source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Diana BRYSON, Petitioner/Cross-Respondent, v. BANNER HEALTH SYSTEM d/b/a Fairbanks Memorial Hospital d/b/a Family Recovery Center and Guy Patterson, Respondents/Cross-Petitioners.
    Nos. S-10653, S-10673.
    Supreme Court of Alaska.
    April 23, 2004.

      Kenneth P. Ringstad, Paskvan, Ringstad, Parrish, P.C., Fairbanks, for Petitioner/Cross-Respondent.
    Howard A. Lazar and Ann B. Black, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Respondents/Cross-Petitioners.
    Before: BRYNER, Chief Justice, MATTHEWS, FABE, and CARPENETI, Justices.
   OPINION

PER CURIAM.

I. INTRODUCTION

The Family Recovery Center placed Diana Bryson and Laurence Kompkoff in the same continuing care substance abuse treatment group. According to Bryson, as part of the treatment, the Center encouraged all members of the group to contact and assist each other outside of the group setting. The Center knew that Kompkoff had an extensive criminal history of alcohol-related crimes of violence, including sexual assaults. Komp-koff relapsed into drinking while being treated. He called Bryson for a ride, attempted to rape her, and shot her in the ensuing struggle. Bryson sued the Center, alleging that it negligently failed to warn and protect her against harm from Kompkoff. The superior court ruled on summary judgment that the Center owed Bryson an actionable duty of due care to protect her from harm in the course of her treatment — including foreseeable harm by other patients. Both parties petitioned for review, contesting the superior court’s ruling on the existence and scope of the Center’s duty. We granted review, and now affirm the superior court’s decision.

II. FACTS AND PROCEEDINGS

The Family Recovery Center provides outpatient substance abuse treatment in Fairbanks. The Center placed both Diana Bry-son and Laurence Kompkoff in its continuing care self-help group after each had independently completed an intensive substance abuse program. As part of their admission to the Center, each signed documents acknowledging that their records were confidential and that unauthorized disclosure was a crime under federal law.

When Kompkoff enrolled in the Center’s program, he had an extensive criminal history involving alcohol abuse and sexual violence:

• He was first convicted of felony assault with a dangerous weapon in 1973 for stabbing another person multiple times. Kompkoff was incarcerated for the offense until February 1976.
• In July 1976, about five months after his release, Kompkoff slashed his stepfather’s neck with a knife. He was again convicted of felony assault with a dangerous weapon, but received only five years of probation on the condition that he abstain from alcohol and complete substance abuse treatment.
• In April 1978 Kompkoff violated his probation by drinking and possessing a butcher knife.
• In July 1979 Kompkoff broke into the home of a woman he had met at an Alcoholics Anonymous meeting and raped her. Upon conviction, Kompkoff was sentenced to fifteen years in prison. He remained incarcerated until August 1989, and then resided at halfway houses until August of 1990, when he was released on parole.
• Three months later, in December 1990, Kompkoff broke into a neighboring woman’s home, put a knife to her throat, and threatened to kill her. Kompkoff was convicted of first-degree burglary for this offense and was sentenced to serve ten years in prison, with two-and-a-half years suspended. After serving the unsuspend-ed portion of his sentence, he was released on probation in December 1995.
• Over the next four years, Kompkoff violated the conditions of his probation on at least three separate occasions.

Kompkoff decided to enroll in the Center’s program in September 1999 at the encouragement of his probation officer, after he was arrested for consuming alcohol and driving while intoxicated — his third probation violation. At a probation revocation hearing in November 1999, his probation officer reported that Kompkoff was in the final stages of his substance abuse treatment at the Center and seemed to be doing well. Based on this report, the superior court revoked only a short period of Kompkoffs total suspended term and allowed him to resume probation on the condition that he, 'complete the Center’s outpatient continuing care program.

The Center knew of Kompkoffs criminal history when it placed him together with Bryson in the same self-help group, but did not consider his history to rule out the placement because Kompkoff had successfully completed the Center’s intensive treatment program. In admitting Kompkoff to the program, the Center failed to warn Bryson or any other group members that he might be dangerous if he resumed drinking; nor did the Center take any other precautions to protect group members on account of Komp-koffs history of relapse and violence.

As part of its group treatment program, the Center encouraged all .members of the group — including Kompkoff — to rely on other group members for help and support between group meetings. To assist the group in maintaining contact outside of the group setting, the Center compiled and distributed a list of members and their telephone numbers. .

Bryson and Kompkoff participated in three self-help group sessions together: on December 28, 1999, December 30, 1999, and January 4, 2000. On January 10 or 11, Komp-koffs probation officer called and warned the Center of reports that Kompkoff might be drinking. The Center made no attempt to alert its group members concerning these reports.

On January 11 Kompkoff called Bryson for a ride to the bank and the credit union. Bryson agreed and arranged to pick him up at a local grocery store; when she arrived, Kompkoff asked if she would take him to his apartment first, so that he could make some phone calls. At Kompkoffs insistence, Bry-son accompanied him into his apartment. Kompkoff walked into his bedroom; Bryson stayed behind. She noticed a large bottle of vodka on a table; just as she saw the bottle, Kompkoff stepped out of the bedroom, armed with a gun. He ordered Bryson to get in the bedroom and take her clothes off. When she failed to comply, Kompkoff grabbed her by the jacket, threw her onto the bedroom floor, and struggled to remove her pants. As Bry-son fought Kompkoff for control of the gun, it fired; the bullet struck her hand, severing a finger. Bryson then managed to escape.

As a result of this incident, Bryson sued Kompkoff and the Center for damages. In her claim against the Center, she alleged negligence in failing to warn her that Komp-koff was dangerous and in failing to protect her from his assaultive behavior.

The Center moved for summary judgment, arguing that it had no duty to protect or warn Bryson about Kompkoff. Specifically, the Center maintained that federal regulations governing the confidentiality of its treatment records precluded it from divulging Kompkoffs criminal history, thus leaving the Center with no duty to warn other patients.

In response to the Center’s motion, Bryson cross-moved for summary judgment on the issue of duty. Advancing alternative legal theories, Bryson argued that, under the facts alleged in her complaint, the Center had an actionable duty to warn her of and protect her from Kompkoff.

The superior court partly granted and partly denied the parties’ cross-motions. As a threshold matter, the court recognized that federal and Alaska law barred the Center from disclosing Kompkoffs treatment records. The court also recognized that neither the Center’s knowledge of Kompkoffs background nor its relationship to Kompkoff as his treatment provider gave rise to a duty requiring the Center to control his conduct or protect the general public against his dangerous propensities; absent evidence that Kompkoff posed a specific threat to Bryson, the court found no actionable duty arising from these factors.

After ruling for the Center on these points, the superior court proceeded to consider the Center’s relationship with Bryson as a potential source of duty. The court determined that Bryson’s status as the Center’s patient created a special relationship between Bry-son and the Center — a relationship that required the Center to exercise due care to avoid exposing Bryson to an unreasonable risk of harm in the treatment setting — including an unreasonable risk of harm from other patients. Because the court believed that it might have been possible for the Center to have taken additional steps to protect Bryson from Kompkoff without violating its statutory duty to maintain the confidentiality of his records, the court reasoned that a triable question of fact existed as to the Center’s compliance with this relation-specific duty toward Bryson. On this limited basis, the superior court decided the issue of duty in Bryson’s favor, concluding:

Alaska law and federal law prohibit the kinds of warnings that Bryson claims were owed to her. There was, however, a “special relationship” formed between the Defendants and Bryson. The Defendants did not have a duty to warn based on a general knowledge of Kompkoffs criminal history because [the Center was not] “on notice” that Kompkoff posed a specific threat to anyone at the time of the assault on Bry-son. However, this special relationship between Defendants and Bryson, combined with Defendants’ inability to disclose confidential information regarding patients to other patients, created a limited duty on Defendants’ part to reasonably safeguard patients from one another such that patients did not become particularly vulnerable to other patients by virtue of their participation in the program. By encouraging interaction outside the residential treatment setting, [the Center] had a duty to establish reasonable guidelines and general warnings that may have prevented this incident.

Both parties petitioned for interlocutory review — the Center insisting that the superi- or court erred in declining to grant its motion for summary judgment completely, and Bryson arguing that the court erred in unduly restricting the scope of the Center’s duty. We granted review and ordered full briefing.

III. DISCUSSION

The Center argues that the superi- or court erred in finding that it had an actionable duty to protect Bryson from danger. Because federal and state confidentiality law prohibited the Center from disclosing Kompkoffs criminal history, it reasons that no duty to warn Bryson could have arisen. In contrast, Bryson faults the superior court for unduly limiting the Center’s actionable duty. Pointing to language in the summary judgment order suggesting that the Center owed Bryson only “a limited duty” and that this duty only required the Center “to establish reasonable guidelines and general warnings,” Bryson maintains that the court too narrowly defined the protective measures that could potentially fall within the Center’s duty to use due care in providing treatment. We separately address the parties’ divergent positions concerning the duty’s existence and its scope.

A. Existence of the Center’s Duty Toward Bryson

The superior court noted that because federal and Alaska laws obliged the Center to keep the treatment records of its patients confidential, no duty to warn or protect Bry-son from Kompkoff arose under their provisions. Relying on this finding, the Center insists that the confidentiality statutes shielded it from liability by precluding any actionable duty from arising. We find the Center’s argument unpersuasive. As the superior court recognized, the Center could not be held accountable for failing to take protective actions that would have violated applicable confidentiality laws. Yet nothing in these laws expressly or implicitly absolves health care providers of the responsibility for protecting their patients by reasonably available means that comply with the laws’ requirements. If the Center could have taken legally permissible measures to protect Bryson, the confidentiality statutes would not rule out an actionable duty.

The superior court concluded that such measures did potentially exist, finding that Bryson raised triable questions of fact regarding the availability of lawful steps that the Center might have taken to protect her from unreasonable risk in the course of her group treatment with Kompkoff. The record, in our view, supports this conclusion. The critical question, then, is whether the Center actually owed Bryson an actionable duty.

To determine whether an actionable duty exists in a given case we look first for statutes, rules, or existing precedent creating a duty. The superior court found no actionable duty arising by statute but concluded that the Center had a duty to use due care to protect Bryson under our existing precedent, which has followed the approach taken by the Restatement (Second) of Torts.

In the absence of a special relationship, the Restatement ordinarily recognizes no duty requiring one person to protect another from a third party. But § 315 of the Restatement states that when “a defendant stands in a special relationship to either the dangerous person or the potential victim, the defendant is required to control the dangerous person or warn or otherwise protect the victim.” Restatement §§ 323 and 299A supplement this provision. Section 323 broadly describes the kind of special relationship at issue here, providing that one who undertakes “to render services to another which he should recognize as necessary for the protection of the other’s person or things” may be held liable for failing to exercise reasonable care in performing such services. Section 299A more narrowly provides that “one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.” These provisions reflect the Restatement’s overarching view that “undertakings can create a duty of care” and that “one who voluntarily assumes a duty must then perform that duty with reasonable care.”

The superior court reasoned that, by undertaking to provide substance abuse treatment to Bryson, the Center formed a special relationship requiring it to take reasonable care to protect Bryson from danger in the course of her treatment — including foreseeable danger from her fellow patients. We agree. The Center undertook to provide substance abuse treatment to Bryson, and by doing so it assumed a duty to treat her with reasonable care. We thus affirm the superi- or court’s conclusion that the Center owed Bryson an actionable duty of due care.

B. Scope of the Center’s Duty Toward Bryson

Bryson challenges the superior court’s order defining the Center’s duty of due care, arguing that it too narrowly limits the duty’s scope. Specifically, Bryson points to the order’s concluding paragraph, which describes the Center’s duty as a “limited” one requiring the Center to give guidelines and warnings:

[The] special relationship between Defendants and Bryson, combined with Defendants’ inability to disclose confidential information regarding patients to other patients, created a limited duty on Defendants’ part to reasonably safeguard patients from one another such that patients did not become particularly vulnerable to other patients by virtue of their participation in the program. By encouraging interaction outside the residential treatment setting, [the Center] had a duty to establish reasonable guidelines and general warnings that may have prevented this incident.

Bryson reads the court’s concluding reference to guidelines and warnings as defining the outer limits of the Center’s duty. She maintains that this definition is too restrictive, insisting the Center’s duty required it do more than issue “guidelines and general warnings” if other, more effective protective measures were reasonably available. But Bryson’s exclusive focus on the summary judgment order’s closing remarks overlooks the main body of the order, where the superior court addressed the Center’s duty in considerably greater detail:

Plaintiffs exposure to Kompkoff was directly related to Plaintiffs treatment by [the Center], There was a special relationship between Plaintiff and [the Center] by virtue of this treatment relationship. Arguably, Plaintiffs association with Komp-koff away from the treatment facility was due to the encouragement of [the Center]. If [the Center] encourages its patients to be available to one another outside of the treatment facility, there is a commensurate duty to provide reasonable safeguard or guidelines for its patients when these contacts occur. These might include cautions or restrictions with regard to the public or private places for such meetings, restrictions as to meetings between the sexes, and reminders that the criminal records of co-patients cannot be disclosed, such that traditional safeguards for one’s safety should not be set aside when dealing with other members of the treatment group.
The Court accepts [the Center’s] contention that it cannot disclose confidential ree-ords or be accountable for not incarcerating Kompkoff. The question for the jury-in this case seems to be whether it was reasonable for [the Center] to encourage contact between patients outside of treatment given its inability to disclose patient history and, if so, whether there were reasonable steps [the Center] should have taken, given its statutory limitations, that would have prevented this incident.

Reading the superior court’s closing remarks in light of the more extensive discussion of duty contained in the body of its decision, we understand the court’s concluding reference to guidelines and general warnings to be illustrative, not exclusive. As the superior court indicated in the body of its decision, the Center has a duty, “to provide reasonable sa£eguard[s] or guidelines,” and these safeguards or guidelines “might include cautions or restrictions” on contact outside the treatment center. (Emphasis added.) These statements demonstrate that the superior court did not mean to narrowly confine the Center’s duty to one of issuing guidelines and general warnings. And we see nothing else in the decision below suggesting that the superior court would preclude Bryson from establishing her claim by proving that the Center negligently failed to take other kinds of precautions. In fact, the body of the decision describes a broader reach for the duty, generally defining the ultimate questions at issue as “whether it was reasonable for [the Center] to encourage contact between patients outside of treatment given its inability to disclose patient history and, if so, whether there were reasonable steps [the Center] should have taken, given its statutory limitations, that would have prevented this incident.”

As we interpret it, then, the superior court’s definition of the privilege comports with the Restatement’s principles. While recognizing that the Center’s duty could not require it to take any unlawful actions, the court ruled that the Center owed Bryson a duty of reasonable care to take lawful steps to ensure Bryson’s safety. Under the Restatement, the Center’s duty of reasonable care must be measured in terms of the skill and knowledge normally used by treatment providers under similar circumstance. In other words, the Center had a duty to act as a reasonable treatment provider under the circumstances. Because this duty arose from the Center’s special treatment relationship with Bryson, it is necessarily limited to the treatment context: the Center owed Bry-son no duty to protect her from others except in connection with the Center’s treatment of Bryson. And the scope of the duty here is also necessarily confined by the Center’s obligation to obey applicable confidentiality laws. But under the circumstances at hand, as the superior court properly recognized, whether the Center breached its duty of care by taking or failing to take any particular action presents a question of fact, not a question of duty.

IY. CONCLUSION

We AFFIRM the superior court’s summary judgment order.

EASTAUGH, Justice, not participating.

      . Because Ais case requires us to review a summary judgment order limiting the scope of Ae Center's actionable duty under Ae facts advanced by Bryson, we describe the facts in the light most favorable to Bryson.

      . The Center operates as Ae chemical dependency unit of Ae Fairbanks Memorial Hospital, which is owned and operated by Banner HealA Systems. Guy Patterson was an employee of the Center during Ae time at issue in this case. Our opinion refers to Patterson and these entities collectively as "the Center.”

      .The court of appeals affirmed Kompkoff’s fifteen-year sentence in Kompkoff v. State, 626 P.2d 1091 (Alaska App.1981).

      . We review summary judgment rulings de novo to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Whether a party has a duty of care and, if so, the nature and scope of that duty are questions of law that we also review de novo. See, e.g., State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003); Dore v. City of Fairbanks, 31 P.3d 788, 790 (Alaska 2001).

      . See 42 U.S.C. § 290dd-2(a) (2003) ("Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research ... shall ... be confidential and be disclosed only [as permitted under this section].”); AS 47.37.210 ("[T]he registration and other records of treatment facilities shall remain confidential and are privileged to the patient.").

      . Dore, 31 P.3d at 792; Wongittilin v. State, 36 P.3d 678, 681 (Alaska 2001).

      . See, e.g., P.G. and R.G. v. State, 4 P.3d 326 (Alaska 2000); R.E. v. State, 878 P.2d 1341 (Alaska 1994); Division of Corr., Dep’t of Health & Soc. Servs. v. Neakok, 721 P.2d 1121, 1126 (Alaska 1986).

      . 2 Dan B. Dobbs, The Law of Torts § 314, at 853 (2001); Restatement (Second) of Torts § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.”) & cmt. a (recognizing an exception to the general rule based on special relationship with perpetrator or victim) (1965). We have previously looked to the Restatement to aid us in our determination of whether a defendant has an actionable duty. See Dore, 31 P.3d at 793 & n. 32 (cases cited).

      . See Neakok, 721 P.2d at 1126.

      . Restatement (Second) of Torts § 323 (1965) provides:
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm, or
      (b) the harm is suffered because of the other's reliance upon the undertaking.

      . Restatement (Second) of Torts § 299A (1965); see also Restatement (Second) of Torts § 321 (1965) (stating that where the actor knew or should have known that he or she created a risk to another and had an opportunity to minimize the risk before the harm actually occurred, then he or she owed a duty of reasonable care to attempt to avoid the future harm); W. Page Kee-ton, Prosser and Keeton on Torts § 33, at 203 (5th ed.1984) (stating that in some situations, "the defendant will be held liable because his affirmative conduct has greatly increased the risk of harm to the plaintiff through the criminal acts of others").

      . See Dobbs, supra note 8, § 319, at 860-61 ("The general rule that undertakings can create a duty of care is often expressed by saying one who voluntarily assumes a duty must then perform that duty with reasonable care.”).

      . See id. § 319, at 860-61.

      . Because the case before us falls within the class of cases covered by existing precedent and the Restatement framework, we need not consider the issue of duty under the policy analysis adopted in D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554 (Alaska 1981).


author: STEWART, Judge.

text:
    Andrew DAYTON, Appellant, v. STATE of Alaska, Appellee.
    No. A-7724.
    Court of Appeals of Alaska.
    April 23, 2004.

      John M. Rice, Juneau, for Appellant.
    Nancy R. Simel, 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

STEWART, Judge.

This is the second opinion we have issued in this case. In Dayton v. State, 54 P.3d 817 (Alaska App.2002), we upheld the superior court’s decision on all but one of the claims that Dayton brought on appeal. We remanded this ease to the superior court for additional findings on whether a database used for statistical analysis of DNA profile frequencies was the type of data that experts in the field would reasonably rely on. After taking additional evidence, the superior court found that the database met the requirements of Alaska Evidence Rule 703. This finding is supported by substantial evidence. Because the database met the requirements of Rule 703, the superior court did not abuse its discretion by allowing testimony on DNA profile frequencies using that database. Therefore, we affirm Dayton’s conviction.

We discussed the facts of Dayton’s crimes in our previous opinion and we need not repeat that discussion here. Dayton was charged with first-degree sexual assault and first-degree burglary for breaking into S.S.’s house in Huslia and sexually assaulting her. Dayton’s first trial ended with a hung jury, but he was convicted at his retrial.

Hayne Hamilton, a forensic serologist at the Alaska Scientific Crime Detection Laboratory (hereafter the “crime lab”), conducted DQ alpha and polymarker DNA analysis on various samples seized during the investigation. The testing showed that Dayton’s DNA was a potential source for the DNA found in sperm collected from S.S.’s vagina. Based on databases that the State had previously developed, Hamilton projected that the frequency o'f the DNA profile found in the sperm fraction was 1 in 3,500 for North Slope Inupiat Eskimos and 1 in 2,000 for Be-thel/Wade Hampton Yup’ik Eskimos. As we noted in our earlier opinion, Hamilton could not calculate a DNA profile frequency for Athabascan Indians because she did not have an Athabascan database. (Dayton is an Athabascan Indian.)

During the first trial, as part of his defense, Dayton argued that the DNA evidence was meaningless without an Athabascan database. Dayton himself testified that he saw someone else having intercourse with S.S. and implied that his brother may have assaulted S.S. The first trial resulted with a hung jury.

After the first trial, the crime lab adopted the short tandem repeat (STR) system of DNA analysis. STR examines thirteen genetic loci and is more discriminating than DQ alpha and polymarker analysis, which checks six genetic loci. The crime lab created a database with genetic samples from Athabascan Indians. We discussed that process in our earlier opinion.

At Dayton’s retrial before Superior Court Judge pro tem Jane F. Kauvar, the State again offered evidence that, based on Dayton’s DNA profile and the DNA profile of the sperm collected from S.S., Dayton could not be excluded as the source of the sperm. The statistical analysis of the likelihood that this DNA profile would be repeated randomly in certain groups with existing databases was 1 in 22 billion for North American Caucasians, 1 in 6 billion for African-Americans, and 1 in 413 million for Hispanics. Dayton did not challenge this evidence.

In addition, the State offered evidence that STR analysis indicated that Dayton exhibited the DNA profile of the sperm taken from S.S. and the population frequency statistics based on the Athabascan database. Dayton objected to this evidence, arguing that the State had to establish the reliability of the Athabascan database in a hearing outside the presence of the jury before the expert witness could use the database as a basis for providing scientific evidence. Dayton relied on Daubert v. Merrell Dow Pharmaceuticals, Inc. In State v. Coon, the Alaska Supreme Court adopted a test for the admissibility of challenged scientific evidence, which was derived from Daubert, The court indicated that Daubert factors provided a useful approach to analyzing the admissibility of such evidence. Those factors are:

(1) whether the proffered scientific theory or technique can be (and has been) empirically tested (i.e., whether the scientific method is falsifiable and refutable); (2) whether the theory or technique has been subject to peer review and publication; (3) whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the technique’s operation; and (4) whether the theory or technique has attained general acceptance []

However, Judge Kauvar overruled Dayton’s objection.

Using the Athabascan database developed by the crime lab, the State’s expert testified that the likelihood was 1 in 2.5 million that the DNA profile from the sperm taken from S.S. would be repeated randomly in the Athabascan population. Because Dayton is an Athabascan, the Athabascan genetic frequency data was particularly probative.

Under Rule 703, expert witnesses can rely on facts or data outside their personal knowledge (indeed, facts or data that would not necessarily be admissible themselves) if those facts or data are “of a type reasonably relied upon by experts in the [applicable] field [when] forming opinions or inferences upon the subject [at issue].” The Commentary to Rule 703 states that the rule was designed to allow experts to rely on sources of information that constitute the recognized “tools” of their profession, that is, information that otherwise could not be introduced without “the expenditure of substantial time in producing and examining various authenticating witnesses.”

In Dayton’s ease, the State’s expert testified, based on the database developed for the Athabascan population, that the likelihood that someone other than Dayton was the source of the genetic material in the sperm recovered from S.S. was 1 in 2.5 million. In offering this opinion, an expert could rely on the Athabascan DNA database if this database met the test put forth in Rule 703. Because Judge Kauvar did not address this question after overruling Dayton’s objection, we remanded the case to the superior court and directed Judge Kauvar to decide whether that database was the type of data that experts in the field would reasonably rely on.

On remand, the State offered Dr. Bruce Budowle, a senior scientist at the FBI laboratory in Quantico, Virginia, as an expert in the creation of DNA databases. Judge Kau-var qualified Dr. Budowle as an expert without objection from Dayton.

Dr. Budowle testified that the Athabascan database was scientifically valid and constituted the type of data that experts who analyze and use DNA databases rely on. He explained that the thirteen STR loci that were examined in the Athabascan DNA database are part of CODIS (Combined DNA Index System, the national DNA data bank) and are the accepted set of genetic markers used nationally and internationally. Dr. Bu-dowle testified that he was a co-author of an article that described the Athabascan database and the Yup’ik and Inupiat databases. The article was published in Forensic Science International, a peer-reviewed publication, after Dayton’s retrial.

Dayton presented no witnesses at the hearing.

After hearing Dr. Budowle’s testimony, Judge Kauvar found that the Athabascan database was the type of data that experts would reasonably rely on. From our review of the record, we conclude that this finding is supported by substantial evidence.

Dayton argues that we should reverse his conviction because he claims that the State would not have met the requirements of Rule 703 if the court had addressed that question during his retrial. Dayton points out that the peer-reviewed article that discusses the Athabascan database was not published until after Dayton’s retrial. But a trial court considering the validity of scientific evidence is not required to find that the proponent of evidence must show all four of the enumerated Daubert/Coon factors. The supreme court noted in Coon that a trial judge may be convinced by other factors that scientific evidence is reliable. We cannot say at this point that the State would not have been able to show that the database was reliable had Judge Kauvar addressed that point at the retrial.

Furthermore, if we granted Dayton a new trial because Judge Kauvar did not find during trial that experts would rely on the database, Dayton would benefit from an error that was harmless. The record now shows that the State established the reliability of the database and, therefore, that the evidence would be admissible at another trial.

We conclude that it was not an abuse of discretion to allow testimony that relied on the Athabascan database.

Conclusion

The judgment of the superior court is AFFIRMED.

      . AS 11.41.410(a)(1) and AS 11.46.300(a)(1), respectively.

      . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . 974 P.2d 386 (Alaska 1999).

      . Id. At 395, 396-97.

      . Id. At 395.

      . Id., citing Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-2798.

      . Id.

      . Compare Depp v. State, 686 P.2d 712, 715-16 (Alaska App.1984) (ruling that error in holding grand jury in a location not permitted by court rule was harmless because venue for the grand jury was proper under rule as amended in the interim).

        .See Coon, 974 P.2d at 398.


author: Justice COATS

text:
    In The Matter of Mark Joseph FISCHER, Attorney-Respondent.
    No. 03SA49.
    Supreme Court of Colorado, En Bane.
    May 10, 2004.
    Kim E. Ikeler, Assistant Regulation Counsel, Denver, Colorado, Attorney for Petitioner.
    Mark J. Fischer, Hayden, Colorado, Attorney for Attorney-Respondent.
   Justice COATS

delivered the Opinion of the Court.

Mark J. Fischer, the respondent in the underlying attorney discipline proceeding, appealed from the order of the Hearing Board disbarring him. See People v. Fischer, 63 P.3d 373 (Colo.O.P.D.J.2003). Fischer admitted that he violated the Rules of Professional Conduct by disbursing funds to his dissolution-of-marriage client, and to himself in the amount of his attorney fees, in a manner not in accordance with the terms of the separation agreement adopted by the court. The hearing Board held that disbarment was the presumed sanction for the respondent’s misappropriation of funds and his violation of the court’s order, and it found the mitigating circumstances offered by him insufficient to alter that sanction.

Because the Board did not appropriately consider and balance the aggravating and mitigating circumstances established as a matter of fact, and because it imposed an unreasonably harsh sanction on the respondent, we reverse its order of disbarment. Because we believe the proper application of the ABA Standards for Imposing Lawyer Sanctions leads to the conclusion that suspension, rather than disbarment, is the appropriate sanction, we now order the suspension of the respondent from the practice of law for a period of one year and one day.

I.

In July 2002, the Office of Attorney Regulation filed a complaint against the respondent, alleging violations of Colo. RPC 8.4(c) (“Engaging In Conduct Involving Dishonesty, Fraud, Deceit, Or Misrepresentation”); 1.15(a) (“Failure To Hold Property Of Clients Or Third Parties, Separate From Attorney’s Own Property”); 1.15(a) (“Alternative Claim of Negligent or Technical Conversion”); 1.15(b) (“Failing To Deliver To Third Persons Funds That The Third Persons Are Entitled to Receive”); 1.15(c) (“Failing To Keep Disputed Property Separate Until There is An Accounting And Severance Of The Disputed Interest”); and 3.4(c) (“Knowing Disobedience Of An Obligation Under The Rules Of A Tribunal”). All of the allegations arose from the respondent’s distribution of funds from the sale of marital assets to Ms. Fran McKinney, his client in a dissolution of marriage proceeding.

The respondent confessed all but the third claim, which alleged a. negligent or technical conversion by allowing his trust account to dip below the amount of the sale proceeds, and all but that claim were resolved against him, either by judgment on the pleadings or summary judgment. The parties then filed an “Agreed Trial Management Order,” which included a stipulated statement of facts and indicated that the third claim would be withdrawn. The trial management order further indicated the agreement of the parties that the only issue to be determined at trial would be the appropriate discipline and that, as a matter of law, the presumed discipline would be disbarment.

According to the stipulated statement of facts, in September 2001, Ms. McKinney and her husband, Mr. Gerald Hallman, entered into a Separation and Property Settlement Agreement, which was made an order of the court by its dissolution decree. The agreement called for Ms. McKinney to sell a piece of real property owned by the couple and a mobile home located on it. From the proceeds she agreed to pay certain enumerated debts, including three liens secured by the land, personal debts owed by her and Mr. Hallman, a $10,000 tax obligation, and $36,000 due on the purchase price of the mobile home, as well as $10,000 to Mr. Hall-man. Only after these payments were made did the agreement entitle Ms. McKinney to receive whatever proceeds remained from the sales. The agreement also provided for the payments to be made directly from the closing or from the proceeds deposited in the respondent’s trust account.

As it turned out, Mr. Hallman had neglected to get permits related to the mobile home and had failed to register it with the county. A certificate of occupancy had therefore never been issued. Certain taxes had also never been paid, all of which made financing difficult, and Ms. McKinney had trouble selling the property. Ultimately, the respondent was able to arrange a sale of the real property (but not the mobile home), including payment of $70,000 of the purchase price in November 2001, to be followed in December with payment of $23,000, secured by a promissory note.

Neither Mr. Hallman nor his attorney attended the closings, but by correspondence with the respondent, Hallman’s attorney confirmed her understanding that her client would receive his $10,000 from the proceeds of the sale held in the respondent’s trust account. After the first closing, the respondent wrote to Hallman’s attorney, indicating that the liens on the property had been paid from the $70,000 and that he had also paid certain of Ms. McKinney’s personal debts, including his own claim of $4,000 for attorney fees. He indicated that the other debts his client was obliged to pay by the terms of the agreement would be handled when the additional $23,000 was paid but that he had been instructed by his client not to pay Mr. Hall-man any money at that time, and perhaps not at all. As justification, he noted that Ms. McKinney had been forced to discount the property by at least $5,000 because of an inadequate and unapproved sewer system.

After not receiving any disbursement from the December payment of $23,000, Mr. Hall-man filed a Motion for Release of Money Pursuant to the Settlement Agreement. The respondent’s accounting, which he was ordered by the court to provide, indicated that Ms. McKinney had received a total of $53,108.30 and the respondent had received an additional $6,468 as attorney fees. The $10,000 tax obligation had not been paid, and Mr. Hallman had not been paid the $10,000 required by the separation agreement. The respondent offered, as justification for refusing to pay Hallman, that his client had directed him as her attorney to withhold payment from her former husband because of the losses incurred due to his failure to disclose significant issues regarding the mobile home.

The district court found that the funds from the sale of the property were not disbursed in accordance with the agreement of the parties and order of the court, apparently for the reason that Ms. McKinney instructed the respondent to disburse funds contrary to the agreement. The court entered a provisional judgment in favor of Mr. Hallman and against Ms. McKinney for $47,083.82, which was vacated by stipulation of the parties after the respondent personally satisfied all of the financial terms and conditions outlined in the separation agreement. This satisfaction by the respondent included payments of $10,000 to Mr. Hallman, $3,794.97 to Hall-man’s attorney for additional attorney fees incurred by the respondent’s actions, the respondent’s personal assumption of the $36,000 debt on the unsold mobile home, payment of an additional $400 debt listed in the agreement, and payment of $3,596.48 to the Colorado Department of Revenue, fully resolving the “$10,000 tax obligation” referred to in the agreement.

In the stipulated' statement of facts, the respondent also acknowledged that he should not have deviated from the disbursement schedule of the agreement without first seeking court approval, and that his actions had damaged Mr. Hallman both by delaying receipt of his $10,000 share of the equity in the land and by leaving him temporarily liable on the $10,000 tax obligation. Although the respondent also conceded that he should have seen his role as an officer of the court and should have followed the court’s direction, as set out in its order, the respondent insisted that he did not think of himself, at the time, as a trustee executing a court order. He insisted that he saw himself as .merely attempting to overcome the hurdles that arose in liquidating the joint assets of the parties and fairly resolving their liabilities.

After a hearing, at which the respondent presented six witnesses (including the district court judge who presided over the dissolution agreement in question) in mitigation and as to his fitness to practice law, the Hearing Board' nevertheless found disbarment to be the appropriate sanction. The Board relied heavily on its belief that a knowing conversion of a third party’s funds entrusted to an attorney, as well as a knowing violation of a court order, with the intent to obtain a benefit and causing serious injury or potentially serious injury to a party, warrants disbarment. In aggravation the Board found that the respondent had a dishonest or selfish motive; had substantial experience in the practice of law; and had received a Letter of Admonition some 10 years earlier for neglect in representing an estate. The Board largely discounted the respondent’s payment of restitution,.on the grounds that the payments were made following the filing of a Request for Investigation and the threat of a lawsuit. Although the Board acknowledged, the respondent’s cooperation in the disciplinary proceedings; considerable evidence of his excellent reputation in his community; his pro bono activities and service on boards; his expression of remorse; and his practice in an area of the state in which few attorneys are available, the Board found these factors insufficient to overcome what it considered to be a presumption of disbarment.

The respondent appealed to this court, seeking review solely of the Board’s order of disbarment.

II.

This court will affirm a sanction imposed by the Hearing Board unless it determines that the form of discipline bears no relation to the conduct, is manifestly excessive or insufficient in relation to the needs of the public, or is otherwise unreasonable. See C.R.C.P. 251.27(b); In re Roose, 69 P.3d 43, 46 (Colo.2003). In making these determinations, we have consistently recognized the ABA Standards for Imposing Lawyer Sanctions (1991 & Supp 1992) as the guiding authority for selecting the appropriate sanction. See In re Attorney D., 57 P.3d 395, 399 (Colo.2002). The purpose behind the creation of these Standards was to enhance consistency in the imposition of sanctions in attorney disciplinary proceedings. See ABA Standards, Preface. The Standards describe a range of available sanctions for each type of misconduct and require, in choosing the appropriate sanction, consideration not only of the duty that was violated, but also of the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct, and the existence of various aggravating or mitigating factors. ABA Standards 3.0; Roose, 69 P.3d at 47.

As the body actually entertaining evidence and evaluating witnesses, the Board’s determinations of historical fact are entitled to deference by this court. C.R.C.P. 251.27(b); Roose, 69 P.3d at 46. Its decision to characterize particular facts as mitigation or aggravation and the weight it gives to each factor are, however, matters of law, or at least involve mixed questions of fact and law, which this court must ultimately decide for itself. C.R.C.P. 251.27(b); In re Hickox, 57 P.3d 403, 404 (Colo.2002). To the extent that our assessment of the factors involved in choosing an appropriate sanction, and our understanding of the ABA Standards and application of them to the established facts, leads us to the conclusion that the sanction imposed by the Board is manifestly excessive or insufficient in relation to the needs of the public, or is otherwise unreasonable, it is our obligation to disapprove that sanction.

III.

Unlike most crimes defined by the legislature or at common law, violations of the Rules of Professional Conduct are not generally distinguished on the basis of particular culpable mental states or the seriousness of resulting harm. These factors are instead considered in determining an appropriate sanction. Similarly, while it is clearly important to permit, and in fact encourage, respondent-attorneys to recognize and acknowledge misconduct without depriving them of an opportunity to demonstrate why their misconduct requires less rather than more protection for the public, the hybrid, civil/criminal procedures of the rules governing attorney discipline do not provide any mechanism comparable to a guilty plea or providency hearing, to insure a common understanding of the scope and effect of a respondent’s admissions.

The respondent’s protestations in both the district court and this court are inconsistent with the admissions contained in his pleadings. It is perfectly clear, for instance, that despite admitting a “knowing” violation of a court order, and despite knowing, upon reflection, both that his actions were not in accord with the terms of the agreement and that the agreement had been incorporated by the dissolution decree, the respondent steadfastly asserted that it never dawned on him, while he was acting, that he was violating a court order.

It is unnecessary in this case, however, to decide the extent to which the respondent’s admissions regarding violations of the Rules of Professional Conduct limited the Board from considering evidence of his mental state or the degree of any resulting injury in determining a sanction. Under the circumstances of his particular case, even if the respondent’s conduct would have warranted disbarment in the absence of mitigation, sufficient facts in mitigation were established to make suspension, rather than disbarment, the appropriate sanction. Foremost among these were the respondent’s recognition of his ethical violations and acceptance of responsibility for the injuries caused to others and the judicial system, evidenced by his cooperation with the Office of Attorney Regulation Counsel, his expressions of remorse, and his attempts to make whole the injured parties and clear up the problems caused by his behavior, at his own expense. See ABA Standard 9.32(a)-(m).

From the beginning, the respondent’s transactions were undertaken in the open, without any attempt to falsify or conceal them. See Id. at 9.32(e) (full and free disclosure to disciplinary board or cooperative attitude toward proceeding considered a mitigating factor). When Hallman did not receive payment from the second closing and moved for distribution according to the terms of the agreement, the court ordered an accounting and the respondent provided one, without subterfuge or delay. From the initial request of the OARC, the respondent met and spoke openly with the regulation counsel. When a complaint was filed, the respondent answered by admitting his conduct and seeking only to address the appropriateness of a sanction. In fact, the respondent’s eagerness to admit his conduct, in light of the specificity with which the violations were pled, may well have impaired his ability to fully explain and mitigate the sanction.

Of considerable significance was the respondent’s attempt to repair the damage his conduct had caused to his client’s former husband, creditors of the couple, and the judicial system by accepting personal responsibility for all debts that were the subject of the separation agreement and any additional expenses. The ABA Standards for Imposing Lawyer Sanctions recognize a timely good faith effort to make restitution or rectify the consequences of misconduct as a mitigating factor. See Id. at 9.32(d). While acknowledging that some courts have held otherwise, the Standards consider it the better policy to allow a good faith effort to make restitution to be considered in mitigation in order both to encourage lawyers to reduce the injuries they have caused and help insure recognition of the wrongfulness of their conduct. See In re Pautler, 47 P.3d 1175, 1184 (Colo.2002). As the comments also make clear, it is the fact that restitution is made voluntarily and of the lawyer’s own initiative that is important, even if that occurs in response to a complaint filed with the appropriate regulatory agency. Restitution prior to the initiation of disciplinary proceedings therefore present the clearest case for mitigation, while restitution later in the proceedings present a weaker case. See ABA Standard 9.32 cmt.

The Board discounted the respondent’s personal assumption of the remaining debts as meriting little weight, solely on the grounds that they were made after the filing of a request for investigation and that they could become the subject of a lawsuit. Treating these threatened or potential actions as dispositive, the Board’s order gives no indication of any further attempt to assess the respondent’s bona fides. Although we have used similar, seemingly unequivocal language with regard to lawyers who knowingly spend, as if it were their own, money entrusted to them by their clients, this case clearly does not involve stealing a client’s money. The dangers of encouraging subsequent claims that the lawyer intended merely to borrow the money and criticism that the wealthy are permitted to buy their way out of wrongdoing are not of the same concern under these circumstances. Moreover, the ABA Standards clearly recognize a distinction between repayment after being confronted with a complaint and repayment only when facing an inevitable order to do so. Id.

Here, the respondent did not treat funds entrusted to him by anyone, much less his client, as if they were his own; and apart from receiving payment for his attorney fees, he did not personally benefit from the distributions. He made no attempt to conceal his transactions from the court, and when admonished, he immediately acknowledged his ethical lapse and accepted responsibility. Before a complaint was ever filed, he had paid his client’s former husband the $10,000 to which he would have been entitled from a sale of both the land and mobile home, as well as his additional attorney fees incurred in trying to collect this money. Before answering the complaint, once it was filed, he had accepted personal responsibility for all of the debts contemplated by the separation agreement, including the mobile home, which had proven to be unsaleable, and other family debts. Within weeks, a stipulation had been entered in the domestic proceeding, acknowledging that all payments required by the separation agreement had been -made. In the absence of circumstances indicating otherwise, these actions by the respondent demonstrate precisely the recognition and acceptance of personal responsibility that diminish the need for further protection of the public.

Furthermore, as acknowledged by the Board, the respondent presented considerable evidence of other mitigation, including his excellent reputation in the profession, see ABA Standard 9.32(g) (character or reputation a factor in mitigation); his record of pro bono and community service, see In re Fong, 308 A.D.2d 19, 762 N.Y.S.2d 367 (2003)(considerable evidence in mitigation, including attorney’s regular pro bono work on behalf of four community organizations); In re Mason, 1997 WL 275107 (Cal.Bar Ct.1997)(attorney’s pro bono work is a mitigating factor); Disciplinary Action Against Dvorak, 554 N.W.2d 399 (Minn.1996)(mitigating factors included substantial pro bono work and volunteer work provided to community by attorney); and the opinion of others, including the judge who presided over the dissolution proceeding, that he was not a risk to the public. See Standard 9.32(g). Although the Board found the 10-year-old Letter of Admonition for unrelated negligence to be an aggravating factor, the absence of any discipline, much less continuous or recent discipline, for dishonesty or violating court orders was actually a significant mitigating factor, see Standard 9.32(m) (remoteness of prior offenses is a mitigating factor); People v. Pittam, 889 P.2d 678 (Colo.1995) (previous suspension was seventeen years ago); In re Boaten, 276 Kan. 656, 78 P.3d 458 (2003) (finding that prior discipline occurring ten years ago “remote” in time), in terms of the risk the respondent posed to the public. Similarly, although the Board concluded, without elaboration or explanation, that the respondent had a dishonest or selfish motive, presumably because he received payment for his attorney fees, there was no suggestion in the record that he took any payment beyond that to which he would have been entitled; that he had any pressing need that would provide a motive for his untimely distribution to himself; or that his concern for the welfare of his aged client was feigned. To the extent that his desire to assist her could nevertheless be characterized as a dishonest motive, such a motive adds little aggravation under these circumstances.

All in all, by relying on authorities involving actual theft of client funds, the Board overemphasized the notion of a “presumption of disbarment” under these circumstances, and undervalued the importance of other factors in determining the needs of the public. Even “knowing conversions” of funds entrusted to attorneys do not always present the same need for sanctions. In one of the few recorded examples in this jurisdiction of disciplining an attorney for knowingly disbursing non-client funds entrusted to him other than in accordance with the terms of the trust, we considered it appropriate to suspend the offending attorney from the practice of law for a period of 60 days. See People v. Nulan, 820 P.2d 1117 (Colo.1991) (intentionally misapplying escrowed earnest money by distributing portions to himself, his step-brother, and creditors of the subject restaurant under pressure from family members).

IV.

Because we have determined that the Board did not appropriately consider and balance the aggravating and mitigating circumstances established as a matter of fact, and that it imposed an unreasonably harsh sanction on the respondent, we reverse its order of disbarment. Because we also believe a proper application of the ABA Standards for Imposing Lawyer Sanctions leads to the conclusion that the respondent’s conduct warrants suspension, for a period sufficient to require his reinstatement following suspension, see C.R.C.P. 251.29(b), we now order the suspension of the respondent from the practice of law for a period of one year and one day beginning March 10, 2003, the effective date of the Board’s order of disbarment.