*1 govern proceedings. such Civil Procedure supra note 3.

See career in- majority treats Linstad’s interests, Her how- paramount.

terests as

ever, undoubtedly important and wor- while certainly no

thy protection, are more public’s interest in iden-

important than the eliminating incompetent teach-

tifying and

ers, “right” to receive a and the children’s in a conducive environ-

quality education

ment.4 given adequate long

As as a teacher is charges

notice of all to be considered trial, opportunity and a fair

or her de novo charges, defend those no sound

policy prevent reason exists to a school using

district from the available evidence

bearing upon the teacher’s to main- fitness teaching position, regardless

tain his or her in-

of whether the notice nonretention

cluded such evidence.5

In the MATTER DISCIPLINARY Stephen F.

INVOLVING

FROST, Respondent. S-5169,

Nos. S-5268.

Supreme Court of Alaska.

Nov. 1993. 1969). (Note: change decision with new evidence. ka No such has been its nonretention unlikely, applicable generally the teacher made in of the Civil Rules to this This seems since proceeding.) only party request trial. is the that can a de novo Op. at at If the district loses AS 14.20.205. hearing, there is no de novo pass judgment upon the school board intend to Lin- do not Thus, teacher, put- upon an interest in performance trial. the district has stad’s as a nor during question ting the ad- of whether she is entitled to maintain forward all of its evidence teaching position. My hearing. remarks are directed had no incen- her only ministrative The district portion today's toward that decision evidence the de tive to withhold relevant until rate, limiting scope light important of the de novo trial At novo trial. above, good AS 14.20.205. policy I see no reasons discussed that the district reason to restrict the evidence suggests present trial to the matters majority can at a de novo 5. The that the school district particulars. “disadvantage” by bolstering contained in the bill of could the teacher

844 Sanders, Counsel,

Keith A. Asst. Bar An- chorage, for Alaska Bar Ass’n. Stephen pro. per. F. MOORE, C.J., Before WITZ, BURKE, RABINO MATTHEWSand COMPTON, JJ.

OPINION MATTHEWS, Justice. disciplinary In hearing this case the com- Stephen mittee found that Frost violated provisions four the disciplinary rules and suspended recommended that he be practice eighteen of law for months. board, appealed disciplinary accepted findings, the committee’s but recommended that Frost should be sus- pended eight for a total of months.1 Both the bar association and Frost now chal- lenge disciplinary board’s recommenda- tion. The bar contends that the board rejecting hearing erred committee’s eighteen-month recommendation of an sus- pension. Frost contends that the evidence does not establish that he committed procedur- violations and raises a number of jurisdictional points. al and We find that only Frost committed one minor violation and that appropriate censure is the disci- pline.

I. BURDEN OF PROOF/STANDARD OF REVIEW Bar counsel has the burden proving charges of misconduct in a petition hearing by for formal clear and convincing evidence. Alaska Bar Rule 22(e). This court reviews the evidence ad hearing duced before the committee inde pendently giving while deference to the findings 22(n); of the board. Bar Rule (Alas Simpson, re 645 P.2d 1226-27 1982). sanctions, questions ka independent judg court also exercises its ment, guided by the American Bar Associa Imposing Lawyer tion Standards for Sanc (1986) imposed in tions and the sanctions $8,500 1. The board also recommended that Frost be ment and awarded the bar in costs and pass the Multistate Re- attorney’s Professional fees. (MPRE) sponsibility prior Exam to reinstate- comparable disciplinary proceedings. Alas- About six months after Frost entered the Schuler, 22(r); Gay- In re 818 P.2d a settlement was reached. ka Bar Rule (Alaska 1991). len became the sole owner of signed notes, promissory one in the *3 $50,000 Alta, amount in favor of and two II. STATEMENT OF FACTS $40,000 in the in amount of favor of Tom George arose when Barth Sr. This case and John. These notes were secured a grievances against and Peter Barth filed second deed of trust on Hanson Acres. Following investigation, an Frost. bar subject prior Hanson Acres was also to a petition a ten-count association filed original deed trust and note in the hearing. nine-day evidentiary formal A $305,000 amount of administered Sea- through hearing August was held default, First Bank. This note was transcript 1991. We have reviewed the Gaylen under the settlement was hearing. Except dispute a where pay it. noted, testimony following facts are Sr., Alta, George through assigned fifty convincing supported by clear and evi- $50,000 percent note to Frost on dence. September In March of 1987 Alta, George assigned on behalf of Sr.), (George George Barth Sr. a busi- $50,000 remaining Alta’s in the salesman, nessman and former real estate George daughter, note to Sr.’s Diane Barth represented by in a was number of prepared assignment. Olsbo. Frost this legal matters between 1982 George explained Sr. to Frost that he want- George only attorney, Frost was not Sr.’s going ed this done he because was to be however, George frequent a Sr. was country out of the and that Diane would be litigant attorneys.2 who used numerous signing any necessary available for and all George brothers, In 1986 one of Sr.’s that, documents. It was understood al- Barth, in litigation Peter was involved though assignment was absolute brothers, against two of his other Tom form, the note was intended to be held for party, Barth and and another John and, thus, the benefit of Alta for Peter. Virginia Gaylen, concerning daycare a cen- April In agreed of 1987 Frost to conduct ter referred to as Hanson Acres. Peter proceeding on the George help in litiga- asked Sr. for his this property. Hanson Acres Frost wrote to George represent tion. Sr. asked Frost to April stating, on “I declined, concluding Peter that but bring will the foreclosure action on behalf emotionally distraught Peter was too of Alta and Frost & Grashin and will even- rationally. deal with the case To overcome legal ly split legal costs and fees with problem, George assign- took an this, May you.” Consistent with on ment of Peter’s interest in Hanson Acres to the other holders of Frost wrote litigation in the name second of trust notes on Hanson deed wholly-owned corporation, Corpo- Alta Sr.’s Tom, John, and Diane—and ob- Acres— (Alta). assignment, ration Under this Pe- non-judicially tained their consent to fore- Fifty ter to receive “the first Thou- was Thereafter, deed of trust. close second ($50,000) received, sand Dollars cash with- monthly Frost sent statements to interest, attorney’s out after costs Gaylen.” captioned “Foreclosure v. paid.” Alta fees are then entered into contingent agreement under Sr.’s di- fee with Frost under June of rection, represent assigned Alta in the Diane her interest which Frost would $50,000 (George exchange fifty percent note to Barth Jr. Diane, Jr.), According to any proceeds. George Sr.’s son. Sr. testified 2. The record indicates that Sr. has been civil action Frost. 1977; party fifty a at least six of these cases involved to more than lawsuits since past years ten to fifteen he has that over the disputes attorneys. ten to fifteen used from including George pending attorneys, not assignment 3. That the reason for this Frost warned possibility there was a and she she was about to file for divorce Jr. could sell the note which inwas thought might enmeshed the note become his name party innocent third litigation. in that Diane and legitimate who have a claim to they testified that intended that the note it. be held for the benefit of Alta and However, assignment, Peter. like the promised place 4. That Frost he would Diane, Alta to assignment from abso- any money by George claimed face. After Jr. received lute on its from sale or lease of the trust, Diane, assignment he consented in Frost’s account or with the being represented by Frost in the non- pending court resolution of claims *4 judicial foreclosure. money. disputed It is whether Frost advised 14, 1987, August On Frost transmitted to George Sr. to consult with another attor- Company, Land Title the trustee under the ney. gave Frost claims he such advice and trust, second deed of the documents neces- case, George any Sr. claims he did not. sary to initiate the foreclosure. George Sr. consulted with another 24, 1987, August On the trustee initiated concerning George Jr.’s claim soon after by executing recording

the foreclosure meeting with George Frost. testi- Sr. a notice of default and sale. The sale was fied thereafter he felt comfortable scheduled for December 1987. The with what Frost had told him. place deed of trust sale took as scheduled purchasers and the successful were the disputed It is also whether Frost warned record owners of the second deed of trust George any might bring Sr. that lawsuit he John, Tom, George notes: and Frost’s might prompt Bank SeaFirst to foreclose purchase firm. law was made with an George on its deed of trust. Sr. claims offset bid. trustee’s deed was issued that Frost told him this. Frost states that on December 1987. George suit, he did not tell Sr. not to file half-cocked, go told him but “don’t off In the interim assignment between the you do, whatever make sure it’s with the sale, George from Diane to Jr. and the attorney....” According advice of an place. important George event took George he was not concerned about Frost, claiming called interest filing pendens against Sr. suit and a lis assigned had been to him in Hanson Acres George Jr. because such a suit would not free was his claims Alta. damaged long a sale so as there were George Jr. stated that he had received the pendens assurances that the lis could be in payment George of a debt which upon deposit disputed por- released him in Sr. owed another transaction.3 tion of the funds court. George Frost discussed Jr.’s claim with Frost also testified that he had the fol- George George Both Sr.4 Frost Sr. lowing George consultation with Sr. about following aspects on the of this dis- whether to continue with the or foreclosure cussion: stop: upset 1. That Sr. and said way doesn’t matter one iota one or [I]t something right away. he had do another, it, you if want me to continue on 2. That stated he would not going be- I’m representing then to be brought Barth, Jr., involved in a

come lawsuit going he’s to continue against George sign Alta or the documents as he has before only protection give you and the can acknowledged Jr. had 4. The evidence is in conflict as to when Frost $10,000 first Jr.’s given Cayman discussed to invest in the Is- October, placed lands, claim. Frost the discussion in but that "I don’t recall what it went earlier, for_ thought place while it took property." I think I invested it in real July early August, perhaps in late if you together to tell funds come in from the acted trying to sell Hanson negotiating Acres. sale that I’m at the same negotiating,

time—that we’re then those In January of 1988 Sr. and Frost placed monies will be into a court ac- prospective purchasers. met with Accord- count. ... Sr., at the conclusion of a meeting in January late of 1988 or early George Sr.’s account of the discussion does February, Frost told George “I’m not not contain Frost’s offer to either withdraw representing you, I’m representing the from the foreclosure or continue with the Tom, owners of record which are negotiations. foreclosure and sale Jr., and the firm law sale, Prior to the began Frost and Grashin.”7 After this conversa- negotiate prospective lessees and tion Sr. contacted attorney, another purchasers of Hanson Acres.5 Frost also Lindeman, Michael who on February negotiated with SeaFirst and obtained an filed suit George Jr. and re- repayment extension for the of the loan it pendens corded a lis on Hanson Acres. was administering. appear Frost did not on any party. behalf of sale, day On the December February AmVets Post 2 1987, Frost dictated a letter George *5 made an offer purchase the Hanson discussing George the conflict between property $395,- Acres price for a total hand, Alta, on the George one and Sr. and 000, contingent approval on liquor Peter Barth on the other. The letter states license transfer. This offer pay- included part: in represent “I do not Corpora- Alta ing the deed of trust note administered tion, you, or Peter Barth this matter. I SeaFirst, the balance of which was then represent Trust, the holders of the Deed of $270,000. about namely Barth, Jr., George Tom and 26, 1988, February Frost wrote a as well as the Law Offices of Frost & Lindeman, four-page letter to George Sr.’s The Grashin.” letter does not state that attorney. summarizing After his view of the foreclosure sale place. had taken events, Frost acceptance advocated 15, 1987, letter sent was on December AmVets offer. He noted that while George Sr.’s on Cayman address Grand George stipulate deposit Jr. would Island. He did not receive it until March of court of all funds attributable to the Alta/ disputed exchange share in for While Sr. claims that he did not a release pendens, of the lis Frost under- know of the foreclosure sale until after it stood that Sr. would not held, and Frost asserts that Instead, George this. Sr. would insist that times, knew the sale at about it is clear undisputed funds for the shares also be that Sr. discussed the deposited in conjectured court. Frost sale, words, “right Sr.’s after the this could result in the frustration of the Thereafter, foreclosure.”6 he and Frost sale. Frost continued: request, property 5. At Sr.’s listed When we were introduced at the ... meet- Gamblin, agent with Cher a real estate who was ing by the Alaska Youth and Parent Founda- companion. also the sister of Sr.’s live-in director, you part tion's were introduced as a negotiations. Gamblin was involved in these surprise owner. You looked at me with some "no,” my indicating and I shook head that we Sr. was twice asked bar counsel correct them on the record. This response what his reaction or was to the news you is because I did not want to embarrass of the sale. He stated that he did not have you represented I did not know what had way reaction or "emotions one or another.... your position to be. just thought I that he—he’d done a foreclosure meeting again After the I once made it clear go getting us and we had to forward with— you you you were not an owner and building.” tenant for the readily agree seemed to with that. February 7. Frost in a letter dated way: Sr. described the incident this ownership dispute as to of a fractional ben- place, Sea- closing does not take If the trust, bringing eficial interest the deed of me that it will First has advised later, property, action had no effect on the judicial [sic] Barth, Barth, Barth, foreclosure; ownership Tom whether the dis- John Peter Corporation ability to Gaylen. pute Alta affected the beneficiaries’ Virginia relationship its “trust” is uncertain. should reconsider sell the risking this even- Barth when with Peter course, pendens. Of

tuality with the lis BY THE III. FOUND VIOLATIONS fully I in- closing does not occur if the COMMITTEE against George bring legal action tend to Grashin, Barth, of Frost & Sr. on behalf had com- found that Frost committee owners, losses other for all if not the in connection mitted acts of misconduct transac- the failure of the arising through I III and IX of the with Counts a result of tion to close as convenience, we petition. For ten-count actions. If a counterclaim or Alta’s alleged miscon- summarize the acts of first asserted claim is is asserted duct, findings. the committee’s then set out fully personally, you are against me should have declined to I—Frost all attor- that waives aware fore- as counsel act privileges and this matter ney/client indepen- the exercise of his closure because messy ugly. I have could become judgment on behalf dent my legal fees and to cover insurance affected possibly could be the beneficiaries you I can assure expenses and proper- interest in the by his own financial pleasant anyone. litigation will not be make a full ty and because Frost did not necessary. hope this does not become potential for conflict. disclosure of its offer April 1988 AmVets withdrew *6 5-105(A). DR This violated approval for as it was unable to obtain liquor license to the Hanson transfer of its George Jr. claimed to be II—When Count 26, 1988, George May Acres location. On of trust of the note and deed the owner grievance against Frost. Peter’s Sr. filed a Alta, irreconcilable free of claim an July July followed on 15th. On grievance required created Frost conflict was which 1988, 11, Frost notified Cher Gamb- 10 and resign as for the beneficiaries lin, agent, and the other the real estate non-judicial foreclosure and their in the property that due to record owners failure property. sell the Frost’s efforts to allegations being against directed 5-105(B). DR resign violated longer take a by George Sr. he would no a full III —Frost did not make Count property. attempting to sell the lead role differing interests of the disclosure 13, 1989, superior court January beneficiaries, interest as including his own reconveyance George inter- Jr.’s ordered employ- his beneficiary, at the outset of Alta in trust for in Hanson Acres to est foreclosure, and in the ment as counsel spring In the of 1990 Sea- Peter Barth. conflict once developed an irreconcilable trust was foreclosure of its deed of First’s independent claim expressed his of the Barths completed and the interests This required Frost withdraw. Acres were extin- and Frost Hanson 5-104(a). DR violated guished. 26, February IX—Frost’s letter of the success- summary, the facts show attorney, Michael foreclosure of a second non-judicial ful Lindeman, if a counterclaim or stating that by a benefi- trust held number of deed of then “all asserted Frost claim was acquired title at the foreclosure ciaries who attorney/client privileges” Subsequent efforts the beneficia- sale. waived, or of a client confidence was a use property were unsuccessful

ries to sell the Frost, in advantage of viola- extinguished by secret interests were and their 4-101(B)(3). tion of DR deed of- trust. foreclosure of first findings committee which the R. Barth whereby Frost was to under- support committee cited of the above take the foreclosure of the as conclusions are follows: property, Hanson Acres make efforts to negotiate 11. [Applicable to Count On or a sale of property, III] 17, 1987, Barth, April negotiate before with SeaFirst for extension of and Alta retained Frost to commence and payment time for under the note held complete non-judicial foreclosure the State of Alaska which was secured second deed of trust. relationship This property. Prior to that date he George, in a letter was confirmed had counsel, consulted with Thomas’ April (Exhibit from dated Frost Roger regarding DuBrock represen- such 20) wherein Frost advises that he will 5, 1987, tation. On June he met with “bring the foreclosure action on behalf signed Thomas who the substitution of Grashin, of Alta and will trustee, affidavit, the beneficiaries’ and a evenly split legal legal costs and fees representation consent to appended to a you.” Although with this letter does letter to him May dated reference the fact pur- that Frost will be (Exhibit 26). On or August before suing in part the action on his own be- 14, 1987, Frost entered into an attorney- half, Frost never made full disclosure of client relationship George, with Jr. for possibility personal, that his business infra, purposes. the same As discussed might diverge from that of George, Jr. had that time received an Alta, George, divergence or such assignment of Diane’s interest affect judg- Gaylen note and deed of trust. George, Alta, George, ment on behalf of Jr. executed the same documents as and that the consent after disclosure of August Thomas on 1987. On or George, Sr. and Alta was therefore re- August about Frost entered quired proceed. before Frost could into attorney-client relationship with negligent failing Frost was to realize John R. Barth for the purposes same personal at the outset that his interest in relationship described above complete such Thomas and through disclosure to and the informed consent of attorney-in-fact Gerald execut- negligently his client'. Frost concluded ed the same documents as Thomas and that because the foreclosure would extin- George, Jr. on that date. The dates next *7 guish Gaylen’s property interest in the signatures of and Thomas John on permit by and it to be sold the note (Exhibit 26, page 4) the consent form are holders, foreclosure was in the interest handwriting in Frost’s and do not estab- all. negligently of Frost failed to realize they signed lish the date that that docu- might persons that the foreclosure affect ment. with property recorded interests in the differently like Frost than those with [Applicable 15. I and Counts II] property unrecorded claims to the like Though May Frost’s letter of George, George, Alta or Sr. was (Exhibit 26) sets forth some facts con- by billed Frost for one-half of the attor- cerning his own interest and the interest ney’s fees incurred in the foreclosure Thomas, Jr., John, George, of and proceeding April through the end possibil- never made full disclosure of the December, was, George, of 1987. in ity personal, that his business interest words, “driving Frost’s force” behind might Thomas, diverge from that of George, the foreclosure. Sr. was not a John, George, Jr. and that such diver- guarantor payment mere of of attor- gence might professional affect Frost’s ney’s fees incurred in the foreclosure. Thomas, judgment George, on behalf of

Jr., John, and and that the consent after Thomas, Jr., George, [Applicable 14. or disclosure of and III] John, required before therefore before June Frost formed an was attorney-client relationship negli- proceed. with Thomas Frost- could Frost was rental in failing at the outset and accordance with terms

gent in to realize in the fore- personal liking. George, interest that his his Sr.’s interest was property- attempts and to sell immediately closure commence suit consent of disclosure to and required George, seeking Jr. to establish that full also never made clients. Frost these way George, Jr. held his interest in some potential for conflict disclosure immediately George, Sr. and to rec- Thomas, Sr., Alta, George, between pendens connection with such ord lis multiple as George, and Such action suit. was clients, multiple interests such superior George, Sr. order to avoid judg- might affect Frost’s arising in positions parties third to whom persons, behalf of each of those ment on convey his George, Jr. sell and that the consent after disclosure and in the note of trust and interest and deed re- persons those therefore each of argu- prevent record owners from proceed. quired before Frost could by allowing ing that he waived his claim negligent failing to realize Frost was proceed foreclosure to his multiple inter- at the outset that these knowledge objection to title without ests, particularly those of the non-record vesting George, pendens Jr. Us property of an in the claimants interest necessary further to insure that inter- those of the record owners of property by the record owners sale property, might conflict est foreclosure would not vest title in a after diverge and therefore disclosure purchaser fide bona for value who clients was and consent all of his superior claim the have a fact, interests did sub- required. George, George, While diverge. conflict sequently ultimately may to consent to been property, or the foreclosure sale of [Applicable II and 18. to Counts III] complex tactical evaluation an inde- prior month to December At least one lawyer George, was re- pendent 1987, George, to tell him Jr. called Frost quired cooperation before his in these he, George, Jr., inter- considered his safely matters could to be in be said two his in the note and deed of trust to be est George, Sr.’s interest. claim Alta property free of own George, advised Frost George, Jr. [Applicable to Count III] pay- had interest in that he received the George, resulted claim also father to ment of debt his irreconcilable conflict between arising from another transaction. those of personal, business interest and length at the conflict considered some interests, George, his client Sr. Frost’s George, presented this claim owner, a record similar to those were [Applicable The as- to Count II] George, Jr.’s and in conflict with were by George, this claim Jr. creat- sertion of client, those of *8 which re- ed an irreconcilable conflict same reasons outlined above. from the attor- quired Frost withdraw II and [Applicable 21. to Counts III] formed ney-client relationship he had repre- did not from the Frost withdraw Thomas, John, Sr., Alta, George, of of his clients sentation George, involving foreclosure and Jr. the dis- matter. Frost did not foreclosure proper- the property, the effort to sell of dispute as to close to the trustee that a on procure effort to extensions ty, and interest ownership of the the beneficial and deed trust from SeaFirst. the note of of had arisen. in the deed trust proceed was to George, Jr.’s interest December sale held on foreclosure result foreclosure would with the which 10, Company Land execut- 1987 and Title George, in property vesting to the in title 21, 1987 a recorded on ed and December part. give in This control Jr. prepared John, Frost, property deed to Thomas, of trustee’s the and along with (Exhibit 42) the facilitating sale Frost which vested property thereby its the

851 Frost, simple property fee title the need for George, separate Thomas, John, George, and Jr. counsel while at the same time not dis-

closing information the about conclusion of the foreclosure sale and the pending [Applicable 23. to Counts II and III] execution of the trustee’s deed by the According (Exhib- Frost’s billings to Mr. company. Despite title the conflict in J, the 24), page it Frost dictated a letter to testimony George, between 10, 1987, Sr. and George, Sr. on December and a Frost, there is therefore clear (Exhibit and con- letter dated December 1987 40) vincing evidence that Frost knew of the received evidence. Frost has presented by conflict the claim described this document as a let- of “CYA Jr., George, date, knowingly did not given ter” and its it is the best disclose that conflict George, evidence Sr. in timely of Frost’s actions in the fore- a enough manner part George, closure matter in the latter 1987. allow Sr. to Though “very completion the block letter discusses a de- of the foreclosure sale manding desired, if call Jr.” in he so knowingly from and failed to George, which Jr. representation claimed the deed of withdraw from of any of property, trust as his own the letter does parties the the foreclosure. These ac- problem not state that this had been dis- tions were taken with the intent to assist George, cussed with pre- Sr. at time Frost and the record owners the note viously particular and in does assert and deed of in becoming trust vested in subject was discussed meet- at a the property title to by virtue of the George, between Sr. and Frost trustee’s deed. George, both and billings indi- cate occurred on December 1987. [Applicable to Counts II and III] Moreover, being despite day written the in January Sometime George, days foreclosure dated five George, discussed the claim of Jr. with thereafter, letter the does not disclose who proceed refused to the sale has occurred George, George, Sr. retained Michael and does not state that copy the immediately Lindeman who filed a com- proposed deed trustee’s was enclosed. on plaint against George, behalf inferentially The letter suggests that the pendens against and recorded a lis the sale has not occurred since it refers to (Exhibit property. 47.) mean- continuing note, negotiability of the while, represent Thomas, continued to beneficial holders of an George, and himself in efforts trust, deed of difficulty, purchaser property find present tense, of handling fore- permit obtain conditional use closure. Finally, explanatory letter Municipality Anchorage. July the Association dated (Exhibit 74, p. second paragraph) sug- [Applicable to Count On Feb- IX] gests letter of December ruary wrote Lindeman 1987 advises that the named beneficiaries (Exhibit 53) discussing Frost’s efforts to

will be the named owners on the trust- requesting sell the ee’s deed in fact when the letter does not pendens Sr. release his lis under even reference the trustee’s Given deed. proposed by certain conditions Frost. proximity preparation and date following para- That letter contains the 15th December letter to the date *9 graph: sale, of the foreclosure to Frost’s failure endeavor, fail in closing disclose If we this the that the foreclosure sale had oc- place. closing curred will not take the only can have been intentional. If does place, take The letter create SeaFirst has advised evidences intent to appearance timely judicial the it a bringing of and full disclo- me that will [sic] Barth, sure of of George, against the claim the action Peter claim, Barth, conflict which from Virginia arose that and Tom Barth and John adversely likely will is Corporation should re- client be or to be Gaylen. Alta relationship by acceptance prof- affected the its “trust” consider risking except this eventu- the extent employment, Barth when fered Peter course, pendens. 5-105(C). Of ality with the lis DR permitted under fully I not occur closing if the does 5-105(A) the con- DR addresses situation legal against bring action intend to considering fronting lawyer a when first Barth, of Frost Sr. on behalf undertaking. particular employment on owners, Grashin, the if not other and point lawyer At that the must ask whether arising the failure from losses likely undertaking the will accepting new result to close as a of the transaction in a professional judgment his or affect her ac- Alta’s Sr.’s or an- pending undertáking. If the prior and is asserted tions. a counterclaim If affirmative, question to that is the swer me claim is asserted lawyer the new the must decline take fully that personally, you are aware lawyer obviously can employment. If the privi- attorney/client that waives all each adequately represent the interests of become leges this matter could client, lawyer may the undertake the new I messy ugly. have insurance full to each employment after disclosure my expenses legal cover fees repre- if each consents the client client that you I can assure the 5-105(C). DR sentation. I anyone. pleasant will not be necessary. hope not become this does give did not suffi committee [emphasis added.] require consideration to the threshold cient expected copy this letter that 5-105(A), of DR which is that ment that provided George, Sr. or would be independent profes lawyer’s exercise of conveyed would be its substance judgment likely be or to be sional “will is George, Sr. Frost concedes Lindeman to adversely acceptance affected is added.) sentence the third to last employment.” (Emphasis new only per- confidences inaccurate because Finding merely “possibility” notes the on which taining particular matter states divergence of interest and later of a per- lawyer being sued would be interests the various multiple lawyer revealed profes mitted be “might affect” Frost’s beneficiaries knew that of himself. Frost defense multi judgment and that various sional emo- George, probably react diverge.” Sr. would “might conflict and ple interests tionally statements to the underlined find there was The committee did not did). (as in fact letter he pro independent a likelihood that client, knowingly confidences of his existing used on behalf of judgment fessional disadvantage of George, his adversely affected clients discourag- George, the intent of Sr. with trust undertaking of the deed of on behalf bringing claims view in this case. It is our beneficiaries him to encouraging against Frost and not exist. such a likelihood did property cooperate in the sale foreclosing, taking of and Promptly control by Frost. proposed selling all of bene ficiaries’ best interest.8 IV. DISCUSSION B. Count II A. 5-105(B) provides: Disciplinary Rule 5-105(A)

Disciplinary provides: Rule multiple lawyer A not continue em- shall lawyer proffered A decline shall inde- of his employment if the exercise indepen- if the exercise of ployment his professional judgment behalf pendent judgment in behalf dent deed trust. all the second did beneficiaries 8. Frost disclose ownership the notes secured of one of *10 likely client be or to In of a will be the foreclosure attempted sale of adversely by representation affected his the property, Frost’s professional judgment client, except to the likely of another extent was not adversely to be by affected permitted 5-105(C). DR under representation his of the col- beneficiaries lectively because such actions were in of 5-105(A), subject DR this Like rule is to the beneficiaries’ again, interest.9 Here 5-105(C)exception, applies the DR which given undertaking Frost’s limited on behalf adequate representation cases where of beneficiaries, the require- threshold conflicting obviously can interests be af- 5-105(B) ment violation, for a DR likelihood forded, assuming all clients consent after lawyer’s independent professional full disclosure. judgment be adversely will by affected The committee found that when multiple representation, has not been dem- George Jr. that claimed his interest the onstrated.10 proper note and deed of trust was his own ty, “created an irreconcilable conflict C. III which to withdraw....” 5-104(A) Disciplinary Rule provides: only option, We do that Frost’s A lawyer shall not enter into a busi- claim, George once Jr. revealed his was to ness transaction they with client if participation withdraw from continued as differing have therein interests and if the attorney an the non beneficiaries client expects lawyer to exercise judicial and in foreclosure their efforts to judgment therein for the sell Hanson Acres after the foreclosure. protection client, unless the client acceptable It would have been for Frost has consented after full disclosure. Sr., notify George George and the conflict; of other beneficiaries assert misconduct found the committee that he would not become with respect involved its is a Count III combination resolution; and that state he would never- of the misconduct found committee non-judicial theless continue to oversee the respect Counts and II: Frost prop- foreclosure and the efforts to sell should of have advised each the beneficia- erty. Frost that precisely potential contends he did ries of the conflict and Frost George this. Sr. does not contradict him. should once George have withdrawn Jr. would in a "recording have been conflict situation bursement for fee—(cid:127) ... notice of position ownership 24, had he taken a pute Instead, in the dis- 1987). George (August default” Sr. acknowl- (Alta) between Sr. 1987, edged receiving April the letter of undisputed it is that Frost refused to proceed. which states that the foreclosure will controversy, become involved in that but did September gave of Frost a advise the risk of power attorney to act Alta Sr. and might transfer his interest to an innocent third with the connection deed trust and party. property. power Hanson Acres expiration contains date December suggestion Finding 10. The in Committee 23 that selected, according a date be- did not Frost George discuss Jr.’s claim with cause the 10th sale scheduled December timely supported Sr. in a fashion is not days thought and the additional five were be by any evidence. Both Frost and necessary all that acknowledge obtain title docu- place that such a took discussion sale, following ments in the summer or suggestion of 1987. sale. Prior to the fall The committee’s finding working closely same that Frost at- Frost was with a real estate tempted to fact agent conceal the and the date of the who sister of Sr.’s live-in supported sale foreclosure is not clear either companion and who had been selected convincing by preponderance evidence In these efforts fact of monthly billings, evidence. anticipated December sale 10th foreclosure sent were are entitled "Fore- played Finally, George a dominant role. Gaylen.” George v. closure Sr. testified that he right testified he after the foreclosure sale pro- was familiar with Although discussed Frost. bar it with invited expected cedures thus would been counsel to relate what his emotions were at significance "pre- know the such entries point, George Sr. did not that he was in state documents, pared foreclosure title ordered re- any way surprised by this discussion. 21, 1987), port" (May a disbursement for the (June 1987), sale "trustee’s GTY” and a dis- *11 854 (d)the given existence or miti- aggravating the reasons claim.11 For

asserted II, count factors. gating respect to Counts I and rejected. is Standards, 01:805-06; ABA ABA/BNA at also, id. at see 01:815. IX D. Count framework, Using the Standards’ the 101(B)(3)states: Rule

Disciplinary 4— duty duty owed violated Frost was the DR 4- permitted under Except when clients, closely to which most falls within (D), not know- 101(C) lawyer shall Standards, paragraph 4.2 of the “Failure to during or after termination ingly the Client’s Preserve Confidences.”12 relationship his client: Frost did not information While reveal representation relating to his implied threat to reveal confidential (3) secret of his a confidence or Use In information is itself unethical conduct. himself or of advantage client for Dienes, 118 A.2d re N.J. 571 client consents person, third unless the (1990) (“No lawyer should use a 1303 ... after full disclosure. threat to disclose confidential information that Frost’s The committee found result.”). legal to obtain a favorable 26, 1988, letter to February in his assertion appears mental to us to be Frost’s state brought that a claim question of sanc- a neutral factor “waive against Frost would Sr. tions. Frost’s action How- was deliberate. attorney-client privileges” a use of all ever, he Frost was when wrote the letter or confidences secrets understandably perturbed at has neither advantage of Frost. Frost for-taking position unreasonable 4-101(B)(3) argued nor that DR briefed court, proceeds deposited sale be applied implied threat to may not to an be merely prorated proceeds rather than those accept therefore reveal a confidence. We share. to the contested Jr./Alta is application of the bar that such the view position, according This eliminat- As the the letter is appropriate. fact of take any possibility ed that the sale would accept recommendation undisputed, we Tom and place, as Sr.’s brothers that Frost violated of the board find portion not their John would to have 4-101(B)(3). DR placed proceeds in court. V. SANCTIONS factor, implied As for the third sanc determining appropriate injury caused no threat actual tions, Further, con guided potential injury this court is but not cause since, slight Bar Association quite strained American Sr. was testified, Lawyer Imposing Sanctions Frost he not know confidential Standards did (1986). Schuler, damaging 139 In re 818 P.2d which information be Standards, 1991). (Alaska Under af these case. misconduct, the finding lawyer

ter may list The Standards factors which following factors: court should consider the aggravation mitigation considered (a) violated; duty 9.2, recommended sanctions. Standards state; (b) lawyer’s mental 9.3, do of these factors 01:838-41. Most Those that do (c) potential injury apply caused to Frost’s case. the actual misconduct; essentially offsetting. Substan- lawyer’s apply are generally appropriate when a undisputed concerning is the disclo- Admonition 11. The facts concerning lawyer negligently relat- sure made George information reveals pages Jr.'s claim are forth above on set representation otherwise of a client not and 7. lawfully permitted and this to be disclosed poten- causes no actual or disclosure little or exactly proposed the ABA sanctions 12. None of injury to a tial client. applies closest one to Frost’s misconduct. The 4.24, states: to Frost's case *12 experience practice tial of law is an concerning Count IX. Pursuant to Bar aggravating 9.22(i). 16(a)(4) factor under Standard Rule we shall administer a sanction applies This to Frost’s case as he is an public against censure Frost.14 experienced attorney. is, This factor how- BURKE, J., ever, COMPTON, J., with whom mitigating offset factor of joins, dissents. prior disciplinary absence of a record. 9.32(a).

Standard BURKE, Justice, COMPTON, with whom Justice, listing joins, dissenting. in aggrava factors mitigation tion and is not exclusive. We I today’s dissent from decision because I regard Frost’s mitigated offense as for two supports believe the record the hearing First, reasons. what he stated in the letter findings committee’s that Frost violated only slightly varied from what he would Disciplinary 5-105(B), 5-104(A) Rules permitted say. have been It would not 4-101(B)(3) II, as set forth in counts III ethically wrong been for to have IX, respectively, of the petition.1 Accord- presented stated that if a claim ingly, I believe that the imposed sanction against him, this would amount to a waiver by this Court is inappropriate, given the attorney/client privilege to the ex severity of Frost’s violations. necessary tent for Frost to defend himself. After reviewing the record and consider- permis Such statement would have been ing the American Bar Association’s Stan- 4-101(C)(4). sible under DR Frost’s actual dards For Imposing Lawyer’s Sanctions, I statement was not limited the “neces concur with disciplinary board’s recom- sary qualification to defend” and thus was mendation suspended that Frost be from Second, overbroad. implied threat was practice period law for a eight Instead, not made in a letter to months and that he pass take and the letter was written to Sr.’s coun MPRE before he is practice readmitted to sel, who could advise Sr. as to the law in Alaska. I would remand to the any limits of disclosure which Frost disciplinary board’s liaison member to de- permitted to make.13 termine appropriate award of costs and attorney’s fees. VI. CONCLUSION For the above reject reasons we the Dis-

ciplinary Board’s recommendations respect- I, accept Counts II and III. We

recommendation of the Disciplinary Board

13. aptly me, reviewed going every most of the factors rele- I’m to utilize defense avail- implied me, vant to sanctions for the Okay? threat in his able to that’s fine. We are all in Disciplinary statement to the agreement Board: say, get on that. And if I I even they’re my use some confidences if defense, related to one, angry I mean I was number and I wasn’t okay say that's for me to that. I said think, thinking clearly. real And I number "all," wrong. very and that’s That’s sm— two, history litigation. he has such a I And, step, put you.... frankly, half I’ll my just going through mean in mind I’m —us you slap my should hands it. But I’ve that, that kind of battle I—I—when I said I day admitted that since one.... thinking history. of his His history_ day I mean I don’t have—to this I 14. We do not accept the committee’s recommen- any don’t know of confidences. And I testi- pass dation that Frost be the MPRE. fied to didn’t that.... know of at the attorney's We vacate the award of the costs and all, Why say just stupid. time. did I it was fees assessed Frost and order that the You know. And it was to an and it parties attorney’s each bear their own costs and stopping didn’t have effect. I mean Finally, fees. we note that we have reviewed know, litigating, you Barth from the other contentions raised Frost and find trying stop like a waterfall.... disposi- them to be without merit and that our [Tjhere’s nothing wrong trying stop appeal. tion herein moots the bar’s somebody suing you stating ... and said, your legal right you’re what is. If I if me, going going majority to sue I’m to counterclaim 1. I with the that the record does this, this, support finding this and well that's fine. Noth- that Frost violated DR 5- ing wrong you 105(A). with that. And if I said if sue