Simpson, In re

Decision Date11 June 1982
Docket NumberNo. 5963,5963
Citation645 P.2d 1223
PartiesIn re the Disciplinary Matter Involving Helen L. SIMPSON, Respondent Attorney.
CourtAlaska Supreme Court

Helen L. Simpson, pro se.

Richard J. Ray, Anchorage, for Alaska Bar Ass'n.

OPINION

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

COMPTON, Justice.

At issue in this case is whether the Disciplinary Board of the Alaska Bar Association properly concluded that Helen L. Simpson, an attorney in Alaska, violated two disciplinary rules of the Code of Professional Responsibility. We also assess the propriety of the Board's recommendation that in addition to other sanctions Simpson receive public censure.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the fall of 1980, the Area II Disciplinary Hearing Committee of the Alaska Bar Association held a hearing to determine whether two unrelated instances of Simpson's professional conduct violated the disciplinary rules. The purported misconduct concerned the management of an office trust account and an inaccurate response to an interrogatory. The Hearing Committee concluded that Simpson had violated two disciplinary rules.

The record of the hearing and the findings and recommendations of the Hearing Committee were then presented to the Disciplinary Board. Simpson filed a supplemental affidavit in support of her position. In addition, the Disciplinary Board heard oral argument. Following consideration of this evidence, the Disciplinary Board issued twenty findings of fact and two conclusions of law regarding Simpson's conduct.

In its first conclusion of law, the Board found that Simpson had commingled in her office trust account her own funds with those of her clients in violation of Disciplinary Rule (hereafter DR) 9-102(A) of the Code of Professional Responsibility. 1

Simpson's management of her office trust account came into question in December 1978 when the Alaska Bar Association received from Simpson a check in payment of her 1979 Bar dues drawn on her office trust account. By letter of December 5, 1978, the Disciplinary Administrator of the Bar Association sought an explanation of why the check was drawn on the office trust account, not a personal account. Simpson did not respond to this letter. Several months later, the Disciplinary Administrator again wrote to Simpson requesting an explanation, and again Simpson did not respond. 2

Subsequently, the Bar Association received Simpson's trust account records and had them audited. The audit indicates she commingled in her trust account personal funds and those of her clients. She paid both personal and office expenses with trust account money.

In its second conclusion, the Board found that Simpson had permitted her client to give a response to an interrogatory which Simpson knew or should have known was false. Such conduct breached DR 1-102(A)(4), which prohibits a lawyer from engaging in "dishonesty, fraud, deceit, or misrepresentation." 3

The interrogatory in dispute was propounded in the course of a medical malpractice action which Simpson filed in May 1978 on behalf of Doris S. Hoagland. Dr. Michael Hein was the defendant. In connection with the litigation, Medi-Legal Services sent Simpson a letter dated January 10, 1979. The letter was received in Simpson's office and bears the handwritten notation "rec'd 1-17-79." This letter discussed Dr. Hein's treatment of Hoagland.

On or about January 19, 1979, Simpson received a set of interrogatories directed to Hoagland. Interrogatory 15 asked:

You and your attorney have previously indicated that you have utilized a medical-legal consulting service in Southern California, specifically Medi-Legal Services, Post Office Box 599, El Cajon, California 92022; have you or your attorney ever received a written communication or report from Medi-Legal Services relating to defendant's treatment of plaintiff or to the casual (sic) connection between the use of hydrogen peroxide as an intra-abdominal irrigant in the development of adhesions.

Simpson dictated the answers to the set of interrogatories on the weekend of January 20 and 21. She answered question 15 "no" when in fact the answer was "yes." Her client Hoagland signed the answers to all the interrogatories on March 26 and her secretary notarized the client's signature.

Simpson argued before the Board that the inaccurate answer resulted from several unfortunate circumstances. Simpson, who practices in Anchorage, noted that she was not in Anchorage on January 17 when the Medi-Legal Services report was received. She claimed to have dictated the interrogatory answers on the weekend of January 20 and 21 without yet knowing that the Medi-Legal Services report had been received. She further claimed that after dictating the answers, she never reviewed the interrogatories or answers. On January 25, she left for South America and did not return until February 21. It was yet another month before Simpson realized that the responses to the interrogatories had not been transcribed and presented to the client for signature. That was accomplished on March 26, several months after Simpson claims she originally dictated the response that is now in dispute. The Board, however, found that the inaccurate response was either intentional or the result of gross negligence.

Having concluded that Simpson violated two disciplinary rules, DR 9-102(A) and DR 1-102(A)(4), the Board recommended several sanctions. First, the Board recommended that for one year Simpson provide the Bar Association a monthly letter from a certified public accountant stating that an audit showed that Simpson's office trust account was managed properly. Second, the Board recommended that Simpson hire a law office management consultant to develop proper office procedures for her practice. If Simpson failed to adopt the Board's recommendations regarding the accountant and consultant, the Board stated that it would recommend her suspension from the legal profession for six months. Finally, the Board recommended that Simpson receive public censure.

Pursuant to Alaska Bar Rule II-15(j), we now review this case. 4 Simpson argues before us that the Board erred in concluding that she violated DR 1-102(A)(4) and in recommending that she receive public censure.

II. STANDARD OF REVIEW

We first address a preliminary matter. Simpson argues that findings of fact 7, 8, 9, 10 and 20 are not supported by the record. It is appropriate, here, to set forth the applicable standard of review where a finding of fact entered by the Disciplinary Board is challenged on appeal.

Many of our prior cases reflect application of an "independent evaluation of the evidence" standard of review, though none of these cases explicitly address the issue. In re Preston, 616 P.2d 1, 6-7 (Alaska 1980); In re Mackey, 416 P.2d 823 (1964), on rehearing 416 P.2d at 835 (1965), reconsideration denied, 416 P.2d at 840 (1966); cert. denied, 384 U.S. 1003, 86 S.Ct. 1907, 16 L.Ed.2d 1016 (1966). In one case, In re Peterson, we held that our review of such findings of fact was to be limited by the "substantial evidence" standard of review. 499 P.2d 304, 306 (Alaska 1972). At the time Peterson was decided, however, the Alaska Bar Association was subject to the provisions of the Alaska Administrative Procedure Act, AS 44.62.010-.650. The Act provided that the "substantial evidence" test was appropriate in such instances. AS 44.62.570(c)(2). The legislature amended the pertinent statutes in 1976 to provide that the Alaska Bar Association is not subject to the Act. 5 AS 08.08.100; see Horowitz v. Alaska Bar Association, 609 P.2d 39 (Alaska 1980). Accordingly, the rule enunciated in Peterson is not dispositive of this issue.

This court has inherent authority to discipline attorneys licensed to practice in Alaska. In re Mackey, 416 P.2d at 830; In re Paul, 17 Alaska 360, 366-68 (D.Alaska 1957); see In re Stump, 621 P.2d 263, 269-70 (Alaska 1980) (Burke, J., dissenting). In this regard, Bar Rule II-9 provides that "(a)ny attorney admitted to practice law in Alaska ... is subject to the supervision of the Supreme Court of Alaska...." In exercising our solemn obligation to make the ultimate determination of whether it is appropriate to discipline an attorney, this court must independently review all factual circumstances surrounding the conduct in dispute. Indeed, Bar Rule II-15(j) provides that where the Board recommends disbarment, suspension for less than five years, or public censure, "(t)he court shall review the record and briefs and enter an appropriate order." (Emphasis supplied.) It is noteworthy that in review of analogous findings, findings of fact entered by the Commission on Judicial Qualifications, we apply an "independent evaluation of the evidence" standard of review. In re Hanson, 532 P.2d 303, 309 (Alaska 1975). We stated in Hanson :

"(S)ince the ultimate dispositive decision to censure or remove a judge has been entrusted to this court, we conclude that in exercising that authority and in meeting our responsibility we must make our own independent evaluation of the record evidence adduced below .... Finally, it is to be our findings of fact and conclusions of law, upon which we are to make our determination of the ultimate action to be taken, to wit, whether we should dismiss the proceedings or order the judge censured or removed from office."

532 P.2d at 308-09, quoting Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr.2d 204, 515 P.2d 1, 4 (Cal.1973) (footnotes omitted).

Though this court has the authority, if not the obligation, to independently review the entire record in disciplinary proceedings, findings of fact made by the Board are nonetheless entitled to great weight. The deference owed to such findings derives from the responsibility to conduct disciplinary proceedings which this court has delegated to the Bar Association. Where findings of fact entered by the Board are challenged on...

To continue reading

Request your trial
2 cases
  • Fink v. Neal, 96-450
    • United States
    • Supreme Court of Arkansas
    • 27 Mayo 1997
    ...lawyer's state of mind when the conduct is undertaken." In re Claussen, 909 P.2d at 870 (emphasis in original). See also In re Simpson, 645 P.2d 1223 (Alaska 1982)(misrepresentation arising from gross negligence is sufficient for a finding of conduct prejudicial to the administration of jus......
  • Office of Disciplinary Counsel v. Anonymous Attorney A
    • United States
    • United States State Supreme Court of Pennsylvania
    • 8 Julio 1998
    ...863 P.2d 1136 (Okl.1993), and continued to apply the standard discussed in McMillian. The Supreme Court of Alaska, in In re Simpson, 645 P.2d 1223 (Alaska 1982), addressed the issue of the mental culpability of an attorney for a violation of Alaska's DR 1-102(A)(4). The Alaska Supreme Court......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT