author: MANNHEIMER, Judge.

text:
    David A. TYLER, Appellant, v. STATE of Alaska, Appellee.
    No. A-7779.
    Court of Appeals of Alaska.
    Sept. 14, 2001.
    Rehearing Denied Nov. 2, 2001.

      Eugene B. Cyrus, Eagle River, for Appellant.
    Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

On May 18, 2001, this court ordered attorney Eugene B. Cyrus to show cause why sanctions should not be imposed on him under Appellate Rule 510(c) for his conduct in this appeal. Having considered Mr. Cyrus's response, we conclude that Mr. Cyrus should be fined under Appellate Rule 510(c). In his opening brief, Mr. Cyrus misstated the facts of the case in a way that masked this court's potential lack of jurisdiction to entertain the appeal. Then, after the true facts were revealed and the jurisdictional problem became known, Mr. Cyrus knowingly failed to cite a decision of the Alaska Supreme Court that was directly adverse to his contention that this court had jurisdiction to decide the appeal.

Procedural history of Tyler v. State

To explain our decision, we need to de-seribe the procedural history of the underlying appeal: Tyler v. State, File No. A-7779.

David A. Tyler was convicted of felony DWI-driving while intoxicated after having been twice previously convicted of DWI within the preceding five years. Tyler, represented by Mr. Cyrus, appealed his conviction to this court.

In his brief to this court, Mr. Cyrus conceded that Tyler was guilty of driving while intoxicated on the date alleged in the indictment, but he asserted that Tyler's two prior DWI convictions were invalid because, in both prior cases, Tyler had not knowingly waived his right to counsel before he pleaded no contest to the charges. Mr. Cyrus therefore argued that Tyler's prior convictions should be set aside and that Tyler's current DWI offense should be reduced to a misdemeanor.

Mr. Cyrus stated in his brief that Tyler was entitled to litigate this issue because he had gone to trial and had been convicted. But when the State's attorney reviewed the record in preparation for writing the appel-lee's brief, he discovered that Tyler had not gone to trial. Rather, Tyler had been convicted of felony DWI after convincing the superior court to let him enter a Cooksey plea over the objection of the prosecutor. Under the terms of this Cooksey plea, Tyler purportedly reserved the right to litigate the validity of his pleas to the two prior DWI charges.

Based on this discovery, the State moved to dismiss Tyler's appeal. The State argued that Tyler's Cooksey plea was invalid because the issue that Tyler had preserved for appeal-the validity of his two prior DWI pleas-was not dispositive of Tyler's case.

The State pointed out that even if we ultimately concluded that Tyler had not knowingly waived his right to counsel before he pleaded no contest to the two prior charges, this would not mean that Tyler was entitled to an acquittal of the prior charges. Rather, Tyler would be entitled to withdraw his no contest pleas-but the charges would still stand, and Tyler would face trial on those charges. The State argued that if Tyler was again convicted of these charges (either following trial or after entering counseled pleas of no contest), then Tyler would still be a third offender for purposes of his current offense, and thus Tyler's felony DWI conviction would remAin valid.

In his response, Mr. Cyrus conceded that he had incorrectly stated the facts in his brief: Tyler had not gone to trial, but rather had entered a Cooksey plea. Mr. Cyrus further conceded that Tyler's Cooksey plea would be invalid if the State's legal argument was correct-i.e., if the State was correct in arguing that Tyler would remain a third offender if he was ultimately re-convieted on the two prior DWI charges. But Mr. Cyrus contended "that the present state of the law does not permit such a relation back." He argued that even if Tyler was again convicted of the two prior DWIs, those convictions would be new-that is, they would no longer be "prior" to his current DWI conviction, and thus Tyler's current offense would be a misdemeanor, not a felony:

[I]f there [sh]ould be ... new conviction[s] . on the [two prior] misdemeanor DWI cases, [these convictions] would be after the offense date in the instant case ..., and thus, [Tyler's] priors would not [support] enhanced punishment [for his caurrent offense].

In support of his argument, Mr. Cyrus cited three prior decisions of the Alaska Supreme Court: State, Dept. of Public Safety, Division of Motor Vehicles v. Fann (holding that the superior court is empowered to investigate the underlying validity of a prior DWI conviction that is being used as the basis for enhancing a period of license revocation); Wik v. Department of Public Safety (holding that, for purposes of determining whether a DWI defendant is subject to an enhanced sentence or an enhanced period of license revocation, the number of a defendant's prior convictions should be assessed as of the date of the defendant's latest arrest, not the date of the defendant's latest conviction); and Tulowetzke v. Department of Public Safety (holding that, for purposes of determining whether a DWI defendant is subject to an enhanced sentence or an enhanced period of license revocation, prior convictions arising from separate incidents must be counted as separate convictions, even though the trial court may have entered these convictions at the same time).

But the supreme court's holdings in these three cases are, at best, tangentially related to the proposition of law advanced by Mr. Cyrus. None of these cases addresses the particular question posed by Tyler's appeal: Would Tyler remain a third offender for purposes of the felony DWI statute if he were allowed to withdraw his pleas in his two prior DWI cases, but then were re-convicted of these same offenses?

Although the three cases cited by Mr. Cyrus do not involve or address this legal issue, the Alaska Supreme Court has in fact addressed this very issue in a slightly different setting. The case is McGhee v. State, 951 P.2d 1215 (Alaska 1998).

In McGhee, the Division of Motor Vehicles revoked McGhee's driver's license after he was arrested for DWI. McGhee's period of revocation was increased because he had two prior DWI convictions.

After his license was revoked, McGhee filed a motion in district court attacking one of his prior DWI convictions. McGhee argued that he should be allowed to withdraw his plea because the judge failed to expressly advise him of his right to a jury trial. McGhee was successful; the court allowed him to withdraw his plea. But after obtaining this favorable ruling, McGhee immediately re-entered a no contest plea, and he was again convicted of the charge.

Following this series of events, McGhee returned to the Division of Motor Vehicles and challenged the length of his license revocation. McGhee argued that he should no longer be subjected to the same enhanced revocation period because, now, one of his prior convictions was no longer "prior". McGhee contended that even though he had been re-convicted of the same DWI offense, his conviction should be considered "new" because it was entered after his current DWI arrest. Thus, McGhee argued, his re-conviction of the old DWI offense could not be used to trigger the enhanced suspension period.

But the supreme court rejected this argument. The court declared: "Because McGhee remains convicted of the same DWIs that subjected him to an enhanced revocation [in the first place], the temporary set-aside of the prior DWI requires no alteration of the original [license] revocation."

Neither Mr. Cyrus nor the State's attorney cited McGhee in their pleadings. We found the case ourselves. And, having found it, we concluded that it provided the answer to Tyler's appeal.

Based on McGhee, we concluded that even if Tyler were allowed to withdraw his pleas to the two prior offenses, this would not necessarily mean that he should be acquitted of felony DWI in his current case. Rather, if Tyler were later re-convicted of the two prior offenses, he would continue to be a third offender (i.e., a felony DWI offender) for purposes of his current case. We therefore agreed with the State that the issue Tyler preserved for appeal (the validity of his pleas to the two prior DWI charges) was not dis-positive of his case, and that Tyler's Cooksey plea was therefore not valid. Accordingly, we dismissed Tyler's appeal.

Mr. Cyrus's misstatement of the procedural posture of Tyler's appeal: his statement that Tyler had gone to trial when, in fact, Tyler had entered a Cooksey plea

As explained above, Mr. Cyrus's opening brief in Tyler's appeal contained a misstatement concerning the procedural posture of Tyler's case. Mr. Cyrus declared that Tyler had been convicted following a trial. Mr. Cyrus told this court that Tyler had agreed to be tried on stipulated facts (i.e, Tyler stipulated that he was guilty of driving while intoxicated in the present case) so that Tyler would be able to pursue an appellate attack on his two prior convictions.

Mr. Cyrus now concedes that this statement was false. He admits that Tyler was convicted based on a Cooksey plea of no contest, after Mr. Cyrus convinced the superior court to accept this plea over the objection of the prosecuting attorney.

In his response to our order to show cause, Mr. Cyrus contends that he simply made a mistake. He asserts that he has represented several clients who all raised similar defenses to felony DWI charges (defenses based on defects in the defendants' prior convictions). Mr. Cyrus further asserts that many of these other clients consented to a "walk-through" trial (%e., a trial on stipulated facts). Mr. Cyrus contends that he confused Tyler's case with these others, forgetting that Tyler's case had been resolved by a Cooksey plea rather than a trial on stipulated facts.

As we have explained, the distinction between "conviction following a trial" and "conviction based on a Cooksey plea" was crucial to the proper resolution of Tyler's appeal. If Tyler had gone to trial, he would have been entitled to demand that we resolve the merits of his appeal. But because Tyler did not go to trial and instead entered a Cooksey plea, Tyler could not ask us to assess the validity of his pleas to the prior DWI charges until he first convineed us that his Cooksey plea was valid. For unless a Cooksey plea is valid, we have no jurisdiction to entertain the appeal.

To demonstrate the validity of his Cooksey plea, Tyler had to demonstrate that the issue preserved for appeal was "dispositive"-i.e., that a successful attack on his pleas to the prior DWI charges would conclusively resolve whether he was guilty of felony DWI in the current case. We ultimately concluded that the validity of Tyler's prior convictions was not a dispositive issue. Accordingly, we ruled that Tyler's Cooksey plea was invalid and that Tyler had no right to pursue his appeal.

Thus, when Mr. Cyrus falsely told this court that Tyler had gone to trial, this misstatement of fact effectively concealed a flaw-ultimately, a fatal flaw-in Tyler's case: our lack of jurisdiction to entertain his appeal. If the State's appellate attorney had not read the record carefully and discovered the existence of the Cooksey plea, Tyler might have obtained something that he did not legally deserve.

Mr. Cyrus asserts that his misstatement of fact was innocent rather than intentional. For present purposes, we assume this to be true. But even assuming that Mr. Cyrus acted in good faith, it is obvious that he failed to review the record of the superior court proceedings when he prepared Tyler's brief.

In his response to our order to show cause, Mr. Cyrus asserts that he did not remember that Tyler had entered a Cooksey plea over the objection of the prosecutor; rather, he mistakenly thought that Tyler had gone to trial on stipulated facts. Mr. Cyrus explains that his faulty memory remained uncorrected because he "did not have a copy of the [in-court clerk's] log notes when [he] wrote ... the appeal brief". From Mr. Cyrus's explanation, we infer another fact: Mr. Cyrus did not have the audio tapes of the superior court proceedings-or, if he did, he did not listen to them or have them transcribed.

Alaska Civil Rule 11 (which, by virtue of Alaska Criminal Rule 50(b), also governs criminal litigation) declares that an attorney's signature on a document filed with a court constitutes the attorney's certificate that the assertions of fact contained in the document are well-grounded "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry". (Emphasis added) The phrase "formed after reasonable inquiry" implies that an attorney's good faith is not enough to satisfy Rule 11. It implies that an attorney has an obligation to make objectively reasonable efforts to ascertain the facts of the case before making assertions of fact in court documents.

This is, indeed, how the Alaska Supreme Court has interpreted Rule 11. In Keen v. Ruddy, 784 P.2d 658 (Alaska 1989), the court declared that the rule "creates an objective standard of 'reasonableness under the circumstances, and is intended to be more stringent than a mere 'good faith' formula."

A similar duty of reasonable inquiry is described in the Comment to Alaska Professional Conduct Rule 3.3:

[A]n assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.

Id., "Representations by a Lawyer" (emphasis added).

In the present case, Mr. Cyrus made a false assertion concerning a fact that directly affected Tyler's legal right to pursue the appeal and this court's authority to entertain the appeal. Before writing Tyler's brief, Mr. Cyrus was obligated to make a reasonable effort to ascertain the facts of the case-particularly, the facts that provided the legal basis for Tyler's invoking this court's jurisdiction. We assume that Mr. Cyrus never subjectively intended to mislead this court about whether Tyler went to trial as opposed to entering a contested Cooksey plea. Nevertheless, Mr. Cyrus neglected to review the pertinent superior court proceedings before making his false assertion of fact.

Normally, the requirements of Appellate Rule 212(c)(1){g] will forestall an attorney from relying solely on their personal memory of events when writing an appellate brief. Under Rule 212(c)(1)[g], an attorney's brief must recite "the facts relevant to the issues presented for review", and these assertions of fact must be accompanied by "appropriate references to the record" in the format specified by Appellate Rule 212(c)(8). This requirement serves two purposes: it allows the appellate court and opposing counsel to verify the attorney's assertions of fact (by locating the portions of the lower court record that the attorney is describing), and it protects the court and opposing counsel from unfounded assertions of fact.

Both this court and the Alaska Supreme Court review newly-filed briefs for compliance with the various requirements of Appellate Rule 212. Thus, for example, if an attorney tried to brief an evidence issue or a jury instruction issue from memory, without including citations to the record, the brief might well be rejected for filing.

But there is seldom a dispute concerning the facts that support a eriminal defendant's invocation of this court's jurisdiction. Because of this, we generally do not subject a defendant's jurisdictional statement to the same serutiny as other portions of the brief. For instance, we accepted Mr. Cyrus's opening brief in Tyler's appeal even though he included no citation to the record when he asserted that Tyler had been convicted following a court trial.

Nevertheless, as Tyler's case illustrates, the facts supporting an appellant's claim of jurisdiction-i.e., the facts that demonstrate the appellant's legal right to pursue the appeal-are just as important as the facts supporting the appellant's claims of error. An appellate attorney must make a reasonable effort to verify those facts before writing the brief. We conclude that Mr. Cyrus violated this duty.

Mr. Cyrus's failure to cite McGhee v. State, legal authority that was directly adverse to the proposition of law he was advancing

Once the State discovered that Tyler had entered a Cooksey plea instead of going to trial, the State moved to dismiss Tyler's appeal. The State argued that Tyler's Cooksey plea was invalid because the issue that Tyler had preserved for appeal-the validity of his pleas to the two prior DWI charges-was not dispositive of Tyler's case. |

As we explained above, the State's motion to dismiss Tyler's appeal presented the following legal issue: If Tyler were allowed to withdraw his no contest pleas to the two prior DWI charges, but if the State then succeeded in re-convicting Tyler of these same charges, would those two DWI convie-tions still be "prior convictions", so that Tyler could properly be charged with felony DWI in the current ease? Or would the re-convictions be "new" convictions, so that Tyler would technically be a "first offender" for purposes of his current case (and thus guilty of only misdemeanor DWI)?

The State argued that if Tyler was conviet-ed again of the two earlier charges (either following trial or after entering counseled pleas of no contest), Tyler would continue to be a third offender for purposes of his current offense, and therefore his current felony DWI conviction would remain valid. Mr. Cyrus argued the opposite. He contended that even if Tyler was re-convieted of the two previous DWIs, those convictions would be new-that is, they would no longer be "prior" to Tyler's current DWI offense. According to Mr. Cyrus's argument, even if the State re-convicted Tyler of the two earlier DWIs, Tyler would still be a "first offender" for purposes of his current offense, and thus his current offense would be a misdemeanor, not a felony.

When the parties submitted their pleadings on this issue, neither Mr. Cyrus nor the State's attorney alerted us to McGhee v. State, the Alaska Supreme Court decision that addresses this re-conviction issue in the context of an administrative revocation of a driver's license for a third-offense DWI. The State's attorney apparently did not find the McGhee case when he researched the State's motion to dismiss Tyler's appeal-for if the State's attorney had found McGhee, he doubtless would have cited it. But Mr. Cyrus plainly knew of the supreme court's decision in McGhee: he was the attorney who represented McGhee in the supreme court.

Alaska Professional Conduct Rule 3.3(a)(8) declares that a lawyer shall not knowingly "fail to disclose ... legal authority in the controlling jurisdiction" if the lawyer knows that this legal authority is "directly adverse to the position of the [lawyer's] client" and if this authority has "not [been] disclosed by opposing counsel". McGhee was decided by our supreme court, so it is "legal authority in the controlling jurisdiction". Mr. Cyrus knew about the McGhee decision, and he knew that the State's attorney had not brought McGhee to our attention. The remaining question is whether Mr. Cyrus knew that McGhee was "directly adverse" to his legal position-directly adverse to his contention that Tyler would have to be treated as a "first offender" even if he was re-convicted of the two prior DWIs.

Our decision in Tyler v. State-i.e., our dismissal of Tyler's appeal-is clearly premised on our conclusion that McGhee is, in fact, directly adverse to Mr. Cyrus's legal position. However, it would be unfair to judge Mr. Cyrus's ethical duties in hindsight. Obviously, Mr. Cyrus had not read our decision when he wrote his brief, The question is whether, at the time Mr. Cyrus wrote his brief, he knew that McGhee was directly adverse to his position.

(a) Mr. Cyrus's response to our order to show cause

In his response to our order to show cause, Mr. Cyrus asserts that he did not tell us about the McGhee decision because he believed that McGee did not control the outcome of Tyler's case. Mr. Cyrus contends that "McGhee is unique because of its fact pattern" and, because of this, he did not believe (and still does not believe) that McGhee was "controlling authority" in Tyler's case. To back up his argument, Mr. Cyrus points out that at least one superior court judge shared his views concerning McGhee:

[J]ust four months previous to my writing [Tyler's] brief ..., a detached neutral judicial officer of the Anchorage Superior Court in a litigated case of mine ... ruled that McGhee was not controlling authority on a similar issue regarding the propriety of an attack on a prior conviction....
[I]f an attorney [knows of] a written judicial opinion verifying his belief that a case is not applicable, ... it is not possible to [condemn the] attorney [for] intentionally withholding controlling authority. Simply [put], if attorneys could disagree as to [whether a case is] controlling authority, there should not be a violation [of Professional Conduct Rule 3.3(a)(8) ].

"Response to Order to Show Cause" dated June 18, 2001 (File No. A-7779), pages 5-6 {emphasis in the original).

The superior court case that Mr. Cyrus refers to is Sjoblom v. State, File No. 3AN-00-8344 Civ, Susan Sjoblom was Mr. Cyrus's client. After Sjoblom was convicted of felony DWI (e., third-offense DWI), Mr. Cyrus filed a motion in district court on her behalf, seeking to set aside one of her prior misdemeanor DWI convictions. Mr. Cyrus claimed that Sjoblom had received ineffective assistance of counsel in that prior case. Ultimately, Mr. Cyrus negotiated a deal with the Municipality of Anchorage that embodied the same strategy he pursued in McGhee: the Municipality agreed to concede the inceffece-tive assistance of counsel issue (so that Sjob-lom's prior conviction would be set aside), and Sjoblom agreed to immediately plead no contest to that same charge (so that she would again be convicted of the prior DWI).

Having accomplished this, Mr. Cyrus returned to superior court (the court having jurisdiction over Sjoblom's felony DWI conviction) and asked the court to reduce her felony conviction to a misdemeanor. His argument was the same one he presented in McGhee: Mr. Cyrus argued that Sjoblom should no longer be considered a third offender because, now, one of her prior DWI convictions was no longer "prior". That is, even though Sjoblom had been re-convicted of the same DWI offense, her conviction should be considered "new" because it was entered after her arrest in the felony case.

Mr. Cyrus did not tell the superior court about the McGhee decision, and the State's attorney did not find it. Superior Court Judge Dan A. Hensley discovered McGhee on his own, but he concluded that it was factually distinguishable:

McGee v. State [sic], not cited by either party, addresses a similar issue, but is distinguishable on its facts. McG[h]ee negotiated a deal manipulating the date of a DWI conviction and then moved to modify the terms of an administrative license revocation based on that prior conviction. The [supreme] court held that a license revocation could be set aside only for manifest injustice, and found that McG{hJlee's manipulation did not qualify.
But [the portion of the post-conviction relief statute], AS 12.72.010(8), on which Ms. Sjoblom relies here, does not employ a manifest injustice test. Under its terms Ms. Sjoblom need only prove that her pri- or conviction was set aside-nothing more. Statutes imposing criminal liability must be construed narrowly. I find that the statute provides no basis for this court to make an independent evaluation of the merits of Ms. Sjoblom's motion in the 1996 case or the validity of the deal setting aside her conviction.

"Decision and Order" of Judge Dan A. Hensley dated December 11, 2000, p. 3 (citations omitted).

To summarize: Mr. Cyrus offers two defenses to our order to show cause. First, he argues that even though we relied on McGhee when we dismissed Tyler's appeal, we were wrong to do so. Mr. Cyrus contends that because of McGhee's procedural context (an attack on the ruling of an administrative agency), the case had little or no relevance to the proper decision of Tyler's criminal appeal. Second, Mr. Cyrus argues that even if this court was right when we concluded that McGhee was dispositive of Tyler's appeal, this conclusion was reasonably debatable. Based on Judge Hensley's analysis in Sjoblom, Mr. Cyrus points out that competent attorneys and judges might reasonably conclude that McGhee was factually distinguishable from Tyler's case-and that, therefore, McGhee did not control the outcome of Tyler's appeal. Mr. Cyrus argues that if reasonable attorneys could conclude that McGhee was not controlling authority in Tyler's appeal, he was under no obligation to cite the case in his brief.

Of the two defenses advanced by Mr. Cyrus, this second one is clearly the stronger. Judge Hensley's decision in the Sjoblom case shows that Mr. Cyrus was not alone in thinking that McGhee should be limited to an administrative context and should not be viewed as controlling authority in criminal cases that raise the same re-conviction issue. And if reasonable attorneys and judges could disagree on the question of whether McGhee was controlling authority in Tyler's case, then regardless of whether this court correctly interpreted McGhee when we decided Tyler's appeal, it would be improper to fault Mr. Cyrus for taking another reasonable view of the matter.

We agree with Mr. Cyrus that, for present purposes, it does not matter whether our decision in Tyler was correct, or whether our decision in Tyler is arguably inconsistent with Judge Hensley's decision in Syoblom, or whether Judge Hensley was right or wrong when he concluded that McGhee did not control Sjoblom's case. Instead, as Mr. Cyrus correctly points out, Judge Hensley's decision shows that reasonable judges might differ as to whether McGhee precludes the type of post-conviction claim presented by Sjoblom or the appellate claim made by Tyler-the claim that if a defendant is convicted of felony DWI but later wins a plea withdrawal in one of the prior DWI cases, then even if the defendant is re-conviected of that prior offense, the superior court must set aside the felony DWI conviction. Thus, Mr. Cyrus might reasonably have concluded that the McGhee decision did not control the outcome of Tyler's appeal.

But Mr. Cyrus's defense to our order to show cause also hinges on his assertion that Professional Conduct Rule 8.8(a)(8) only requires attorneys to reveal "controlling" court decisions and statutes. This is not correct.

(b) As used in Professional Conduct Rule 3.3(a)(8), "directly adverse" is not synonymous with "controlling" or "dis-positive"

Fortified by Judge Hensley's decision in Sjoblom, Mr. Cyrus argues that "if attorneys could [reasonably] disagree as to [whether McGhee was] controlling authority", then his failure to cite McGhee can not constitute a violation of Professional Conduct Rule 3.3(a)(8). The problem with Mr. Cyrus's argument is that Rule 8.8(a)(8) does not speak of an attorney's failure to cite "controlling authority". Instead, it speaks of an attorney's failure to cite authority in the "controlling jurisdiction" if that authority is "directly adverse to the [lawyer's] position".

McGhee was decided by our state supreme court, so it clearly constitutes "authority in the controlling jurisdiction". The next question is whether McGhee was "directly adverse" to Mr. Cyrus's position in Tyler's appeal. The legislative history of Professional Conduct Rule 3.3(a)(8) and the commentaries on the rule show that "directly adverse" does not mean "controlling". It refers to a broader range of cases and statutes.

The meaning of "directly adverse" is explained in Formal Opinion No. 280 issued by the American Bar Association's Committee on Professional Ethics and Grievances. The Committee had been asked to clarify the "duty of a lawyer ... to advise the court of decisions adverse to his client's contentions that are known to him and unknown to his adversary". The Committee wrote:

We would not confine the [lawyer's duty] to "controlling authorities'"-ti.e., those decisive of the pending case-but, in accordance with the tests hereafter suggested, would apply it to a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case.
Canon 22 should be interpreted sensibly, to preclude the obvious impropriety at which the Canon is aimed. In a case involving a [settled question of law], there would seem to be no necessity whatever of citing even all the relevant decisions in the jurisdiction, much less those from other states or by inferior courts. [But wlhere the question is a new or novel one, such as the constitutionality or construction of a statute, on which there is a dearth of authority, the lawyer's duty may be broader.

The Committee then defined the duty of disclosure:

The test in every case should be: Is the decision which opposing counsel has overlooked one which the court should clearly consider in deciding the case? Would a reasonable judge properly feel that a lawyer who advanced, as the law, a proposition adverse to the undisclosed decision, was lacking in candor and fairness to him? Might the judge consider himself misled by an implied representation that the lawyer knew of no adverse authority?

This ethics opinion was issued in June 1949. The Committee was not discussing current Professional Conduct Rule 8.3(a2)(8), but rather a predecessor rule, Canon 22 of the Canons of Professional Ethics adopted by the American Bar Association in 1908. However, the Committee has since declared that the same test applies to Professional Conduct Rule 8.8(a)(8).

In March 1984, the American Bar Association's Committee on Ethics and Professional Responsibility issued Informal Opinion No. 84-1505, in which the Committee discussed a lawyer's duty under Rule 3.3(a)(8) to disclose a decision of a controlling court "which may be interpreted as adverse to his client's position". The Committee concluded that the lawyer was obligated to disclose the decision, although the lawyer could "[o]f course ... challenge the soundness of the other decision, attempt to distinguish it from the case at bar, or present other reasons why the court should not follow or even be influenced by it." The Committee explained that this question was governed by the test the Committee had earlier announced in Formal Opinion 280:

Rule 3.3(a)(8) of the Model Rules of Professional Conduct provides, "A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." This provision is virtually identical to its predecessor, DR 7-106(B)(1) of the Model Code of Professional Responsibility. Both provisions continue essentially unchanged the theme of Canon 22 of the Canons of Professional Ethics adopted by the American Bar Association in 1908.
Under Canon 22, this Committee issued two opinions bearing on the question presented. In 1985 the Committee decided that a lawyer has a duty to tell the court in a pending case of decisions, unknown to his adversary, that are adverse to his client's contentions. We said, "He may, of course, after doing so, challenge the soundness of the decisions or present reasons which he believes would warrant the court in not following them in the pending case." In 1949, the Committee, in Formal Opinion 280, first interpreted Opinion 146 to limit the duty of disclosure to only those decisions which were "directly adverse." We then continued:
We would not confine the Opinion to "controlling authorities"-ie., those decisive of the pending case-but would apply it to a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case.

The Committee then concluded that, in the case before them, the lawyer was duty-bound to disclose a court decision that could reasonably be interpreted as directly contrary to his position:

Under one interpretation of the decision, it is clearly "directly adverse to the position of the client." And it involves the "construction of a statute on which there is a dearth of authority."
The issue is potentially dispositive of the entire litigation. [A lawyer's] duty as an officer of the court to assist in the efficient and fair administration of justice compels plaintiff's lawyer to make the disclosure immediately.
In a strikingly similar case, Seidman v. American Express Company, 523 F.Supp. 1107 (E.D.Pa.1981), the court, applying DR 7-106(B)(1), came to the same conclusion on the duty to disclose as does the Committee in this opinion. There a trial court commended defendant's lawyer for calling attention, after oral argument, to a recent case that severely undercut the position defendant had taken at oral argument....

Under the interpretation of Rule 3.3(a)(8) espoused in these ABA ethics opinions, a court decision can be "directly adverse" to a lawyer's position even though the lawyer reasonably believes that the decision is factually distinguishable from the current case or the lawyer reasonably believes that, for some other reason, the court will ultimately conclude that the decision does not control the current case.

This interpretation of a lawyer's duty to cite adverse authority was adopted by the New Jersey Supreme Court in In re Greenberg, 15 N.J. 132, 104 A.2d 46, 48-49 (1954). It was also anticipated (four years before the ABA issued Ethics Opinion 280) by the California Supreme Court in Shaeffer v. State Bar of California, 26 Cal.2d 739, 160 P.2d 825 (1945).

In Shaeffer, a lawyer relied on a decision of the California Supreme Court to argue that his opponent's complaint was flawed and should be dismissed. The lawyer failed to mention that the California Court of Appeal had issued a decision expressly rejecting the lawyer's interpretation of the supreme court case. When the court of appeal's decision was discovered, the lawyer declared that he omitted telling the trial judge about that decision because he thought that the court of appeal's discussion of the point was dictum, and that there was still no controlling authority contrary to his interpretation of the supreme court case. The California Supreme Court viewed the matter differently:

In view of [the attorney's] familiarity with the [court of appeal] case, he should ... have directed the trial court's attention to the decision and [openly] argued [his] contentions ... that the case was not controlling.

Shaeffer, 160 P.2d at 829.

See also Mannheim Video, Inc. v. Cook County, 884 F.2d 1043 (7th Cir.1989), in which the Seventh Circuit indicated that it would have upheld sanctions against a lawyer who engaged in similar conduct:

[C]ounsel argues that [sanctions would be inappropriate because] he believes that [the] Ciotti[ v. County of Cook, 712 F.2d 312 (7th Cir.1983)] [decision] is not controlling. ... Hill [v. Norfolk & Western Railway, 814 F.2d 1192, 1198 (7th Cir.1987),] and Bonds [v. Coca-Cola Company, 806 F.2d 1324, 1328 (7th Cir.1986),] made clear that an attorney should not ignore potentially dispositive authorities; the word "potentially" deliberately included those cases arguably dispositive. Counsel is certainly under obligation to cite adverse cases which are ostensibly controlling and then may argue their merits or inapplicability.

Id. at 1047.

This same interpretation of a lawyer's duty has also been endorsed by legal commentators. For instance, in their work The Law of Lawyering (2nd ed.1998), Professors Geoffrey C. Hazard and W. William Hodes write:

The requirement that the authority be "directly adverse" has caused some problems of interpretation. Almost any adverse precedent can be distinguished.... Some might argue, therefore, that precedent which can be distinguished is not "directly" adverse and need not be revealed in the first place. This interpretation trivializes the rule and does not adequately protect the court.
Formal [Ethics] Opinion 280 (1949) sounded the right note on this issue when it suggested that the standard should be whether the omitted authorities "would be considered important by the judge sitting on the case," or whether the judge might consider himself "misled" if he remained unaware of them.

Id. at § 8.8:206, p. 592.

Similarly, in his book Professional Responsibility (Brd ed.1992), Professor Ronald D. Rotunda writes:

[The rule does not speak of "controlling authorities." . ABA Formal Opinion 280 (June 18, 1949) rejects the narrow view that a lawyer must only cite decisions that are decisive of the pending case. Rather, the disclosure rule applies to ... "a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case...."

Id., "Disclosure of Adverse Legal Authority", p. 163.

In their work Professional Responsibility in a Nutshell (2nd ed.1991), Professors Robert H. Aronson and Donald T. Weekstein echo this view of Professional Conduct Rule 3.3(a)(8) in even stronger language:

It has been settled that a lawyer has an obligation to avoid knowingly making a false statement of law.... Thus, to assert that a particular proposition is the law in the controlling jurisdiction, when that proposition appears to have been completely or partially undermined by a recent case, is a misrepresentation of the state of the law, tantamount to making a false statement of law, and is different only in degree, not in kind, from citing an overruled case.
Of course, if the recent adverse case is distinguishable ... or is otherwise construable as not controlling, these points can and should be raised.

Id., "Disclosure of Adverse Legal Authority", pp. 347-48.

(c) Using this definition of "directly adverse", did Mr. Cyrus know that McGhee was directly adverse to the position he was advancing in Tyler's appeal?

Turning to the facts of Tyler's appeal, and using the test explained in the previous seetion, it is evident that the supreme court's decision in McGhee was "directly adverse" to the position that Mr. Cyrus was arguing in Tyler's appeal.

McGhee is the only Alaska Supreme Court decision (to our knowledge) that addresses the question raised in Tyler's appeal -the effect of a withdrawn plea and a re-conviction of DWI when a defendant faces harsher penalties if the defendant is found to be a repeat offender. The result reached in McGhee is the opposite of the result that Mr. Cyrus advocated in Tyler's appeal. And, although the matter was obviously debatable, one could reasonably interpret McGhee as being directly inconsistent with, or at least substantially undercutting, the argument that Mr. Cyrus was making in Tyler's case. Further, even if Mr. Cyrus thought that McGhee was distinguishable because of its procedural context, Tyler's appeal involved a novel issue on which there was a dearth of authority, and McGhee was the only Alaska decision that came close to addressing this issue.

Given these circumstances, McGhee was "directly adverse" to Mr. Cyrus's position for purposes of Professional Conduct Rule 3.3(a)(8). In the words of ABA Formal Ethics Opinion 280, McGhee is a decision "which would reasonably be considered important" by this court, a decision "which the court should clearly consider in deciding [Tyler's] case".

We recognize that advocacy invariably includes a process of separating wheat from chaff, of deciding which arguments and legal authorities are important to a case. Moreover, as we stated earlier, an attorney's ethical duties must not be judged in hindsight. When an attorney consciously decides not to cite a court decision or a statute, the attorney's choice should not-and does not-become a violation of Professional Conduct Rule 3.8(a)(8) simply because the court later concludes that the omitted decision or statute is directly adverse to the attorney's position. Rather, an attorney violates Rule 8.3(2)(8) only if the attorney knew that the omitted legal authority was directly adverse to the attorney's position.

But in Mr. Cyrus's response to our order to show cause, he does not claim ignorance of McGhee's potential importance to Tyler's appeal. Rather, he claims that he was not obliged to bring McGhee to our attention because he honestly believed that McGhee was factually distinguishable from Tyler's case and that, therefore, McGhee did not control our decision.

As explained above, this does not excuse Mr. Cyrus's failure to cite McGhee. When an attorney knows of a decision that is "directly adverse" under the test we have explained, and when opposing counsel fails to cite that decision, Rule 3.8(a)(3) requires the attorney to reveal the decision even though one could reasonably argue that it does not control the case at hand.

We assume that reasonable attorneys and judges might conclude that McGhee did not dictate our decision in Tyler's case (because of its different procedural setting). Nevertheless, McGhee was directly adverse to Mr. Cyrus's position within the meaning of Professional Conduct Rule 8.3(a)(8). Mr. Cyrus was the attorney who litigated McGhee: he knew about the case, and he understood its relevance to Tyler's appeal. Even assuming that Mr. Cyrus had a good faith and reasonable belief that McGhee could be distinguished, he was obliged to bring McGhee to our attention once he realized that the State's attorney had failed to cite the case.

We readily acknowledge that appellate litigation is a contest, not a seminar. The lawyers who appear before us do so as adversaries and advocates. Our adversary system is based on the belief that the fairest results and the best rules of law are discovered through vigorous presentation of opposing viewpoints. But attorneys are officers of the court, and they owe a duty of candor to the court:

Although a lawyer's paramount duty is to pursue the client's interests vigorously, that duty must be met in conjunction with, rather than in opposition to, [the lawyer's] other professional obligations.... Implicit in the lawyer's role as officer of the court is the general duty of candor.

American Bar Association, Annotated Model Rules of Professional Conduct (Ath ed.1999) (citation and internal quotation marks omitted), Rule 3.3, "Legal Background", p. 815.

This duty of candor includes the obligation imposed by Professional Conduct Rule 3.3(a)(3)-the obligation to disclose legal authorities that the court should, in fairness, consider when making its decision, even when these authorities are adverse to the lawyer's position. As explained in the Comment to Alaska's Professional Conduct Rule 8.3(a),

A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.... The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Comment to Rule 3.38, third paragraph, "Misleading Legal Argument".

In Great Britain, barristers are under "an unquestioned obligation" to cite all relevant law, both favorable and unfavorable. Professional Conduct Rule 3.3(a)(8) does not impose such a broad duty on Alaska attorneys. But although our state's duty of disclosure is narrower, enforcement of this duty remains important.

The process of deciding appeals involves the joint efforts of counsel and the court. As the Supreme Court of New Jersey has noted, "ilt is only when each branch of the profession performs its function properly that justice can be administered to the satisfaction of both the litigants and society". Only then can an appellate court "[develop] a body of decisions ... that will be a credit to the bar, the courts[,] and the state."

When a lawyer practicing before us fails to disclose a decision of the Alaska Supreme Court (or one of our own published decisions) that is directly adverse to the lawyer's position, the lawyer's conduct will, at the very best, merely result in an unneeded expenditure of judicial resources-the time spent by judges or law clerks in tracking down the adverse authority. At worst, we will not find the adverse authority and we will issue a decision that fails to take account of it, leading to confusion in the law and possibly unfair outcomes for the litigants involved. This potential damage is compounded by the fact that our decision, if published, will be binding in future cases.

In addition, we note that at least one court has suggested that a lawyer's failure to disclose adverse authority also implicates the lawyer's duty to the client. In a eriminal case, a lawyer must abide by the defendant's decision whether to pursue an appeal. See Professional Conduct Rule 1.2(a) Under Professional Conduct Rule 1.4(b), the lawyer has a concomitant obligation to explain matters to the defendant "to the extent reasonably necessary to permit the [defendant] to make informed decisions" on this issue. In Matter of Thonert, 733 N.E.2d 932 (Ind.2000), the Indiana Supreme Court found that an attorney violated Professional Conduct Rule 1.4(b) when the attorney counseled his client to pursue an appeal of a DWI convietion but failed to apprise the client of adverse authority:

By failing to advise his client of a ruling in the controlling jurisdiction that was adverse to the legal arguments contemplated for his client's ... appeal, and instead choosing only to advise the client of an earlier appellate decision favorable to his position, [Thonert] effectively divested his client of the opportunity to assess intelligently the legal environment in which his case would be argued and [impeded his client's ability] to make informed decisions regarding whether to go forward with [the appeall.

Id. at 934.

Professional Conduct Rule 3.3(2)(@8) is based on the notion that "[the function of an appellate brief is to assist, not mislead, the court." We endorse the words of the Florida Court of Appeal in Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fa.App.2001):

Although we have an adversary system of justice, it is one founded on the rule of law. Simply because our system is adversarial does not make it unconcerned with outcomes.... We do not accept the notion that outcomes should depend on who is ... [most] able to misdirect a judge.
Much is written about "professionalism" today. It is on the agenda at every [legal] symposium or continuing education conference, and our professional journals are filled with pleas for greater attention to punctilious conduct in all things. But ... we [must now] pass from exhortation to [action].

Id. at 1062.

Although we accept Mr. Cyrus's assertion that he honestly and reasonably believed that McGhee could be distinguished from Tyler's case, Mr. Cyrus does not contend that he was unaware of McGhee's potential importance to the decision of Tyler's appeal. McGhee was the only Alaska appellate decision that discussed, or came close to discussing, the issue that Mr. Cyrus knew would determine the validity of Tyler's Cooksey plea. And the result in McGhee was the opposite of the result advocated by Mr. Cyrus in Tyler's case.

Mr. Cyrus knew that McGhee could reasonably be interpreted as rejecting or casting substantial doubt on his position. McGhee was therefore "directly adverse" authority for purposes of Professional Conduct Rule 3.3(a)(8), and Mr. Cyrus was obligated to bring McGhee to our attention when he realized that the State had not cited it. Mr. Cyrus failed in that duty.

We acknowledge that Professional Conduct Rule 8.3(a)(8) 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 8.8(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 8.3(a)(8) 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 judgement. 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 judgement.)

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 8.3(a)8) 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.

Order

Petition for Rehearing

Attorney Eugene B. Cyrus seeks rehearing of our decision to fine him under Appellate Rule 510(c) for failing to bring McGhee v. State, 951 P.2d 1215 (Alaska 1998), to our attention when we were trying to assess the validity of the Cooksey plea entered by his client, David Tyler.

Our reasons for imposing this fine are fully explained in our prior opinion, Tyler v. State, Alaska App. Opinion No. 1763 (September 14, 2001). We briefly summarize those reasons here:

Recapitulation of the litigation thus far

David Tyler was convicted of felony DWI. He appealed, contending that his two prior DWI convictions (which were based on pleas of no contest) were flawed by errors in the entry-of-plea process. Tyler argued that because his two prior convictions were flawed, he should be treated as a first offender and his current felony conviction should be reduced to a misdemeanor.

Tyler's appeal proceeded through preparation of the record and the filing of Tyler's opening brief. But then, instead of filing an appellee's brief, the State moved to dismiss the appeal.

The State declared that Tyler's opening brief misstated this court's jurisdiction to hear the case. According to the State's motion, Tyler was not convicted at a trial (as Tyler's opening brief claimed). Rather, Tyler entered a Cooksey plea, purporting to preserve his attack on his two prior convie-tions. The State argued that this Cooksey plea was not valid because the issue preserved (Tyler's attack on his prior convictions) was not a dispositive issue. The State contended that even if Tyler's pleas to the two prior DWIs were flawed, Tyler could be re-prosecuted for the two prior DWIs-and, if those renewed prosecutions were successful, Tyler would still be a third offender for purposes of his current DWL.

Mr. Cyrus filed an opposition to the State's motion to dismiss. He argued that Tyler's Cooksey plea was valid because the State's legal analysis was wrong. According to Mr. Cyrus, if Tyler prevailed on appeal and had his two prior DWI convictions vacated, then even if the State later successfully re-prosecuted Tyler for those prior DWIs, he would remain a first offender for purposes of his current offense, because those two other DWI convictions would no longer be "prior" to his current offense.

It was in this pleading that Mr. Cyrus failed to mention the supreme court's decision in McGhee-a case that we ultimately determined was fatal to Mr. Cyrus's argument about the prior offenses. Because Mr. Cyrus was the attorney who represented the petitioner-motorist in McGhee, we knew that Mr. Cyrus was aware of the McGhee decision. Under Alaska Professional Conduct Rule 3.3(a)(8), an attorney is obligated to disclose directly adverse authority if the opposing attorney has not brought the adverse authority to the court's attention. We therefore ordered Mr. Cyrus to show cause why he should not be sanctioned for failing to cite McGhee when he responded to the State's motion to dismiss.

Mr. Cyrus filed a lengthy response in which he argued that he was under no obligation to cite McGhee because McGhee was not "controlling authority". According to Mr. Cyrus, there were substantial procedural differences between Tyler's case and the litigation in McGhee, and thus the decision in McGhee was distinguishable.

In Tyler, we concluded that desbite the arguable differences between the facts of McGhee and the facts of Tyler's case, Mr. Cyrus was still under an obligation to bring McGhee to our attention. Interpreting Professional Conduct Rule 8.8(a)(8), we held that "directly adverse" authority encompassed more than "controlling" authority and that Mr. Cyrus was under a duty to disclose McGhee even though he reasonably believed it could be distinguished from Tyler's case.

Mr. Cyrus's petition for rehearing

Mr. Cyrus présents two arguments in his petition for rehearing.

First, Mr. Cyrus asserts that he did not intend to deceive this court when he omitted any mention of McGhee in his opposition to the State's motion to dismiss the appeal. Mr. Cyrus points out that he cited McGhee in his opening brief. This is true. However, Mr. Cyrus cited McGhee for an unrelated point of law.

The question of the validity of Tyler's Cooksey plea, and McGhee's relevance to this question, had not yet arisen when Mr. Cyrus filed Tyler's opening brief. Mr. Cyrus's opening brief falsely stated that Tyler had been convicted following a court trial. Until the State filed its motion to dismiss, this court had no idea that Tyler had in fact been convicted based on a Cooksey plea. Civen these facts, Mr. Cyrus obviously did not address the validity of Tyler's Cooksey plea until he responded to the State's motion to dismiss the appeal. We fined Mr. Cyrus for failing to cite McGhee when he opposed the State's motion to dismiss Tyler's appeal.

The fact that Mr. Cyrus cited McGhee on a different point in his opening brief may be an interesting coincidence, but it is not relevant to our decision to impose the fine. - The irrelevance of the citation to McGhee in the opening brief is underscored by this fact: when Mr. Cyrus responded to our order to show cause, he failed to mention that he had cited McGhee in his opening brief, Either Mr. Cyrus forgot that he had cited McGhee (because the case was cited for an unrelated point), or he knew that his citation of McGhee on an unrelated point did not provide a defense to our order to show cause.

Finally, we note that when we imposed sanctions on Mr. Cyrus, we expressly did so under the assumption that Mr. Cyrus had not actively tried to deceive us-that he "did not act in bad faith when he chose not to cite McGhee." Although we found that Mr. Cyrus "consciously decided not to mention McGhee", we assumed "that he honestly believed that McGhee was distinguishable and that Rule 3.3(a)(38) only required him to disclose controlling authority. We therefore reject Mr. Cyrus's first argument for rehearing.

Mr. Cyrus's second argument is that he did not violate Professional Conduct Rule 3.3(a)(8) when he purposefully chose not to cite McGhee in his opposition to the State's motion to dismiss Tyler's appeal.

Mr. Cyrus points out that Rule 8.3(a)8) forbids an attorney from "knowingly ... fail[ing] to disclose ... legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client". (Emphasis added) Mr. Cyrus contends that he did not violate Rule 8.8(a)(8) because he did not know that McGhee was directly adverse to his position.

Mr. Cyrus's argument is based on the fact that the definition of "directly adverse" has a certain amount of vagueness to it. In Tyler, we referred to different formulations of the "directly adverse" test. The chief definitions we used were:

(1) legal authorities "which would reasonably be considered important by the judge [deciding] the case" and
(2) legal authorities "that could reasonably be interpreted as directly contrary to [the lawyer's] position" or that "could reasonably [be] interpret[ed] as being directly inconsistent with, or at least substantially undercutting" the lawyer's position.

Mr. Cyrus argues that there is so much imprecision in these definitions that it will be rare for an attorney to know that a case is "directly adverse". Mr. Cyrus contends that there will always be a few cases that are clearly "directly adverse" and a few other cases that are clearly not "directly adverse"-leaving "a vast middle-ground" of cases that one can not easily categorize because "[t]here is no bright-line test for making the determination."

In Tyler, we concluded that any imprecision in the definition of "directly adverse" did not matter-because Mr. Cyrus never argued that he failed to understand McGhee's relevance to Tyler's appeal:

[An attorney violates Rule 8.8(a)(8) only if the attorney knew that the omitted legal authority was directly adverse to the attorney's position. But in Mr. Cyrus's response to our order to show cause, he does not claim ignorance of McGhee's potential importance to Tyler's appeal. Rather, he claims that he was not obliged to bring McGhee to our attention because he honestly believed that McGhee was factually distinguishable from Tyler's case and that, therefore, McGhee did not control our decision.

Tyler, Alaska App. Opinion No. 1763, opinion at 1107.

Now, in his petition for rehearing, Mr. Cyrus makes the argument that he failed to make before. Through another attorney (an associate at his law firm), Mr. Cyrus asserts that he was in fact ignorant of McGhee's potential importance to Tyler's appeal. Mr. Cyrus's attorney declares:

[Flaced with a somewhat vague standard[, Mr. Cyrus] reasonably believed that McGhee was so far over the line [i.e., so easily distinguishable from, and so obviously irrelevant to Tyler's case] that ... mention [of McGhee] would not be useful to the Court.... [Mr.] Cyrus submits that [an attorney's] good faith belief that a decision ... involves greatly different facts and legal issues ... obviates [the attorney's] duty to disclose it.
[When Mr. Cyrus responded] to this Court's show-eause order, [Mr.] Cyrus repeatedly emphasized that McGhee was not "controlling authority". This, of course, is not precisely the issue.... [But] the same reasons advanced by [Mr.] Cyrus in his response ... support a finding that [Mr.] Cyrus did not knowingly fail to disclose directly adverse authority [because] at some point the dissimilarities between authoritative cases and pending cases become[ ] so great as to mandate the conclusion that the authorities are not directly adverse to the pending cases.

We reject this argument for two reasons.

First, we refuse to credit Mr. Cyrus's assertions about his mental state and his subjective analysis of McGhee because these assertions are not supported by Mr. Cyrus's affidavit or by any other statements that we can attribute to him personally. The current assertions about Mr. Cyrus's legal evaluation of McGhee and his intentions when he failed to cite McGhee are all contained in a pleading signed by another attorney-George Dozier, an associate of Mr. Cyrus.

Second, it is now too late for Mr. Cyrus to present an alternative defense to our order to show cause. He had his chance to defend himself, and he never argued that he believed McGhee was irrelevant to the validity of Tyler's Cooksey plea-only that McGhee was not "controlling" on this issue. As we stated in Booth v. State, 903 P.2d 1079 (Alaska App.1995), when we denied the State's petition for rehearing:

Appellate Rule 506(a) allows a party to seek rehearing when this court "has overlooked ... or failed to consider a principle directly controlling" the decision on appeal, or when this court "has overlooked ... [a] material ... proposition of law". However, Rule 506(a) was not intended to allow parties to raise new arguments after they have had a chance to analyze an appellate court's decision.

Id. at 1090.

For these reasons, Mr. Cyrus's petition for rehearing is DENIED.

Entered at the direction of the court.

      . AS 28.35.030(n).

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). In Cooksey, the Alaska Supreme Court established a procedure whereby a defendant could, with the consent of the government and the court, plead no contest and still preserve an issue for appeal, so long as the issue was dispositive of the defendant's case.

      . 864 P.2d 533, 537 (Alaska 1993).

      . 786 P.2d 384, 387 (Alaska 1990).

      . 743 P.2d 368, 371 (Alaska 1987).

      . McGhee took and failed a breath test. at 1217; AS 28.15.165. See id.

      . See AS 28.15.165(d), which incorporates the escalating suspension periods set forth in AS 28.15.181(c).

      . See McGhee, 951 P.2d at 1217.

      . See id. at 1218.

      . Id. at 1217.

      . See Tyler v. State, 24 P.3d 1260 (Alaska App.2001).

      . Tyler's opening brief states: "At a court trial, Tyler admitted to driving while intoxicated and being intoxicated at the time of driving. The sole issue was the validity of [Tyler's] prior misdemeanor convictions." Opening Brief of Appellant, File No. A-7779, page 3.

      . See Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978).

      . Id. at 658. See also Cooter & Gell v. Hartmarx Corporation, 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), in which the United States Supreme Court endorsed the same interpretation of Federal Civil Rule 11. The court stated:
      The central purpose of Rule 11 is to deter baseless filings in district court[.] Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact [and] legally tenable.]
      Id., 496 U.S. at 393, 110 S.Ct. at 2454.

      . See McGhee, 951 P.2d at 1217.

      . See Charles W. Wolfram, Modern Legal Ethics (1986), § 12.8, p. 682 n. 5.

      . In re Greenberg, 15 N.J. 132, 104 A.2d 46, 49 (1954).

      . Id.

      . See Robert H. Aronson and Donald T. Weck-stein, Professional Responsibility in a Nutshell (2nd ed.1991), p. 348; Geoffrey C. Hazard and W. William Hodes, The Law of Lawyering (2nd ed.1998), p. 591.

      . Cicio v. City of New York, 98 A.D.2d 38, 469 N.Y.S.2d 467, 469 (N.Y.App.1983).

      . Tyler, opinion at 1110.

      . Id.

      . Tyler, opinion at 1104 and 1105 (quoting ABA ethics opinions).

      . Id., opinion at 1105 (main text).

      . Id., opinion at 1107.


source: Caselaw Access Project

author: Justice KOURLIS

license: Public Domain

text:
    In the Matter of ATTORNEY C, Attorney-Respondent.
    No. 01SA19.
    Supreme Court of Colorado, En Banc.
    May 13, 2002.
    John Gleason, Attorney Regulation Counsel, Charles E. Mortimer, Jr., Assistant Regulation Counsel, Denver, Colorado, Attorneys for Petitioner.
    Hall & Evans, LL.C., David R. Brougham, Denver, Colorado, Attorneys for Attorney-Respondent.
    Colorado District Attorney's Council, Peter A. Weir, Executive Director, Denver, Colorado, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Amicus Curiae for Attorney-Respondent.
   Justice KOURLIS

delivered the Opinion of the Court.

This case involves an important issue of first impression: namely, what are the parameters of a prosecutor's ethical duty to disclose exculpatory material to the defense under Colo. RPC 8.8(d)? We hold that Rule 8.8(d) requires prosecutors to disclose exeul-patory evidence to the defense in advance of any critical stage of the proceeding. The respondent in these proceedings did not do so. However, we also hold that a prosecutor violates Rule 8.8(d) only if he or she acts intentionally. In this case, the hearing board did not find that the respondent acted intentionally. Therefore, we decline to find a violation of the rule, and we reverse the hearing board's imposition of a public censure.

I. Facts

The complaint charged Attorney C, an assistant district attorney, with misconduct in two separate preliminary hearings. In the first matter, a defendant, John Skidmore, faced second-degree assault, § 18-3-203(1)(g), 6 C.R.S. (2000) (intending to cause bodily injury to another, the actor causes serious bodily injury), a class 4 felony, § 18-3-208(2)(b). The case involved allegations of domestic violence. A preliminary hearing was scheduled in county court at 1:80 p.m. on Tuesday, May 19, 1998. The respondent represented the People; attorney George Buck represented Skidmore. On May 15, the Friday before the preliminary hearing, the respondent extended an offer to the defendant to plead guilty to third-degree assault. In preparing for the hearing on May 18, she examined the file and discovered a letter written by the alleged victim on May 14. In it, the victim recanted her earlier statements to the police that the defendant had pushed her down, breaking her finger. Instead, she now maintained that the defendant had bumped into her accidentally and she fell down. The letter was consistent with Skid-more's version of events.

The respondent realized that the letter was exculpatory evidence that she needed to provide to defense counsel. However, she rationalized that the letter was not material in the constitutional sense at the preliminary hearing stage because the letter would not change the outcome of the preliminary hearing, so she decided to withhold the letter from the defense until after the hearing. In addition, she did not modify or withdraw her plea offer in light of the vietim's recantation. Both the respondent and Buck were present in court on May 19 for the preliminary hearing, and the hearing board found that although she "had sufficient time and opportunity to give Buck a copy of the letter or to advise him of it prior to the commencement of the preliminary hearing, she elected not to do so."

Buck saw that the alleged victim was not present in the courtroom to testify, and advised Skidmore that the case likely would be bound over to county court on a misdemean- or assault charge, rather than a felony in district court. On Buck's advice, Skidmore agreed to waive the preliminary hearing.

After the hearing, the respondent followed normal office procedures for discovery and placed the letter in a basket for a secretary to send to Buck. Buck received the letter two days after the hearing. Recognizing that the respondent had delayed disclosing the letter until after the hearing, Buck filed a motion for sanctions, referring to the disclosure obligations of Crim. P. 16 and Colo. RPC 8.8(d). The district attorney's office offered to dismiss the charges against Skidmore if Buck withdrew the motion for sanctions, and ultimately that was the outcome.

The second matter occurred five months later. The defendant, the victim's stepbrother (Stepbrother), was charged with sexually assaulting his eleven-year-old stepsister. Stepbrother's father was also charged with sexually assaulting the girl, his stepdaughter. In multiple interviews with different people, the girl alleged that her stepbrother had licked or kissed her genital area. The trial court appointed Buck to represent Stepbrother. Again, the respondent was to represent the People at the preliminary hearing, which was scheduled for the afternoon of October 21, 1998. On the morning of the hearing, the respondent interviewed the vie-tim in the district attorney's office. Donna Craig Rice, a victim advocate at the office, was present during the interview. For the first time, the girl denied any oral-genital contact with her stepbrother, and said she did not remember telling anyone that such contact had occurred. Instead, the victim stated that Stepbrother had touched her genital area with his hand and his penis.

The respondent recognized that this change in the girl's story was exculpatory evidence that had to be disclosed to the defense. She asked Rice to prepare a memo reflecting the girl's new story. The respondent decided not to inform Buck of the changed version herself before the hearing because she was concerned that her whole office could be disqualified if Buck called her as a witness. She consulted with her boss, the district attorney, who did not object to this course of action. Buck, the respondent, and Rice arrived at the courthouse forty-five minutes before the hearing, but neither Rice nor the respondent told Buck of the changes in the victim's testimony. The hearing board majority specifically found that the respondent had the time and opportunity to disclose the information prior to the preliminary hearing.

Instead, the respondent elicited testimony from a social services caseworker that child victims often alter their version of events over time. During direct examination, the victim testified that there had been genital to genital and manual contact between her and her stepbrother. The respondent did not ask her about oral-genital contact, and the victim did not testify regarding her denial that this had occurred. Buck moved to strike the victim's testimony about the genital and manual contacts because he had no prior knowledge of these allegations. The court overruled the objection, but reprimanded the respondent for not disclosing the new testimony to the defense before the hearing. The court ruled that it could not find the victim's statements implausible as a matter of law, and found probable cause to bind Stepbrother over to district court.

The day after the hearing, Buck received by first-class mail the memo that Rice had prepared under the respondent's direction. Buck filed a motion for sanctions, but the trial court denied it on the grounds that the respondent's failure to disclose the exceulpato-ry statements would not have changed the outcome of the preliminary hearing. The district attorney dismissed the charges against Stepbrother in January 1999.

The presiding disciplinary judge and one hearing board member concluded that the respondent's conduct in both the Skidmore and Stepbrother cases violated Colo. RPC 3.8(d), which provides:

Rule 3.8. Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense....

(Emphasis added.) Weighing the aggravating factors against the mitigating factors, the majority determined that a public censure would be the appropriate sanction. One board member dissented, finding no violation of Rule 8.8(d). The respondent appealed to this court pursuant to C.R.C.P. 251.27.

IIL. Analysis

The respondent presents the following issues in the opening brief:

1. Whether Colo. RPC 8.8(d) applies to the failure to disclose recently discovered exculpatory information immediately prior to a preliminary hearing.

2. Whether a violation of Colo. RPC 3.8(d) can be established when a prosecutor fails to disclose exculpatory information, but there is no reasonable probability that had the information been disclosed ahead of time the outcome of the proceeding would have been different.

3. Whether the Hearing Board and PDJ erred in finding that the respondent violated Colo. RPC 8.8(d) in the Skidmore and Stepbrother cases.

The respondent makes two primary arguments: the first is that there can be no violation of Rule 3.8 when attorney regulation counsel fails to establish that, had the information been disclosed, the outcome of the proceeding would have been different. Second, the respondent makes an argument based on the language of the rule that the disclosure was "timely."

A. Materiality

The respondent first argues that the evidence was not material to the outcome of the preliminary hearing. She does not argue that it was not constitutionally material to the outcome of the case as a whole, but rather that it would not have made a difference to the outcome of the preliminary hearing. In order to address her argument, we must first determine the extent to which Rule 3.8(d) includes a concept of materiality.

The hearing board majority held that the rule does not incorporate a Brady constitutional materiality standard, but rather is broader and more encompassing than such a standard would require. We recognize that there is support for that position, but because we decline to impose inconsistent obligations upon prosecutors attempting to comply with both procedural rules and rules of professional conduct, we decline to adopt it.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." See also United States v. Agwrs, 427 U.S. 97, 96 S.Ct. 2392, 49 LEd.2d 342 (1976). Then, in United States v. Bagley, 4783 U.S. 667, 105 S.Ct. 8375, 87 L.Ed.2d 481 (1985), the Court refined the Brady test. It treated exeulpato-ry and impeachment evidence similarly for Brady purposes, id. at 676-77, 105 S.Ct. 3375, and abolished the distinction made in Agurs between situations where the defense makes a specific request for Brady material and where the defense makes either a general or no request at all for such material, id. at 682, 105 S.Ct. 3375 (Blackmun, J.); see Kyles v. Whitley, 514 U.S. 419, 488, 115 S.Ct. 1555, 1831 L.Ed.2d 490 (1995).

The specific test for materiality is whether " 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. " Kyles, 514 U.S. at 433, 115 S.Ct. 1555 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3875 (opinion of Blackmun, J.)).

In People v. District Court, 790 P.2d 332 (Colo.1990), this court determined that "Colorado courts assessing the sufficiency of the prosecution's disclosure under Crim. P. 16(ID)(a)(2) should evaluate the materiality of the undisclosed information, taking guidance from the Bagley standard." 790 P.2d at 338. Hence, the materiality standard of Brady and Bagley applies to Rule 16 disclosures in Colorado. Rule 16(M(a)(2) mandates that "Itlhe prosecuting attorney shall disclose to defense counsel any material or information within his possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor." (Emphasis added.)

The committee comment to Rule 3.8 states, "Because this provision is based to a considerable extent on the ABA Standards of Criminal Justice Relating to the Prosecution Function which many jurisdictions have adopted and because it deals with a specialized area of practice, the Committee felt it should leave this provision as it was set out in the Model Rules."

The comment to Model Rule 8.8(d) provides in part:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense.

Model R. Prof. Conduct 8.8 emt., reprinted as Colo. RPC 8.8 emt.

The ABA Standards for Criminal Justice: Prosecution Function and Defense Function 3-3.11(a) (8d ed.1993) provide that:

A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punish ment of the accused.

(Emphasis added.)

Hence, the language of Crim. P. 16(I)(2)(2), Rule 8.8(d), and ABA Standard 3-8.11(a) is substantially identical. We have explicitly adopted a materiality standard with respect to our procedural rules, and we are disinclined to impose inconsistent obligations upon prosecutors. We therefore also adopt a materiality standard as to the latter, such that we read Rule 8.8(d) as containing a requirement that a prosecutor disclose exculpatory, outcome-determinative evidence that tends to negate the guilt or mitigate the punishment of the accused.

Given that standard, we now turn to the respondent's argument that the evidence was not exculpatory or outcome-determinative at the preliminary hearing, and, therefore, was not material at that particular stage of the case. We clarify that the materiality standard relates not to a specific proceeding in the criminal case, which could be a hearing on a bond or a hearing on the admissibility of certain evidence unrelated to the withheld evidence, but rather to the broader criminal proceeding itself. Material evidence, in this sense, is any evidence tending to be outcome determinative at trial. However, materiality itself is not time-sensitive, and does not come and go depending upon the nature of the next hearing. We do not accept the argument that the evidence need only be disclosed in advance of a proceeding at which that evidence would be specifically determinative. Rather, we conclude that if evidence is material to the outcome of the. trial, then the prosecutor must disclose that evidence in advance of the next critical stage of the proceeding-whether the evidence would particularly affect that hearing or not.

B. Timeliness Under the Rule

In the alternative, the respondent argues that her disclosure of the evidence was sufficiently timely to satisfy the rule. Rule 3.8(d) mandates that the prosecutor make "timely" disclosure of all exculpatory evidence. "Timely" is defined neither by the Rules of Professional Conduct, nor by case law. Cf. § 2-4-1011, 1 CRS. (2001) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). "Timely" is a word in common usage. The New Shorter Oxford English Dictionary defines "timely" as: "Occurring, done, or made at an appropriate or suitable time; opportune." -II New Shorter Oxford English Dictionary 3814 (1998). The question is whether the respondent's disclosures, which the defense received after the Skidmore and Stepbrother preliminary hearings, were still timely. We determine that they were not.

Although a preliminary hearing is not constitutionally mandated, it is a procedure incorporated into our Rules of Criminal Procedure. It is a critical stage of a criminal proceeding, not only for such purposes as the Sixth Amendment right to counsel, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Denbow v. Dist. Court, 652 P.2d 1065, 1066 (Colo.1982), but also for case management purposes. Notwithstanding the low burden the prosecution has to meet to have a defendant bound over for trial, a preliminary hearing is a serious part of the case. See McDonald v. Dist. Court, 195 Colo. 159, 161, 576 P.2d 169, 171 (1978) (stressing that "a preliminary hearing is a critical stage in the prosecution of a defendant and should not be conducted in a 'perfunctory fashion. ") (quoting Maestas v. Dist. Court, 189 Colo. 443, 446, 541 P.2d 889, 891 (1975)).

For our purposes, therefore, the important thing is that, although a critical stage of the proceedings was about to cceur, the respondent made a conscious decision to delay disclosure in both cases until after those proceedings concluded.

Under the respondent's approach, both the judge and defense attorney were unaware of the actual strength or weakness of the prosecution's case at the preliminary hearing, which could have an unfair effect on, for example, the conditions the court might place on a defendant's pretrial release, and also on the defendant's plea-bargaining position. We therefore hold that, when a prosecutor is aware of exculpatory evidence before any critical stage of the proceeding, she must disclose that evidence before the proceeding takes place.

The hearing board majority found that in both the Skidmore and Stepbrother matters, it was quite possible for her to disclose the evidence before the hearing. We understand that the respondent was worried about the possible disqualification of her office should she become a witness in the Stepbrother case. However, the hearing board concluded that Rice could have prepared a memorandum for defense counsel before the hearing. That finding is supported by the record. The memo that Rice prepared after the hearing was one paragraph long, consisting of about eighty words.

We agree with the hearing board majority that the respondent failed to disclose exculpatory evidence in a timely manner to the defense in both the Skidmore and Stepbrother matters; however, we decline to find a violation of the rule for the reasons that now follow.

III. Conclusion

In the area of discipline of prosecutors for discovery violations, there are no Colorado cases and very few elsewhere. The reasons that prosecutors seldom face disciplinary proceedings in this area may be wide-ranging, but for our purposes, it suffices to state that we face a matter of first impression.

A.

There are generally three states of mind with respect to disciplinary violations: negli-genee, knowledge, and intent. Negligence is defined as "the failure of a lawyer to heed a substantial risk that cirenmstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation." ABA Standards definitions. Negligent violation of a court order or rule presumptively occasions a reprimand or admonition, depending upon whether the conduct causes injury or potential injury to a client or to a legal proceeding. ABA Standards 62. Knowledge is defined as the "conscious awareness of the nature or attendant cireumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." ABA Standards definitions. Suspension is generally appropriate when a lawyer knowingly violates a rule and causes injury or potential injury. ABA Standards 6.2. Intent is defined as the "conscious objective or purpose to accomplish a particular result." ABA Standards definitions. Disbarment is generally appropriate when a lawyer knowingly violates a rule with the intent to obtain a benefit and causes serious injury or potentially serious injury. ABA Standards 6.2.

The hearing board majority here conelud-ed that the respondent committed the first violation in the Skidmore case negligently. As to the second violation in the Stepbrother case, the majority concluded that the respondent had been put on actual notice of her duty under Colo. RPC 8.8(d) by defense counsel in the Skidmore case. The majority noted that the term "knowingly" is defined in the introduction to the Rules of Professional Conduct as denoting "actual knowledge of the fact in question. A person's knowledge may, be inferred from the cireumstances." Accordingly, the majority concluded that the respondent committed the second violation knowingly. The majority held that the negligent conduct warranted only a public censure, and then weighed aggravating factors against the mitigating factors of inexperience, absence of a dishonest or selfish motive, and a cooperative attitude toward the proceedings to arrive at an ultimate determination that public censure was also appropriate in the second case.

B.

As we consider the conduct in this case, we first note that discovery violations in criminal cases are different from other kinds of disciplinary rule violations for a number of reasons. First, discovery issues arise in almost every criminal case. Trial courts routinely make findings of fact and enter orders and sanctions designed to respond to the severity of the violation. As a result, the problems are visible, immediately addressed, and any harm to the public or to the individual parties is dealt with in the context of the pending case. Not only is management, regulation, and supervision of discovery preeminently a trial court function, see Samms v. Dist. Court, 908 P.2d 520, 524 (Colo.1995), but we also have case law and rules of procedure specifically tailored to redress any discovery violations. We neither wish to upset that process nor to interject regulatory counsel into it.

Indeed, when the court revised the attorney discipline system in 1998, it did so to make the system more responsive to the goal of protecting the public. As part of this goal, we revised the formal complaint and litigation system to assure greater attention to serious allegations of professional misconduct. The new grievance system is designed to "shiftl ] the emphasis from punishment to prevention ... [and to] protect the public as well as educate attorneys. The process will reduce delay and focus resources on the more serious cases filed."

We also note that the Preamble to the Colorado Rules of Professional Conduct states that the purpose of the rules "can be subverted when they are invoked by opposing parties as procedural weapons." Colo. RPC pmbl. In the context of discovery in criminal cases, that danger is a real one. We do not wish to create a mechanism that could be used to obstruct the progress of a case.

Hence, we have an adjudicative system in place that deals regularly with discovery issues, and also an attorney grievance system that is ill-suited to addressing any but the most serious discovery violations.

C.

Because we do not wish to interfere with the discretion of trial courts to handle discovery disputes in the way dictated by the facts of the case, and because we do not wish the possibility of a grievance proceeding to permeate every discovery dispute in eriminal cases, we choose to read the rule itself as including the mens rea of intent.

As we noted above, the ABA Standards for Criminal Justice: Prosecution Function and Defense Function 3-3.11(a) (3d ed.19983) provide that:

A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused:

(Emphasis added.) We observe that the ABA specifically added "intentionally" to the standard subsequent to its original enactment. ABA Standards for Criminal Justice 3-3.11(a) history of standard (2d ed.1986).

The ABA standard anticipated that the rule would address only the most serious of cases in which conduct occurs that reflects upon the character of the prosecutor: conduct that cannot be fully addressed by orders relating to the underlying case. We agree that grievance proceedings should be limited to those cireurastances in which a prosecutor intentionally withholds exculpatory evidence in violation of the rule.

As to this respondent, the hearing board found that her violation of 3.8(d) was negligent in the Skidmore case and knowing in the Stepbrother case. In neither case did the board find that her actions were accompanied by the intent necessary to justify a sanction, as we now hold necessary. As a result, we decline to find a violation of the rule.

Additionally, we realize that we now interpret the requirements of Colo. RPC 8.8(d) for the first time. See In re Sather, 3 P.3d 403, 415 (Colo.2000) (holding that where our opinions have not clarified the requirements under a specific rule of professional conduct, the court may decline to impose a sanction for the violation). We have never previously clarified that a prosecutor must disclose exculpatory evidence prior to any critical stage of the proceeding. Hence, because the rule was unclear, respondent could not have had an intent to withhold the evidence prior to the preliminary hearing in contravention of ethical mandate.

In summary, although we conclude that the respondent failed to disclose material evidence in a timely manner, we decline to find a violation of Rule 3.8(d) because her conduct was not intentional. We therefore reverse the hearing board's judgment. Each party shall be responsible for its own costs in this proceeding.

      . Although the attorney is the petitioner in this court, because she was the respondent before the hearing board, we refer to her as the respondent throughout this opinion.

      . We identify the respondent as "Attorney C" because we are not disciplining her and do not wish the publication of this opinion to serve as de facto punishment.

      . There is a typographical error in the Colorado Revised Statutes Annotated with respect to Colo. RPC 3.8(d): "make timely disclosure to the defense of all evidence of information'" should read "make timely disclosure to the defense of all evidence or information."

      . The presiding disciplinary judge refers separately to the PDJ and hearing board in the findings and conclusions. When the PDJ is sitting with a hearing board, we view him to be acting solely as a member of that board, despite his status as the presiding officer of that board. See C.R.C.P. 251.18.

      . Richard P. Holme dissented from the majority opinion on the grounds that the conduct did not violate the rule at all.

      . See Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct 1555, 131 L.Ed.2d 490 (1995) (dictum); Lawyer Disciplinary Bd. v. Hatcher, 199 W.Va. 227, 483 S.E.2d 810, 816 (1997); Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C.L.Rev. 693, 708 (1986-87).

      . Similarly, I ABA Standards for Criminal Justice 3-3.11(a) (2d ed.1986) provide that:
      It is unprofessional conduct for a prosecutor intentionally to fail to make disclosure to the defense, at the earliest feasible opportunity, of the existence of evidence which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce the punishment of the accused.
      (Emphasis added.)

      . Case management principles define critical events in the progress of a case as events that cause counsel to review their files, consider their strategy, and evaluate the prospects for settlement. See People v. Jasper, 17 P.3d 807, 812 (Colo.2001); David C. Steelman et al., Caseflow Management: The Heart of Court Management in the New Millennium 8-9 (2000); Maureen Solomon & Douglas K. Somerlot, Caseflow Management in the Trial Court: Now and for the Future 3-6 (1987).

      . See Comm. on Prof'l Ethics & Conduct of Iowa State Bar Ass'n v. Ramey, 512 N.W.2d 569, 572 (Iowa 1994); In re Carpenter, 248 Kan. 619, 808 P.2d 1341, 1346 (1991); In re Application for the Discipline of Morris, 419 N.W.2d 70, 70 (Minn.1987); In re Brophy, 83 A.D.2d 975, 442 N.Y.S.2d 818, 819 (1981); Office of Disciplinary Counsel v. Jones, 66 Ohio St.3d 369, 613 N.E.2d 178, 179-80 (1993); Cuyahoga County Bar Ass'n v. Gerstenslager, 45 Ohio St.3d 88, 543 N.E.2d 491, 491 (1989); In re Illuzzi, 160 Vt. 474, 632 A.2d 346, 347 (1993); Read v. Va. State Bar, 233 Va. 560, 357 S.E.2d 544, 546-47 (1987).

      . Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C.L.Rev. 721, 725-26 (2001); Edwin H. Auler, Actions Against Prosecutors Who Suppress or Falsify Evidence, 47 Tex. L.Rev. 642, 646 (1968-659).

      . With one exception,-misappropriation of client funds-we have equated "reckless" and "knowing" conduct for analyzing the appropriate sanction. People v. Small, 962 P.2d 258, 260 (Colo.1998).

      . We disagree with the notion that respondent was made aware of the rule only through her brush with it in the first proceeding. All attorneys in Colorado are presumed to be aware of the rules and their import. However, given our holding in this case, whether her behavior was attributable to general or specific knowledge makes no difference.

      . Linda Donnelly et al., How the New Attorney Regulation System Will Work, 28 Colo. Law. 57, 59 (Feb.1999).