In the Disciplinary Matter Involving Frederick W. TRIEM, Attorney.
Nos. S-6702, S-6732
Supreme Court of Alaska
Dec. 6, 1996
929 P.2d 634
Michael L. Lessmeier, Lessmeier & Winters, Juneau, for Frederick W. Triem.
Mark Woelber, Assistant Bar Counsel, Anchorage, for Alaska Bar Association.
Before COMPTON, C.J., RABINOWITZ, MATTHEWS, EASTAUGH, JJ., and SHORTELL, J. pro tem.*
EASTAUGH, Justice.
I. INTRODUCTION
Frederick W. Triem, an attorney licensed to practice law in Alaska, appeals a decision by the Board of Governors of the Alaska Bar Association, sitting as a Disciplinary Board (Board), which found that Triem had committed ethical violations in his representation of Robert Zorich and in his professional dealings with attorney Dennis McCarty. Bar Counsel cross-appeals the Board‘s dismissal of a grievance against Triem filed by David Lubin, the Board‘s failure to impose sanctions against Triem for his dishonesty before the Area Hearing Committee, and the Board‘s recommended sanction. We affirm the Board‘s findings of ethical violations on the Zorich and McCarty grievances. We reverse the dismissal of the Lubin grievance, find an ethical violation in that matter, administer a public censure, and order the payment of restitution for lost interest. In the Zorich matter, we order a ninety-day suspension, probation, and continuing education. In the McCarty matter, we order public censure.
II. FACTS AND PROCEEDINGS
A. Facts
1. Lubin matter
In September 1989 Lubin retained Triem to represent him in the purchase of a limited entry fishing permit. As part of this transaction, Lubin made an earnest money payment of $15,000 to be held by Triem in his trust account. The purchase agreement was contingent upon Lubin getting financing by October 25, 1989. Lubin did not obtain financing, informed Triem of this fact on October 26, and requested return of his $15,000. Triem claimed he told Lubin it was necessary to get verification that the loan was not approved before the money could be returned. Additionally, Triem contends, that he told Lubin from the outset that the $15,000 would not be returned immediately, because the seller could assert a contingent claim against it. Lubin contacted the loan officer, Sara Walsh, and requested that a letter be sent to Triem confirming that his loan had not been approved. Walsh provided this verification in a letter dated October 31, 1989. The same day Triem notified the seller that the “deal is off” and that he was returning the earnest money payment to Lubin. Triem did not return the money to Lubin until January 12, 1990.
Between November 3, 1989, and January 3, 1990, Lubin made repeated calls to Triem‘s office requesting return of his money. Lubin was unable to reach Triem until January 3, when Triem told him that return of Lubin‘s money must have slipped his mind. On January 12 Triem forwarded $14,133.82, the $15,000 less a deduction of $866.18 for attorney‘s fees, to Lubin‘s stockbroker. On January 20 Triem notified Lubin of the transfer and explained that the delay was due to a contract clause that required a seller release. An invoice for Triem‘s services was included with this notification. Lubin subsequently demanded that Triem refund the money withheld for attorney‘s fees.
2. Zorich matter
In 1981 Zorich and his wife discovered that real estate they owned in Glenallen had been conveyed by Joseph Gural1 and Bernard Miller to Bobby Hartman, and that Hartman and his wife had cleared trees from the lot and were living in a trailer on the lot. Zorich retained Triem to quiet title to this property and to recover damages. After a number of postponements, trial on this matter was held in Glenallen on October 3, 1988. Before trial, Hartman agreed to confess judgment for $2,000 in damages and to execute a quitclaim deed to the Zorichs. At trial the Zorichs prevailed, as assignees of the Hartmans, against Miller and Gural. When the trial ended, the court directed Triem to submit within twenty days findings of fact, conclusions of law, and a proposed judgment. The court informed Triem that upon receipt of these documents it would enter final judgment.
Triem contends that after the trial, in a meeting between Triem, Zorich, and Hart-
Zorich wrote to Triem regarding the status of his case three times in early February 1990. Zorich also contacted the court and learned that Triem had not filed the findings, conclusions, and judgment the court had requested when the trial ended. Zorich and Triem met several times in March 1990 and Triem explained to Zorich that he had not filed the court papers because he felt that a judgment was unnecessary or not in Zorich‘s best interests. Zorich dismissed Triem and retained attorney Clifford Smith. Smith filed the necessary documents and in May 1990 the court entered judgment for Zorich for $13,500, plus $12,000 in interest, and awarded Zorich unspecified attorney‘s fees.
3. McCarty matter
McCarty represented plaintiffs in a suit against Triem and two other defendants. Triem represented himself and the other defendants until he was disqualified by the judge on a motion by McCarty.3 Around May 16, 1991, the court ordered defendants to make certain discovery responses. On May 31 Triem drafted a letter to McCarty stating that the ordered discovery was enclosed. On June 4 Triem added a postscript to this letter, which stated in part:
I did not mail out the enclosures (PAS discovery responses) until yesterday‘s mail.
Because of the volume of the discovery responses, and the expense of sending them by that route, I have not sent them to you by fax. However, if you want me to do so, please give [me] a call and I‘ll put them through the phone to you. Otherwise they will be arriving by mail, where I deposited them on my way out yesterday afternoon.
Triem faxed this letter and postscript to McCarty‘s office on June 4. Upon receipt of this fax, McCarty called Triem‘s office and requested that the discovery responses be faxed. Triem did not fax the responses to McCarty, and did not notify McCarty that they would not be faxed. Sometime on June 4 Triem retrieved from the post office the package containing the discovery responses. Triem did not notify McCarty that he had retrieved the package from the mail. McCarty never received the discovery responses. Due to their failure to comply with discovery orders, the trial judge later defaulted Triem and the other defendants.
B. The Proceedings
1. Lubin and Zorich committee proceedings4
Lubin filed his grievance in January 1990. In 1991 Bar Counsel informed Triem that the Bar had completed its investigation. Bar Counsel concluded that Triem, by failing to promptly return Lubin‘s money, had violated
Zorich filed his grievance in 1990. Triem responded to the grievance after receiving two time extensions. In 1991 Bar Counsel informed Triem that he had finished his investigation of the Zorich grievance. He found that Triem had neglected a legal matter entrusted to him and thus had violated DR 6-101(A)(3).
The Lubin and Zorich violations, Bar Counsel stated, required public discipline. Triem was provided the opportunity to stipulate to discipline by public censure. Triem was informed that if he rejected this proposal, Bar Counsel would petition for a formal hearing. Triem rejected the proposed discipline. Bar Counsel filed a petition for formal hearing, serving Triem in February 1992. On September 8 the Area Hearing Committee assigned to hear the Lubin and Zorich grievances conducted a consolidated hearing.
Triem and Bar Counsel submitted a stipulated statement of facts to the committee. At the September 8 hearing, Triem testified that he informed Lubin that his money would not immediately be returned due to the need to procure a release from the seller. Triem further testified that after the Zorich trial, he met with Zorich and Hartman and discussed the alternate strategy of pursuing reconveyances of deeds to clear title to Zorich‘s property. Bar Counsel noted that these explanations by Triem had never been articulated in the two years since the grievances had been filed, and were not part of the stipulated statement of facts.
Because the committee wanted to hear testimony from Lubin and Zorich on these factual assertions, it held a second hearing. At the second hearing, the committee questioned Lubin about what he was told by Triem when he initially requested the refund of his money. Lubin testified that Triem had not informed him that his money would have to be held due to the possibility of a contingent claim by the seller. The committee also questioned Zorich about whether he had agreed to the alternate strategy of foregoing pursuit of a final judgment. Zorich testified that he did not remember a conversation to that effect, and that he would not have agreed to such a proposal.
In April 1993 the committee conducted a third hearing to hear the testimony of Lubin‘s loan officer, Sara Walsh. Triem asked the committee to hear this testimony to rebut Lubin‘s testimony and to support Triem‘s contention regarding what he had told Lubin about return of his earnest money payment.6 With Triem‘s aid, Walsh wrote an affidavit before the hearing. Walsh‘s affidavit, however, conflicted with her hearing testimony on the key issue of whether Lubin understood that a refund would not be immediately forthcoming due to the possibility of contingent claims. At the hearing, Walsh produced an earlier version of the affidavit which had been prepared by Triem and edited by Walsh. This edited version indicates that Walsh marked off for removal from the affidavit the crucial statement that “Mr. Lubin
After the April hearing, the committee had thirty days to issue its report under Alaska Bar Rule 22(l). However, the committee did not issue its report until eleven months later, on March 22, 1994.
In the Lubin matter, the committee found that Triem had violated DR 9-102(B)(4), DR 9-102(B)(3), and DR 9-102(A)(2). In Zorich, the committee found that “Triem‘s current explanation for his failure to promptly file findings of fact, conclusions of law and a proposed judgment as instructed by the Court is neither credible nor consistent.” Consequently, the committee held that Triem had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3).
As a preliminary matter, the committee noted that these violations warranted public censure or reprimand.7 The committee also stated, however, that it believed that Triem had been deliberately dishonest in his testimony before the committee.8 The committee recommended that Triem be suspended from practice for up to one year.
2. McCarty committee proceedings
In 1991 McCarty filed a grievance asserting that Triem had made false statements to him regarding the service of discovery materials and had failed to respond timely to deadlines. After requesting and receiving a number of extensions, Triem responded to McCarty‘s grievance in December 1991. On January 14, 1992, McCarty responded by letter to Triem‘s answer. In early March Triem informed Bar Counsel that he had not received any materials from the Bar or McCarty since he filed his December 1991 response, and he requested that Bar Counsel furnish him with any further comments made by McCarty. Bar Counsel did not respond to Triem‘s letter. Pursuant to Alaska Bar Rule 22(d), Bar Counsel requested and received approval for issuance of a private written admonition from Area Discipline Division Member Leslie Longenbaugh.
In late March Triem was informed of the result of Bar Counsel‘s investigation and Longenbaugh‘s approval of the sanction of a private written admonition. Triem was instructed that under Alaska Bar Rule 22(d) he did not have a right to appeal the private admonition, but that he had thirty days to demand a formal proceeding. Triem was informed that demanding a formal proceeding would vacate the private admonition. Asserting that he had not violated the Code of Professional Responsibility in his dealings with McCarty and that he had been denied the opportunity to respond to all of McCarty‘s accusations, Triem demanded a formal proceeding. Triem argued that he had not received McCarty‘s January 14, 1992 letter to Bar Counsel. Bar Counsel explained that this was an oversight, sent Triem a copy of the letter, and gave him thirty more days to review the letter and decide whether to accept the private admonition. Triem did not accept the private admonition and Bar Counsel filed a petition for formal proceedings.
After briefing was completed and without oral argument or testimony, the Area Hearing Committee assigned to McCarty‘s grievance issued its written report in December 1993 and recommended discipline. The committee found that, by intentionally rendering his statement to McCarty false and by failing to affirmatively correct this statement, Triem
3. Disciplinary Board
Triem appealed the Lubin/Zorich and McCarty committee decisions to the Board. The Board consolidated the cases, heard oral argument, and issued a written decision. The Board dismissed the Lubin case in its entirety because it found that “significant questions have been raised about the procedures, conduct and delay of the Hearing Committee.” The Board accepted the recommendations of the hearing committees with respect to Zorich and McCarty and recommended the sanction of a ninety-day suspension.
III. DISCUSSION
A. Standard of Review
In the case of In re West, 805 P.2d 351 (Alaska 1991), we discussed our role in attorney disciplinary proceedings as follows:
Though this court has the authority, if not the obligation, to independently review the entire record in disciplinary proceedings, findings of fact made by the Board are nonetheless entitled to great weight. The deference owed to such findings derives from the responsibility to conduct disciplinary proceedings which this court has delegated to the Bar Association. Where findings of fact entered by the Board are challenged on appeal to this court, the respondent attorney bears the burden of proof in demonstrating that such findings are erroneous. . . . As a general rule, moreover, we ordinarily will not disturb findings of fact made upon conflicting evidence. . . .
. . . .
In deciding the appropriate punishment, we need not accept the Disciplinary Board‘s recommendation, but may exercise our own independent judgment.
Id. at 353 n. 3 (quoting In re Simpson, 645 P.2d 1223, 1226-28 (Alaska 1982), methodology modified by In re Buckalew, 731 P.2d 48 (Alaska 1986)).
A more succinct statement of the role of Bar Counsel and that of this court was expressed in In re Frost, 863 P.2d 843, 844 (Alaska 1993):
Bar counsel has the burden of proving the charges of misconduct in a petition for formal hearing by clear and convincing evidence. This court reviews the evidence adduced before the hearing committee independently while giving deference to the findings of the board.
(Citations omitted.)
In exercising our independent judgment as to the appropriate sanction, we are guided by the American Bar Association‘s Standards for Imposing Lawyer Sanctions. In re Buckalew, 731 P.2d at 51-52. While we are guided by these standards, we are not constrained by them. In re Frost, 863 P.2d at 854.
B. The Board Erred in Dismissing the Lubin Complaint
1. Bar Counsel has a right to appeal
As a preliminary matter, Triem argues that Bar Counsel cannot appeal the Board‘s “acquittal” of him because attorney disciplinary proceedings are quasi-criminal in nature and an appeal would violate constitutional protections against double jeopardy.
Triem‘s argument against the validity of an appeal by Bar Counsel is unpersuasive. “[J]eopardy in either its constitutional or its common law sense[] has a strict application to criminal prosecutions only. A disciplinary proceeding . . . is not criminal in nature, but is sui generis, being an exercise of the inherent power and jurisdiction of this court over attorneys as officers of the court.” In re Mackay, 416 P.2d 823, 838 (Alaska 1964) (footnote omitted), cert. denied, 384 U.S. 1003, 86 S.Ct. 1907, 16 L.Ed.2d 1016 (1966).
Triem argues that In re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968), decided after Mackay and holding that attorney discipline proceedings are quasi-criminal in nature, dictates that double jeopardy protections apply to such proceedings and thus prohibit Bar Counsel‘s appeal. Ruffalo, however, dealt with the specific
2. The Lubin case should not have been dismissed
In dismissing Lubin, the Board asserted that procedures, conduct, and delay by the Area Hearing Committee created potential prejudice to Triem which could not be set aside. The Board, however, did not specify what procedures and conduct created potential prejudice. Triem argues a number of due process violations as well as prejudicial delay caused by the committee and Bar Counsel.
Over four years passed from the filing of the Lubin grievance to the issuance of the committee‘s report and recommendation. Bar Counsel did not file a petition for formal
hearing until nine months after Triem rejected the proposed discipline in April 1991. Triem filed a number of motions and eventually answered this petition late. After three hearings, the committee requested two extensions and did not issue a report until approximately eleven months after the close of evidence.
A five-year statute of limitations governs the filing of attorney grievances.
The timing and source of the delays also militate against the dismissal. Triem, by moving for a more definite statement, was partially responsible for some of the prehearing delay. Most importantly, the longest delay, the late issuance of the committee‘s report, occurred after Triem presented his defense, and thus did not prejudice Triem‘s ability to offer a defense. This eleven-month delay was unjustified, but the persons most hurt by it were the victims of Triem‘s alleged misconduct and the public, not Triem. The public‘s faith in the system is harmed by lengthy adjudications of discipline matters, but dismissing the matter would simply exacerbate the injury to the public interest.
Therefore, we hold that the delays in the Lubin proceedings do not warrant dismissal of the complaint. Because we find that the other due process concerns raised by Triem, discussed infra, are either invalid or harmless, we reverse the Board‘s dismissal and
C. Triem‘s Due Process Rights Were Not Violated by the Proceedings Below
1. Function of the committee
Triem argues that the Lubin/Zorich committee violated his due process rights by improperly taking on the dual roles of adjudicator and prosecutor. In support of this contention, Triem points to the second and third hearings, in which the committee called and questioned the witnesses.
We have held that due process is not violated when a hearing committee questions or calls witnesses, as long as no predisposition against the respondent is shown. In re Cornelius, 520 P.2d 76, 83-84 (Alaska 1974), aff‘d on reh‘g, 521 P.2d 497, 498 (Alaska 1974). Triem has made no showing of a predisposition of the committee against him.10 In fact, the record indicates that the committee, in an effort to give Triem the fullest opportunity to present his defense, allowed late filings and heard the additional testimony of the loan officer.
2. Limitation of cross-examination
Triem contends that the Lubin/Zorich committee improperly and unfairly limited his cross-examination of Zorich.11
Lubin and Zorich were called by the committee to address specific factual issues, namely what Triem had discussed with them regarding his intended actions concerning their interests. The committee instructed Triem to focus on the discrepancies between his testimony and the complainants’ affidavits. Triem‘s cross-examination of Zorich was limited to approximately five minutes. At the expiration of the time allowed by the
committee for cross, Triem did not object or request additional time. Rather, Triem acquiesced to the time constraints, stating, “Mr. Wagner, my time‘s up. I‘d love to talk longer, but I‘ll hold my peace. Thank you.” Although Triem cites a number of occasions on which Chairperson Wagner set time constraints on the hearing, Triem did not make any objection at any time during the hearing. Furthermore, despite the fact that a third hearing was held to allow Triem the opportunity to call Lubin‘s loan officer as a rebuttal witness, Triem apparently did not request that Zorich be returned to the stand for further cross-examination. Consequently, we hold that Triem did not preserve any claim that his cross-examination of Zorich was unduly limited.
3. Telephonic appearance
Triem argues that Wagner‘s telephonic appearance at the second hearing violated his due process rights because Wagner‘s inability to observe the witnesses prevented him from being able to evaluate their credibility. This argument is unpersuasive given the express provision in
4. New charges raised at the hearings
Triem argues that the imposition of two new charges against him at the hearing stage of the Lubin/Zorich cases violated his
In analyzing the testimony regarding the existence of exculpatory conversations, the committee concluded that Triem had been dishonest to the committee. At the end of the second hearing the committee notified Triem that it was inclined to believe that Triem had been dishonest in his testimony, see supra note 6. Triem correctly argues that an attorney cannot be made to answer to charges that arise for the first time at the hearing stage. Ruffalo, 390 U.S. at 550-51. The charges in Ruffalo, however, were based on misconduct that occurred prior to the hearing and the charges were brought solely on the basis of testimony elicited at the hearing. Id. at 549-51.
The charge of dishonesty leveled at Triem did not create unfair surprise during a hearing on past conduct, but rather represented the committee‘s evaluation of, and response to, Triem‘s conduct at the hearings.12 This evaluation is inherent when the committee weighs evidence and the credibility of the witnesses before it. Not only was Triem not unfairly surprised, he was given an opportunity to respond to the committee‘s evaluation of his testimony. Triem was allowed to put on rebuttal evidence and was instructed to
brief the propriety of sanctions for misconduct before the committee.
Triem‘s alleged dishonesty before the committee was not considered as a separate charge subject to independent sanction. Rather, the committee merely took Triem‘s dishonesty into account as an aggravating factor in determining the proper sanction.13 The ABA Standards specifically include as an aggravating factor “submission of false evidence, false statements, or other deceptive practices during the disciplinary process.” Standards for Imposing Lawyer Sanctions § 9.22(f) (1991) (hereinafter ABA Standards). Therefore, we hold that Triem‘s dishonesty during the disciplinary process is an aggravating factor which the committee could properly consider in protecting the integrity of the hearing process.
5. Opportunity to be heard in McCarty
Triem argues that his right of confrontation and his right to notice and an opportunity to be heard were violated by Bar Counsel‘s failure to provide him with all communications from McCarty to Bar Counsel before adjudicating the charges against him. When this omission was brought to Bar Counsel‘s notice, he provided McCarty‘s January 14 response letter to Triem and gave him a thirty-day extension in which to review it before deciding whether to accept the proposed discipline of a private admonition. Triem was not allowed to respond to this letter to Bar Counsel, however, but was merely given the extension to decide whether to accept the proposed discipline or to go on to the next level of adjudication. Triem rejected the private admonition and formal proceedings were initiated. Triem then had ample opportunity to respond to McCarty‘s letter before the Area Hearing Committee and the Board. Triem nonetheless contends that his due process rights were violated.14
Notes
Now the truthfulness before the committee issue wasn‘t one that had been briefed by Bar counsel when this thing first started and it wasn‘t brought as an allegation but it was one that the committee raised later on in the proceedings . . . and had to do with Mr. Triem‘s testimony that he told Mr. Lubin that the reason that he wasn‘t going to get his money back at least in part had to do with satisfying the seller. . . . But that‘s why we decided that we wanted to hear from Ms. Walsh in particular, to probe her recollection of what exactly she—the conversation she had with Mr. Lubin.
Bar Counsel‘s role in the initial stage of attorney grievances combines investigative and adjudicative functions, but any discipline proposed by Bar Counsel can only be imposed with the consent of the respondent attorney.
When Triem rejected the private admonition he was provided the opportunity to respond to all the evidence against him in the proceedings before the committee and the Board. Therefore, because the Bar Rules provide for a de novo hearing following a proposed private discipline and extend other protections to respondent attorneys,15 we hold that Triem was afforded ample due process in Bar Counsel‘s initial evaluation of the McCarty case.
6. Prejudicial delay in McCarty
Triem argues that he was prejudiced by Bar Counsel‘s one-year delay in filing the formal petition in McCarty.16 Bar Counsel responds that the filing of the McCarty petition was delayed to avoid the hardship to
prejudiced by the advance information of the Bar Counsel‘s proposal of a private admonition. This is a specious argument. Upon Triem‘s rejection of the proposed discipline, the private admonition was vacated. At the formal hearing before the committee, Bar Counsel had the burden of demonstrating misconduct by clear and convincing evidence.
Triem of having to defend against the Lubin/Zorich charges and the McCarty charges at the same time.
Triem‘s allegations of prejudice ignore the reality that the facts in McCarty are undisputed. The only open issue was the legal consequence of Triem‘s actions, specifically whether they represented dishonesty, deceit, fraud, or misrepresentation, in violation of DR 1-102(A)(4). While a one-year delay seems unwarranted, it did not harm Triem‘s ability to present arguments regarding the application of the law to the facts of his case. Therefore, we find that the delay did not unduly prejudice Triem.
7. Use of Triem‘s discipline record
a. Reference to prior discipline before adjudication on the merits
Triem argues that Bar Counsel, before the hearing committees and the Board, improperly referred to Triem‘s past discipline record and to the simultaneous unrelated disciplinary proceedings.
It is not error to refer to an attorney‘s disciplinary record during consideration of the case on the merits. In addition to issuing factual findings and conclusions of law, hearing committees are required to issue sanction recommendations.
The ABA Standards, however, contemplate that aggravating factors be considered after a finding of misconduct. ABA Standards § 9.1 (“After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.“). Our Bar Rules do not bifurcate the misconduct determination and the sanction recommendation. Independent review of the entire record by the Board and this court, however, provides a safeguard against any prejudicial impact from references to prior discipline during the consideration of the merits of the case. Furthermore, Triem‘s prior discipline included ongoing supervision of his work and public notice of this supervision. It would be unrealistic to think that the Southeast Alaska legal community was altogether unaware of Triem‘s disciplinary record.
Therefore, we conclude that it was not error to allow references to Triem‘s discipline record. Additionally, because the three proceedings could have been consolidated, Bar Counsel‘s statements to the hearing committees regarding other ongoing proceedings against Triem were also not prejudicial. Cf. In re Wiederholt, 877 P.2d 765, 767 (Alaska 1994) (holding that consolidating grievance proceedings is not prejudicial).
Even though we hold that the committees’ procedures did not prejudice Triem, as an exercise of our rule-making responsibility we hold that it is preferable that Area Hearing Committees bifurcate the misconduct determination and sanction recommendation as much as possible.
b. Misrepresentation and misinterpretation of Triem‘s disciplinary record
Triem argues that Bar Counsel misrepresented and exaggerated his prior discipline. In the petition for a formal hearing in the consolidated Lubin and Zorich matters, Bar Counsel stated that “[d]uring the period he represented Mr. Zorich, Mr. Triem was on probation under
Finally, Triem points out that the Board misinterpreted his prior record when it treated Triem‘s “previous offenses similar in nature to the dishonesty and neglect [alleged in McCarty and Zorich]” as an aggravating factor in the present cases. The hearing committee in Triem‘s prior disciplinary proceeding specifically held that Triem had not been guilty of dishonesty. Our independent review of the case cures whatever prejudicial impact this misunderstanding of Triem‘s prior discipline might have had on the Board‘s recommendation. Therefore, any misunderstanding was harmless error.
8. Triem‘s vindictive prosecution claim
Triem contends that Bar Counsel is guilty of vindictive prosecution in McCarty
“[A] prosecutorial action is ‘vindictive’ only if designed to penalize a defendant for invoking legally protected rights.” United States v. Meyer, 810 F.2d 1242, 1245 (D.C.Cir.1987), cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281 (1988). In United States v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. 2485, 2492-93, 73 L.Ed.2d 74 (1982), the United States Supreme Court recognized that prosecutors may gain new information or realize the significance of information after the initial imposition of charges. The Court held that in such situations the addition or modification of charges before trial does not necessarily support a presumption of vindictive prosecution. Id. In reaching this holding, the Court stated that “[a] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.” Id. (footnote omitted). Applying Goodwin, the Meyer court noted that several courts have adopted the view that a presumption of vindictiveness in the pretrial setting will arise if the defendant presents facts, in addition to the modification of the charges, sufficient to show a realistic likelihood of vindictiveness. Meyer, 810 F.2d at 1246.
Triem argues that the exercise of his legal right to reject the private admonition and to pursue a formal hearing provoked Bar Coun-
sel to add a new charge against him. However, the additional charge against Triem was added before Bar Counsel had finalized his analysis of the case and notified Triem of the formal charges against him. Under Goodwin, modification of formal charges without more would not give rise to a presumption of vindictive prosecution in the pretrial setting. 457 U.S. at 381. Therefore, even if new charges had been added after the formal petition was filed, Triem‘s argument would be unpersuasive because there are no additional facts sufficient to show a realistic likelihood of vindictiveness. That Triem‘s argument is based on differences between a draft petition and the formal petition fortifies this conclusion.
D. Triem Committed the Violations Found by the Hearing Committees in the Lubin, Zorich, and McCarty Matters.
1. Triem failed to promptly return funds which Lubin was entitled to receive, failed to appropriately account for these funds, and improperly withdrew attorney‘s fees from Lubin‘s funds.
Triem and Bar Counsel stipulated to the facts in the Lubin matter. Therefore, if Triem cannot provide a justifiable excuse for his failure to return or account for the funds, Triem committed the ethical violations charged.
At the committee hearing, Triem testified about an exculpatory conversation with Lubin. This conversation was not included in the statement of stipulated facts. After hearing additional testimony on the issue, the committee found that Triem‘s testimony was not credible and concluded that Lubin‘s account of the events was credible.
“As a general rule, . . . we ordinarily will not disturb findings of fact made upon conflicting evidence.” In re West, 805 P.2d at 353 n. 3 (quoting In re Simpson, 645 P.2d at 1227). The record evinces no reason to depart from this general rule. Triem has not carried his burden of showing that the com-
Disciplinary Rule 9-102(A)(2) dictates that disputed fees may not be withdrawn from a trust account until the dispute is finally resolved.20 Our independent review of the record reveals that the committee accurately summarized the controlling facts when it stated:
Under Triem‘s agreement and practice with Lubin, attorney fees and costs were not “due” until 10 days after Triem issued Lubin a statement itemizing the charges. Triem did not issue Lubin a statement itemizing the charges before withdrawing the fees from his trust account. Accordingly, the money should not have been withdrawn from the trust account because the fees were not yet “due.” Moreover, because Triem believed Lubin would dispute the fees, he should not have withdrawn the money from the trust account until the dispute was resolved.
Therefore, we hold that Triem improperly deducted attorney‘s fees from Lubin‘s earnest money payment in violation of DR 9-102(A)(2).
After an independent review of the appropriate sanction, we conclude that these violations warrant a public censure. The ABA Standards state that “[s]uspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.” ABA Standards § 4.12. The commentary to this rule reveals that commingling of client and personal funds and the failure to remit client funds promptly are the most common circumstances for which suspension is imposed. ABA Standards § 4.12 commentary. The commentary to ABA Standards § 4.13, however, recognizes that courts typically impose the lesser sanction of reprimands when law-
yers fail to maintain adequate trust accounting procedures or do not return clients’ property promptly. ABA Standards § 4.13 commentary. Triem failed to promptly return or provide an accounting of Lubin‘s money, but he did not convert client funds to his own use or commingle personal and client funds. When Lubin objected to the deduction of fees, Triem redeposited the money and maintained it in his trust account during the pendency of these proceedings. Therefore, we hold that public censure is the appropriate sanction.
In addition, we note that Lubin was denied the opportunity to earn interest on his money during the period it was improperly withheld by Triem. Therefore, pursuant to
2. Triem neglected a legal matter in Zorich.
Triem and Bar Counsel stipulated to the basic facts in the Zorich matter. As in Lubin, the only dispute concerns what Triem discussed with his client about his representation. The committee heard conflicting testimony about whether Triem discussed and obtained approval for an alternate strategy of clearing title. The committee found Zorich‘s testimony consistent and credible, and found Triem‘s testimony not credible.
As stated above, factual findings made in the face of conflicting evidence ordinarily will not be disturbed. In re West, 805 P.2d at 353 n. 3. Triem has not shown that the committee‘s findings with respect to this is-
Triem‘s neglect of the Zorich matter occurred while Triem was on probation for ethical violations involving neglect and conduct that adversely reflected on his fitness to practice law. Therefore, Triem has proven that public censure or a period of probation is not effective in influencing his conduct. ABA Standards § 4.42 states that suspension is generally appropriate when a lawyer knowingly fails to perform services or engages in a pattern of neglect and causes injury or potential injury to a client. Although disbarment is recognized as the appropriate sanction in more egregious cases,22 the cases cited in support of suspension reflect a level of misconduct in line with Triem‘s violations. ABA Standards § 4.42 commentary (citing cases involving failure to appear in court, failure to file pleadings, and failure to prosecute). Consequently, we order that Triem be suspended from the practice of law for a period of ninety days. We recognize that the ABA Standards disfavor suspensions of less than six months on the theory that such suspensions are a less effective means of rehabilitation. Commentary to ABA Standards Rule 2.3. However, in our view, under the circumstances of this case a ninety-day suspension will impose considerable hardship and will be a significant sanction for Triem, a solo practitioner in a small community. Additionally, we adopt the committee‘s recommendation that Triem be placed on probation and required to participate in continuing legal education on time and practice management. We remand for
imposition of appropriate probationary terms and conditions.
3. Triem engaged in dishonesty in McCarty.
The relevant facts in the McCarty matter are not contested. The only issue is whether Triem‘s failure to notify McCarty that he had taken actions to render his earlier statements false constitutes dishonesty in violation of DR 1-102(A)(4). In finding a violation, the committee concluded that:
a statement is no less false because it was rendered false after the statement was made. Mr. Triem intentionally rendered his statement to Mr. McCarty false by his act of retrieving the discovery materials from the mail. By so doing, he had the affirmative duty to contact Mr. McCarty and correct his statement.
Triem contends that Bar Counsel failed to prove, by clear and convincing evidence, the essential element of intent to commit “dishonesty, fraud, deceit or misrepresentation.” Triem argues a contract theory to explain the exchange between himself and McCarty. He argues that his offer to send the discovery materials was rejected when McCarty responded with a nonconforming demand that the materials be faxed by noon that day. Given this explanation, Triem contends, Bar Counsel has failed to show that Triem acted with dishonest intent.
We have held that intent is required to find a violation of DR 1-102(A)(4). In re West, 805 P.2d at 353. However, it is permissible to infer that an accused intends the natural and probable consequences of his or her knowing actions. Calantas v. State, 608 P.2d 34, 36 (Alaska 1980).
Under the ABA Standards, false statements, fraud, and misrepresentation can be sanctioned by disbarment, suspension, reprimand, or an admonition. ABA Standards § 6.1. Reprimands are generally reserved for cases in which lawyers negligently make false statements or fail to take remedial actions when material information is withheld. ABA Standards § 6.13. Although we hold that Triem acted with intentional dishonesty, we impose the sanction of public censure. We note that Triem did not submit false documents to the court and that although his failure to comply with discovery could be broadly interpreted as the withholding of material information from the court, Triem was penalized for this discovery abuse by the trial court‘s entry of a default judgment against him and the other defendants. Nonetheless, as the committee observed, “integrity is, and ought to be, the cornerstone of attorney ethics. Deceit to gain monetary advantage is no more or less culpable than to gain emotional satisfaction or retribution.” Conduct such as Triem‘s contributes to the perpetuation of the stereotype of lawyers as unscrupulous and unprincipled. To combat this stereotype, we hold that public censure of Triem is warranted.24
IV. CONCLUSION
We REVERSE the Board‘s dismissal of the Lubin complaint and hold, in accordance with the findings of the committee, that Triem violated DR 9-102(B)(4), DR 9-102(B)(3), and DR 9-102(A)(2) by failing to promptly return his client‘s money, failing to render an accounting of that money, and by improperly deducting attorney‘s fees. For these violations we impose the sanction of public censure and order Triem to pay restitution to Lubin for lost interest. We AFFIRM the Board‘s finding of ethical violations in the Zorich and McCarty matters.
COMPTON, Chief Justice, dissenting in part.
I agree with all aspects of the court‘s opinion, except for the court‘s imposition of a ninety-day suspension in the Zorich matter. To protect the public, and to insure that Triem is effectively rehabilitated, I would impose a six-month suspension.
This court has held that the American Bar Association‘s Standards for Imposing Lawyer Sanctions are an “appropriate model for determining sanctions for lawyer misconduct” in Alaska. In re Buckalew, 731 P.2d 48, 52 (Alaska 1986). The Standards provide in part that suspensions “should be for a period of time equal to or greater than six months.” American Bar Association Standards for Imposing Lawyer Sanctions § 2.3 (1992) reprinted in Laws. Man. on Prof. Conduct (ABA/BNA) 01:810-11 (1995). Short-term suspensions “are not an effective means of protecting the public.” ABA Standards § 2.3 commentary, ABA/BNA at 01:811. Suspensions of at least six months help “insure that the attorney has been rehabilitated before he or she resumes practice.” Id. (“While it may be possible in some cases for a lawyer to show rehabilitation in less than six months, it is preferable to suspend a lawyer for at least six months in order to insure effective demonstration of rehabilitation.“).
In imposing a suspension, the court notes that probation and public censure have proven to be ineffective in influencing Triem‘s conduct. I am skeptical a ninety-day suspension will succeed where probation and public censure have failed. A ninety-day suspension is not so much a substantial penalty as it is an unpaid vacation because it allows Triem merely to delay performing requested services.1 See id. (“In reality, a short-term suspension functions as a fine on the lawyer, and fines are not one of the recommended sanctions. . . .“). If Triem‘s misconduct is serious enough to warrant a suspension from practice, then he should be made to suffer the consequences of its actual cessation. A six-month suspension accomplishes this end.
D.H., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellee.
No. S-7590.
Supreme Court of Alaska.
Dec. 20, 1996.
In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:
(a) the duty violated;
(b) the lawyer‘s mental state; and
(c) the actual or potential injury caused by the lawyer‘s misconduct; and
(d) the existence of aggravating or mitigating factors.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited [in one or more identifiable bank accounts maintained in the state in which the law office is situated], but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
The Board‘s consideration of Triem‘s refusal, throughout the course of the disciplinary proceedings, to acknowledge his ethical violations did not compromise Triem‘s right to reject the private admonition and to appeal. Triem was free to reject the private admonition and petition for a formal hearing. Furthermore, the routine acceptance of this aggravating factor refutes Triem‘s argument. The ABA Standards include “refusal to acknowledge wrongful nature of conduct” as an aggravating factor to be considered in the determination of the proper sanction. ABA Standards § 9.22(g). Additionally, many courts, including this court, have recognized this as an aggravating circumstance. See, e.g., In re Wiederholt, 877 P.2d 765, 775, app. c (Alaska 1994) (treating absence of acknowledgment of responsibility as an aggravating factor and noting that any hope for improvement is dim); In re Mann, 853 P.2d 1115, 1119-20 n. 15 (Alaska 1993) (treating remorse as a mitigating factor); In re Schuler, 818 P.2d 138, 143-44 (Alaska 1991) (treating remorse as a significant mitigating factor); Burrell v. Disciplinary Bd. of Alaska Bar Ass‘n, 777 P.2d 1140, 1144-45 (Alaska 1989) (treating attorney‘s refusal to acknowledge wrongfulness as an aggravating factor). Finally, it is reasonable to consider the ability to recognize misconduct and to accept responsibility for it to indicate a higher likelihood of rehabilitation.