McGee v. Alaska Bar Association
353 P.3d 350
| Alaska | 2015Background
- Petitioner Brant McGee, an inactive Alaska Bar member, filed a grievance alleging OPA attorneys improperly retained and relied on a contract investigator who misrepresented qualifications and timesheets, harming clients.
- Prior administrative proceedings (ALJ decision, Dept. of Administration report, Department of Law review) found procurement problems but declined debarment or civil/criminal referrals; the investigator no longer had an OPA contract.
- Bar Counsel reviewed McGee's submissions and existing administrative records and declined to open a formal disciplinary investigation, explaining the record likely would not support proving ethical violations by clear and convincing evidence.
- The Bar’s Discipline Liaison reviewed McGee’s additional arguments and concurred with Bar Counsel’s decision to close the grievance without investigation.
- McGee sought direct review by the Alaska Supreme Court, arguing Bar Counsel applied the wrong evidentiary standard (requiring clear and convincing evidence at intake).
- The Court treated the filing as an original application for relief and reviewed whether Bar Counsel abused discretion in closing the grievance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bar Counsel must open a formal investigation when a grievance alleges conduct that, if true, could be misconduct | McGee: Bar Counsel incorrectly required clear and convincing evidence at intake and thus should have opened an investigation | Bar Association: Bar Counsel may exercise prosecutorial discretion and decline investigation when record and resources make proving misconduct unlikely | Court: Bar Counsel may decline to investigate absent allegations that warrant investigation; no abuse of discretion here |
| Standard of review for grievance-closing decisions | McGee: Bar Counsel’s decision should be reviewed for correctness (de novo) | Bar Association: Decision should receive deference as prosecutorial/agency discretion | Court: Review is deferential — abuse of discretion standard (arbitrary, capricious, or process breakdown required to overturn) |
| Whether Bar Counsel relied on improper factors (evidentiary standard/resource concerns) | McGee: Bar Counsel improperly used evidentiary burden as gatekeeping standard | Bar Association: Consideration of likelihood of meeting burden and resource allocation is appropriate prosecutorial judgment | Court: Considering likelihood of proving misconduct and resource constraints is permissible; no improper motive shown |
| Whether the grievance process broke down (procedural defects) | McGee: Implicitly argued process was flawed by closure | Bar Association: Followed rules; Discipline Liaison reviewed and affirmed closure | Court: No breakdown in process; procedures and review were satisfied |
Key Cases Cited
- Anderson v. Alaska Bar Ass'n, 91 P.3d 271 (Alaska 2004) (Alaska Supreme Court will directly review grievance‑closing decisions under a deferential abuse‑of‑discretion standard)
- Vick v. Board of Electrical Examiners, 626 P.2d 90 (Alaska 1981) (agency discretion in initiating formal proceedings analogous to prosecutorial charging decisions)