I was surprised by Brant McGee's recent opinion piece offering commentary and sharp criticism of the grievance and disciplinary process of the Alaska Bar Association. As a result of my service on the bar's board of governors and my 32 years as a lawyer in Alaska, I believe he is wrong in both his facts and conclusions.
First, McGee is mistaken that clear and convincing evidence of an ethical violation is required at the time the grievance is filed. While all grievances claiming misconduct by practicing attorneys are taken seriously by bar disciplinary counsel, a multi-step review process occurs even before initiating an investigation and well before exonerating or proposing disciplinary action against an attorney whose conduct has instigated a grievance.
Once a grievant satisfies the minimum requirements for filing, a file is opened and reviewed by bar counsel. The attorney named in the grievance is provided notice and given 10 days to respond. Though a grievance meets the minimum filing requirements, it may fail to establish facts that an ethical violation has occurred. McGee should know this as a former member of the bar's board of governors and director of the Office of Public Advocacy, at which, along with the Public Defender Agency, many of the grievances are directed. It is true that attorneys do not have to respond to the allegations, but even if they are completely frivolous, most do.
If the grievance contains allegations of an ethical violation that warrants an investigation, bar counsel initiates an investigation. This decision is far from arbitrary. The investigation involves a rigorous, not cursory, process of interviews and review of documentation such as complete attorney files and hearing transcripts, depending on the nature of the complaint.
It is only after the grievance has been thoroughly investigated that a decision is made on the merits. It is at that point that clear and convincing evidence becomes the standard. This standard is not something concocted by bar counsel, it is the standard or quantum of proof required by the Alaska Court System Bar Rules. Moreover, given the depth and nature of inquiry during a bar disciplinary investigation, clear and convincing evidence is not an onerous standard. Quite simply, allegations that are sustained will generally have a convincing paper and/or testimonial trail.
The bar works under the direct supervision of the Alaska Supreme Court and follows its rules for investigating and prosecuting grievances. Public members who serve on the board of governors have always provided an oversight enlightened by their lack of loyalty to the bar or their brethren before the bar. Since the 1980s the bar's disciplinary function has been regularly audited by the Legislature and found to meet its public obligations. I will go one step further. I believe that the bar far exceeds its responsibility to protect the general public from a lawyer's misconduct.
The disciplinary process is as transparent as the Supreme Court and the bar rules allow. Once formal charges are filed or a stipulation for public discipline is approved, discipline matters become public. Bar counsel works very hard to protect the public and to carefully follow the rules that protect the reputation and integrity of individual attorneys until the evidence of wrongdoing and due process supports public notification. In summary, as a former board member, hearing officer, and as an attorney who has represented attorneys in the grievance process, I believe that the bar fairly, responsibly, and aggressively investigates and prosecutes meritorious grievances.
Ray R. Brown is an attorney with Dillon and Findley in Anchorage.