Robson, Matter of

• Decision Date: 24 February 1978
• Docket Number: No. 3448,3448
• Citation: 575 P.2d 771
• Parties: In the Matter of Attorney Arthur Lyle ROBSON.
• Court: Alaska Supreme Court

Page 771

575 P.2d 771

In the Matter of Attorney Arthur Lyle ROBSON.

No. 3448.

Supreme Court of Alaska.

Feb. 24, 1978.

Jonathan H. Link, Fairbanks, for Arthur Lyle Robson.

William W. Garrison, Anchorage, Bar Counsel, for Alaska Bar Ass'n.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

BOOCHEVER, Chief Justice.

On September 29, 1977, the Board of Governors, acting as the Disciplinary Board of the Alaska Bar Association, recommended to this court that Arthur Lyle Robson be suspended from the practice of law for a period of three years. ¹ After hearing oral argument and reviewing the record and briefs, we found that Robson has been convicted of aiding and abetting receipt of ammunition by a convicted felon in violation of 18 U.S.C. § 922(h) and § 2, and that such offense constitutes a "serious crime," a felony under the federal law committed in the State of Alaska. We further found Robson in contempt of this court's order of June 2, 1977, temporarily suspending him from practice of law. On November 7, 1977, we ordered that Arthur Lyle Robson be suspended from the practice of law in Alaska for a period of twelve months from June 2, 1977, and stated that an opinion would follow.

In this opinion, we shall address the following questions raised by Robson:

1. Did the hearing before the Disciplinary Board lack due process because the Executive Director of the Alaska Bar Association, who also serves as Bar Counsel, was present during the Board's deliberations?

2. If the proceedings did violate his due process rights, what remedy should be afforded?

3. Was it proper for the Disciplinary Board to require proof by a preponderance of the evidence rather than by clear and convincing evidence?

4. Was the federal crime for which Robson was convicted a "serious crime" so as to require suspension under the provisions of Bar Rule II-23?

5. Did Robson engage in the practice of law in violation of this court's order of June 2, 1977?

I

It is admitted by the Alaska Bar Association that Mary LaFollette, its Executive Director, was present during deliberations by the Disciplinary Board. It is contended, however, that she did not act as an advocate or prosecutor either before the hearing committee or the Disciplinary Board and that the matter was prosecuted solely by William W. Garrison as Bar Counsel. In its brief, the Association states that the Executive Director was present during deliberations to advise on procedural matters, should the need arise, and to take notes so that adequate findings of fact and recommendations could be prepared expeditiously. ²

Bar Rule II-15 provides that the Executive Director, and such assistant attorneys as may from time to time be employed by the Alaska Bar Association, be referred to as "Bar Counsel." Bar Counsel have the power and duty to investigate all matters involving alleged misconduct. They prosecute all disciplinary proceedings before hearing committees, the Disciplinary Board and the court.

It is reasonable to assume that assistant attorneys acting as Bar Counsel work under the general supervision and guidance of the Executive Director and that, at the hearing stages, the Executive Director is aligned with the prosecution. ³

It is well-settled that a state cannot exclude a person from the practice of law contrary to the due process clause of the fourteenth amendment to the United States Constitution. ⁴ Since Robson was subject to suspension or disbarment, the disciplinary proceedings must conform to the requirements of due process under both the federal and Alaska ⁵ constitutions.

An impartial tribunal is basic to a guarantee of due process. ⁶ In K & L Distributors, Inc. v. Murkowski, 486 P.2d 351, 357 (Alaska 1971), we held that the scope of review to assure due process must include a "review to assure that the trier of fact was an impartial tribunal."

The Association correctly points out that we have upheld the inclusion of investigative and adjudicative functions within one agency. In In re Hanson, 532 P.2d at 306, we approved procedures of the Commission on Judicial Qualifications which combined investigative and adjudicative functions. ⁷ With direct reference to the Association's disciplinary procedures, we stated in In re Cornelius, 520 P.2d 76, 84 (Alaska 1974): ⁸

The combination of investigative and judicial functions within an agency does not violate due process; a board may make preliminary factual inquiry on its own in order to determine if charges should be filed.

Making such preliminary investigations to determine whether charges should be filed is quite different from participating in the prosecution stage of grievance proceedings. The Bar Rules provide for Bar Counsel, in addition to acting as prosecutor, to investigate complaints and to make recommendations as to dismissal of charges, informal admonitions or prosecution of former charges before hearing committees. ⁹ Nowhere do the rules authorize Bar Counsel to be present during deliberations of either the hearing committee or the Disciplinary Board.

When an administrative official has participated in the past in any advocacy capacity against the party in question, fundamental fairness is normally held to require that the former advocate take no part in rendering the decision. ¹⁰ The purpose of this due process requirement is to prevent a person with probable partiality from influencing the other decision-makers.

The United States Court of Appeals for the Second Circuit recently noted that it is desirable that administrative hearings be clothed with not only every element of fairness but with the "very appearance of complete fairness as well." Simard v. Board of Education of Town of Groton, 473 F.2d 988, 993 (2d Cir. 1973), quoting, Amos Treat & Co. v. S. E. C., 113 U.S.App.D.C. 100, 107, 306 F.2d 260, 267 (1962). ¹¹

We are aware of a surprisingly scant number of cases in which a lawyer, acting as prosecutor, or associated with the prosecution in an administrative hearing, has also been present during deliberations of an adjudicative body. In Stein v. Mutuel Clerks Guild of Massachusetts, Inc., 384 F.Supp. 444 (D.Mass.1974), union members brought suit against the union under the Landrum-Griffin Act alleging that the union had violated the due process rights of members in disciplinary proceedings. The Guild business agent who acted as prosecutor in the disciplinary hearings also sat with the Executive Committee, which heard the matter, during its deliberations. The attorney was not only present but took an active part in the deliberations. The court stated:

While lay proceedings cannot be held to the due process standards required in a court of law, it offends notions of fundamental fairness to have the prosecutor present and taking an active part in the deliberations of any fact-finding tribunal. Regardless of how limited his role or how noble his purpose, such a practice permits the possibility of a prosecutor characterizing the evidence presented, or substituting his recollection for that of the hearing officers. It goes without saying that a prosecutor with less than noble motives might subvert such a practice into an occasion for presenting additional evidence, without there being any opportunity for rebuttal by those involved. Finally, but not at all unimportant, is that anyone subject to such a practice could hardly be blamed for doubting that he had been treated fairly and impartially.

What Mr. Arena actually said during those deliberations is not crucial. What is crucial is that he was in fact present and participated in those deliberations. By permitting such a practice, the defendant deprived the plaintiffs of their right to a full and fair hearing. ¹²

There is no indication in the case before us that the Executive Director took an active part in the deliberations of the Disciplinary Board, and we have no question but that the purposes of her attendance were entirely ethical. The Association in its brief states that:

Although the Executive Director was present during the deliberations to advise on procedural matters, should the need arise, her primary function was to take sufficient notes from which adequate findings of fact and recommendations could be prepared in the shortest amount of time.

The determination of findings and recommendations are the essence of the judicial function of the Disciplinary Board. The preferable method of handling those tasks is for the Board to reach its decision after deliberations held without the presence of counsel associated with either side. As in a court case, the Board may then indicate to both sides its general findings and recommendations and, if it so desires, request one of the participating attorneys to prepare a draft thereof.

We hold that to assure both the fact and appearance of impartiality in the Disciplinary Board's decisional function, counsel associated with either the prosecution or defense should not be present during deliberations.

II

Having decided that the proceedings violated due process as to the fact or appearance of impartiality during the deliberations of the Disciplinary Board, we are next confronted with the question of the appropriate remedy. A majority of the court has decided to disregard the findings and recommendations of the Disciplinary Board and to proceed on the findings and recommendations of the hearing committee. ¹³

The United States District Court for the District of Columbia reached a similar decision under analagous circumstances in Koniag, Inc. v. Kleppe, 405 F.Supp. 1360 (D.D.C.1975). The case involved procedures whereby certain Native villages could establish entitlement to the right to select lands under the Alaska Native Claims Settlement Act. The Secretary of the Interior established the procedures.

The complicated appeal process involved in that case included an initial hearing before the Juneau, Alaska, Area Director of the Bureau of Indian Affairs. Protesting...