False Testimony In Family Dispute Not Covered By Litigation Misconduct Rules

A disbarment recommendation was rejected in favor of a remand by the Alaska Supreme Court.

The Alaska Bar Association Disciplinary Board recommends disbarment of Deborah Ivy for making false statements as a party to litigation in violation of Alaska Rules of Professional Conduct 3.3, 3.4, and 8.4 and Alaska Bar Rule 15. We agree the record establishes that Ivy made false statements in violation of Professional Conduct Rule 8.4 and Bar Rule 15. But we conclude that Rules 3.3 and 3.4 do not apply because they are intended to govern attorneys acting as advocates and not in their personal capacities. We therefore remand this matter to the Board for reconsideration of its recommended sanction.

The disciplinary case has its origins in a particularly bitter family dispute between the attorney and her brother.

Relations between [brother] Kyzer and Ivy grew so acrimonious during the litigation that a no-contact order was issued in December 2007, prohibiting in-person or telephone contact between the parties without an attorney present and prohibiting each party from coming within 500 feet of the other’s residence.

The attorney claimed that the brother had stalked and assaulted her. The brother filed disciplinary complaints alleging that the attorney’s testimony about the alleged incidents had been false.

The court here agreed that the attorney had knowingly testified falsely but concluded that some charged rules were inapplicable

In the language of the Preamble, the commentary to Rule 3.3 “explains” the “meaning” of the rule: the rule is limited to dishonest misconduct by a lawyer acting in a representational capacity before a tribunal. This meaning is supported by the inclusion of Rules 3.3 and 3.4 in the section titled “Advocate.” The commentary to Rule 4.1 also suggests that a lawyer engaging in dishonest misconduct in a personal capacity may be disciplined under Rule 8.4.   Limiting Rules 3.3 and 3.4 to representational conduct thus prevents overlap with Rule 8.4 without rewarding attorneys who commit dishonesty as parties or witnesses.

We conclude that Rules 3.3 and 3.4 do not apply to Ivy’s misconduct because these rules are intended to govern attorneys when they are acting as advocates and not in their personal capacities.

The court rejected claims that the process was biased because the bar association collects attorneys fees when it prevails.

Ivy also claims her state and federal constitutional due process rights were violated in the disciplinary proceeding. She appears to argue the disciplinary process is inherently biased because a finding of misconduct allows the Board to order the payment of attorney’s fees, resulting in a financial benefit for the Bar Association. But we cannot conclude that the specter of attorney’s fees alone prevented members of either the Committee or the Board from serving as neutral and disinterested decision-makers.

Alaska Pride had this story on disciplinary sanctions imposed against Ivy’s attorney in the matter.

My view of the key legal holding is that, in the end, it is irrelevant to the disposition of the case.

You don’t sanction the attorney based on the category or number of ethical rules that the attorney is deemed to have violated. You sanction based on the misconduct in all its surrounding circumstances.

Here, an attorney was found to have lied to a court. That the lies were told in the context of a bitter family dispute may be a factor to consider as to sanction. But it is what it is.

The particular rules violated are less significant (in my view) than the need to protect the public and appropriately instruct the practicing bar about the court’s expectations for ethical behavior.   (Mike Frisch)