*1 Involving In the Matter VOLLINTINE,
James F.
Respondent.
No. 6984.
Supreme Court Alaska.
Nov.
OPINION PER CURIAM. disciplinary proceeding against
This is a Vollin- attorney, James F. Vollintine. misconduct, professional tine is accused of of statements that he made in consisting officials. We con- letters to two federal improp- clude that Vollintine’s conduct was er, sufficiently require serious to censure this court. was proceeding against
The
Vollintine
Association,
Bar
fol-
initiated
the Alaska
from Jack M.
lowing receipt
complaint
of a
for the United
Regional Solicitor
Interior. Allen
States
contained in a
complained of statements
Gustafson,
George
letter from
Vollintine
Townsite Trustee for the Bureau of Land
which had been sent
Management, copies of
[Appendix
to Allen
others.
A]
letter was dated December
letter,
At the time that he wrote the
represented
plaintiffs
action,
quiet
ejectment
federal
title and
in-
around
volving dispute
over lands
villages.
certain Alaska Native
Alek-
See
Andrus,
nagik
v.
In his Vollintine accused Gustafson “perjury,” and another B.L.M. official of Secretary asserted that the of the Interior fraud, Allen alleged had committed filed in “cheating lying” briefs court, complained federal of other of federal wrongdoing part forms of officials. He warned that Gustafson lia- might “criminally Allen find themselves tort,” “personally stating: ble” and liable going “If . and Allen think are [you] .. from this townsite matter away to walk unscathed, you wrong.” are Ass’n, Richard Ray, J. Alaska Bar An- letter, In a second dated chorage, for appellant. Watt, Vollintine wrote to James Sec- Grober, Nenana,
Marc for respondent. retary [Appendix of the Interior. Vol- B] Gustafson, BURKE, C.J., WITZ, Before lintine criticized Allen and Curt and RABINO MATTHEWS, MOORE, McVee, official, department stating COMPTONand JJ. another a complete incompetent, and, that McVee “is not admitted to practice ... responsible screwing up therefore, land titles was not entitled to the same Alaska, racist, ... a blatant due opposing treatment counsel. We [and person constantly creates friction be- arguments reviewed each of these who] and con- tween Natives and non-Natives.” [Alaska] clude that are they entirely without merit.2 incompetent” Allen was “an also labelled *3 liar,” and “a pathological and was said to FREEDOM OF SPEECH
have “the of reputation supporting any po- Likewise, reject we Vollintine’s sition of the B.L.M. local office no matter claim that of imposition discipline in contrary how deceitful or Gustaf- to law.” this son, right instance violates his of free Allen and McVee were all as described speech. “lifer who parasites” replaced. should be The Board of Disciplinary the Alaska Bar Gregoire v. National Bank of Association,1 a adopting Hearing Commit- Alaska, 27, (Alaska 418 P.2d 1967), 48 this recommendation,
tee concluded Vollin- that public court administered reprimand tine was guilty unprofessional conduct when an attorney “employed abusive and worthy of censure. [Appendix C] his intemperate language in brief and ... Board Specifically, the found that his ac- opposing accused trial court and counsel tions Disciplinary violated Rules 1- and unethical underhanded conduct.” 102(A)(5), 7-102(A)(l), and 7-105(A), of the Here, the situation is the same.3 much We Code of Professional The Responsibility. subscribe to the view stated by Justice court, matter was then submitted to this Stewart, concurring opinion in his in In Re pursuant 15(j), to Rule Alaska Bar II — 360 79 Sawyer, U.S. S.Ct. 3 Rules. (1959): 1473 L.Ed.2d lawyer belongs profession to
JURISDICTIONAL [A] ISSUES inherited standards propriety and hon- Vollintine raises “jurisdic three or, experience which shown necessary issues, tional” contending: (1) that calling in a dedicated to the accomplish- Hearing Committee was consti improperly justice. ment of He who would follow tuted because of the method of the selection calling must that conform those stan- members; of its that (2) subject he is not dards. discipline under the Alaska Bar Rules in instance, this precepts because his miscon to ethical alleged may Obedience re- duct related quire to matters within abstention from what in other jurisdic cir- tribunal; tion of a (3) might federal cumstances be constitutionally pro- wrote, one of those about whom is speech. he tected responsibilities fulfilling include, to, 1. When its under the dards but are limited the code Rules, Bar responsibility, Governors professional serves and the code of “Disciplinary II-13(a), the Bar’s conduct, been, Board.” Rule judicial that have Alaska Bar Rules. hereafter, may adopted be from time to time recognized by Supreme Court Alas- regard argument (2), 2. With we that an note ka. attorney required to conduct himself Rule Bar Rules. II— professional manner at all times: practice is, The license to law in Alaska distinguish Gregoire, attempts 3.Vollintine among things, continuing proclama- other improper language because there “[t]he tion that the fit to Court holder is be (1) found contained the briefs them- professional judicial entrusted with mat- selves; (2) judges aimed at the trial in the case ters, jus- and to aid administration of review; (3) According under unfounded.” counselor, tice as an as an Vollintine, none of those elements exist here. duty every officer of the It is courts. While the cases do involve somewhat different member of the bar of this at all State to act facts, Gregoire ap- spirit holding of our conformity imposed times in with standards plies. upon members the Bar for as conditions privilege practice law. These stan- 758 to have also found 646-47, at Vollintine was 79 S.Ct. at U.S. “A 1-102(A)(5): Rule violated 1489.4
L.Ed.2d at in conduct [ejngage shall not lawyer to the administration prejudicial DUE PROCESS finding we justice.” Again, believe complains Vollintine also by the record. supported under which he was cited Disciplinary Rules let- question There can be little vagueness. are overbroad and void already make an diffi- only ters served in argues that those rules Bar Association worse. The natural conse- cult situation standard, attorney” a “reasonable corporate would be to cause quence of those letters notice of gave adequate in the relation- greater even deterioration type prohibited. of conduct See Com oppo- clients and their ship between his Durham, Ethics v. mittee on Professional posi- merits of his Regardless nents. (Iowa 1979) (DR 1- N.W.2d 280 *4 tion, clients, lawyer’s a use or that of 102(A)(6) vagueness). held not void for to the necessarily prejudicial such tactics is Responsibility The Code of Professional Among justice. administration of orderly written in broad terms. It necessarily in the the Ethical found Considerations difficult, if extremely impossi- would be not we find Responsibility, Code of Professional ble, to standards detail- develop specifically “Haranguing in the statement: guidance all forms misconduct. Al- interfere ing by lawyers and offensive tactics justice orderly we with the administration of though capable interpretation, of broad legal sys- have in our proper place no meaning Disciplinary believe the 37, Re- tem.” EC Code of Professional sufficiently Rules cited in this case is clear 7— particular Ethi- sponsibility. Although satisfy requirements process. of due part in another cal Consideration is located Responsibility, of the Code of Professional ETHICAL VIOLATIONS principle applicable it states fundamental Board, as Disciplinary did to all of the Code.6 parts Committee, found that Vollintine’s was found to Finally, Vollintine 2,1980, Discipli letter of December violated 7-102(A)(l): Rule Disciplinary have violated nary 7-105(A): lawyer “A shall not Rule on “A not ... take ... action lawyer shall present charges threaten to criminal client, when he knows or when behalf of his solely to obtain an in a civil advantage action would serve it is obvious that such believe, finding, sup matter.” This we an maliciously injure merely to harass ported by the record. upon was based finding other.” This Board’s conclusion Disciplinary The threat of criminal charges implicit Moreover, language in the used. we can known that he knew or should have [his] of no for the letter other perceive purpose to harass or merely serve action would handling another, than to influence the B.L.M.’s Allen. injure Jack maliciously Vil- application non-Native for land to includes the under- The action referred words; lage Aleknagik, rejection of which the wide lining inflammatory provide advantage would of the letter of Vollintine’s dissemination conduct, believe, 2, 1980, the letter writing clients. we was well and the Such 5, 1981, copied to Mr. purview 7-105(A).5 within the of DR dated view, aspirational characterizing 4. Vollintine criticizes this 6.“Ethical Considerations are (cid:127) concept promoted by represent objectives it an “elitist Justice Stew- toward character case, we, [legal] profession art.” If that is indeed the neverthe- every member of less, concept consider the sound. They body princi- should strive. constitute rely guid- ples upon lawyer can which the view, our the fact that Vollintine believed Preliminary very specific ance in situations.” allegations, truth of his found Statement, Responsibility. Code of Professional Board, is no excuse. Allen, would serve to etc. that you both of which mali- send to individual or enti- injure ty Mr. Allen. ciously [Appendix concerning Aleknagik C at townsite. 5] know, Moody As Roland applied letters, It is clear that the Vollin- despite 8, A, for Lots 7 and Block Tract Alekna- tine’s contrary, assertions to the were writ- gik According Townsite. to the application Moreover, ten on behalf of his clients. it filed your office, he moved a 14 X 16 any lawyer should be obvious intem- house on April the land on 1980. He perate statements of the sort contained in claims that he cleared land in 1970 but Vollintine’s letters can serve no real pur- Aleknagik Mr. Ilutsik of says that such is pose objects but to harass the of his wrath. untrue. While the letters might themselves Mr. moved the Moody building onto the served some greater purpose, the inclusion land at a time when there was an outstand- of those not. Again, statements did we ing injunction issued the Ninth Circuit find Vollintine’s to be conduct well within Court of Appeals on June 1979 which purview of the applicable Disciplinary directed the the Interior to Rule, 7-102(A)(l). DR prevent within occupancy claims the Alek- James F. is hereby cen nagik Allen townsite. Jack wrote to Mr. sured for violation of the above mentioned Moody May informing him that provisions of the Code Professional Res he may trespass. however, be in Mr. ponsibility.7 has not followed on the up matter. On *5 18, November 1980 he wrote to Wassillie
APPENDIX A Ilutsik and him that advised no action would be Mr. against Moody taken until James F. you claim, further investigated and until your jurisdiction clearly has been estab- AT LAW ATTORNEY Aleknagik lished courts in Street, 420 “L” 405 Suite Klawock cases. Mr. therefore, knowingly Ninth violating the Circuit’s or- Anchorage, Alaska 99501 der. 907-276-8144 There are other Mr. why Moody’s reasons 2, 1980 claim to the fail. major land must One George Gustafson, Townsite Trustee reason are is that non-Natives not entitled Bureau of Land Management to in rights Native townsites. Yourself and United States the Interior the BLM long illegally have been adminis- 701 Street, “C” Box 13 tering the Alaska townsite laws at- Anchorage, Alaska 99513 tempting to authorize non-Native occupan- cy villages. claims in Native Townsite, Re: Aleknagik 4873 USS Moody’s Another reason that Mr. claim is Dear Mr. Gustafson: invalid is that the Interior of Land 17, 1980 entry Appeals Enclosed is my appearance January ruled that the as repeal of record Aleknagik for in the townsite laws on October village all matters regarding the Aleknagik town- closed Alaska townsites to occupancy site. This means that Royal Harris, claims future as of that date. See you must copies send me all correspondence, (1980). 45 IBLA Mr. Moody did Since however, report 7. The finding; report Committee’s included a made no such its con- finding that 1-102(A)(6). We, Vollintine’s actions also constitut- tains no DR reference Disciplinary ed misconduct under therefore, Rule 1- issue, elect not comment on this 102(A)(6): lawyer [e]ngage “A shall not ... in except say have not that we considered it in adversely conduct reflects on his fit- reaching our censure decision to Vollintine. practice Board, ness to law.” The these townsites from keeping
committed selection, then them opening up Native any improvements not have on the land as general public negligent, haphazard of October his claim must fail. law, for the way, any without consideration Finally, the Ninth Circuit ruled villages’ rights, policy, or land use etc. Aleknagik case that there is a substantial You have land titles completely gummed up probability that the vacant land Depart- in Native townsites. The Interior Aleknagik townsite was withdrawn under it, for ment has Jack Allen to lie Court ANCSA Native selection. This too long. but that can last so Allen is only would bar Mr. Moody’s claim. to blame on the attempting everything The other when I day your was in office Court, but, see, will the Courts will you representatives some from the State finally straighten your- this matter out. If inquiring were there about obtain- self, McYee, you going and Allen think are ing land or right-of-way within the Alek- walk from townsite matter away nagik townsite. hereby You are reminded unscathed, you wrong. are that on June 1979 the Ninth Circuit Aleknagik, closed the Ekwok and Nondal- Moody’s take action on Mr. prompt Please ton villages sort of occupancy claims over application get so we can this matter and directed the Department prevent adequate with. Be us notice as give sure entries, notify and to members so we can Aleknagik to when will be that the townsites are closed. Enclosed is a meeting attend representatives your copy of that order. with Mr. Moody. I advise yourself, the BLM and Mr. Allen Sincerely yours, to tread softly with these Native townsites. /s/ James Vollintine know, As you it is position our James F. Vollintine Secretary fraudulently determined townsites in Native JFV:ksl villages are “valid ex- isting rights” under ANCSA. Then he cc: Ilutsik Wassillie opened up general them to the public under Tom Hawkins *6 your screwy, unpublished policy holding Jack Allen subdivided areas for Natives and unsubdi- AFN vided areas for non-Natives. I your’s have McVee Curt deposition McVee’s and I believe that I Bob Arnold can establish that both of you committed Secretary of the Interior
perjury in testifying under oath about these fact, townsites. In there is absolutely no
question that you committed perjury APPENDIX B stating in an affidavit before the 9th Cir- cuit that “44 townsites were subdivided af- James F. ter ANCSA.” Jack Allen cheating lying in briefs before the 9th Circuit in a Attorney at Law desperate attempt justify Depart- ment’s townsite policies and save his neck in 420 “L” STREET, Suite 405 the Alaeknagik case. He is merely buying time. Allen has lied to me all along in this Anchorage, Alaska townsite Yourself, case. McYee and Allen may well yourselves find criminally liable in 907-276-6144 addition, matter. In your blatant vio- lation of rights Native under ANCSA and the townsite may laws make all three of Honorable James Watt you personally liable in tort for intentional Secretary of the Interior violation of the Natives’ 5th Amendment Street, 18th & “C” N.W. rights. What a monstrous act the BLM Washington, D.C. 20240
would do the Country great service by dismissing or transferring these individuals. John Regional Re: M. Thank you. McVee, Curtis V. BLM Solicitor Sincerely yours, State Director /s/James Vollintine Dear Mr. Watt: James F. Vollintine my Please accept congratulations on your appointment as Secretary of Interior. JFV:ksl
am a Alaskan and life-long prac- have been law
ticing here since 1974. Approximately my 50% of work involves representing Alas- APPENDIX C ka Native interests before the BAR ASSOCIATION BEFORE THE ALASKA I appreciate your the Interior. state- ) Matter In the Disciplinary you ments that will attempt cleanse ) Involving ) Department of much mismanagement, ) VOLLINTINE, F. JAMES possible. waste and fraud as ) my opinion, should fire or relocate ) Respondent. _) Messrs. Allen and McVee. McVee has been for years, State Director about 10 File No. 80-140 ABA State Acting Director before then. He is a THE BOARD REPORT OF DISCIPLINARY complete incompetent responsible and is BAR ASSOCIATION OF THE ALASKA screwing up titles in land Alaska. In addi- May Following argument oral tion, ishe a blatant racist. Under his lead- 1982, the Board of the Alaska ership kept BLM 98 native villages open Association, consisting Bar of Andrew J. entry general public under Kleihfeld, Brown, M. William B. Ro- Harold laws, townsite in violation of the 1971 Alas- zell, Hugh and Elizabeth P. Ken- G. Wade ka Native Claims Settlement Act met nedy following and made the decision: 1926 Alaska Native Act. Townsite The De- accepts the introduction of the partment badly burned on this issue Committee Aleknagik, Report. Andrus, et a1. v. (9th No. 2896 Cir.) April 1980. McVee cre- constantly
ates friction between Natives and non-Na- tives. Some BLM employees informed FINDINGS OF FACT me that he is even more hard-line against is, James F. Vollintine the Natives is Washington than office. and at all proceeding times relevant to this Jack Allen has been Regional Solic- been, at law admitted to itor only since 1975. He is not an incompe- *7 practice in the of Alaska mem- State and a tent, pathological but also a liar. He has ber the Bar Association. the reputation of supporting position of During period 2. the on or commencing the local BLM office no matter how deceit- about September, continuing and ful or contrary result, to law. As a he has through hearing, Respon- the date of the a created lot of problems absolutely and has represented dent nine liti- native entities in no credibility anyone Alaska, with not gation against Interior, the Secretary of even Department. the Interior George others, E.M. Gustafson and such the Since Department has such massive litigation being hereinafter referred to as responsibilities Alaska, I am hopeful that the Aleknagik case. you will take sharp a look at the Interior Jack is an attorney 3. Allen to admitted up affairs here. In addition McVee and practice in the District of Columbia not but Allen, Wolf, Sue adjudication, BLM and a member of the Alaska Bar Association. George Gustafson, trustee, townsite should get also Only ridding axe. 4. George the De- Gustafson is the Townsite partment of these lifer parasites can true Trustee for Manage- the Bureau of Land policy changes place. take believe ment.
8. December Copies of the referenced two who letter were sent to individuals Solicitor, rep- Allen, Regional as 5. Jack Respondent’s were representatives Gustafson, Curt McVee George resents clients, McVee, Arnold Mr. Curt Bob as his clients the Interior Secretary of (Associate Depart- Director with the State acknowledged by was capacity and in that Interior, charge ANCSA), ment of principal author to be the Respondent government the Interior the Alaska Secretary filed on behalf the briefs pri- and otherwise Aleknagik case Natives. in the Federation of litigation. (Ex- for the marily responsible 9. Respondent’s December 1980 letter related to that B) Court proceedings hibit to the copied cross Alaska Federation are, however, generally handled litigation Natives, although it was party Attorney. by the U.S. the case and had not at all in participated a letter dated Respondent prepared 6. case. The 1981 letter to 2,1980, of which Exhib- copy December the Secretary cop- of Interior was not cross Petition, George Gustafson it A to the ied to Mr. Allen. These choices were in- related to the concerning matters which tended maximize political extraneous of an case and the enforcement Aleknagik pressure to achieve the Respondent end new entries injunction prohibiting interim sought, and to interfere with Mr. Allen’s Townsite. that let- Aleknagik onto the opportunity present merits of his side Mr. had ter, Allen Respondent alleged of the case. briefs, “cheating” “lying” been had fraudulently Secretary of Interior 10. copies stated that those Respondent existing valid determined townsites of the to employees letter directed of the McVee, ÁNCSA, Curt under rights Department Interior, Mr. Al- including Director, had com- and Mr. Gustafson State len, purpose letting were for Respondent be- “perjury,” mitted people in the Interior The perjury. he could such prove lieved know cheat” what a “liar and Mr. Allen was above, emphasized, referenced letter mad, and make Mr. Allen least with or at quoted words. the awareness that the letter would make 1980let- 7. The referenced mad, Mr. Allen because felt Respondent Respondent’s be- ter, stating in addition Allen it.” Respondent “deserved said that Gustafson commit- prove lief that he could the copies Respondent’s to the clients and ques- that there no perjury, ted advises know AFN were intended to let people committed perjury tion but that Gustafson fraud, “what lying cheating” kind of affidavit, Mr. in an identified Gustaf- were going on. themselves crimi- may son and others find if wrong liable nally and that Gustafson hearing testified at away “this he believes he will walk from complaint amending that he considered letter, townsite matter” unscathed. a tort action Aleknagik allege case Gustafson to paragraph requests its final subject Depart- Interior against the four prompt disputed take on a townsite action that he Mr. Allen personnel ment told non-native, Moody, application Mr. “playing that he was in a conversation the application with the inference that his house (plaintiffs) fire and could take we rejected. (This language was un- should *8 step.” his The Commit- if he didn’t watch and Mr. by Mr. Allen Gustaf- derstood both inap- tee of communication type found this prosecution, criminal son to be a threat of in- of propriate Respondent’s and reflective in fact although not one that concerned to Allen. tent harass Mr. the threat un- purpose them. The of was De- 12. reaction to the Mr. Gustafson’s generally get to be to by derstood Mr. Allen was that Mr. Vollin- cember letter to what the of the Interior do Mr. cog” had or was drunk. “slipped tine Respondent to with to regard wanted them of the let- receipt Allen that after testified produce the townsite to the matter and Mr. “unbal- ter he ejectment Moody.) immediate of Mr. considered had known it would to he come this would illegal the implied same activities but As a of anced.” result the letter Mr. Allen carefully phrased more manner. Re- longer felt he could no deal directly with he spondent’s engaged stated that was in Respondent of produc- and possibility “trench that intemperate warfare” and his tive negotiations regard settlement with behavior should be excused. the pending substantially case were dimin- ished. Based on the above Fact, Findings of Respondent 13. authored the letter dat- Disciplinary Board makes the following 5,1981, Watt, ed February to James Secre-
tary (Exhibit Petition) of Interior B to in alleges he that McVee ais “blatant OF CONCLUSIONS LAW
racist,” Jack “incompetent” Allen is and a 1. Respondent’s letters of December liar,” “pathological Gustafson and 5, 1981, and February are not privi- parasites.” Sue Wolf are “lifer Although leged communications. copied Mr. was letter, Allen not with that Respondent anticipated that a of 2. copy Respondent has committed miscon- letter be eventually would duct made available in violation Disciplinary Rule 7- to Mr. Allen. 105(A) in by threatening letter De- 2, 1980, cember to present charges criminal Respondent 14. had a subjective belief (perjury charges) Gustafson, against George the statements he made true. a defendant in pending litigation, solely to Respondent admitted during argu- obtain advantage litigation— an ment of counsel at hearing before the prompt and favorable resolution Disciplinary Board Alaska Bar Asso- Moody townsite application a manner ciation: result ejectment would in Mr. Moody’s (a) although Respondent had prior deal- particular, from the property. the Board ings with Mr. matters, Gustafson on other finds thát the “I language yourself, advise Moody entry application was the first the BLM and Mr. softly Allen tread with application passed non-native upon Mr. these Yourself, Native townsites ... Gustafson with regard the Aleknagik McVee Allen well may yourselves find Townsite. criminally liable in this matter If (b) no Respondent at time did move for yourself, McVee Allen think are an holding order Mr. or either Allen Gustaf- going away to walk from this mat- townsite son or in contempt both for violating the unscathed, ter you are wrong.” terms of injunction. Ninth Circuit “Please take on prompt Moody’s action Mr. ” application... indicative the threat and 16. There is no evidence Respon- request for favorable treatment. dent attempted to determine if disciplinary action against could filed Allen Mr. 3. Respondent has committed miscon- any jurisdiction. duct in violation of Rule 7- 102(A)(1) by on taking action behalf
17. The facts adduced before the Area client, Aleknagik plaintiffs, that he knew or apparent Committee those should have known that such action would from the various documents and argu- filed merely maliciously injure serve or harass ments made parties reflect inabil- another, Allen. The ity of Jack action referred Respondent deal rationally underlining includes the subject inflammatory matter the persons involved words; wide dissemination of the letter making process. decision 2,1980, writing unwilling unable or deal with the problem copied or letter rational dated emotionally de- tached manner. Mr. both of which would serve to injure harass maliciously Mr. Allen. 18. The only regret expressed by Re- *9 spondent with regard to the statements and 4. Respondent has committed miscon- actions taken the was to that if duct effect he in violation of Rule 1- 764 by
unaffected that form of be- discipline cause way ... it would not serve in any that is in conduct 102(A)(5) engaging cause Respondent appreciate the nature justice. of administration prejudicial to of reasoning his conduct. That based is of Mr. Al- place question failed He primarily upon Respondent’s testimony and conduct Department’s or len’s the Interior of observations his demeanor contempt proceeding during ain before the court hearing. and instead board any disciplinary or before 2,1980, to the the letter of copied deportment hearing at the Respondent’s Natives, not a party of
Alaska Federation testimony a consistent and his continued the letter of case, copy did not to the of De- correspondence pattern, vis-a-vis the Allen, in at- 5, 1981, to Mr. an 2,1980, in fact expressed cember he political extraneous tempt to maximize of complained correspondence view that the Mr. Allen’s interfere with pressure and to throughout failed proper. He has his side of the merits of ability handle as the insofar recognize impropriety the case. His utteranc- correspondence concerned. of are mindful 5. The Board members lack of hearing clearly es at the indicated a rights in this Amendment possible First freely and he perspective judgment, Hirschkop case of case. have read the They lack of faith good as to the opinions offered Circuit, Snead, 1979)in (4th v. F.2d 356 594 of their and the opposing parties, attorney states: which the court These gener- trial individuals were judge. decisions, Mr. many prior Drawing either ally by Respondent termed test two-step Justice formulated Powell of na- actively racist or hostile to interests Martinez, v. 416 U.S. in Porcunier type correspon- of tives. Publication of this (1974), 224 L.Ed.2d S.Ct. severly damages dence or utterance constitutionality determining for judicial public’s perception system. speech: governmental restrictions attorney, Respondent As should be an First, question must regulation ... proper aware of forums are available gov- further substantial important or grievances for of this presenting type sup- to the interest unrelated ernmental he has failed to utilize them. Second, the pression expression of First Amendment freedoms limitation v. Gregoire It in view of appears, further necessary greater must be no than Alaska, 43-44 National Bank P.2d particu- protection essential to (Alaska 1966) which involved com- involved, (at governmental lar interest for pleadings in court which were ments 363) vituperous less than those involved is a substantial The Board finds there case; misconduct, even present such interest in the ad- governmental promoting action, is criminal the absence of threatened that the decision justice, ministration of de- a serious violation of ethical standards reached does not violate the standard herein censure the court. serving public of Proeunier. the recommen- hereby adopts The Board DISCIPLINE RECOMMENDED dation of Committee The made the follow- Hearing Committee severity the mis- light censure ing recommendation: standard, Gregoire conduct under advised that Re- Committee been particu- the Board feels that because subjected spondent previously has not been case, discipline necessary. lar such any disciplinary actions and therefore this 24 of June. 1982. day DATED private rep- first considered of a utilization /s/ Harold M. Brown 12(d). rimand Rule pursuant to Bar BROWN, M. HAROLD Chair weigh strongly against Several factors B. /s/ William Rozell form of discipline, important most WILLIAM B. ROZELL which is would be the fact
765
“In
Hampshire,
New
it
is a
crime
by
obtain services
means of
in
deception
Page Kennedy
/s/ Elizabeth
the
payment
order to avoid
due
therefore
KENNEDY,
P.
ELIZABETH
any proof
part,
Without
on your
[sic].
Recorder
you have chosen to
stop payment
a
RABINOWITZ, Justice,
by MAT-
joined
check
it was
after
made for
payment
the
THEWS, Justice,
dissenting.
services. Unless
communicate di-
me and
rectly
give
me
proof
some
disagree with the
I
court’s conclusion
damages
that the
sustained to
son’s
your
censure of Yollintine
warranted.
International Harvester were a result of
view, a
would be a
private reprimand
In my
Sales, Inc.,
the
of Decato
failure
Motor
I
based,
sanction.
in
My
sufficient
decision
shall
filing
consider
criminal complaint
upon
expressed in
large part,
considerations
with the Lebanon District Court against
report
by
the
filed
two members
separate
your son
theft
of services.”
Board,
I con-
Disciplinary
the
with which
Id. at 826. The court rejected
allega-
cur.1
tion that
the letter was
“solely
sent
First,
disagree
finding
with the court’s
obtain an advantage
suit,”
in a civil
December
1980
violated
letter
complaint
dismissed the
alleging that Deca-
7-105(A),
prohibits
Rule
to had violated DR 7-105(A):
lawyer
present
from
“threatenpng]
The mere mention of possibly filing
an advan-
crim-
charges solely
criminal
to obtain
inal
does
charges
in itself suggest
in
tage in a civil matter.” Nowhere
that the statement was made in an effort
letter did Vollintine state
he would
gain leverage
in a collection
....
suit
Gustafson,
charges unless
Allen or
press
At no time did Mr. Decato demand or
Department of
took
other
Interior officials
request
payment
therefore this court
specified steps
Aleknagik
certain
in the
cannot find
clear and
evi-
convincing
cases. It
what
Moody
apparent
is not at all
his sole purpose
dence that
was to “obtain
advantage,
any,
gain
if
sought
advantage
an
in a civil suit.”
might
out that
by pointing
parties
those
find themselves
for their
criminally liable
Vollintine’s letter
Id. at 827.
to Gustafson
Absent such
I would
transgressions.
proof,
language
was even less directed than the
7-105(A)
hold that no violation of
oc-
DR
Thus,
Decato’s
I dissent from
letter.
Case,
For
example,
curred.
Deeato’s
117 court’s
conclusion
Vollintine’s letter
885, 379 A.2d
the New
(1977),
N.H.
825
12,1980
an
constituted
infraction
Supreme
Hampshire
upon
Court was called
7-105(A).
agree
of DR
I cannot
that there
to decide whether the
of a
following portion
showing
has been a sufficient
that Vollin-
of DR 7-
letter constituted a violation
tine’s
it
purpose
writing
was to “obtain
105(A):
an
civil suit.”2
advantage
portions
report
against
separate
consequence
1. Substantial
of the
to be
his client
filed
sepa-
opinion.
respondent
been included in this
The
theft
of her
to admit to
her
refusal
report
opinion.
has been
rate
included in this
money
agree to its
of a
sum of
substantial
separate report
was authored
Thus, specified
Id. at 408 n. 6.
restitution.”
Hugh G.
member
Wade and was concurred
accompanied
case.
demands
the threat
in that
by Board member Andrew J.
This
Kleinfeld.
Mekler,
re
See also In
22-23
A.2d
report
separate
reproduced
appendix
curiam)
(Court
(Del.1979)
publicly
(per
cen-
to this dissent.
compa-
attorney
piano
sured
who threatened a
ny
action if it did not return
with criminal
Craddick,
Compare
(Alas-
In
re
Similarly, inexperience. my five supports finding that the record Vol- wrote apparent not at all that Vollintine 102(A)(5), pro- lintine violated DR which “merely maliciously the letters to harass or 1— shall not lawyer [ejngage vides that “A ... injure” the officials named therein. in conduct that is to the prejudicial adminis- Nevertheless, I do with the court agree justice.” tration of I Specifically, do not of the letters the tone and content had any significant believe that the letter that Vol- and demonstrated deplorable were impact on the of settlement ne- possibility tempera- and objectivity lacked the lintine gotiations. The record shows that the posi- Bar. member of the ment of a required tions of the were so parties dramatically complete has demonstrated the attitude of the opposed Department and for, of, understanding respect or lack of intrasigent regard of Interior so to the expressed in Ethical Considera- aspirations potential townsite issue that no for settle- 7-38,4 7-37,3 7-39.5 For this rea- ment when the letter was tions and existed written. Thus, Vollintine has son, the letter could not be said to have I conclude that would been prejudicial 1-102(A)(6) engaging to the administration of violated DR justice the meaning within of DR 1- reflects on his fit- adversely “conduct that 102(A)(5). practice ness to law.” Finally, disagree I with the majority’s would view, reprimand private my In conclusion that Vollintine violated DR 7- upon Vollintine impress be sufficient 102(A)(1), provides, “A shall lawyer It must be of his misconduct. gravity not ... take ... action on behalf of his comprising the letters in mind borne client, when he when knows or it is obvious were proceeding of this subject matter that such action would serve merely ha- bitter, very the course during written rass maliciously injure or another.” The frustrating understandably and protracted specifically “[rjespondent found probably of the letters The tone litigation. had subjective belief that the statements he position accurately true,” quite made reflected that Vollintine in fact these clients. Under of Vollintine’s being believed that his clients were some treated unnecessary case, circumstances, me as unfairly. considering In I think it it strikes is important Vol- recognize impose upon Vollintine’s rela- counter-productive partnership claimed was due to the provides: and then 4. Ethical Consideration 7-38 threat, through followed his sole motive lawyer opposing A should be courteous being promotion of his interest in the civil mat- counsel and should accede to reasonable re- ter); Bar, Libarían v. State 38 Cal.2d quests regarding proceedings, settings, court (1952). direct, unequivocal P.2d 865 “re- continuances, procedural waiver of formali- quests for action” these cases contrast mark- ties, preju- and similar matters which do not edly majority’s with the observation it rights dice the of his client. He should follow perceive purpose “can of no for the letter other courtesy practice, local customs of unless handling than to influence the B.L.M.’s of a gives timely opposing he notice to counsel of application rejection non-Native lawyer his intention not to do so. A should provide advantage which would to Vollin- punctual fulfilling professional all com- Majority Op. tine’s clients.” at 758. mitments. provides: 3.Ethical Consideration 7-37 provides: 5. Ethical Consideration 7-39 adversary proceedings, litigants In clients are though may analysis, feeling proper functioning In ill the final exist between clients, adversary system feeling depends upon coopera- ill such should not influence a lawyer conduct, lawyers tion attitude between and demeanor tribunals utiliz- opposing lawyers. ing procedures lawyer preserve towards A should which will im- derogatory partiality not make unfair or reference tribunals and make their deci- opposing Haranguing processes prompt just, counsel. and offensive sional without by lawyers orderly tactics impinging upon obligations interfere lawyers with the justice proper represent administration of zealously have no their clients within the place legal system. in our framework of the law. inherent cen- stigma Mr. Gustafson were simply performing lintine sure.6 administrative functions as members of the Interior team charged with im- APPENDIX TO DISSENT plementing the Alaska Native Townsite BAR ASSOCIATION THE ALASKA BEFORE Act. They adversary did not stand in an ) Matter position with regard the Respondent or ) Involving his clients. Their functions were not judi- ) cial in nature. am satisfied that ) F. VOLLINTINE, JAMES ) *12 kind of with performance interference their ) Respondent. of those duties can properly characteriz- _) ed as “prejudicial to the administration of No. 80-140 ABA File justice”. OF G. WADE REPORT HUGH SEPARATE Finding 7 FACT FINDINGS OF 7,1 With regard Finding to Fact of would I 1, 2, 3, 4, with Findings concur of Fact reject the contention that the Respondent’s 6, 8, 9, 10, 13, 14, 15, 16, and 18. 2, 1980, letter of or part Finding 5 thereof, was a threat within the meaning of With regard Finding of Fact I be- Disciplinary Rule 7-105. lieve the Disciplinary Board’s Finding Finding 12 inaccurately characterizes the relationship 12,1 regard Finding With of Fact find between Jack Allen on the one side and that Mr. Gustafson’s reaction the letter is Gustafson, George Curt McVee and the Sec- irrelevant, largely and do not believe that retary other, of the Interior on the as that the letter any impact had whatsoever on Gustafson, of clients. Mr. the of possibility negotiations. settlement Mr. McVee and the of Secretary Interior It me appears positions that the of the not, are and were not Mr. Allen’s clients parties diametrically were so opposed and with regard application to the Moody of Mr. the attitude the of Interior so for Lot 7 and Block Tract ofA Alekna- intransigent regard with to the Townsite gik important, Townsite. It I think to issue, productive possibility no set- recognize Gustafson, that Mr. Mr. tlement at negotiations existed the time Mr. the McVee and are all Secretary essen- that the letter was written. tially the co-employees of United States Finding 17 Government. As solicitor Mr. Allen serves both as an administrator and as a source of Finding of Fact 17 is troublesome to me legal advice. appears as it to deal with matters which are presented outside the issues which were In regard this it important also to Further, Appeal. I feel that it fails to give distinguish on-going between the civil liti- proper import Finding Fact gation Aleknagik Natives Limited v. An- the drus, which that the Re- acknowledged Civil Action No. A77-200 United spondent believed that Mr. Al- subjectively States District Court for the District of treating len and Mr. Gustafson were their Alaska, and the proceeding administrative clients dishonest and unfair manner. relating application to the Moody Roland case, lots this I think it is considering impor- two in the Aleknagik Townsite. inexperience These two distinct tant to the relative proceedings recognize differed nature, the as well as the fact that concurrently on-going, problem government create a analysis agencies Mr. realization that because Allen’s radically role was and government necessarily different in the officials are not one as opposed regard shattering to the other. With either honest fair can be a to the Moody application, I, too, experience. both Mr. Allen was troubled agreement I am process with court’s resolution due issues which Vollintine raised jurisdictional, speech, appeal. freedom of this 1-102(6) in engaged
Rule that he reflects on his fit- adversely conduct Respondent’s response disciplinary law. practice ness to process and Ms conduct before the Area Committee, but I Hearing am not prepared I my negative predisposition, was Despite to find reflect an that these deal inability favorably impressed by Respon- very process. rationally important with the It is argument during conduct and dent’s to note that the Board has rejected the appeal Report on his from hearing Area Hearing Committee’s of Fact Finding the Area Committee. Further- subject to the effect that the letters are more, think appropriate I it is consider Respondent’s not atypical ordinary con- subject conduct is the mat- that the duct. There is direct no evidence arose proceeding during ter this subject conduct which is the proceed- bitter, very protracted of a very course ing representative of the Respondent’s understandably frustrating litigation. practice regard to other unrelated Respondent’s suspect tone of matters. regard In that I have my- forced posi- rather reflected the accurately letters self to accept at face value Respon- *13 some if not all of his several clients. tion of dent’s during statements hearing reasons, I of these believe that For all appeal to the effect that antagonistic his suffice to accom- private reprimand would attitude toward Mr. Allen is not typical proceedings. these plish purposes opposing with relationship counsel. I Conceding the of factors which existence admit to skepticism substantial on that is- I against discipline, that form sim- argue sue simply the Respondent’s because vitu- it under the ply unnecessary feel peration in this ease is so extensive and (and possibly circumstances of this case seems to flow naturally so it almost counter-productive) impress upon the Re- cannot be conceived that it has not been is inherent in spondent stigma which practiced extensively in past. censure. I found the tone and content of Re- note that our fails to deal in Report also spondent’s 2, 1980, letters December reasons for any manner with the 5, 1981, to be deplorable. My rejection of certain of the Area Board’s review of the transcript hearing be- Hearing findings and with the Committee’s fore the Area left Committee me Respondent’s objections issues raised predisposed to believe that the Respondent, the Hearing to the manner which Com- best, at objectivity tempera- lacked the organized. was I believe that these mittee ment required which are of a member of directly matters should be addressed our and, worst, the Bar at Respondent Report. might suffer from some form paranoia. It is essential the Respondent be this SUBMITTED RESPECTFULLY brought to the realization that day May, 27st common, and, indeed, the natural reaction Hugh G. Wade /s/ not only of people those to whom his letters HUGH G. WADE addressed, but also of virtually every report. I concur Mr. Wade’s person who has had occasion to read those /s/ Andrew J. Kleinfeld letters course during the proceed- these ANDREW J. KLEINFELD ings. If, these through proceedings, the Respondent can brought realiza- June Dated: tion, process will pur- served its pose. The is also converse true.
I find that the demon-
strated of, a total lack understanding
respect for aspirations which are ex-
pressed 7-37, Ethical Considerations 7— 38, and 7-39. For that reason I find that
the Respondent has violated Disciplinary