and failure to expedite  

                                                                                                                                                                                                                                                                

litigation" was "similar" to later misconduct and an "aggravating factor" in a matter  

                                                                                                                                                                                                                                                                  

alleging the same failings in other cases); In re VanDerbeek, 101 P.3d 88, 101 (Wash.  

                                                                                                                                          

2004) ("BecauseVanDerbeek's 1987reprimand and thecharges alleged in count I ofthis  

                                                                                                                                                                                                                                                                                

action both pertain to violations of [Rule] 8.4(c), the hearing officer properly concluded  

                                                                                                                                                                                                                                                         

that VanDerbeek's prior offense is similar to the matter at hand . . . ."); see generally  

                                                                                                                                                                                                                                                            

 STANDARDS  FOR  IMPOSING  LAWYER  SANCTIONS    8.1 cmt. at 388-90.                                                                                                                                                                  



                      75                    See In re Friedland, 416 N.E.2d 433, 438-39 (Ind. 1981) (noting that two  

                                                                                                                                                                                                                                                                               

successive   disciplinary   proceedings   "establish[]   a   pattern   indicative   of   a   serious  

behavioral  flaw"  where  the  attorney  was  first  suspended  for  "undignified  and  

                                                                                                                                                                                                                                                                            

discourteous conduct" before the court, then later accused of intimidating witnesses in                                                                                                                                                                                              

                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                       -25-                                                                                                                                7139
  


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

two violations at issue here involved different rules.                                                                                                                                               Only by characterizing the 2006                                                                         



misappropriation of client funds very broadly - as the failure to avoid a conflict of                                                                                                                                                                                                                                   



interest   - can                                           we   view   the   violations   in   the   two   cases   as   similar.     Such   a   broad  



interpretation seems unwarranted, as almost any violation of a lawyer's duty to his client                                                                                                                                                                                                                  



could be broadly characterized in this way as a conflict of interest.                                                                                                                                                                                       We conclude that                                                      



 Stepovich's violation of Rule 1.8(c) is not the same as or similar to the misconduct for                                                                                                                                                                                                                            



which he was suspended from practice in 2006, and we therefore do not impose the                                                                                                                                                                                                                                    



stayed year of suspension from the 2006 disciplinary matter.                                                                                                                                                                       



                         C.	                      Stepovich                                     Must                        Take                        And                     Pass                     The                    Multistate                                      Professional  

                                                  Responsibility Exam As A Condition Of Reinstatement.                                                                                                            



                                                  Given that Stepovich's defense included the argument that he was not                                                                                                                                                                                             



aware of Rule 1.8 or the seriousness of the conflict of interest created by his conduct, we                                                                                                                                                                                                                           



consider it appropriate that, as a condition of reinstatement, he be required to take and                                                                                                                                                             



pass the Multistate Professional Responsibility Exam (MPRE).                                                                                                                                                                                



V.	                      CONCLUSION  



                                                  Michael A. Stepovich is suspended from the practice of law in Alaska for  

                                                                                                                                                                                                                                                                                                                     



 12 months, to take effect 30 days from the date of this opinion.   As a condition of  

                                                                                                                                                                                                                                                                                                                       



reinstatement he is required to take and pass the MPRE.                                                                                                                             



                         75(...continued)  



                                                                                                                                                                                                                                                                                                             

the resulting disciplinary proceeding (citing In re Friedland, 376 N.E.2d 1126 (Ind.  

                                  

 1978))).  



                                                                                                                                                         -26-	                                                                                                                                                7139
  

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