MacKay, In re

• Decision Date: 26 October 1964
• Docket Number: No. ABA,ABA
• Citation: 416 P.2d 823
• Parties: In the Matter of Disciplinary Proceedings against Neil S. MACKAY, an Attorney at Law. 8.
• Court: Alaska Supreme Court

Page 823

416 P.2d 823

In the Matter of Disciplinary Proceedings against Neil S. MACKAY, an Attorney at Law.

No. ABA 8.

Supreme Court of Alaska.

Oct. 26, 1964.

On Rehearing Jan. 30, 1965.

Petition for Reconsideration Denied May 13, 1966.

Certiroari Denied, June 20, 1966. See 86 S.Ct. 1907.

Petition for Rehearing of Denial of Certiorari Filed July 15, 1966.

Wendell P. Kay and Arthur D. Talbot, Anchorage, for respondent.

No appearance for Alaska Bar Ass'n.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Justice.

The Alaska Bar Association commenced this disciplinary proceeding in 1961 by filing a complaint against the respondent, Neil S. Mackay, charging him with misconduct in his office as an attorney and counselor at law and with violating his oath as an attorney and counselor by cheating or over-reaching a client. The complaint was later amended by the addition of two more charges, namely, purchase by the respondent of an interest in a suit of his client and lack of candor before The matter came on for hearing in September 1961 before a trial committee composed of three attorney members of the Alaska Bar Association, both parties being represented by counsel. After the hearing, which required several days for the taking of testimony and the argument of counsel, the majority, that is, two members, of the trial committee made written report 'that there were many elements brought out in the hearing which indicated deficiency in conduct on the part of the accused as over-reaching of the client.' It was their recommendation that the respondent should be suspended 'from the right to practice law in the state of Alaska for not more than six months as the Board of Governors feels appropriate.' ¹ The third member of the committee wrote a dissenting report in which he stated that he found nothing in the respondent's conduct toward his client which called for any disciplinary action.

the court. All charges were denied by the respondent.

The minutes of the Board meeting of November 30 and December 1, 1961, deserve particular consideration and comment. As one of the last items of business on November 30, 1961, the Board unanimously voted to hear counsel for Mr. Mackay 'informally as a courtesy extended by the Board.'

The minutes reveal that the Board was called to order by the president at 9:30 a. m., Friday, December 1, 1961. Roll call showed eight members present, including the president. Counsel for Mr. Mackay appeared and spoke with respect to the grievance matter. Following the departure of counsel it was moved and seconded that the Board 'sustain or concur in the dissenting opinion of the Trial Committee.' ² The motion was declared carried. The recorded vote named four members who voted 'yes' and two who voted 'no.' Unexplained in the minutes is the failure of the president to vote on the motion although he was present and chairman of the meeting. Also unexplained in the minutes is the fact that a member was permitted to abstain from voting on the motion.

A statute in effect at the time the trial committee and the Board acted in this matter provided in part:

'Upon finally determining any cause involving the discipline, disbarment, suspension or reinstatement of a member of the Alaska Bar, the Board of Governors shall certify its findings and recommendations thereon to the Supreme Court of Alaska. Upon receiving the findings and recommendations, the Court shall, within thirty days thereafter, issue an order of disbarment, suspension, reinstatement, dismissal or otherwise, in full accordance with the recommendations of the Board * * *.' (Emphasis supplied.) ³

The certification to the supreme court of the Board's findings and recommendations, as required by the above quoted statute, was never made. If this court had not had occasion only recently to remove the Board of Governors for refusal to comply with the court's rules and take temporary custody of the Association's records, it is doubtful if the court would ever have learned of this case.

We pause at this point to express disapproval of the failure of the president and another member of the Board to vote on the motion when it was their duty to do so. Only the most compelling of reasons could justify abstention under the circumstances and in such case the minutes should reflect the reason. Before abstaining the consent of a majority of the members present should have been obtained by a request and a formal vote on the request.

We are seriously concerned over the failure of the president and the members of the Board to certify or cause to be certified to the supreme court their findings and recommendation. Instead of certification as required by law, the Board apparently entered an order dismissing the complaint and destroyed all of the records of the case including the transcript of the trial proceedings. ⁴ We turn our attention next to that portion of the above quoted statute which states:

'Upon receiving the findings and recommendations, the Court shall, within thirty days thereafter, issue an order of disbarment, suspension, reinstatement, dismissal, or otherwise, in full accordance with the recommendations of the Board * * *.' (Emphasis ours.)

As of December 1961, when the Board should have certified its findings and recommendation to this court, the above statute was in force. We hold, however, that insofar as it attempted to impose upon the court the mandatory duty of issuing an order in full accordance with the recommendation of the Board, it was unconstitutional for being an invasion of the inherent power of the court to discipline and disbar members of the Alaska Bar Association. ⁵

The above statute has been superseded by Rule 9, sections 13 and 14 of the Alaska Bar Rules, promulgated by this court effective June 1, 1964, which state:

'Section 13. Review. All reviews shall be on the record unless the Court, in its discretion, grants a hearing de novo, in whole or in part. Following review, the Court shall enter a final order disposing of the matter as it sees fit.

'Section 14. Procedure When Unconstested. If no petition for review is made within the time limited, the Court may issue an order of dismissal, reprimand, disbarment, suspension, or order review on its own motion, as it sees fit.'

The case was not processed and moved along by the Board with the promptness it deserved as a disciplinary proceeding. This is evidenced in the following paragraphs contained in a letter written in connection with this case by the chairman of the trial committee to the president of the Board:

'I would be less than honorable in this situation if I did not at this time call to your attention several points of concern that have rather plagued the writer as a committee member throughout the course of this proceeding.

'* * * The delay in bringing this matter to hearing is almost unconscionable and while some of it may be the fault of the chariman of the committee, certainly the hearing was long delayed by virtue of failure to constitute a trial committee. This matter should have been gotten out of the way during the year of 1960 and accordingly is at least one year late of what it should have been. This I think is inexcusable regardless of whose fault it is.

'It appears to me further that the filing of the pleadings in this case was most haphazard. I would call your attention to the fact that we do not have all of the original pleadings. The original complaint is not in the file and we used a copy thereof. The items in the file when we received it, were not date stamped as to receipt and the whole aspect of filing seemed most casual.

'It appears to me that after the trial committee was appointed that there was no follow-up on the part of the Board of Governors. I would appreciate the fact that the Board of Governors did not find fit to concern themselves or to inquire as to the timing of the proceedings, leaving it entirely in the hands of the chairman of the trial committee, if such was intended as an expression of confidence.

'I am reasonably certain that there was no expression of confidence by this failure to inquire or to follow the pleadings and I can assure the Board that if the same procedure is followed in the future you will have continued bad results. If we know anything we know there is an occupational disease of lawyers that distasteful matters are placed to one side, put off to another day and that is exactly what you can expect in situations of this kind. It would be my recommendation that the secretary upon the receipt of a file of this kind, set up a regular schedule to be followed by the trial committee and that a report be regularly made to the President so that the President of the Board will at all times know the timing and the stages of the proceedings of any disciplinary matter and a rule should be established that each and every one of them must be completed within a given time unless leave is granted for an enlargement of time from the Board.'

Though not required to do so because of this court's inherent power to discipline members of the bar, ⁶ we may have felt constrained to adopt the recommendations of the Board if the trial committee had reached a unanimous conclusion that disciplinary action was not called for and the Board had then unanimously affirmed that decision. Instead, there was no unanimity in the recommendation of the six members of the Board who voted and the decision they affirmed was not even that reached by the majority of the trial committee. In such a situation we feel it incumbent upon us to most carefully examine the law and the facts pertaining to the complaint against the respondent and to exercise our independent judgment in the matter. To do this we are in no less favorable position than was the Board of Governors, since it reviewed the case solely on the record as we shall likewise do.

Before proceeding with our review on the merits, we need to rule upon two motions filed in this court by ...