McGee v. Alaska Bar Association ( 2015 )

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THE SUPREME COURT OF THE STATE OF ALASKA
BRANT MCGEE, )
) Supreme Court No. S-15636
Petitioner, )
) ABA File No. 2013D160
v. )
) OPINION
ALASKA BAR ASSOCIATION, )
) No. 7023 – July 24, 2015
Respondent. )
)
Original Application from a decision by Bar Counsel for the
Alaska Bar Association.
Appearances: Brant McGee, pro se, Anchorage, Petitioner.1
Louise R. Driscoll, Assistant Bar Counsel, Alaska Bar
Association, Anchorage, for Respondent.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
When an ethics grievance against a lawyer is filed with the Alaska Bar
Association, Bar Counsel may, after a preliminary review, determine that a formal
investigation is unwarranted and close the file. The complainant may request that the
decision be reviewed by the Bar’s Discipline Liaison — designated by the Bar’s Board
1
McGee is an inactive member of the Alaska Bar Association.
of Governors — and if the Discipline Liaison agrees with Bar Counsel, then no further
action is taken and the matter is closed. In Anderson v. Alaska Bar Ass’n we held that
we will directly review a grievance-closing decision.2 In that case we reviewed the
grievance closure for abuse of discretion and concluded that Bar Counsel had not abused
his discretion in determining that a formal investigation was unwarranted.3
We now consider a complainant’s application for relief contending that Bar
Counsel erred in closing the complainant’s grievance without a formal investigation.
Resolving this matter requires explaining more fully how we review a grievance closure.
First, we expect Bar Counsel will base a grievance closure on the facts of record,
applicable law and policy, practicality, and professional experience and judgment; when
Bar Counsel does so we will afford Bar Counsel broad discretion. Second, when
reviewing a grievance-closing decision for abuse of discretion, we look to ensure that the
decision is not arbitrary, capricious, or the result of a breakdown in the process. On that
standard we see no abuse of discretion in Bar Counsel’s decision to close this
complainant’s grievance without a formal investigation.
II. DISCUSSION
A. Legal Framework
Former Alaska Bar Rule 22(a) implied that if a properly filed grievance
contained “allegations which, if true, would constitute grounds for discipline” Bar
Counsel was required to open a formal investigation.4 Bar Rule 22(c) provided that after
2
91 P.3d 271, 272 (Alaska 2004).
3
Id.
4
Former Alaska Bar R. 22(a) (Jan. 1985); Alaska Supreme Court Order No.
614 (Dec. 6, 1984).
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a formal investigation had been opened, Bar Counsel could dismiss the grievance if
“there is no probable cause to believe that misconduct has occurred.”5
We amended Rule 22(a) in 2003 to confirm Bar Counsel’s prosecutorial
discretion when deciding whether to open a formal investigation, and Rule 22(a) now
requires Bar Counsel to open a formal investigation only when a properly filed grievance
“contains allegations that warrant investigation.”6 But we also added a provision that a
complainant could request review of Bar Counsel’s grievance-closing decision by the
Bar’s Discipline Liaison, who could direct that a formal investigation be opened on one
or more of the grievance allegations.7 We did not change Rule 22(c)’s language.8
In Anderson v. Alaska Bar Ass’n we held that there was no right to appeal
grievance-closing decisions to the superior court, but that based on “the presumption of
reviewability pertaining to all final administrative orders, and the inherent authority of
this court to regulate the practice of law,” we would directly review such decisions.9
Citing but not discussing Vick v. Board of Electrical Examiners, we stated our “review
should be deferential, namely, whether bar counsel abused his or her discretion in
5
Alaska Bar R. 22(c) (Jan. 1985); Alaska Supreme Court Order No. 614
(Dec. 6, 1984).
6
Alaska Bar R. 22(a); Alaska Supreme Court Order No. 1454 (July 23,
2003).
7
Alaska Bar R. 22(a); Alaska Supreme Court Order No. 1454 (July 23,
2003); see also Alaska Bar R. 10(f) (regarding appointment and duties of the Discipline
Liaison).
8
See Alaska Supreme Court Order No. 1454 (July 23, 2003) (amending only
Alaska Bar R. 22(a)).
9
91 P.3d 271, 272 (Alaska 2004).
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determining that the allegations contained in the grievance do not warrant an
investigation.”10
In the cited portion of Vick we had stated:
When an agency functions to protect the public in
general, as contrasted with providing a forum for the
determination of private disputes, the agency normally
exercises its discretion in deciding whether formal
proceedings should be commenced. In matters of
occupational licensure the decision to initiate proceedings for
revocation or suspension is comparable to the function of a
public prosecutor in deciding whether to file a complaint.4
Questions of law and fact, of policy, of practicality, and of
the allocation of an agency’s resources all come into play in
making such a decision. The weighing of these elements is
the very essence of what is meant when one speaks of an
agency exercising its discretion.
_______________________________________________
4
Prosecuting power includes not only criminal
prosecution, but also civil proceedings such as license
suspension and revocation. D AVIS , A DMINISTRATIVE L AW
T EXT , § 4.09 at 110 (1972). The analogy to public
prosecution is broad, but not precise. But in many instances
the consequences to the licensee can be more serious than
those which would result from a criminal prosecution,
depending, of course, upon the particular setting.[11]
Assuming that a grievance has been processed in accordance with applicable rules and
procedures, the Vick analysis applies.
We expect that when considering whether a grievance warrants a formal
investigation, Bar Counsel will consider the following: the known facts; whether
10
Id. (citing Vick v. Bd. of Elec. Exam’rs, 626 P.2d 90, 93 (Alaska 1981)).
11
626 P.2d at 93.
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additional material facts reasonably could be brought to light with a formal investigation;
applicable law and policy; and the practicality of pursuing a grievance in light of the
need to prove an ethical violation by clear and convincing evidence,12 including relevant
allocations of resources.13 We further expect that Bar Counsel will apply experience and
professional judgment when weighing these various considerations in a grievance-
closing decision. When Bar Counsel does this, we will afford broad discretion in making
that decision. We will conclude there is an abuse of discretion only if, based on the
record and the reasoning expressed by Bar Counsel, the decision is arbitrary and
capricious or it is clear the grievance process has broken down.
B. McGee’s Grievance And Application For Relief
Brant McGee filed a grievance with the Alaska Bar Association against an
attorney in the Office of Public Advocacy (OPA).14 The grievance arose from an
ongoing dispute between McGee and OPA about OPA’s former contracts with a private
criminal defense investigator. McGee has contended the contracting process was
corrupt, the investigator is a demonstrated liar, and OPA nonetheless wrongfully
continued using the investigator. He also has contended that OPA attorneys, including
12
See Alaska Bar R. 22(e) (“Bar Counsel will have the burden at any hearing
of demonstrating by clear and convincing evidence that the Respondent has, by act or
omission, committed misconduct [that is grounds for discipline].”).
13
We do not suggest that an otherwise meritorious grievance should not be
formally investigated based solely on an asserted lack of resources.
14
OPA provides legal representation at public expense in a variety of
contexts. AS 44.21.400-.410. Among other duties, OPA represents indigent criminal
defendants when the Public Defender Agency has a conflict of interest, provides legal
representation to indigent respondents in guardianship proceedings, and provides legal
representation and guardian ad litem services to children in both custody and child in
need of aid cases; it also serves in the role of public guardian. AS 44.21.410(a).
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some in administrative and supervising positions within the agency, were guilty of
ethical violations either during the contracting process or when allowing the investigator
to continue working for OPA when he might be impeached devastatingly at trial to OPA
clients’ detriment. McGee’s concerns previously led to proceedings described below and
to Bar Counsel’s consideration of five other grievances against OPA attorneys.15
In March 2012 an Administrative Law Judge (ALJ) issued a 14-page
decision that OPA’s 2011 request for investigator proposals had been unduly restrictive
and there was at least an appearance that the ultimate contract winner, the then-current
investigator, had been favored. (In the matter before the ALJ, McGee represented an
investigator who did not meet the qualifications in the request for proposal.) The ALJ
remedially ordered that the contract not be renewed in June 2012; the ALJ also ordered
the Department of Administration’s Chief Procurement Officer to investigate an earlier
2006 contract with the investigator to determine whether corrective administrative action
or a referral to the Department of Law was necessary.
In November 2012, in response to the ALJ’s order and McGee’s follow-up
demand that OPA’s former investigator be barred from future contracts, the Chief
Procurement Officer issued a 14-page report. He concluded that although there had been
problems with OPA’s contracting process, McGee’s allegations about the investigator
were mostly untrue and those that were true did not rise to the level that debarment was
appropriate.
After McGee’s subsequent 16-page letter to the Department’s
Commissioner contradicting the Chief Procurement Officer’s report and describing it as
a “whitewash,” the Department of Law responded with a 14-page letter in April 2013.
15
These grievances were closed without formal investigations. Our review
of these grievance closures was not sought.
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It reiterated that although there were some longstanding systemic problems in OPA’s
contracting process, no knowing or intentional procurement violations had been
uncovered in the investigation and no civil or criminal penalties would be pursued
against OPA employees or the investigator.
Later in 2013 McGee filed the Bar grievance that is the basis of his
application for relief. In a May 2014 letter Bar Counsel advised McGee that a formal
investigation would not be opened, stating in relevant part:
You alleged that [the OPA attorney] violated a series
of rules dealing with a lawyer’s duties to his client. These
alleged violations resulted from allowing [the investigator] to
provide investigative services to OPA criminal defense staff
and OPA contract attorneys. You alleged that [the
investigator] obtained a contract to provide investigative
services through a flawed bidding process because [the
investigator] misrepresented his investigative experience and
training when he responded to a request for proposal. After
contracting for services, [the investigator] submitted time
sheets that you believe misrepresented time he actually spent
in performance of services for OPA. You alleged that his
mendacity makes [the investigator] a target for devastating
cross examination and impeachment.
....
[The attorney] did not create the request for proposal
or enter into the OPA contract with [the investigator] in 2006.
At most, he inherited a problem that you identified. [He]
sought to remedy the problem when he suspended the use of
[the investigator’s] services during the investigation. But
[he] did not create the problem with which defense counsel
may have to grapple. . . .
....
A lawyer’s duties to clients encompass the duties to
preserve client property, preserve client confidences, avoid
conflicts of interest, act with reasonable diligence and
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promptness in representing a client, provide competent
representation, and act with candor. Issues of [the
investigator’s] candor based on his resume and questionable
time sheets do not warrant opening an investigation into
whether [the OPA attorney] has breached duties to OPA
clients.
....
. . . I cannot justify opening a grievance for
investigation of [this attorney] on the basis of your
speculation that . . . OPA could utilize [the investigator’s]
services.
[The investigator’s] contract as an OPA investigator
has been the subject of an administrative hearing, a
Department of Administration investigation, a Department of
Law investigation and several grievances. [The investigator]
no longer has a contract with OPA. If this case were to go to
hearing, in my opinion, we would not meet our burden [of]
proof in order to show a violation of rules of professional
conduct. The disciplinary process is time-consuming, and at
the hearing and Disciplinary Board stages it relies on
volunteer labor. It has always been our policy to decline
prosecution of cases in which we believe that we could not
meet our burden of proof at hearing. Under the fairly unique
and complicated circumstances of this case, a hearing
committee could not reasonably conclude that [this attorney]
breached ethical rules of conduct.
McGee requested that the Discipline Liaison review the grievance-closing
decision, and provided the Discipline Liaison another 11 pages of argument. The
Discipline Liaison concurred with the decision to close the matter without a formal
investigation.
McGee then sought our review of the grievance-closing decision. Although
styled as a petition for review under Alaska Appellate Rules 402 and 403, relating to our
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review of court orders, review of a grievance-closing decision is more appropriately an
original application for relief under Rule 404(a)(1):
An original application for relief may be filed with the
appellate court or a judge or justice thereof in any matter
within its jurisdiction, whenever relief is not available from
any other court and cannot be obtained through the process
of appeal, petition for review, or petition for hearing. Grant
of the application is not a matter of right but of sound
discretion sparingly exercised.
We will consider McGee’s petition for review as an original application for
relief.
C. Resolution Of McGee’s Application For Relief
McGee argues that when deciding not to open his grievance for formal
investigation Bar Counsel used the wrong legal standard. McGee contends Bar Counsel
refused to open a formal investigation because McGee had not proved an ethical
violation by clear and convincing evidence at the grievance intake stage. We agree with
McGee that the grievance process does not require presenting clear and convincing
evidence of an ethical violation at the grievance intake stage. But we do not read the
grievance-closing letter in the same manner as McGee.16
The grievance-closing letter reflects that, in addition to McGee’s submittals
and arguments, Bar Counsel considered: (1) the ALJ decision and underlying record
regarding the allegations of impropriety in OPA’s contracting process; (2) the
Department of Administration’s report about OPA’s contracting process and McGee’s
16
McGee may be influenced in part by some inartful language by the
Discipline Liaison in one of the other grievance files, mentioned above at note 15,
affirming Bar Counsel’s decision not to open a formal investigation because McGee had
not “overcome the evidentiary standard required to proceed with this grievance.” Bar
Counsel actually had declined to open a formal investigation in that matter for essentially
the same reasons Bar Counsel declined to open a formal investigation in this matter.
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allegations of wrongdoing by OPA’s contract investigator and attorneys; and (3) the
Department of Law’s response to McGee’s assertion that the Department of
Administration’s investigative report was a “whitewash.” We conclude that Bar Counsel
reasonably could determine that a formal investigation would not bring to light any new
material facts relevant to McGee’s grievance.
The letter also reflects the application of experience and professional
judgment based on the existing record and relevant considerations: Bar Counsel
provided a reasonable explanation that the known facts did not suggest a connection
between OPA’s use of the investigator and any possible ethical violation by the attorney
involved in this matter, that a violation would have to be proved to an area hearing
committee by clear and convincing evidence, and that there was no good reason to use
Bar resources to present a case to volunteer area hearing committee members when there
was very little likelihood of proving an ethical violation. The Discipline Liaison
reviewed McGee’s grievance file and the grievance-closing decision, as requested by
McGee, and concurred that a formal investigation was unwarranted. McGee has not
suggested that either Bar Counsel or the Discipline Liaison was improperly motivated
or influenced in the decision-making process, and it is clear that there was no breakdown
in the grievance process.
Bar Counsel has discretion to close a grievance when further pursuit is
unwarranted.17 Bar Counsel’s decision to close McGee’s grievance without a formal
17
We earlier noted that Bar Rule 22(c) allows Bar Counsel to dismiss a
grievance after initiating a formal investigation if Bar Counsel determines that “there is
no probable cause to believe that misconduct has occurred.” In light of our 2003
amendment to Rule 22(a), we interpret Rule 22(c)’s language to mean that, even after
initiating a formal investigation, Bar Counsel may dismiss a grievance when further
pursuit is not warranted in light of all the considerations applicable to closing a grievance
(continued...)
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investigation was not arbitrary or capricious, and we see no breakdown in the grievance
process warranting interference with Bar Counsel’s decision.
III. CONCLUSION
McGee’s application for relief is DENIED.
17
(...continued)
without a formal investigation, as discussed in this opinion.
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