*1 MATTER In the DISCIPLINARY SCHULER, Bryan
INVOLVING Respondent.
No. S-3986. Supreme Court of Alaska.
Sept. 20, 1991.
Bryan Schuler, pro se. Goor, Counsel,
Stephen An- J. Van chorage, Ass’n. for the Alaska Bar RABINOWITZ, C.J., and Before MATTHEWS, BURKE, COMPTON MOORE, JJ.
OPINION COMPTON, Justice. AND
I. FACTUAL PROCEDURAL BACKGROUND Bryan employed E. as a while Attorney for the State of Alaska District Bethel, the Alaska Commercial “enter[ed] Bethel, plaee[d] Company Store in sev- tapes in a day-pack eral cassette [he] carrying. intend to leave the store did [He] paying for them.” without employees Upon perceiving that store observing him, Schuler abandoned were day-pack. He after store went home return employee told him not to Later, requested to Schuler was store. police station. After consulta- come to the counsel, to make a tion he declined statement.
139
complaint
against
was filed
The
stipulation
A criminal
revised
recommends a two-
year suspension
practice
alleged
It
he did
from the
Schuler.
that
“unlawful-
(the
13,
January
effective
1988
date
ly, knowingly,
appropri-
and with intent to
interim
suspension
imposed),
requires
was
deprive
merchandise,
ate and
the owner
pass
Schuler take and
the MPRE
unpurchased
within
person
conceal about his
mer-
year
of this court’s final order in this
valued in
of $50.00
chandise
excess
..a
matter.
A
class
misdemeanor under AS 11.46.-
(c)(2).
220(a),
plea
Schuler
entered
no
court,
Thereafter
sponte,
this
sua
re
contest
convicted of the offense.
was
quested
parties
provide
it with state
“setting
ments
juvenile
out all criminal and
4, 1987, imposition
December
On
sen-
convictions,
complaints
or arrests
suspended
tence was
and Schuler was
involving Mr.
The
Schuler.
statement shall
4, 1989,
placed
probation
until June
sub-
include appropriate
dispositions
dates and
ject
good
to the
he maintain
conditions that
conviction,
for each
complaint, or arrest.”
behavior,
counselling
that he
continue
In the
Involving Bryan
Matter
E. Schu
long
complete
as
necessary,
100
ler,
17,
(August
1990).
No. S-3986
Re
service,
community
hours of
and that he
sponses from both Schuler and the Alaska
commit no violations of the law. Schuler
1973,
Bar Association
disclosed that
successfully completed
has since
the terms
petty
Schuler was
larceny
convicted
probation,
of his
and the criminal case has
the District
Court for
State of Alaska.
dismissed.
been
Upon
information,
this
receipt of
13,
January
1988,
court
On
this
entered
again
Discipli-
remanded the matter to the
an
suspension
order
interim
of Schuler
nary Board
Disciplinary
“so that the
Board
practice
pursuant
from
to Alas-
law
may
reconsider its consent
the revised
26(a),
ground
ka Bar Rule
on the
that the
stipulation
light
respondent’s
1973
involved
crime
conviction
a serious
under
6,
conviction.” On November
1990 the Dis-
26(b).
Bar
Alaska
Rule
We referred the
ciplinary Board
its
filed
Determination on
Discipline
matter to Alaska Bar Association
In
Reconsideration.
this document
Counsel
the initiation
Board advised that it “considered the 1973
proceeding.
Interim
was to
shoplifting
respondent.
conviction of
Be-
disposition
continue until final
of the mat-
predates
cause the 1973
respon-
conviction
ter.
dent’s admission to the
and is relative-
26, 1989, Discipline
On December
Coun-
dated,
ly
the Board determined not to modi-
stipulated
sel and Schuler
that the convic-
fy
stipulation.”
We now review that
tion warranted that Schuler be
stipulation.
months,
from the
for six
law
pass
and that he take and
the Multistate
II. APPROPRIATE SANCTION
(MPRE).
Responsibility
Professional
Exam
determining
appropriate
In
stipulation
accepted by
was
the Disci-
imposed,
sanction to be
we are not bound
Board,
plinary
which in turn recommended
recommendation,
accept
the Board’s
but
accepted by
that it
this court. We re- may
independent judgment.
exercise our
stipulation
grounds
jected
“on
Buckalew,
(Alas
In re
51 n.
731 P.2d
7
appear[ed]
act
to be a serious
[Schuler’s]
1986).
“guided,”
ka
we are
this matter
under the
crime
Model
Standard
bound, by
not
but
Standards for
5.11(a),
generally
for which
disbarment
(1986).
Imposing Lawyer Sanctions
appropriate.”
Disciplinary
In the
Matter
Bd.,
Disciplinary
Burrell v.
Involving Bryan E.
No. S-3263
(Alaska
1989);
dressed public “The ex- ones owed we step requires initial answer to abide pects lawyer to be honest and [questions] of the ABA the first three law; integri- in the public confidence Next, look forth we must test set above. ty court is undermined discern what of officers ABA Standards to “type” is recommended for the sanction lawyers illegal in engage conduct.” when initial in- found our misconduct alia, 1-102(A)(3) (4)). (Citing, DR inter determining the recom- quiry. After of Duties Owed ABA Violations sanction, must mended ascertain Public, 5.0, ABA/BNA at 01:828- § any aggravating whether 29.3 warrant in- circumstances exist which decreasing ap- creasing or the otherwise See,
propriate sanction.
2. Mental state
ABA/BNA at 01:803-04.
Methodology,
requires
determi-
part of the test
This
Id.
mental state with refer-
nation of Schuler’s
Violated,
Step
The Ethical Duties
A.
One:
tapes
his
of the
into his
placement
ence to
and the
the Mental State
According to
ABA Stan-
day-pack.
Injury.
Injury or Potential
dards,
mental state can be de-
Schuler’s
1. Ethical duties
descending
culpability
order
scribed
plea
no
entered a
contest
to,
of,
charge
of con-
was convicted
103,
538,
Bar,
Preston,
(Alaska 1980),
Cal.Rptr.
implies
776 P.2d
49 Cal.3d
260
1. In re
240,
(1989) ("Crimes
turpi
necessarily
in
that misdemeanor
theft involves moral
245
rule,
defraud,
dishonesty
discussing
tude. In
the interim
an intent
volve
23),
(then
gain
may
turpi
personal
26
Rule
we stated: "Certain
Bar Rule
misdemeanors,
...
establish moral
upon
turpi
dependent
tude.”).
the moral
attorney, are
as serious
tude
defined
added).
Id.
Included
(emphasis
crimes.”
at 5
a conviction of a
2.
which results in
Conduct
list of serious crimes are felonies and
in this
26(b)
pursuant to Alaska Bar Rule
serious crime
crimes,
necessary
"a
element of which ...
lesser
ground
discipline.
independent
is another
misappropriation
Id. at
...
theft."
[or]
involves
15(a)(1).
Alaska Bar R.
Likewise,
Oregon
Supreme
Court of
n.3
conviction for the
has held
"a misdemeanor
Similarly, Ethical Consideration 1-5 notes:
involving
theft is a conviction
moral
crime of
society,
position in
even minor
Because of his
Carstens,
992,
turpitude.”
re
683 P.2d
996
lawyer may
tend to
violations of law
(Or.1984).
is
accordance with other
This
profes-
public
legal
lessen
confidence
turpitude
moral
courts which have "defined
exemplifies respect
to law
sion. Obedience
'a fraudulent or dishonest
acts which evidence
203,
lawyers especially, respect
Wines,
for the
for law. To
Ariz.
660 P.2d
intent.’"
454,
re
135
platitude.
(1983).
be more than a
also
v. State
law should
n. 4
See
Chadwick
456
intentional,
profession
reasonably
knowing
negligent.4
that is
foreseeable
misconduct,
lawyer’s
at the time of the
conviction is conclusive
Schuler’s
which,
intervening
but for some
of the elements of the crime
proof of all
event,
probably
factor or
would
have re-
v.
he was convicted.
Chadwick
lawyer’s
sulted from the
misconduct.
538,
Bar,
Cal.Rptr.
49 Cal.3d
State
Standards, Definitions,
ABA/BNA at
(“A
(Cal.1989)
01:807.
conviction,
guilty,
including
plea
attorney
injury,
commit
proof
conclusive
that the
To measure the
standards re-
necessary
quire
type
to constitute the off
consideration of the
ted all acts
ense.”).5
above,
previously
of those
at 01:806.
indi-
As noted
violated. Id.
As
*4
cated,
deprive
an
to
the
the
here was one owed to the
elements was
“intent
appropriate”
light
position
of Schuler’s
owner
... or ...
intent
11.46.220(a)(emphasis
Attorney,
add
his commission of a
tapes.
District
ed).
purposes
undoubtedly
Alaska criminal
crime
undermined confidence
For
person
‘intentionally’
legal profession.
public
acts
... when the
The
most
“a
by
person’s
objective
certainly expects
conscious
is to cause
obedience to the law
[the
11.81.900(a)(1).
authority
prosecute
proscribed]
result.” AS
those with
others
This definition is in
with the
for its violation. It undermines the founda-
“[a]ccord”
justice system
intent.
ABA Standards’ definition of
tions of our criminal
to un-
Therefore,
public
violating
very
18.
pears to a serious crime 5.11(a), for which is to a el Standard injury” “Potential the harm generally appropriate.” In client, legal is public, system or disbarment Framework, lawyer in the situa- would exercise reasonable 4. ABA Theoretical part: tion. at reads in 01:806 ABA/BNA culpable is that of The most mental state attorney to would allow an 5. To hold otherwise intent, lawyer the con- when the acts with relitigate in a his or her innocence accomplish objective purpose a or scious Kirschke, 902, proceeding. In re 16 Cal.3d culpable particular result. The next most 548, (1976). Cal.Rptr. knowledge, when the mental state is that of implicitly precluded Alaska Bar Rule This is lawyer of the acts with conscious awareness 26(f), proceeding provides fol- that in or attendant circumstances of his nature or lowing for a serious crime interim objec- without the conscious her conduct both Hearing be determined sole issue to “[t]he accomplish particular purpose tive final disci- be the extent of the Committee will neg- culpable added). mental state is result. The least (Emphasis imposed.” pline to be lawyer ligence, fails to be aware of a when a admission, Furthermore, by Schuler's own exist or risk that circumstances substantial follow, “intend[ing] tapes day-pack in his concealed the which failure is that a result will paying for them.” leave the store without standard of care that a deviation from the is states that Involving Bryan Standard 5.11 Disciplinary Matter “[disbarment 1989). (July appropriate.” generally No. S-3263 Id. E. however, Counsel, that Stan- maintains commentary worthy It is of note that the controls, 5.11(b) contends that dard suggests 5.11 authors’ to Standard than is disbarment suspension rather felony on convictions. research focused for misdemeanor appropriate sanction commentary “most courts states that provides as follows: 5.11 theft. Standard lawyers impose who are con- disbarment generally appropriate is Disbarment serious felonies.” ABA/BNA victed of
when: argues 01:829. Bar Counsel that disbar- (a) lawyer engages in serious ment an excessive sanction misde- element of which necessary compared meanor theft when interference with includes intentional rulings disciplinary cases court’s in other justice, false administration of It involving criminal convictions.7 is also fraud, ex- swearing, misrepresentation, worthy note that Schuler’s conduct did theft; tortion, misappropriation, with his offi- place not take connection sale, importation of distribution Attorney, as District or in con- cial duties *5 substances; the intention- or controlled performed in the nection with services another; or killing attempt or an al of practice of law. of to solicitation another conspiracy or Nevertheless, on the basis of the undis- offenses; or any of these commit facts, puted we conclude that the sanction (b) lawyer engages any in other inten- a point from of disbarment the reference dishonesty, involving tional conduct analysis aggravat- begin of which we our fraud, deceit, that misrepresentation or ing mitigating factors. In so conclud- and adversely seriously reflects on the law- ing, only we note not Schuler’s misdemean- practice. yer’s fitness to Bar, the conviction while a member of 01:829. ABA/BNA at shoplifting con- his misdemeanor but also to case to the Bar.8 prior difference this viction to his admission It makes no is deemed Schuler’s misconduct whether necessary a
be “serious criminal
Aggravating
Mitigat-
and
Step
C.
Three:
misappropri-
of which includes ...
element
ing Factors.
(a), or
ation,
under subsection
or theft”
making the initial determi
involving
“[A]fter
other intentional conduct
“any
sanction,
appropriate
nation as to
adversely re-
dishonesty
seriously
...
that
then consider
relevant
court
practice” under
[should]
on
fitness to
flects
[his]
(Em-
subsection,
aggravating
(b).
either
Under
subsection
factors.”
6, 1973,
charged
partial summary
pre-
September
was
following
of
8. On
is a
7. The
by
petty larceny,
In re
relied
Bar Counsel:
a violation of former
Buckalew cases
Kernan,
with
9, 1986) (disbarment
(June
11.20.140,
complaint alleging
No. S-1390
that he did
Pittman,
felony):
marijuana,
take,
a
sale of
re
carry away,
for
"unlawfully
with
steal and
19, 1985) (disbar
(December
Nos. S-929/1076
deprive
permanently
owner there-
intent
degree
police
_"
on a
ment for assault in
officer,
third
Case,
of,
On
...
Canon Camera
one
Preston,
felony);
1
616 P.2d
a
re
pleaded
September
contest
10
no
1980)
(Alaska
(two-year suspension
convic
for
charge
nine-
$50.
was fined
He was then
and
minor,
distributing
to a
a felo
of
cocaine
tion
ny);
years old.
teen
1979)
(Alaska
Webb,
408
In re
by Schuler on his
This
was disclosed
offense
(disbarment
accessory after
of
for conviction
application
Alaska Bar As-
for admission
Robson,
murder,
felony);
In re
the fact to
superior
application for a
and on his
sociation
1978)
(Alaska
(one-year suspen
P.2d
judgeship
in
court
that became vacant Bethel
abetting receipt
aiding
ammuni
of
sion for
1986, shortly
discussed here-
before the incident
felon,
felony,
for
by
a convicted
tion
appli-
place.
was
of three
in
cants,
took
suspending
temporarily
attor
of
violation
order
judgeship,
applied
Benton,
five
for the
out of
who
practice);
Ass’n
ney from
Alaska Bar
v.
position
qualified
Alaska
(Alaska 1967) (disbarment
found
con
we affirmed the
suspension
termination that disbarment
III. CONCLUSION
generally appropriate
given
sanctions
theft constitutes
Schuler’s misdemeanor
West,
misconduct.”
nature West’s
prohibiting
rules
violation
APPROVED. MATTHEWS, Justice, dissenting. American Associ- Section 5.11
RABINOWITZ, Justice, dissenting. Chief Lawyer for Imposing ation Sanc- Standards disbarment is tions indicates that My majority’s opinion with the difference generally appropriate in cases where a law- revised recommendation Board’s theft. yer commits an intentional Since two-year I that would commence Schuler’s theft, I this is second intentional Schuler’s issuance of suspension from the date of the aggravated. view his case as somewhat opinion, January from rather than Thus, the ABA I would follow standards (the of this court’s interim sus- date disbarred. order Schuler practice of pension from the of Schuler law). misdemeanor theft conviction
Schuler’s disciplinary rules a violation of constitutes illegal involving prohibit dishonesty. Compli- turpitude moral *8 rules is a ance these attorneys all owe prevailed, position Discipline to have Stipulation for Justice Rabinowitz's 17. The Revised approved by years an order the court on of five entered would be in excess April opinion with "A fol- [to] written eight months. approval practical our low." effect of will been that Mr. Schuler have years months. and two Were excess of three