In the Disciplinary Matter Involving West

805 P.2d 351, 1991 Alas. LEXIS 5
CourtAlaska Supreme Court
DecidedJanuary 25, 1991
DocketS-3558
StatusPublished
Cited by29 cases

This text of 805 P.2d 351 (In the Disciplinary Matter Involving West) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Disciplinary Matter Involving West, 805 P.2d 351, 1991 Alas. LEXIS 5 (Ala. 1991).

Opinions

OPINION

RABINO WITZ, Justice.

This appeal concerns issues of attorney misconduct stemming from Ronald T. West’s actions with regard to a negotiated property loss settlement. A disciplinary action against West was heard by an Area Hearing Panel (“Panel”). The Panel concluded that West violated certain disciplinary rules and recommended a 90-day suspension from practice.

West and the Bar Association appealed to the Disciplinary Board of Governors of the Alaska Bar Association (“Board”). In its decision, the Board found that West’s conduct constituted “serious criminal misconduct” and recommended a two-year suspension. The Board further recommended that West be required to petition for reinstatement, demonstrating his fitness to practice law and passage of the Multistate Professional Responsibility Exam (MPRE).

West now brings this appeal from the findings, conclusions, and recommendations of the Board.

I. FACTS AND PROCEEDINGS.

A. The Release.

Thomas Briggs, an independent truck owner and operator, was involved in an accident on the Dalton Highway. The accident was caused by a washed out approach to a bridge over the Nutilinktak River. Briggs was insured for the truck itself, but not for spare parts, personal effects, or loss of its use. Briggs retained West, on a one-third contingency fee basis plus costs, to represent him in a suit against the State of Alaska to recover damages for these uninsured items.

West filed a complaint against the state and subsequently entered into settlement negotiations with Northern Adjusters, which was acting on the state’s behalf. The state made an offer to settle the suit but this offer was rejected by Briggs. A short time later, on March 7, 1986, Briggs died of a heart attack. His widow, Sandra Briggs, contacted West to inform him of her husband’s death and inquire about the lawsuit’s future. West discussed the claim with her and suggested that they accept the settlement offer, if it was still open. Mrs. Briggs agreed. West then contacted Northern Adjusters to discuss the settlement. An agreement was reached where, for $5,500 consideration, West would dismiss the case with prejudice and release the state from liability.

West then requested that Mrs. Briggs come to his office to sign the contemplated release. West, concerned that the settlement offer would be withdrawn if the state learned of Mr. Briggs’ death, instructed Mrs. Briggs to sign the release form in both her name and her husband’s name.1

[353]*353After Mrs. Briggs signed the release, West notarized it as follows:

On the 26 day of March, 1986, before me personally appeared the above [referring to Thomas and Sandra Briggs] to me known to be the person(s) named herein and who executed the foregoing Release and they acknowledged to me that they voluntarily executed the same.

West then signed and dated the release in his capacity as a notary public.

West exchanged the release for the $5,500 settlement check, which was made out to “Thomas Briggs and Ron West, Attorney.” West subsequently filed in the superior court a stipulation dismissing the case with prejudice. West deposited the check in a trust account, deducted one-third plus costs as his compensation, and wrote a check to the “Estate of Tom Briggs” for the remainder.2

B. Bar Association Proceedings.

The Panel found that West violated the Code of Professional Responsibility: DR 1-102(A)(4), (5), (6), as well as DR 7-102(A)(5). In determining the appropriate sanction, the Panel used the ABA Standards for Imposing Lawyer Sanctions (1986) as guidelines. The Panel recommended a 90-day suspension for West.

The Board affirmed the Panel’s findings as to West’s violations of the Code of Professional Responsibility. The Board disapproved of the Panel’s recommended 90-day suspension; it concluded that a two-year suspension was more appropriate. The Board also required that West petition for reinstatement and pass the MPRE.

II. DISCUSSION.

West specifies eleven separate errors.3

A. DR 1-102(A)(4).

West contends that the Panel and Board erred in concluding that his misconduct involved fraud and that he, therefore, violated DR 1-102(A)(4).4

Violations of DR 1-102(A)(4) are restricted to intentional acts of misconduct. In re Simpson, 645 P.2d 1223, 1227 (Alaska 1982), methodology modified by Disci[354]*354plinary Matter Involving Buckalew, 731 P.2d 48 (Alaska 1986). The ABA Standards for Imposing Lawyer Sanctions provide that “intent” encompasses the “conscious objective or purpose to accomplish a particular result.” ABA Model Standards, Lawyer Sanctions, Definitions, ABA/BNA at 01:807 (1986).

The Panel found West in violation of DR 1-102(A)(4). It concluded that West “intentionally notarized a signature that he knew to be false and, in the course of doing so, made statements and representations which he knew were false.” The Panel further concluded that West’s purpose was to cause the state “to enter into settlement at a time when [West] believed that if the facts were known the settlement might not be agreed to.” The Board affirmed the Panel’s conclusion with regard to DR 1-102(A)(4).

West asserts that he did not violate DR 1-102(A)(4) because his actions, while possibly negligent, were not intentional. West further contends that his actions in regard to the release were neither fraudulent nor material since the release was not relied upon by the state in making the settlement.

We reject West’s contentions. It is clear that West violated DR 1 — 102(A)(4). The evidence shows that West intended the consequences of his actions. He intended that the state go through with the settlement even though Mr. Briggs was dead. Thus, we conclude that West engaged in dishonest conduct in violation of DR 1-102(A)(4).5

B. DR 1-102(A)(5).

West further contends that the Panel and Board erred in holding that his actions constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5).6 More particularly, West argues that his actions, although admittedly improper, were intended to “facilitate” justice. Additionally, West asserts that justice was not obstructed since the questioned release was never intended to be filed in court.

West’s contentions are devoid of merit. The record clearly reveals that West violated DR 1 — 102(A)(5). West admits that he notarized a statement which he knew to be false. It is beyond dispute that such conduct is in fact prejudicial to the administration of justice.7

C. DR 1-102(A)(6).

West first contends that DR 1-102(A)(6) applies to such “other conduct” as is not proscribed by DR l-102(A)(3)-(5) and is only to be used when the other subsections of DR 1-102 are inapplicable.8

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Bluebook (online)
805 P.2d 351, 1991 Alas. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-disciplinary-matter-involving-west-alaska-1991.