In the Disciplinary Matter Involving Vollintine , 1983 Alas. LEXIS 499 ( 1983 )

RABINOWITZ, Justice,

joined by MATTHEWS, Justice, dissenting.

I disagree with the court’s conclusion that public censure of Yollintine is warranted. In my view, a private reprimand would be a sufficient sanction. My decision is based, in large part, upon considerations expressed in the separate report filed by two members of the Disciplinary Board, with which I concur.¹

First, I disagree with the court’s finding that the December 2, 1980 letter violated Disciplinary Rule 7-105(A), which prohibits a lawyer from “threatenpng] to present criminal charges solely to obtain an advantage in a civil matter.” Nowhere in the letter did Vollintine state that he would press charges unless Gustafson, Allen or other Department of Interior officials took certain specified steps in the Aleknagik or Moody cases. It is not at all apparent what advantage, if any, Vollintine sought to gain by pointing out that those parties might find themselves criminally liable for their transgressions. Absent such proof, I would hold that no violation of DR 7-105(A) occurred. For example, in Deeato’s Case, 117 N.H. 885, 379 A.2d 825 (1977), the New Hampshire Supreme Court was called upon to decide whether the following portion of a letter constituted a violation of DR 7-105(A):

“In New Hampshire, it is a crime to obtain services by means of deception in order to avoid the due payment therefore [sic]. Without any proof on your part, you have chosen to stop payment on a check after it was made for the payment of services. Unless you communicate directly with me and give me some proof that the damages sustained to your son’s International Harvester were a result of the failure of Decato Motor Sales, Inc., I shall consider filing a criminal complaint with the Lebanon District Court against your son for theft of services.”

Id. at 826. The court rejected the allegation that the letter was sent “solely to obtain an advantage in a civil suit,” and dismissed the complaint alleging that Decato had violated DR 7-105(A):

The mere mention of possibly filing criminal charges does not in itself suggest that the statement was made in an effort to gain leverage in a collection suit .... At no time did Mr. Decato demand or request payment and therefore this court cannot find by clear and convincing evidence that his sole purpose was to “obtain an advantage in a civil suit.”

Id. at 827. Vollintine’s letter to Gustafson was even less directed than the language in Decato’s letter. Thus, I dissent from the court’s conclusion that Vollintine’s letter of December 12,1980 constituted an infraction of DR 7-105(A). I cannot agree that there has been a sufficient showing that Vollin-tine’s purpose in writing it was to “obtain an advantage in a civil suit.”²

Similarly, I do not agree with the court that the record supports a finding that Vol-lintine violated DR 1 — 102(A)(5), which provides that “A lawyer shall not ... [ejngage in conduct that is prejudicial to the administration of justice.” Specifically, I do not believe that the letter had any significant impact on the possibility of settlement negotiations. The record shows that the positions of the parties were so dramatically opposed and the attitude of the Department of Interior so intrasigent with regard to the townsite issue that no potential for settlement existed when the letter was written. Thus, the letter could not be said to have been prejudicial to the administration of justice within the meaning of DR 1-102(A)(5).

Finally, I disagree with the majority’s conclusion that Vollintine violated DR 7-102(A)(1), which provides, “A lawyer shall not ... take ... action on behalf of his client, when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” The Board specifically found that “[rjespondent had subjective belief that the statements he made were true,” that Vollintine in fact believed that his clients were being treated unfairly. In considering this case, I think it is important to recognize Vollintine’s rela-five inexperience. Thus, in my view, it is not at all apparent that Vollintine wrote the letters “merely to harass or maliciously injure” the officials named therein.

Nevertheless, I do agree with the court that the tone and content of the letters were deplorable and demonstrated that Vol-lintine lacked the objectivity and temperament required of a member of the Bar. Vollintine has demonstrated a complete lack of understanding of, or respect for, the aspirations expressed in Ethical Considerations 7-37,³ 7-38,⁴ and 7-39.⁵ For this reason, I would conclude that Vollintine has violated DR 1-102(A)(6) by engaging in “conduct that adversely reflects on his fitness to practice law.”

In my view, a private reprimand would be sufficient to impress upon Vollintine the gravity of his misconduct. It must be borne in mind that the letters comprising the subject matter of this proceeding were written during the course of very bitter, protracted and understandably frustrating litigation. The tone of the letters probably reflected quite accurately the position of some of Vollintine’s clients. Under these circumstances, it strikes me as unnecessary and counter-productive to impose upon Vol-lintine the stigma inherent in a public censure.⁶

APPENDIX TO DISSENT

BEFORE THE ALASKA BAR ASSOCIATION

In the Disciplinary Matter ) Involving ) ) JAMES F. VOLLINTINE, ) ) Respondent. ) _)

ABA File No. 80-140

SEPARATE REPORT OF HUGH G. WADE

FINDINGS OF FACT

I concur with Findings of Fact 1, 2, 3, 4, 6, 8, 9, 10, 11, 13, 14, 15, 16, and 18. Finding 5

With regard to Finding of Fact 5, I believe that the Disciplinary Board’s Finding inaccurately characterizes the relationship between Jack Allen on the one side and George Gustafson, Curt McVee and the Secretary of the Interior on the other, as that of an attorney and clients. Mr. Gustafson, Mr. McVee and the Secretary of Interior are not, and were not Mr. Allen’s clients with regard to the application of Mr. Moody for Lot 7 and 8, Block 8, Tract A of Alekna-gik Townsite. It is important, I think to recognize that Mr. Allen, Mr. Gustafson, Mr. McVee and the Secretary are all essentially co-employees of the United States Government. As solicitor Mr. Allen serves both as an administrator and as a source of legal advice.

In this regard it is important also to distinguish between the on-going civil litigation Aleknagik Natives Limited v. An-drus, Civil Action No. A77-200 United States District Court for the District of Alaska, and the administrative proceeding relating to the application of Roland Moody for two lots in the Aleknagik Townsite. These two distinct proceedings differed in nature, were concurrently on-going, and create a problem of analysis because Mr. Allen’s role was radically different in the one as opposed to the other. With regard to the Moody application, both Mr. Allen and Mr. Gustafson were simply performing administrative functions as members of the Interior Department team charged with implementing the Alaska Native Townsite Act. They did not stand in an adversary position with regard to the Respondent or his clients. Their functions were not judicial in nature. I am not satisfied that any kind of interference with their performance of those duties can properly be characterized as “prejudicial to the administration of justice”.

Finding 7

With regard to Finding of Fact 7,1 would reject the contention that the Respondent’s letter of December 2, 1980, or any part thereof, was a threat within the meaning of Disciplinary Rule 7-105.

Finding 12

With regard to Finding of Fact 12,1 find that Mr. Gustafson’s reaction to the letter is largely irrelevant, and do not believe that the letter had any impact whatsoever on the possibility of settlement negotiations. It appears to me that the positions of the parties were so diametrically opposed and the attitude of the Interior Department so intransigent with regard to the Townsite issue, that no possibility of productive settlement negotiations existed at the time that the letter was written.

Finding 17

Finding of Fact 17 is troublesome to me as it appears to deal with matters which are outside the issues which were presented on Appeal. Further, I feel that it fails to give proper import to Finding of Fact 14 by which the Board acknowledged that the Respondent subjectively believed that Mr. Allen and Mr. Gustafson were treating their clients in a dishonest and unfair manner. In considering this case, I think it is important to recognize the relative inexperience of the Respondent as well as the fact that the realization that government agencies and government officials are not necessarily either honest or fair can be a shattering experience. I, too, was troubled by the Respondent’s response to the disciplinary process and Ms conduct before the Area Hearing Committee, but I am not prepared to find that these reflect an inability to deal rationally with the process. It is important to note that the Board has rejected the Area Hearing Committee’s Finding of Fact 14 to the effect that the subject letters are not atypical of Respondent’s ordinary conduct. There is no direct evidence that the conduct which is the subject of this proceeding is representative of the Respondent’s practice with regard to other unrelated matters. In that regard I have forced myself to accept at face value the Respondent’s statements during the hearing on appeal to the effect that his antagonistic attitude toward Mr. Allen is not typical of his relationship with opposing counsel. I admit to substantial skepticism on that issue simply because the Respondent’s vituperation in this ease is so extensive and seems to flow so naturally that it almost cannot be conceived that it has not been practiced extensively in the past.

I found the tone and content of the Respondent’s letters of December 2, 1980, and February 5, 1981, to be deplorable. My review of the transcript of the hearing before the Area Hearing Committee left me predisposed to believe that the Respondent, at best, lacked the objectivity and temperament which are required of a member of the Bar and, at worst, that the Respondent might suffer from some form of paranoia. It is essential that the Respondent be brought to the realization that this was the common, and, indeed, the natural reaction not only of those people to whom his letters were addressed, but also of virtually every person who has had occasion to read those letters during the course of these proceedings. If, through these proceedings, the Respondent can be brought to that realization, the process will have served its purpose. The converse is also true.

I find that the Respondent has demonstrated a total lack of understanding of, or respect for the aspirations which are expressed in Ethical Considerations 7-37, 7— 38, and 7-39. For that reason I find that the Respondent has violated Disciplinary Rule 1-102(6) in that he has engaged in conduct that adversely reflects on his fitness to practice law.

Despite my negative predisposition, I was very favorably impressed by the Respondent’s conduct and argument during the hearing on his appeal from the Report of the Area Hearing Committee. Furthermore, I think it is appropriate to consider that the conduct which is the subject matter of this proceeding arose during the course of a very bitter, very protracted and understandably frustrating litigation. I suspect that the tone of the Respondent’s letters rather accurately reflected the position of some if not all of his several clients. For all of these reasons, I believe that a private reprimand would suffice to accomplish the purposes of these proceedings. Conceding the existence of factors which argue against that form of discipline, I simply feel that it is unnecessary under the circumstances of this case (and possibly counter-productive) to impress upon the Respondent the stigma which is inherent in a public censure.

I also note that our Report fails to deal in any manner with the reasons for the Board’s rejection of certain of the Area Hearing Committee’s findings and with the issues raised by the Respondent’s objections to the manner in which the Hearing Committee was organized. I believe that these matters should be addressed directly in our Report.

RESPECTFULLY SUBMITTED this 27st day of May, 1982.

/s/ Hugh G. Wade HUGH G. WADE

I concur with Mr. Wade’s report.

/s/ Andrew J. Kleinfeld ANDREW J. KLEINFELD

Dated: June 14, 1982

1 . Substantial portions of the separate report have been included in this opinion. The separate report has been included in this opinion. The separate report was authored by Board member Hugh G. Wade and was concurred in by Board member Andrew J. Kleinfeld. This separate report is reproduced in the appendix to this dissent.

2 . Compare In re Craddick, 602 P.2d 406 (Alaska 1979). In Craddick, we did observe that it was not necessary for a “threat” within the meaning of DR 7-105(A) to be directly stated, and that the one arising by “implication and innuendo” was sufficient to constitute an infraction of the provision. Id. at 408 n. 6. However, in Craddick, the offensive language prompted an attorney for the threatened party to conclude that “criminal charges were going to be filed against his client as a consequence of her refusal to admit to respondent her theft of a substantial sum of money and agree to its restitution.” Id. at 408 n. 6. Thus, specified demands accompanied the threat in that case.

See also In re Mekler, 406 A.2d 20, 22-23 (Del.1979) (per curiam) (Court publicly censured attorney who threatened a piano company with criminal action if it did not return down payment on repossessed piano and thereafter drafted the specifications included in the criminal complaint; after the arrest, the respondent suggested the charge would be dismissed if the threatened party returned the $1,600); People ex rel. Gallagher v. Hertz, 198 Colo. 522, 608 P.2d 335 (1979) (attorney acting as receiver for partnership threatened criminal prosecution unless party repaid $4,200 attorney claimed was due to the partnership and then followed through on threat, his sole motive being promotion of his interest in the civil matter); Libarían v. State Bar, 38 Cal.2d 328, 239 P.2d 865 (1952). The direct, unequivocal “requests for action” in these cases contrast markedly with the majority’s observation that it “can perceive of no purpose for the letter other than to influence the B.L.M.’s handling of a non-Native application ... the rejection of which would provide an advantage to Vollin-tine’s clients.” Majority Op. at 758.

3 .Ethical Consideration 7-37 provides:

In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude and demeanor towards opposing lawyers. A lawyer should not make unfair or derogatory reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.

4 . Ethical Consideration 7-38 provides:

A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client. He should follow local customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do so. A lawyer should be punctual in fulfilling all professional commitments.

5 . Ethical Consideration 7-39 provides:

In the final analysis, proper functioning of the adversary system depends upon cooperation between lawyers and tribunals in utilizing procedures which will preserve the impartiality of tribunals and make their deci-sional processes prompt and just, without impinging upon the obligations of lawyers to represent their clients zealously within the framework of the law.

6 . I am in agreement with the court’s resolution of the jurisdictional, freedom of speech, and due process issues which Vollintine raised in this appeal.