In re Ivy

• Decision Date: 01 May 2015
• Docket Number: No. S–15450.,S–15450.
• Citation: 350 P.3d 758
• Parties: In the Disciplinary Matter Involving Deborah IVY, Respondent.
• Court: Alaska Supreme Court

350 P.3d 758

In the Disciplinary Matter Involving Deborah IVY, Respondent.

No. S–15450.

Supreme Court of Alaska.

May 1, 2015.

Charles E. Cole, Law Offices of Charles E. Cole, Fairbanks, for Respondent.

Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, Special Bar Counsel for Alaska Bar Association.

Before: FABE, Chief Justice, WINFREE, STOWERS, and BOLGER, Justices.

OPINION

BOLGER, Justice.

I. INTRODUCTION

The Alaska Bar Association Disciplinary Board recommends disbarment of Deborah Ivy for making false statements as a party to litigation in violation of Alaska Rules of Professional Conduct 3.3, 3.4, and 8.4 and Alaska Bar Rule 15. We agree the record establishes that Ivy made false statements in violation of Professional Conduct Rule 8.4 and Bar Rule 15. But we conclude that Rules 3.3 and 3.4 do not apply because they are intended to govern attorneys acting as advocates and not in their personal capacities. We therefore remand this matter to the Board for reconsideration of its recommended sanction.

II. FACTS AND PROCEEDINGS

Deborah Ivy and her brother, David Kyzer, were involved for several years in now-settled litigation, including the Kyzer Partnership Litigation¹ and the Kyzer/McManamin Litigation.² This litigation involved the dissolution and unwinding of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and others.³ In the Kyzer Partnership Litigation, Ivy counterclaimed against Kyzer, alleging, among other things, that Kyzer created a hostile work environment and committed “intentional tortious acts,” by behaving abusively toward her for decades. Relations between Kyzer and Ivy grew so acrimonious during the litigation that a no-contact order was issued in December 2007, prohibiting in-person or telephone contact between the parties without an attorney present and prohibiting each party from coming within 500 feet of the other's residence.

During the course of the litigation, Ivy alleged and testified that Kyzer made improper contact with her on three occasions, two of which are relevant to this appeal. Kyzer filed a grievance with the Alaska Bar Association alleging Ivy fabricated these incidents and violated the Professional Conduct Rules by testifying falsely about them.

The first such incident allegedly occurred December 29, 2007, when Ivy claims Kyzer stalked her at a women's clothing store. Ivy was scheduled to have her deposition taken in the McManamin litigation in January. Ivy did not appear at the scheduled date; the deposition did not occur until March 13, 2008. At the deposition, Ivy testified about the alleged stalking. According to Ivy, she was shopping at the store from approximately 3:15–3:45 p.m., saw Kyzer in his car outside the store, and completed her shopping while continuing to look out the window at Kyzer. Ivy claimed that after completing her purchase, she hurried to her car, and while she was backing out, Kyzer's vehicle pulled up next to her so close that she thought they would collide. She testified she could see Kyzer in his car “focused, intent, locked in to me” and her “reaction was just to flee.” Ivy stated that she and Kyzer then drove off in different directions.

Ivy testified she could not recall whether she contacted the police that day. She stated she did not file a police report that day and could not recall whether she asked anyone else to file one for her. She recalled contacting the police multiple times about the incident but could not remember when. But she provided a detailed statement to a police officer over a week later. The police report states, “[I]f what she provided could be corroborated, it still would not amount to criminal activity.” The police officer encouraged her to apply for a domestic violence restraining order. The police report stated that Ivy's attorney at the time called the police officer after hearing from Ivy about their conversation. The officer told Ivy's attorney that he would be willing to request a telephonic hearing for the restraining order because Ivy was afraid to come to the courthouse.

Ivy also alleged Kyzer assaulted her in a courtroom on June 29, 2010, before a hearing in the Kyzer/McManamin Litigation. According to Ivy's affidavit:

Just prior to the commencement of the hearing, I was standing behind the bar, waiting to come forward and join my attorneys ..., who were in front of the bar....

... David Kyzer surreptitiously approached me from the rear, and using force, repeatedly thrust his groin into my buttocks area.

....

... I not only felt his groin and crotch (penis), but he also pushed [his] entire frontal area extremely hard against me, from his upper chest/lower neck all the way through his legs (which were so entangled that he tripped while disengaging himself).

... His pushing/pressure during the attack caused me pain....

....

... While he was attacking me, his mouth was near my ear, and he was talking into my ear, calling me “Debbie.”

....

... I [cried] out[,] “[D]on't touch me.”

Ivy alerted her attorney, who reported to the judge that Kyzer had “physically accost[ed]” Ivy. The judge reminded the parties about the requirements of the no-contact order and proceeded with the hearing.

Two days after the hearing, Ivy emailed her attorney details of the alleged assault. This email appears to be the first documented allegation the assault was sexual. Ten days later Ivy's attorney filed a “Notice of Sexual Assault” with the court, accompanied by Ivy's affidavit. Subsequently, both Kyzer and Ivy obtained a copy of the courtroom security video of this incident.

In December 2010 Kyzer filed a grievance with the Alaska Bar Association against Ivy, alleging she violated Alaska Professional Conduct Rules 3.1, 3.3(a)(1) and (3), and 8.4(a) through (c) by falsely testifying that Kyzer stalked and assaulted her.⁴ Special Bar Counsel Kevin Clarkson was appointed to review the grievance. He found there was probable cause to believe Ivy committed the alleged violations. The Board Discipline Liaison approved the filing of a Petition for Formal Hearing, and the Petition was filed in March 2012. The Petition charged Ivy with the same violations as Kyzer's grievance, except it did not charge her with violating Rule 3.1. It also charged Ivy with violating Rule 3.4(b) and Alaska Bar Rule 15(a)(3).⁵

An Area Hearing Committee was appointed to conduct the hearing, which was held in February and March 2013. The Committee found Kyzer had not stalked Ivy and suggested Ivy may have fabricated the incident in an effort to avoid her 2008 deposition. The Committee found Ivy's testimony about the alleged stalking was not credible and her description of the movements of Kyzer's vehicle in the clothing store parking lot was “not physically possible.” The Committee stated, “When confronted with this physical reality during cross-examination, Ms. Ivy fabricated a new story....” The Committee found Ivy continued to testify falsely at the hearing and did not admit her previous testimony was mistaken.

The Committee credited testimony from Kyzer and his wife that they were driving a different vehicle that day to run errands (for which they provided receipts), did not go to the women's clothing store, and returned home to watch a football game before Ivy arrived at the store. The Committee also credited the testimony of the Kyzers' two sons, who testified Kyzer was home in the afternoon to watch a pre-game show and football game. And it relied on the testimony of two store clerks who helped Ivy that day; they testified Ivy never told them she was in a hurry and did not look worried or nervous. The Committee found by clear and convincing evidence Ivy knowingly provided false testimony at the deposition and hearing.

The Committee also found there was clear and convincing evidence Ivy knowingly provided a false affidavit about the alleged courtroom assault. The Committee found the courtroom security videotape accurately depicted the events leading up to the court hearing and that although Kyzer's “hip or buttocks may have brushed Ms. Ivy's right hip” as he passed by her to take his seat, the other allegations in Ivy's affidavit were false. The Committee concluded:

It is not reasonably possible for someone to have experienced the inadvertent and minor bump of a brother attempting to be excused and then to pass by his sister, as is seen on the courtroom security videotape ..., and then to honestly or mistakenly believe that they had been sexually assaulted....

The Committee noted that Ivy testified she had not been mistaken about the incident and denied imagining or hallucinating it. Instead, the Committee found she continued to fabricate new evidence at the disciplinary hearing, producing pants she claimed to have worn that day and contending they contained marks evidencing the sexual assault. The Committee found, “She also newly claimed that she had gone to a doctor who had diagnosed a bruised ‘pubic bone’ as a result of her encounter.”

The Committee concluded Ivy violated Professional Conduct Rules 3.3(a)(1) and (3); 3.4(b); 8.4(a), (b), and (c); and Alaska Bar Rule 15(a)(3). The Committee recommended that the appropriate sanction was disbarment. Ivy appealed the Committee's decision to the Board of Governors in July 2013; the Board adopted the Committee's findings and recommendation for disbarment in full. Ivy appeals.

III. STANDARD OF REVIEW

“We independently review the entire record in attorney disciplinary proceedings, though findings of fact made by the Board are entitled to great weight.”⁶ “When the Board's findings of fact are appealed, the respondent attorney bears the burden of proof in demonstrating that such findings are erroneous.”⁷ “We apply our independent judgment to questions of law and questions concerning the appropriateness of sanctions.”⁸

III. DISCUSSION

A. We Agree With The Board's Findings Of Fact.

Ivy challenges the factual findings concerning the alleged assault and stalking incidents made by the Committee and adopted by...