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Tyler v. State9/14/2001
e acknowledge that Professional Conduct Rule 3.3(a)(3) has not previously been interpreted by the appellate courts of this state. Given that fact, Mr. Cyrus might plausibly have been unaware of the definition of "directly adverse", and he might honestly have thought that Rule 3.3(a)(3) only required him to cite adverse authority if that authority unquestionably controlled the litigation. But, as we have explained here, the American Bar Association and various courts and commentators have adhered to a broader definition of "directly adverse" for more than half a century. While Mr. Cyrus's misunderstanding of the rule may be a mitigating circumstance, it does not justify his conduct.
Conclusion: Mr. Cyrus is ordered to pay a $250 fine
Alaska Appellate Rule 510(c) authorizes this court to fine an attorney "for failure to comply with [the appellate] rules or any other rules promulgated by the Supreme Court". We have concluded that Mr. Cyrus violated Civil Rule 11 when he filed his brief without making a reasonably diligent inquiry into the facts governing Tyler's right to pursue the appeal. We have also concluded that Mr. Cyrus violated Professional Conduct Rule 3.3(a)(3) when, in his opposition to the State's motion to dismiss the appeal, he knowingly failed to alert us to the supreme court's decision in McGhee v. State.
This is not the first time that Mr. Cyrus has engaged in misconduct in this case. Last October, this court fined Mr. Cyrus $200 because he intentionally delayed filing Tyler's appeal for five weeks, waiting until the 90th day following the distribution of the judgment. Mr. Cyrus had no reason for this delay. He apparently assumed (correctly) that we would not wish to penalize a criminal defendant for an attorney's dilatory conduct, and that we would therefore accept Tyler's appeal as long as it was filed by the 90th day. (See Appellate Rules 502(b) and 521, which prohibit us from accepting an appeal that is filed more than 60 days late - i.e., more than 90 days after the distribution of the trial court's judgment.)
This earlier misconduct could be viewed as an aggravating circumstance. On the other hand, we are willing to assume that Mr. Cyrus's misstatement of the jurisdictional facts of Tyler's appeal stemmed, not from an intent to mislead, but from faulty memory and failure to exercise diligence in checking his memory against the record. Similarly, we assume that Mr. Cyrus did not act in bad faith when he chose not to cite McGhee. That is, although Mr. Cyrus consciously decided not to mention the McGhee decision in his brief to this court, we assume that he honestly believed that McGhee was distinguishable and that Rule 3.3(a)(3) only required him to disclose controlling authority.
Alaska Appellate Rule 510(c) authorizes us to impose a fine of up to $500 for violation of the rules of court. Having considered all of the circumstances, we conclude that we should impose a total fine of $250 for these two violations. Mr. Cyrus shall pay the $250 to the Clerk of the Appellate Courts within 30 days of the issuance of this opinion.
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