Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

In the Disciplinary Matter Involving 

DEBORAH IVY, Attorney. 

Appeal from the Alaska Bar Association Disciplinary Board. 

Appearances: Charles E. Cole, Law Offices of Charles E. 

Cole, Fairbanks, for Deborah Ivy. Kevin G. Clarkson, Brena, 

Bell & Clarkson, P.C., Anchorage, for Alaska Bar 

Association. 

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, 

Justices. [Maassen, Justice, not participating.] 

BOLGER, Justice.
 

FABE, Chief Justice, dissenting.
 

Supreme Court No. S-15450 

ABA File No. 2010D233 

O P I N I O N 

No. 7106 – May 20, 2016 

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I. INTRODUCTION 

After remand the Alaska Bar Association Disciplinary Board again 

recommends disbarring an attorney who testified falsely in private civil litigation and in 

these disciplinary proceedings. Previously wedirectedtheBoard to reconsider sanctions 

in light of our holding that the attorney violated Alaska Rule of Professional Conduct 8.4 

and Alaska Bar Rule 15, but not Rules of Professional Conduct 3.3 and 3.4, because the 

misconduct did not arise in a representative capacity. After independently reviewing the 

record, we now conclude that the severity of this misconduct warrants disbarment. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

II. FACTS AND PROCEEDINGS
 

We set out the facts and proceedings relevant to this bar matter in In re Ivy. 

1 

Here we recapitulate those facts most relevant to the imposition of sanctions. 

Deborah Ivy and her brother, David Kyzer, were involved for several years 

in now-settled litigation over the dissolution and unwinding of business organizations 

and joint property holdings of Ivy, Kyzer, their two sisters, and others. During that 

litigation, relations between Kyzer and Ivy grew so acrimonious that a no-contact order 

was issued in December 2007. This order prohibited in-person or telephone contact 

between Ivy and Kyzer without an attorney present and prohibited each party from 

coming within 500 feet of the other’s residence. Ivy subsequently testified that Kyzer 

made improper contact with her on three occasions after this order issued. In response 

Kyzer filed an ethics grievance with the Alaska Bar Association, claiming that Ivy 

fabricated these incidents, in violation of the Alaska Rules of Professional Conduct. 

Two of the alleged incidents bear on the sanctions inquiry. First, on 

January 7, 2008, Ivy provided a 30-minute statement to a police officer, claiming that 

Kyzer had stalked her at a women’s clothing store about ten days earlier. Based on Ivy’s 

statement and because Ivy claimed to be in hiding and did not want to come to the 

courthouse, the officer offered to request a telephonic hearing for a domestic violence 

restraining order. The day Ivy made the police report was the same day she was 

scheduled to give a deposition in the litigation with Kyzer. A few days before, on 

January 3, the superior court had denied Ivy’s motion to stay the deposition, and on 

January 4 we denied Ivy’s emergency motion to stay the superior court order denying 

her request. Ivy did not appear at the January 7 deposition despite having been ordered 

to do so. In response to a follow-up order to appear for the deposition, Ivy’s attorney 

1 350 P.3d 758 (Alaska 2015). 

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reported the alleged stalking incident to the superior court. Ivy ultimately was deposed 

on March 13. At that deposition, Ivy testified about the alleged stalking incident. She 

described in great detail her movements among the various racks of clothing and the 

dressing rooms, Kyzer’s allegedly menacing use of his vehicle, and her response. The 

second incident occurred in July 2010 when Ivy claimed that Kyzer assaulted her in a 

courtroom and that his actions constituted criminal sexual assault. To support this claim, 

Ivy filed a Notice of Sexual Assault with the court accompanied by an affidavit 

describing the alleged incident. 

In December 2010 Kyzer filed an ethics grievance with the Alaska Bar 

Association, alleging that Ivy violated several Alaska Rules of Professional Conduct by 

falsely testifying that Kyzer stalked her and assaulted her in the courtroom. After an 

investigation by a special bar counsel and a hearing, the Area Hearing Committee found 

that Ivy knowingly provided false testimony at the deposition, in her affidavit, and 

during the disciplinary proceedings. 

Specifically the Committee found that Ivy’s testimony about the stalking 

incident was “not credible,” that her description of how Kyzer moved his vehicle in the 

clothing store parking lot was “not physically possible,” and that when confronted with 

this physical impossibility during cross-examination, Ivy “fabricated a new story,” 

continued to testify falsely, and did not acknowledge that her account was flawed. The 

Committee also found that courtroom video accurately depicted the alleged assault and 

largely contradicted Ivy’s claims. It further found it “not reasonably possible for 

someone to have experienced the inadvertent and minor bump of a brother attempting 

to be excused . . . and then to honestly or mistakenly believe that they had been sexually 

assaulted.” The Committee also noted that Ivy testified that she had not been mistaken 

and that she had not imagined or hallucinated the alleged courtroom assault. 

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Based on clear and convincing evidence, theCommittee concluded that Ivy 

violated Rules of Professional Conduct 3.3(a)(1) and (3); 3.4(b); 8.4(a), (b), and (c); and 

Bar Rule 15(a)(3). Applying this court’s three-step attorney sanctions inquiry,2 the 

Committee recommended disbarment given the ethical violations, Ivy’s intentional 

mental state, the serious actual or potential injury caused by her misconduct, the 

recommended sanction under the American Bar Association Standards for Imposing 

Lawyer Sanctions,3 and the balance of aggravating and mitigating factors. The 

Committee also recommended awarding $61,282.75 in attorney’s fees and costs, about 

$26,000 less than bar counsel requested. The Board adopted the Committee’s findings 

and recommendations in full. Ivy appealed. 

In that initial appeal we agreed with the Board’s findings about both the 

alleged stalking incident and the alleged courtroom assault.4 We also agreed that 

sufficient circumstantial evidence established that Ivy’s testimony was objectively false 

and that Ivy knew her testimony was not true.5 Accordingly we concluded that Ivy 

violated Rule of Professional Conduct 8.4 and Bar Rule 15.6 However because Ivy’s 

misconduct arose in a purely personal capacity, we concluded that Ivy did not violate 

2 See In re Shea, 273 P.3d 612, 622 (Alaska 2012). 

3 STANDARDS FOR IMPOSING LAWYER SANCTIONS, AM. BAR ASS’N (1992) 

[hereinafter ABA STANDARDS], http://www.americanbar.org/content/dam/aba/ 

administrative/professional_responsibility/corrected_standards_sanctions_may2012_ 

wfootnotes.authcheckdam.pdf. 

4 In re Ivy, 350 P.3d at 761-62. 

5 Id. at 762. 

6 Id. at 759. 

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Rules of Professional Conduct 3.3 and 3.4.7 Therefore we remanded the matter to the 

Board to reconsider sanctions.8 Finally we “f[ou]nd no fault” with the attorney’s fees 

and costs award.9 We indicated only that the Board “may revise the award if it 

determines that reconsideration . . . is warranted.”10 

Upon reconsideration, the Board again recommends disbarment and the 

same fee and cost award. Ivy again appeals. 

III. STANDARD OF REVIEW 

We independently review the entire record in attorney disciplinary 

proceedings, but we give “great weight” to findings of fact made by the Board.11 When 

an attorney appeals the Board’s findings of fact, the attorney must demonstrate that such 

findings are erroneous.12 When reviewing questions of law and questions concerning the 

appropriateness of sanctions, we apply our independent judgment.13 

7 Id. at 762-65. 

8 Id. at 766. 

9 Id. 

10 Id. 

11 In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (quoting In re Shea, 

273 P.3d 612, 619 (Alaska 2012)). 

12 Id. 

13 Id. 

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IV. DISCUSSION 

A. Ivy’s Misconduct Warrants Disbarment. 

When sanctioning an attorney for misconduct, we seek to “ensure a level 

of consistency necessary for fairness to the public and the legal system.”14 “Our 

paramount concern . . . must be the protection of the public, the courts, and the legal 

profession.”15 

The American Bar Association Standards for Imposing Lawyer Sanctions 

(ABA Standards) and our prior cases guide us.16 First we characterize the attorney’s 

conduct in light of three variables: the ethical violation(s), the attorney’s mental state at 

the time of the misconduct, and the actual or potential injury the attorney’s misconduct 

caused.17 This three-variable characterization yields a presumptive sanction under the 

ABA Standards, which we then adjust in light of aggravating and mitigating factors18 and 

14 In re Buckalew, 731 P.2d 48, 52 (Alaska 1986). 

15 Id. at 56 (citing In re Preston, 616 P.2d 1, 6 (Alaska 1980); ABA 

STANDARDS, supra note 3, at § III.A.1.1). 

16 In re Shea, 273 P.3d at 622. 

17 Id. (citing In re Cyrus, 241 P.3d 890, 893 (Alaska 2010)). 

18 Id. (citing In re Cyrus, 241 P.3d at 893). 

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our prior cases.19 Throughout this inquiry we exercise our independent judgment,20 and 

we recognize the fact-specific nature of each case.21 

Ivy contends that her misconduct warrants a two-year suspension rather 

than the Board’s recommended sanction of disbarment. Applying our independent 

judgment, we agree with the Board. 

1. Step one: ethical violation(s), mental state, and injury 

a. Ethical violation(s) 

Previously we concluded that Ivy violated Bar Rule 15 and Rule of 

Professional Conduct 8.4.22 Nonetheless the parties dispute which subsections of these 

rules Ivy violated, specifically whether Ivy violated Rule 8.4(b).23 The nature of Ivy’s 

19 See In re Wiederholt, 877 P.2d 765, 769 (Alaska 1994) (“[S]anctions in 

other cases can be no more than indicators of appropriate sanctions in a given case 

because of inevitable factual differences concerning not only the offense but the 

offender.” (first citing In re Buckalew, 731 P.2d at 57 nn.10-11; then citing In re Minor, 

658 P.2d 781, 784 (Alaska 1983))). 

20 In re Shea, 273 P.3d at 623 (citing In re Cyrus, 241 P.3d at 892-93). 

21 In re Wiederholt, 877 P.2d at 769 (first citing In re Buckalew, 731 P.2d 

at 57 nn.10-11; then citing Minor, 658 P.2d at 784). 

22 In re Ivy, 350 P.3d 758, 759 (Alaska 2015). 

23 As relevant here, Rule of Professional Conduct 8.4 provides: 

It is professional misconduct for a lawyer to: 

(a) violate or attempt to violate the Rules of Professional 

Conduct, knowingly assist or induce another to do so, or do 

so through the acts of another; 

(b) commit a criminal act that reflects adversely on the 

lawyer’s honesty, trustworthiness or fitness as a lawyer in 

other respects; 

(continued...) 

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violation, which determines the subsections of Rule 8.4 Ivy violated, bears on how we 

characterize Ivy’s misconduct and accordingly affects our analysis of sanctions. 

We conclude, as the Board did, that Ivy violated Rule 8.4(b) — as well as 

(a) and (c) — because her false testimony constitutes a criminal act that reflects poorly 

on her integrity as an attorney. Under Rule 8.4(b) it is professional misconduct for an 

attorney to “commit a criminal act that reflects adversely on the lawyer’s honesty, 

trustworthiness or fitness as a lawyer in other respects.”24 Ivy argues that the Board has 

no authority to conclude that she violated Rule 8.4(b) because she was never convicted 

of perjury. 

Neither the text of Rule 8.4(b) nor the commentary to it requires an 

underlying criminal conviction. Rather, as In re Friedman demonstrates,25 Rule 8.4(b) 

contemplates the criminal nature of an attorney’s misconduct. In In re Friedman we 

concluded that an attorney violated former Disciplinary Rule 1–102(A)(3); that rule 

deemed it professional misconduct to “[e]ngage in illegal conduct involving moral 

turpitude.”26 We explained that, though the attorney had not been convicted of a crime, 

the attorney’s misconduct would have constituted criminal misapplication of property 

under Alaska law if he had committed the underlying acts in Alaska rather than in 

23 (...continued) 

(c) engage in conduct involving dishonesty, fraud, deceit, or 

misrepresentation. 

24 Alaska R. Prof. Conduct 8.4(b). 

25 23 P.3d 620 (Alaska 2001). 

26 Id. at 629 n.32 (alteration in original) (quoting former Disciplinary Rule 

1–102(A)). 

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California.27 But because the misconduct occurred elsewhere, it was beyond the reach 

of our penal laws.28 Like former Disciplinary Rule 1–102(A)(3), Rule 8.4(b) does not 

require an underlying criminal conviction for a violation to occur. Violating the rule 

requires only that an attorney engage in dishonest conduct that would be criminal under 

Alaska law.29 

Under AS 11.56.200 a person commits criminal perjury, a class B felony,30 

when “the person makes a false sworn statement which the person does not believe to 

be true.”31 The statement must be objectively false, and the person must know that the 

statement is false.32 The statute encompasses all false sworn statements, not just those 

27 Id. at 629 n.33. 

28 Id. 

29 See Alaska R. Prof. Conduct 8.4(b) (“It is professional misconduct for a 

lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, 

trustworthiness or fitness as a lawyer in other respects . . . .”); In re Friedman, 23 P.3d 

at 629 & nn.32-33. 

30 AS 11.56.200(c). 

31 AS 11.56.200(a). 

32 LaParle v. State, 957 P.2d 330, 335 (Alaska App. 1998); Alaska Criminal 

Pattern Jury Instruction 11.56.200 (2009). Pattern Jury Instruction 11.56.200 provides: 

To prove that the defendant committed [the] crime [of 

perjury], the state must prove beyond a reasonable doubt each 

of the following elements: 

(1) the defendant knowingly made a sworn statement; 

(2) the statement was false; and 

(3) the defendant did not believe the sworn statement to be 

true. 

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made in court.33 Under the Rules of Professional Conduct, the word “knowingly” 

“denotes actual knowledge of the fact in question.”34 

We already concluded that Ivy acted knowingly when she testified falsely, 

that Ivy’s testimony was objectively false, that circumstantial evidence supported the 

finding that Ivy knew her testimony was untrue, and that Ivy “did not credibly explain 

that she mistakenly believed it was true.”35 Such conclusions satisfy the elements of 

criminal perjury. Because perjury is a dishonest act, we conclude that Ivy violated 

Rule 8.4(b). 

We further conclude that Ivy violated Rules of Professional Conduct 8.4(a) 

and (c) and Bar Rule 15(a)(3). Our previous decision supports these conclusions: Ivy 

breached the Rules of Professional Conduct, which constitutes a violation of Rule of 

Professional Conduct 8.4(a); she engaged in dishonest conduct, which violates Rule of 

33 AS 11.56.240(2) (defining “sworn statement”); Joseph v. State, 315 P.3d 

678, 686 (Alaska App. 2013). AS 11.56.240 broadly defines statements to include 

“representation[s] of fact[,] . . . opinion, belief, [and] other state[s] of mind” when the 

statement “clearly relates to state of mind apart from or in addition to any facts that are 

the subject of the representation.” AS 11.56.240(1). Sworn statements include 

statements “knowingly given under oath . . . , including a notarized statement” and 

statements “knowingly given under penalty of perjury under AS 09.63.020.” 

AS 11.56.240(2). AS 09.63.020 governs certified documents. 

34 Alaska R. Prof. Conduct 9.1(h); see also In re Ivy, 350 P.3d 758, 762 

(Alaska 2015) (explaining that “ ‘knowingly’ making false statement for purposes of 

Rules [of Professional Conduct] requires both that statement be false and that speaker 

know so”). 

35 In re Ivy, 350 P.3d at 762. 

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Professional Conduct 8.4(c); and she knowingly misrepresented facts and circumstances 

in this grievance proceeding, which violates Bar Rule 15(a)(3).36 

b. Mental state 

The record supports the finding that Ivy acted intentionally when she 

testified falsely in the litigation with Kyzer and in these disciplinary proceedings. 

Neither the Rules of Professional Conduct nor the Bar Rules define “intentional” 

conduct. The ABA Standards, which we follow, define “intent” as “the conscious 

objective or purpose to accomplish a particular result.”37 Intent does not require 

malfeasance,38 and circumstantial evidence can support a finding of intent.39 

We previously concluded that Ivy acted, at minimum, knowingly when she 

testified falsely.40 We cited Ivy’s motive to lie, the “incredibility of [her] testimony,” the 

strong evidence contradicting her accounts, her persistence in asserting her claims 

despite such evidence, and her failure to demonstrate that her ability to perceive was 

compromised.41 These facts and others also support the finding that Ivy acted with 

intent: Ivy made a police report accusing Kyzer of stalking on the same day she was 

scheduled to give a deposition in the litigation with him — and after her requests to stay 

36 See id. at 761-62, 766. 

37 ABA STANDARDS, supra note 3, at § III (definitions). 

38 In re West, 805 P.2d 351, 356 (Alaska 1991) (citing the ABA Standards). 

39 In re Ivy, 350 P.3d at 762 & n.11 (citing Adams v. Adams, 131 P.3d 464, 

466-67 (Alaska 2006)); In re Friedman, 23 P.3d 620, 626 (Alaska 2001) (“[I]t is 

permissible to infer that an accused intends the natural and probable consequences of his 

or her knowing actions.” (quoting In re Triem, 929 P.2d 634, 648 (Alaska 1996))). 

40 In re Ivy, 350 P.3d at 762. 

41 Id. 

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that deposition already had been denied. She subsequently testified about the alleged 

stalking in great detail. And, in this appeal, she admits acting with a selfish motive when 

giving that testimony. She also continues to rationalize her previous stories rather than 

acknowledge their incredibility. 

Such circumstantial evidence supports the finding that Ivy sought to 

manipulate the litigation with Kyzer and these disciplinary proceedings. Therefore we 

agree with the Board that Ivy acted intentionally. 

c. Injury and potential injury 

We also conclude that Ivy’s misconduct caused serious actual or potential 

injury to Kyzer and to the legal system, but not to the public or to the legal profession. 

The ABA Standards define injury according to the type of duty violated and the extent 

of actual or potential harm.42 Harm ranges from “serious” to “little or no” injury.43 

Potential injury is harm that is “reasonably foreseeable at the time of the lawyer’s 

misconduct, and which, but for some intervening factor or event, would probably have 

resulted from the lawyer’s misconduct.”44 

Ivy contends that she did not cause serious harm to Kyzer, citing a lack of 

“clear and convincing evidence” in the record. She further contends that whatever 

potential injury she caused to him was “limited.” 

As an initial matter, evidence of injury and potential injury need not reach 

the clear and convincing evidentiary threshold. The ABA Standards, which guide us in 

42 ABA STANDARDS, supra note 3, at §§ II, III. 

43 Id. 

44 Id. at § III. 

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assessing sanctions,45 “are designed for use in imposing a sanction or sanctions following 

a determination by clear and convincing evidence” of an ethical violation.46 Accordingly 

we engage in a two-part inquiry. First we ask if clear and convincing evidence supports 

concluding that an attorney violated the ethical rules.47 If we answer in the affirmative, 

we then consider what level of discipline to impose.48 We have never before applied the 

clear and convincing evidentiary threshold to this latter inquiry. 

The extreme nature of Ivy’s accusations supports our conclusion that Ivy 

caused Kyzer serious actual or potential injury. Ivy accused Kyzer of criminal sexual 

assault, a class B felony,49 and filed an affidavit with the court supporting the allegation. 

Ivy also enlisted the justice system by making a police report accusing Kyzer of stalking, 

a class A misdemeanor.50 She subsequently testified about the alleged stalking incident 

in detail. 

However incredible, suchaccusationsthreatento imposeaconsiderabletoll 

on the accused. A class B felony conviction for criminal sexual assault could result in 

45 In re Friedman, 23 P.3d 620, 625 (Alaska 2001). 

46 ABA STANDARDS, supra note 3, at § III.A.1.3 (emphasis added). 

47 Alaska Bar R. 22(e) (“Bar Counsel will have the burden at any hearing of 

demonstrating by clear and convincing evidence that the Respondent has . . . committed 

misconduct as provided in [Bar] Rule 15.”). 

48 See Alaska Bar R. 15 (defining grounds for attorney discipline); see also 

In re Buckalew, 731 P.2d 48, 52 (Alaska 1986) (adopting ABA framework for imposing 

attorney discipline sanctions). 

49 AS 11.41.420(b). 

50 AS 11.41.270(c). 

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a ten-year prison sentence.51 A class A misdemeanor conviction for criminal stalking 

could result in a one-year prison sentence.52 Threats of criminal sanctions stand to 

tarnish the reputation of the accused and to cause emotional distress for the accused and 

his or her loved ones. For protection a person might reasonably seek legal advice, as 

Kyzer apparently did here. Moreover Ivy’s false accusation about the stalking delayed 

the litigation; her deposition scheduled for January was conducted in March. This delay 

could have caused Kyzer to incur substantial, and unnecessary, legal costs. 

We also conclude that Ivy’s misconduct caused serious injury or serious 

potential injury to the legal system. An attorney’s duties to the legal system include 

abiding by the substantive and procedural rulesthat“shapetheadministration ofjustice,” 

not using or creating false evidence, and generally refraining from illegal and other 

improper conduct.53 

Ivy argues that neither the deposition nor the affidavit caused serious harm 

to the legal system because the litigation settled “[s]oon after” she testified falsely at the 

deposition. But Ivy misconstrues the timeline of the litigation. After she testified falsely 

about the alleged stalking incident at the deposition, the litigation continued for at least 

another two years; in mid-2010 she falsely alleged that Kyzer assaulted her in a 

courtroom. And as explained, Ivy’s false testimony about the stalking incident delayed 

the litigation with Kyzer. This delay, at minimum, threatened to impose a substantial and 

unnecessary burden on the judicial system. We recognize that “lengthy and duplicative 

51 AS 12.55.125(d). 

52 AS 12.55.135(a). 

53 ABA STANDARDS, supra note 3, at § II (theoretical framework). 

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filings,” similar to those here, can impose significant costs.54 And failing to timely 

comply with discovery requests, as Ivy did, can seriously interfere with proceedings.55 

Further, as the Board concluded, Ivy’s false testimony about Kyzer could have led the 

court to reach false conclusions about the credibility of witnesses. Such a risk also poses 

serious injury to the legal system. 

However the record does not support concluding that Ivy caused serious 

actual or potential injury to either the public or the legal profession. Duties that attorneys 

owe to the public emphasize the public’s right “to trust lawyers to protect their property, 

liberty, and lives” and the expectation that lawyers act honestly and refrain from conduct 

that interferes with the administration of justice.56 Duties to the legal profession similarly 

include maintaining the integrity of the profession.57 

We recognize that actions falling below the ABA’s standard of conduct 

diminish the public’s confidence in attorneys.58 Such conduct also threatens the integrity 

of the legal profession.59 But here there was little risk of such harm. The record does not 

suggest that the public was aware of Ivy’s misconduct. And Ivy claims that she has not 

practiced law in 15 years. If this is true, then she has no current clients who would 

54 In re Shea, 273 P.3d 612, 622 (Alaska 2012). 

55 In re Rice, 260 P.3d 1020, 1032 (Alaska 2011). 

56 ABA STANDARDS, supra note 3, at § II. 

57 Id. 

58 In re Hanlon, 110 P.3d 937, 947 (Alaska 2005) (“[E]ven minor violations 

of law by a lawyer may tend to lessen public confidence in the legal profession.” 

(quoting In re West, 805 P.2d 351, 355 (Alaska 1991))). 

59 Id. 

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become aware of this disciplinary action.60 Therefore the record does not support serious 

actual or potential injury to the public or to the legal profession. 

2. Step two: presumptive sanction 

If there are multiple instances of misconduct, “[t]he ultimate sanction 

imposed should at least be consistent with the sanction for the most serious instance of 

misconduct . . . and generally should be greater than the sanction for the most serious 

misconduct.”61 The ABA Standards favor disbarment in this case. For example, 

Standard 5.11(b) recommends disbarment when an attorney intentionally engages in 

dishonest conduct that “seriously adversely reflects on the lawyer’s fitness to practice 

[law],” as Ivy did here. Similarly Standard 6.11 recommends disbarment when an 

attorney acts “with the intent to deceive the court, makes a false statement, [or] submits 

a false document . . . [that] causes serious or potentially serious injury,” as Ivy also did. 

Therefore disbarment, the most severe sanction under the ABA Standards, is the baseline 

against which we weigh aggravating and mitigating factors62 — a starting point which 

the dissent does not appear to dispute.63 

60 The Bar Association did not refute Ivy’s claim, and no evidence in the 

record suggests otherwise. 

61 ABA STANDARDS, supra note 3, at § II (theoretical framework). 

62 The parties dispute whether ABA Standard 5.11(a) also favors disbarment. 

This dispute is not material to our analysis; the ABA Standards already point to the most 

severe sanction. See In re Schuler, 818 P.2d 138, 142 (Alaska 1991) (concluding that 

it made “no difference” whether misconduct violated ABA Standard 5.11(a) or 5.11(b) 

because both standards recommend disbarment); ABASTANDARDS, supra note 3, at § II 

(“The ultimate sanction imposed should at least be consistent with the sanction for the 

most serious instance of misconduct.”). 

63 See Dissent at 31-44. 

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3. Step three: aggravating and mitigating factors 

The ABA Standards provide a nonexclusive list of aggravating and 

mitigating factors that, on balance, may counsel in favor of modifying the presumptive 

sanction.64 When the ABA Standards recommend disbarment, aggravating factors are 

relevant “only to the extent that they neutralize the mitigating factors.”65 

The Bar Association and Ivy dispute which aggravating and mitigating 

factors exist and how the factors affect the appropriate sanction. The Board cited several 

aggravating factors but only one mitigating factor and accordingly concluded that the 

aggravating factors outweighed the single mitigating factor.66 

“We independently review the entire record in attorney disciplinary 

proceedings, though findings of fact made by the Board are entitled to great weight.”67 

We agree with the Board’s ultimate conclusion: The aggravating factors outweigh the 

single mitigating factor. However we disagree with some of the Board’s analysis. 

Like the Board, we conclude that the record supports several aggravating 

factors. As explained, the record establishes that Ivy acted selfishly. Ivy admits that she 

64 See ABA STANDARDS, supra note 3, at § III.C.9.0. 

65 In re Friedman, 23 P.3d 620, 632 (Alaska 2001). 

66 The Board found aggravating factors including a dishonest and selfish 

motive; a pattern of misconduct; multiple offenses; Ivy’s repeated false statements in the 

disciplinary hearing; Ivy’s failure to acknowledge any wrongful conduct; Ivy’s 

experience as an attorney (noting her admission in 1984 and her work at a law firm); a 

failure to make any restitution efforts until Kyzer’s motion for them in the disciplinary 

proceedings; and Kyzer’s potential vulnerability as a result of psychological issues. On 

appeal the Bar Association claims many of the same factors except it does not claim 

Ivy’s apparent failure to make restitution or Kyzer’s vulnerability. 

67 In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (quoting In re Shea, 273 

P.3d 612, 619 (Alaska 2012)). 

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acted selfishly in her briefing; her persistent pattern of behavior, the timing of her false 

accusations, and her failureto acknowledgepastwrongsfurthersupport theconclusion.68 

These same facts and circumstances also support several other aggravating factors: a 

pattern of misconduct, multiple offenses, repeatedly making false statements in the 

disciplinary proceedings, refusing to acknowledge past wrongs, and illegal conduct.69 

But the record does not support the Board’s conclusion that psychological 

issues made Kyzer vulnerable. Rather the Committee noted that the Committee 

prevented Ivy from discovering her brother’s “personal information.” And we find no 

evidence that might otherwise support the finding. “[T]he Bar has the burden of 

demonstrating its initial charges against a respondent attorney.”70 Ivy’s experience 

practicing law also should not be considered an aggravating factor. The mere facts that 

Ivy was admitted to practice in 1984 and once worked at a law firm bear little weight, 

particularly when nothing in the record refutes Ivy’s claim that she has not practiced in 

15 years. 

As for mitigating factors the Board found one, no prior disciplinary 

offenses. And it explained why it gave little weight to Ivy’s claims that she suffered 

personal or emotional problems: Ivy “unequivocally denied any past delusional thinking 

or hallucinatory episodes”; she “offered no evidence from any mental health 

professional”; and given her conduct in the proceedings, the validity of her claims about 

the “past altercations she had been subject to at the hands of her brother” could not be 

ascertained — “her testimony . . . standing alone . . . was not credible.” Accordingly the 

68 See supra Part IV.A.1.b. 

69 See ABA STANDARDS, supra note 3, at § III.C.9.22. 

70 In re Rice, 260 P.3d 1020, 1033 (Alaska 2011). 

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Board determined it was “not qualified to assess how [the alleged] problems may (or may 

not) have contributed to Ms. Ivy’s wrongful actions.” 

We agree with the Board’s conclusions on mitigating factors. The record 

lacks evidence of a disciplinary history; this absence qualifies as a mitigating factor.71 

But, as the Board found, the record also lacks evidence of personal or emotional 

problems. Ivy affirmatively denied such problems, and she produced no evidence 

supporting how her alleged fear of her brother might support the finding. We give “great 

weight” to the Board’s factual findings;72 on appeal the respondent attorney “bears the 

burden of proof in demonstrating that such findings are erroneous.”73 The record 

supports the Board’s findings, and Ivy does not demonstrate how the Board’s findings 

are erroneous. Accordingly we conclude, like the Board, that this mitigating factor is 

entitled to little, if any, weight. Finally, Ivy’s pattern of dishonesty also does not support 

her claim to good character, an available mitigating factor under the ABA Standards.74 

71 See ABA STANDARDS, supra note 3, at § III.C.9.32(a). 

72 In re Miles, 339 P.3d at 1018 (quoting In re Rice, 260 P.3d at 1027); see 

also In re Triem, 929 P.2d 634, 640 (Alaska 1996) (“As a general rule . . . we ordinarily 

will not disturb findings of fact made upon conflicting evidence.” (quoting In re West, 

805 P.2d 351, 353 n.3 (Alaska 1991))); id. at 643 & n.12 (“The committee’s finding of 

dishonesty by Triem during the disciplinary process is adequately supported by the 

record and we do not find it to be clearly erroneous.”). 

73 In re Miles, 339 P.3d at 1018 (quoting In re Rice, 260 P.3d at 1027). 

74 See ABA STANDARDS, supra note 3, at § III.C.9.32(g). Ivy also claims 

several other mitigating factors such as an apparent delay in the filing of the grievance, 

the attorney’s fees and cost award, the fact she likely will not commit similar misconduct 

again, and the non-representative context in which her misconduct arose. We find no 

support under our prior cases or in the record for Ivy’s claims. 

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We now weigh these aggravating and mitigating factors against the ABArecommended sanction of disbarment. “[T]here is no ‘magic formula’ ” for balancing 

aggravating and mitigating factors.75 Each case demands an independent inquiry76 in 

light of the “nature and gravity of the lawyer’s misconduct.”77 In balancing the factors, 

we are sensitive to the risk of double counting.78 This double-counting risk can arise 

between the factors themselves; it also can arise when the ABA-recommended sanction 

or underlying ethical violation turns on the same facts as an aggravating or mitigating 

factor. We account for this double-counting risk by weighing the factors in light of the 

circumstances. 

We conclude, similar to the dissent,79 that several of the aggravating factors 

are repetitious under the circumstances here. For example, Ivy’s misconduct — 

repeatedly lying under oath — supports several aggravating factors: a pattern of 

misconduct, multiple offenses, a dishonest motive, deceptive practices during the 

disciplinary proceedings, a refusal to acknowledge misconduct, and illegal conduct.80 

75 In re Hanlon, 110 P.3d 937, 942 (Alaska 2005) (quoting In re Friedman, 

23 P.3d 620, 633 (Alaska 2001)). 

76 Id. at 943. 

77 In re Buckalew, 731 P.2d 48, 54 (Alaska 1986). 

78 Cf. Juneby v. State (Juneby II), 665 P.2d 30, 36 (Alaska App. 1983) 

(“[P]resumptive terms are intended to be applicable in typical cases, and not in 

aggravated or mitigated cases . . . .”); Juneby v. State (Juneby I), 641 P.2d 823, 838-39 

(Alaska App. 1982), opinion modified and superseded on reh’g on other grounds, 

665 P.2d 30 (Alaska App. 1983) (explaining how to apply aggravating and mitigating 

factors when imposing criminal sanctions). 

79 See Dissent at 32-35. 

80 See ABA STANDARDS, supra note 3, at § III.C.9.22. 

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To avoid doubly aggravating the sanction for precisely the same acts,81 we consider the 

repetitious nature of these factors and weigh them accordingly. Here because Ivy’s 

pattern of misconduct and multiple offenses (both aggravating factors) turn on precisely 

the same conduct, we give only Ivy’s pattern of misconduct — but not multiple offenses 

— weight at the balancing stage. By contrast, we give some weight to factors that do not 

turn on exactly the same facts; here this includes Ivy’s pattern of misconduct, her 

dishonest motive, the illegal nature of her misconduct, deceptive practices in the 

disciplinary process, and her refusal to acknowledge the wrongfulness of her conduct. 

We also account for repetition between the facts supporting an aggravating 

factor and the facts supporting an element of the presumptive sanction or the underlying 

ethical violation. But the mere existence of repetition does not mean we ignore the 

aggravating factor at the balancing stage. “[P]resumptive terms are intended to be 

applicable in typical cases, and not in aggravated or mitigated cases.”82 When an 

attorney’s misconduct exceeds the typical case, we give some weight to the aggravating 

factor. 

Ivy’s misconduct exceeds the typical case: She lied in a complex lawsuit 

involving multiple parties, she falsely reported that her brother had committed criminal 

acts against her, and she lied in these proceedings to evade discipline for that 

misconduct. Thus though repetition exists between the aggravating factors and the 

elements of the presumptive sanction (e.g., Ivy’s selfish motive)83 and between the 

81 Cf. Juneby I, 641 P.2d at 842 (“precisely the same acts” should not be used 

to “doubly aggravate[]” offense). 

82 Juneby II, 665 P.2d at 36. 

83 For example,ABAStandards 5.11(b) and6.11 apply onlywhen anattorney 

acts intentionally. We concluded that Ivy acted intentionally in part because we found 

(continued...) 

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aggravating factors and the elements of the underlying ethical violations (e.g., Ivy’s 

dishonest conduct),84 we give some weight to these aggravating factors at the balancing 

stage. But in doing so we account for the double-counting risk, which arises from the 

similarity of the factual circumstances, by appropriately weighing the factors. 

Acknowledging the risk of double counting, we conclude that the five 

aggravating factors — Ivy’s pattern of misconduct, its illegal nature, her dishonest 

motive, deceptive practices during the disciplinary process, and refusal to acknowledge 

the wrongfulness of her actions — outweigh the single mitigating factor, Ivy’s lack of 

disciplinary record. Therefore we do not reduce the presumptive sanction of 

disbarment.85 

4. Our case law 

Our prior cases also support disbarment.86 Previously we have reduced an 

ABA-recommended sanction given thepresenceofseveralcompellingmitigatingfactors, 

83 (...continued) 

she acted selfishly; Ivy’s selfish motive is also an aggravating factor. If Ivy’s 

misconduct reflected the typical case, we would not give Ivy’s selfish motive any weight 

at the balancing stage. 

84 For example, Alaska Rule of Professional Conduct 8.4(c) and Bar 

Rule 15(a)(3) are violated only when an attorney engages in dishonest conduct. Here 

such dishonest conduct also supports several aggravating factors, including a pattern of 

misconduct, multiple offenses, and obstruction of the disciplinary process. But because 

Ivy’s misconduct exceeds the typical case, we give these factors some weight at the 

balancing stage. 

85 See In re Friedman, 23 P.3d 620, 632 (Alaska2001) (when ABA Standards 

recommend disbarment, aggravating factors are relevant “only to the extent that they 

neutralize the mitigating factors.”). 

86 See In re Buckalew, 731 P.2d 48, 52 (Alaska 1986) (We consider our 

precedents to “ensure a level of consistency necessary for fairness to the public and the 

legal system.”). 

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such as evident remorse, active efforts to remedy the problems caused, and voluntarily 

notifying authorities about the misconduct soon after it occurred.87 Such compelling 

mitigating factors are entirely absent here. Instead Ivy continues her fabrications, and 

she actively denies any misconduct. Further the only factor counseling against 

disbarment is Ivy’s lack of disciplinary record. Even for a practicing attorney this factor 

is not particularly compelling. Yet here Ivy apparently has not practiced for 15 years; 

accordingly the fact that she has not faced any discipline during this period is 

unremarkable. And though we have explained that we “place a great deal of weight on 

the absence of dishonest and selfish motives,”88 such circumstances are not present 

here.89 

87 See, e.g., In re Friedman, 23 P.3d at 632-34 (suspending attorney for three 

years, despite ABA-recommended disbarment, for mismanaging client funds and felony 

conduct given compelling mitigating factors including remorse, evidence that attorney 

had taken “significant measures” to remedy the problems caused, and good character); 

In re Mann, 853 P.2d 1115, 1117-20 (Alaska 1993) (suspending attorney for three years, 

despite ABA-recommended disbarment, for misappropriating client funds given 

compelling mitigating factors including strong evidence of remorse, well-established 

personal and emotional problems, and voluntarily turning himself in to police within one 

month of misconduct when misconduct likely would have gone undiscovered). 

88 In re Rice, 260 P.3d 1020, 1033 (Alaska 2011). 

89 Given the absence of compelling mitigating factors, we find the dissent’s 

reliance on cases like In re Schuler and In re Stump misplaced. Dissent at 38-40. In re 

Schuler reducedthepresumptivesanctionofdisbarment for aconvictionofmisdemeanor 

theft because of the absence of any aggravating factors and the presence of several 

compelling mitigating factors, including the lack of a prior disciplinary record, personal 

and emotional problems for which the attorney was treated by a psychiatrist, criminal 

sanctions that imposed a 1.5-year probation and 100 hours of community service, the 

attorney’s evident remorse, and fact the attorney’s misconduct arose from a selfdestructive motive — not from a desire for personal gain, as here. 818 P.2d 138, 139-45 

(Alaska 1991). 

(continued...) 

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By contrast, when aggravating factors outweigh mitigating factors we 

impose the more severe sanction, including disbarment.90 A “lack of cooperation” in the 

disciplinary proceedings — or deliberate interference, as here — merits “additional 

disciplinary action.”91 We also have found disbarment warranted when the attorney’s 

misconduct threatens significant injury and when it is part of a larger scheme to defraud, 

as we did in In re Buckalew. 

92 Under such circumstances, disbarment may be warranted 

even if compelling mitigating factors might otherwise favor a lesser sanction.93 Ivy’s 

89 (...continued) 

Similarly in In re Stump the attorney admitted to the alleged acts of 

professional misconduct, and he presented evidence of several mitigating factors, 

including emotional concerns arising from his wife’s health and notification to counsel 

of his misconduct. 621 P.2d 263, 263-66 (Alaska 1980). Moreover, though In re Stump 

cited a preliminary draft of the ABA Standards, as the dissent notes, dissent at 40 n.30, 

the court’s reliance on the draft standards was minimal. It cited the draft only to frame 

the respondent attorney’s argument, id. at 265 & n.6, and to support the rather 

fundamental assertion that we consider the facts of each case. Id. at 265-66 & n.10. We 

adopted the ABA Standards six years after In re Stump; that 1986 version recommended 

sanctions based on cases decided between 1980 and 1984, data which post-dates our 

decision in In re Stump. In re Buckalew, 731 P.2d 48, 51 & n.10 (Alaska 1986). 

90 See, e.g., In re Miles, 339 P.3d 1009, 1018-20 (Alaska 2014) (disbarring 

attorney for defrauding client and committing criminal theft, per ABA recommendation, 

when several aggravating factors neutralized the single mitigating factor, cooperation in 

disciplinary proceedings). 

91 In re Rice, 260 P.3d at 1036. 

92 731 P.2d 48, 53-56 (Alaska 1987) (rejecting five-year suspension as 

insufficient for knowing conversion of client funds and forging of a judge’s signature 

despite compelling mitigating factors, including mental and emotional problems, given 

significant risk of serious injury to client and legal system); see also In re Rice, 260 P.3d 

at 1036 (explaining In re Buckalew, 731 P.2d 48). 

93 See, e.g., In re Buckalew, 731 P.2d at 53-56 (identifying as mitigating 

(continued...) 

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misconductthreatened substantial injury, it wascalculated to influencethelitigation with 

Kyzer and these disciplinary proceedings, and the record lacks evidence of any 

compelling mitigating factors. 

To conclude that disbarment is too severe, the dissent analogizes to our 

brief order in In re Purdy approving a stipulated five-year suspension.94 But simply 

because we approved the stipulation does not mean we agree with all of its analysis. 

Contrary to the stipulation’s conclusion, the non-representative context does not 

constituteamitigating factor. Likeaggravating factors, we do not mitigateapresumptive 

sanction when the presumptive sanction and the mitigating factor turn on exactly the 

same facts.95 Under the ABA Standards the presumptive sanction accounts for the nonrepresentative context. Similar to the Alaska Rules of Professional Conduct,96 the 

Standards categorizerecommended sanctions based on thecontextinwhichanattorney’s 

misconduct arises. For example, ABA Standards 4.0 to 4.6 guide the presumptive 

sanction when an attorney’s misconduct implicates duties owed to clients; the more 

93 (...continued) 

factors mental and emotional problems, cooperation and disclosure after law partner 

discovered misconduct, and no record of prior misconduct). The dissent distinguishes 

In re Buckalew and other cases in which we have imposed disbarment on the grounds 

that the attorneys’ conduct in those cases was far more culpable. Dissent at 41-42. 

While this may be true, extreme cases do not establish the minimum threshold for 

imposing a sanction. Rather our case law guides us in evaluating the ABArecommended baseline. 

94 Dissent at 38-39 (citing In re Purdy, No. S-08996 (Alaska Supreme Court 

Order, Mar. 26, 1999)). 

95 See supra Part IV.A.3. 

96 See In re Ivy, 350 P.3d 758, 762-65 (Alaska 2015) (holding that Rules 3.3 

and 3.4 did not apply to Ivy’s misconduct “because these rules are intended to govern 

attorneys when they are acting as advocates and not in their personal capacities”). 

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severe the conduct with respect to a client, the more severe the sanction. By contrast, 

and as here,97 ABA Standards 5.0 to 5.2 guide the presumptive sanction when the 

misconduct implicates duties owed to the public, and ABA Standards 6.0 to 6.3 guide 

the presumptive sanction when the misconduct violates duties owed to the legal system. 

Sanctions for such violations may include disbarment regardless of whether the 

misconduct relates to client matters.98 The context in which an attorney’s misconduct 

arises also might affect our evaluation of the severity of harm, as it did here;99 this 

variable may affect the presumptive sanction.100 Under our framework, we account for 

the context before we arrive at the presumptive sanction.101 

97 See supra Part IV.A.2. 

98 See, e.g., ABASTANDARDS, supra note 3, at § III.C.5.11(b)(recommending 

disbarment when attorney engages in “intentional conduct involving dishonesty . . . that 

seriously adversely reflects on the lawyer’s fitness to practice”); id. § III.C.6.11 

(recommending disbarment when attorney, “with the intent to deceive the court, makes 

a false statement . . . and causes serious or potentially serious injury to a party, or causes 

a significant or potentially significant adverse effect on the legal proceeding”). 

99 See supra Part IV.A.1.c. 

100 Compare ABA STANDARDS, supra note 3, at § III.C.5.11(b) 

(recommending disbarment regardless of whether misconduct presents risk of serious 

harm), with id. § III.C.6.11 (recommending disbarment only if misconduct presents risk 

of serious harm). 

101 At most, In re Purdy presents another example of mitigating factors 

outweighing aggravating factors. The stipulation in In re Purdy, unlike here, found 

evidence of several mitigating factors, which we previously have found compelling: 

cooperation in the disciplinary proceedings (assisting bar counsel in its investigation, 

consenting to discipline), a good reputation for sound judgment, honesty, and public 

service (as evidenced by letters of public support), other sanctions (criminal sentence, 

extended probation at place of employment, harmful publicity), and evident remorse. In 

re Purdy, No. S-08996 (Stipulation for Suspension, filed Mar. 8, 1999, at 10-11). The 

(continued...) 

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Further the severity of Ivy’s misconduct and the lack of compelling 

mitigating factors distinguishes In re Purdy. Purdy lied in an administrative matter 

involving only herself in an effort to get a personal advantage vis-à-vis the 

government.102 Ivy lied in a complex lawsuit involving multiple parties, including her 

brother; she lied to the police, in a deposition, and to the court in an affidavit — all in an 

effort to get her brother in trouble and to obtain an unfair advantage over her brother in 

that litigation. Given the seriousness of and risk of harm from Ivy’s lies about her 

brother, Purdy’s lies pale in comparison. The important distinction is that without 

discussing Purdy’s stipulated facts and the three-step ABA analysis for Purdy’s 

suspension, including aggravating and mitigating factors, drawing useful comparisons 

is difficult. Only if the analytic framework — including the ABA starting point and the 

aggravating and mitigating factors — is irrelevant does In re Purdy’s outcome become 

relevant to the result here.103 

We demand that attorneys act with integrity whether or not they are 

representing a client: 

Once admitted [to the bar], the requirement of good moral 

character does not cease to exist. . . . Society allows the legal 

profession the privilege of self-regulation. Thus, it is of the 

101 (...continued) 

stipulation cited only three aggravating factors, two of which overlap with the 

presumptive sanction and the ethical violation: a dishonest/selfish motive, a pattern of 

misconduct, and a prior private admonition for misconduct. Id. 

102 In re Purdy, No. S-08156 at 1-4 (Alaska Supreme Court Order, Nov. 18, 

1998). 

103 In re Purdy, No. S-08996. The dissent also points to In re Stepovich, 

143 P.3d 963 (Alaska 2006). Dissent at 41-42. But like In re Purdy, the brief decision 

in In re Stepovich does not provide insight into the court’s rationale; thus that case also 

does not facilitate meaningful comparison. 

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utmost importance that the public have confidence in the 

profession’s ability to discipline itself . . . .[104] 

Under the ABA Standards and our case law, Ivy’s lack of integrity, self-interested 

motives, and evident disregard for how her misconduct gravely threatened others and the 

legal system warrants disbarment. 

B. The Record Supports The Board’s Attorney’s Fees And Costs Award. 

Ivy contends that, at minimum, the Board’s attorney’s fees and costs award 

should be “dramatically reduced.” Previously we found “nofault withtheattorney’s fees 

award.”105 We determined that the Board complied with Alaska Bar Rule 16(c)(3), 

which authorizes disciplinary boards to award attorney’s fees and costs upon 

consideration of ten statutorily enumerated factors.106 And we explained that even if Ivy 

had properly raised the issue of attorney’s fees and costs, it was “not apparent from th[e] 

record how the Bar Association’s fees and costs would have been different had it based 

its investigation and proceeding solely on Ivy’s violation of Rule 8.4.”107 We 

accordingly acknowledged that the Board “may revise the award,” but we did not require 

the Board to do so.108 

As before Ivy does not demonstrate why the Board’s award is flawed. 

Under Bar Rule 16(c)(3), the amount of an award does not turn on who prevailed on a 

given issue. Instead the Rule requires the Board to consider, among other factors, “the 

104 In re Buckalew, 731 P.2d at 56.
 

105 In re Ivy, 350 P.3d 758, 766 (Alaska 2015).
 

106 Id. at 765-66 & n.35.
 

107 Id. at 765-66 & n.34 (issue of attorney’s fees waived because it was not
 

addressed in opening brief). 

108 Id. at 766. 

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reasonableness ofthenumber ofhours expended byBar Counsel and the reasonableness 

of the costs incurred”109 as well as “the relationship between the amount of work 

performed by Bar Counsel and the significance of the matters at stake.”110 The Bar 

Association made sound arguments that related to an issue of first impression: Never 

before had we considered whether Rules of Professional Conduct 3.3 and 3.4 apply in 

the non-representative context, neither rule refers to a client relationship, and neither 

necessarily implies a representative context. Simply because Ivy prevailed in her 

argument that Rules 3.3 and 3.4 did not apply does not render the attorney’s fee and cost 

award too high. 

Moreover, under Bar Rule 16(c)(3), the Board also shall consider “the 

duration ofthecase,”111 “thereasonableness ofthedefensesraisedby theRespondent,”112 

and the respondent’s “vexatious or bad faith conduct.”113 We give “great weight” to the 

Board’s findings of fact;114 such findings include facts related to the attorney’s conduct 

in the disciplinary proceedings. Here the Board found that the disciplinary matter had 

lasted for more than two years and that Ivy had acted unreasonably, including by 

refusing “to admit the falsity of her affidavit and deposition testimony” and by asserting 

a “defense of not ‘knowingly’ . . . offer[ing] false testimony” — despite presenting no 

109 Alaska Bar R. 16(c)(3)(C) (emphases added).
 

110 Id. (H).
 

111 Id. (B).
 

112 Id. (F).
 

113 Id. (G).
 

114 In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (quoting In re Shea, 273
 

P.3d 612, 619 (Alaska 2012)). 

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credible evidence in that regard. Such actions, as the Board found, undoubtedly 

increased Bar Counsel’s expenses and made the proceedings unnecessarily complex. 

Therefore, as before, we uphold the fee and cost award. 

V. CONCLUSION 

Deborah Ivy is DISBARRED from the practice of law effective 30 days 

from today. Ivy must also comply with the Board’s fee and cost award. 

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FABE, Chief Justice, dissenting. 

I respectfully disagree with the court’s decision to disbar Deborah Ivy. I 

agree that Ivy violated Alaska Rules of Professional Conduct 8.4(a), (b), and (c) by lying 

about the stalking incident in the parking lot and the alleged sexual assault by her brother 

in the courtroom. And she violated Alaska Bar Rule 15 by continuing to maintain her 

fabricated version of these events before the Board. But it is my view that disbarment 

of Ivy for being untruthful in the course of her own highly emotional personal family 

litigation is unnecessarily severe. 

All of the various aggravators applied by the court essentially boil down to 

this: Ivy was untruthful during her combative personal family dispute and consistently 

maintained her false account during the Bar proceedings. Thus the very falsehoods that 

were necessary elements of the two core violations of the rules have impermissibly 

provided the basis for the aggravating factors. 

Moreover, the court has ignored the significant mitigating factor of Ivy’s 

personal and emotional problems, resulting from years of a contentious personal 

relationship with her brother. And Ivy’s falsehoods did not arise in the context of her 

representation of a client. Finally, there is no example in all of our prior disciplinary 

decisions that would support disbarment in Ivy’s case. Though Ivy’s conduct is 

unworthy of our profession and merits the severe sanction of a five-year suspension, it 

does not warrant disbarment. 

As a separate matter, Ivy’s attorney’s fee obligation should be reduced in 

light of the fact that she prevailed on the issue of the application of Rules of Professional 

Conduct 3.3 and 3.4. 

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I.	 IVY’S CONDUCT WARRANTS A SUSPENSION OF FIVE YEARS 

INSTEAD OF DISBARMENT. 

A.	 The Aggravating Factors Applied Against Ivy Were Necessary 

Elements Of Her Violation. 

The court concludes that “five aggravating factors — Ivy’s pattern of 

misconduct, its illegal nature, her dishonest motive, deceptive practices during the 

disciplinary process, and refusal to acknowledge the wrongfulness of her actions — 

outweigh the single mitigating factor, Ivy’s lack of disciplinary record.”1 But all of 

these aggravating factors are based on the same conduct for which Ivy is being 

disciplined and thus are not properly applied as aggravators. The sole basis for the 

conclusion that Ivy violated Alaska Rules of Professional Conduct 8.4(a), (b), and (c) 

and Alaska Bar Rule 15(a)(3) is the finding that Ivy lied about the alleged instances of 

stalking and assault both in her court case and before the Bar once the grievance was 

filed.2 And the aggravating factors rely on precisely the same conduct as that for which 

Ivy is being disciplined: (1) a “pattern of misconduct” (by lying under oath on more than 

one occasion in the course of her personal litigation with her brother); (2) the “illegal 

1	 Op. at 22. 

2 Rule 8.4(a) states that it is professional misconduct for a lawyer to “violate 

or attempt to violate the Rules of Professional Conduct.” Here, she allegedly violated 

the rules only by lying under oath about the alleged incidents with her brother. 

Rule 8.4(b) designates it misconduct to “commit a criminal act that reflects adversely on 

the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Again, 

thecriminalactreflecting adversely on Ivy’s honesty and trustworthinesswas her perjury 

regarding those same incidents. Rule 8.4(c) similarly prohibits attorneys from 

“engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Yet 

again, Ivy’s alleged lies are the only conduct involving dishonesty. Finally, Bar 

Rule 15(a)(3) prohibits “knowing misrepresentation of any facts or circumstances 

surrounding a grievance.” Ivy committed this violation by continuing to lie. But for her 

lying about the incidents with her brother, Ivy could not have been found to have 

violated any of these Rules; her lying is therefore a necessary element of each offense. 

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nature” of her conduct (by lying under oath in the course of her personal litigation with 

her brother); (3) a “dishonest motive” (by lying under oath in the course of her personal 

litigation with her brother in which monetaryreliefwas at stake); (4) “deceptive practices 

during the disciplinary process” (by maintaining the truth of her false statements made 

in the course of her personal litigation with her brother during the disciplinary process); 

and (5) a “refusal to acknowledge the wrongfulness of her actions” (by maintaining the 

truth of her false statements made in the course of her personal litigation with her brother 

during the disciplinary process).3

 These aggravating factors do little more than restate 

the underlying violation: that Ivy lied about the stalking incident in the parking lot and 

the alleged sexual assault both in the courtroom and during the disciplinary process. 

Both of Ivy’s falsehoods are therefore necessary elements of Ivy’s two 

disciplinary violations and the basis of all of the aggravating factors applied by the court. 

In the criminal law context, the legislature has directed that “[i]f a factor in aggravation 

is a necessary element of the present offense . . . that factor may not be used to impose 

a sentence above the high end of the presumptive range.”4 Thus, conduct that constitutes 

an element of the offense itself cannot be applied against the offender as an aggravating 

factor. The same rationale should apply in the attorney discipline context. When an 

attorney misappropriates funds, we do not apply “misappropriation of funds” as an 

aggravating factor in the violation. Relying on dishonesty as an aggravating factor when 

the underlying offense is dishonesty is also impermissible. 

Other jurisdictions have explicitly applied this reasoning to attorney 

discipline cases. For example, in People v. Kolhouse, a case from Colorado, the court 

refused to count a respondent’s failure to comply with requests for information and 

3 Op. at 22. 

4 AS 12.55.155(e). 

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refusal to acknowledge the wrongful nature of her conduct as aggravating factors 

because those factors were “based on the same conduct underlying one of Respondent’s 

rule violations” and there were “no additional allegations or evidence” that supported 

application of those factors.5 And in In re Whitt, the Supreme Court of Washington held 

that because submission of false evidence was part of the factual basis for one of the 

respondent’s violations, it could not also be applied against the respondent as a “separate 

aggravating factor.”6 

5 309 P.3d 963, 966 (Colo. O.P.D.J. 2013). 

6 72 P.3d 173, 180 (Wash. 2003). The appellate level of the State Bar Court 

of California has also consistently adhered to the “long established principle that it is 

inappropriate to use the same conduct relied on to establish a disciplinary violation to 

establish an aggravating circumstance.” In re Silverton, Nos. 95-O-10829, 99-O-13251, 

2004 WL 60709, at *16 (Review Dep’t of the State Bar Ct. of Cal., Jan. 6, 2004); see 

also In re Sampson, No. 90-O-17703, 1994 WL 454888, at *12 (Review Dep’t of the 

State Bar Ct. of Cal., Aug. 16, 1994) (“It appears that the hearing judge used the same 

conduct constituting the . . . violation as a finding in aggravation of the same charge. 

This is inappropriate.”); In re Burckhardt, No. 88-O-15079, 1991 WL 16498, at *6 

(Review Dep’t of the State Bar Ct. of Cal., Feb. 4, 1991) (holding that because a finding 

of aggravation for conduct involving bad faith, dishonesty, and concealment “reflect[ed] 

the same conduct . . . that is properly the basis for the finding of [the] violation,” the 

“finding in aggravation [was] duplicative”); In re Trillo, No. 85-0-13726, 1990 WL 

92610, at *9 (Review Dep’t of the State Bar Ct. of Cal., May 3, 1990) (declining to adopt 

a finding that a respondent made misrepresentations to his clients because the court had 

“already adopted such a finding of culpability and [did] not believe it appropriate to 

assign aggravation to the identical conduct”); In re Mapps, Nos. 87-0-12533, 

87-0-11669, 1990 WL 92624, at *7 (Review Dep’t of the State Bar Ct. of Cal., Mar. 27, 

1990) (noting that because the court had already concluded that a respondent had 

embezzled clients’ funds, constituting moral turpitude, the same conduct could not be 

“count[ed] . . . again as a separate aggravating factor”). 

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Here, despite “[a]cknowledging the risk of double counting,”7 the court has 

improperly applied the same facts that formed the basis of the disciplinary violations as 

separate aggravating factors. 

B.	 The Court And The Board Have Ignored A Significant Mitigating 

Factor: Ivy’s Personal And Emotional Problems. 

The court is incorrect in concluding that “as the Board found, the record 

also lacks evidence of [Ivy’s] personal or emotional problems.”8 In fact, the Board 

recognized that “it appeared . . . that Ms. Ivy exhibited some evidence of personal and/or 

emotional problems regarding her relationship with her brother.” But the Board 

nevertheless determined that it was “not qualified to assess how these problems may (or 

may not) have contributed to Ms. Ivy’s wrongful actions” and thus discounted her 

personal and emotional problems as mitigating factors. Yet the American Bar Standards 

for Imposing Lawyer Sanctions expressly recognize “personal or emotional problems” 

as a mitigating factor.9 The Board apparently conflated this factor with the separate 

mitigating factor of “mental disability”10 because it seemed to fault Ivy for failing to offer 

“evidence from any mental health professional” and observed that Ivy had denied a 

history of “delusional thinking or hallucinatory episodes.” 

Here, Ivy was in the midst of contentious family litigation when she lied 

about her brother’s actions, and by her account, the antagonistic relationship with her 

7 Op. at 22. 

8 Op. at 19. 

9 STANDARDS FOR IMPOSING LAWYER SANCTIONS § III.C.9.32(c) (AM. BAR 

ASS’N 1992) [hereinafter ABA STANDARDS]. 

10 Id. § III.C.9.32(i). 

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brother had persisted “for decades.”11 At the formal disciplinary hearing, Ivy testified 

to the “verbal [and] emotional abuse” that Kyzer allegedly committed against her in the 

past, asserting that she was “very frightened of ever being alone with him.” And as we 

noted the first time this matter was before us, the siblings’ relationship had become “so 

acrimonious”12 that the superior court issued a mutual no-contact order between Kyzer 

and Ivy in 2007, and a provision in their 2008 settlement agreement prohibited contact 

between the siblings. While involvement in any litigation process “can produce anger, 

anxiety, stress, hurt, hard feelings, or other strongly negative emotional reactions that 

diminish [a] client’s psychological wellbeing,”13 family disputes “often involve 

participants under especially intense emotional stress which can cloud their judgment.”14 

And here, the acrimony in the litigation exceeded even the typical stress attendant to a 

family dispute. The close connection between Ivy’s improper conduct and her 

contentious relationship with her brother places her behavior in context — a context that 

sheds meaningful light on Ivy’s conduct without justifying or excusing it.15 The court’s 

11 In re Ivy, 350 P.3d 758, 759 (Alaska 2015). 

12 Id. at 759. 

13 Bruce Winick, Symposium, Therapeutic Jurisprudence and the Role of 

Counsel in Litigation, 37 CAL. W. L. REV. 105, 108 (2000). 

14 Andrew Schepard, An Introduction to the Model Standards of Practice for 

Family and Divorce Mediation, 35 FAM. L. Q. 1, 2 (2001). 

15 “Although personal or emotional problems . . . are mitigating factors that 

may reduce a disciplinary sanction against an attorney, they do not justify or excuse the 

attorney’s misconduct. Nor do they shield the attorney from professional responsibility. 

Rather, they are offered and considered merely as explanations of the lawyer’s conduct 

in order to temper the imposed sanction.” In re Rau, 533 N.W.2d 691, 694 (N.D. 1995) 

(internal citations omitted). 

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failure to consider that stress as a mitigating factor takes Ivy’s conduct out of context and 

ignores the personal and emotional problems that she was experiencing. 

C. Our Prior Decisions Do Not Support Disbarment In This Case. 

Finally, the sanction of disbarment in this case is wholly inconsistent with 

our prior disciplinary decisions. In the past, we have taken into account the fact that 

attorney misconduct has occurred in a personal, non-representative capacity.16 Yet the 

court has failed to give weight to this factor in Ivy’s case.17 The ABA Standards reflect 

the greater severity of misconduct committed within the practice of law, noting that “the 

most important ethical duties are those obligations which a lawyer owes to clients.”18 

Our own decisions and those of other states reflect this distinction.19 The fact that Ivy’s 

misconduct took place within the circumstances of her personal litigation, and was 

16 In re Schuler, 818 P.2d 138, 142, 144 (Alaska 1991) (observing that “[i]t 

is also worthy of note that Schuler’s conduct did not take place in connection with . . . 

services performed in the practice of law” and contrasting this case with another in which 

“[t]he misconduct occurred in connection with services performed by [the attorney] in 

the practice of law”); cf. In re Miles, 339 P.3d 1009, 1020 (Alaska 2014) (noting that 

duplicitous acts by an attorney were “particularly” damaging when committed “while 

acting in her capacity as an attorney”). 

17 Op. at 25-26. 

18 ABA STANDARDS, supra note 9, at § II. 

19 We have observed that “[t]here are few more egregious acts of professional 

misconduct . . . than the misappropriation of [a] client’s funds held in trust.” In re 

Buckalew, 731 P.2d 48, 55 (Alaska 1986) (quoting In re Beckman, 400 A.2d 792, 793 

(N.J. 1979)); see also In re Richmond, 996 So. 2d 282, 289 (La. 2008) (recognizing that 

because an attorney “was acting in his personal capacity . . . [and there was therefore] 

no potential for client harm from [his] misconduct, his actions may be viewed as less 

egregious than the actions at issue” in cases involving attorneys acting in representative 

capacities). 

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wholly unrelated to representation of a client, supplies important context. At the very 

least, that context may mitigate the risk of Ivy harming clients.20 

While I agree that attorneys can be subject to disbarment for violations 

committed outside of a representative capacity, we have approved such a severe sanction 

in only one case, where an attorney was convicted as an accessory after the fact to a firstdegree murder.21 In other cases in which attorneys have committed offenses in their 

personal capacities, we have adopted far less stringent sanctions. For example, in In re 

Schuler, we accepted a two-year suspension for a district attorney convicted of 

misdemeanor theft for the second time despite the ABA-recommended disbarment.22 

And another disciplinary case, In re Purdy, is particularly instructive 

because the respondent’s dishonest conduct and perjured testimony occurred outside of 

a representative capacity.23 Frances Purdy forged vehicle title documents, misused her 

notary seal, and committed an act of perjury in an Anchorage Parking Authority 

20 Moreover, we have held that the non-representative context of Ivy’s 

conduct rendered Rules of Professional Conduct 3.3 and 3.4 inapplicable and therefore 

rejected the Board’s recommendation of disbarment to the extent that it was based on 

those rules. In re Ivy, 350 P.3d 758, 762-65 (Alaska 2015). Yet, on remand the Board 

refused Ivy’s request to present additional argument on the proper disciplinary sanction. 

Instead, it summarily recommended the same sanction of disbarment, despite 

correspondence from Ivy’s attorney indicating that she “wanted to be heard.” 

21 In re Webb, 602 P.2d 408 (Alaska 1979), abrogated by In re Buckalew, 731 

P.2d at 48 (adopting the ABA’s sanctions standards). Ivy’s conduct does not approach 

the conduct for which the attorney in In re Webb was disbarred. 

22 818 P.2d 138 (Alaska 1991). 

23 No. S-08156 (Alaska Supreme Court Order, Nov. 18, 1998). 

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proceeding in an attempt to evade paying a parking ticket for expired tags.24 Purdy was 

convicted of and sentenced for misdemeanor forgery based upon this misconduct.25 Bar 

Counsel and Purdy entered into a Stipulation for Discipline by Consent, which called for 

a five-year suspension,26 and we approved that stipulation,27 which contained a detailed 

analysis of Purdy’s conduct and the applicable aggravating and mitigating factors under 

theABAstandards.28 Thestipulation recognized thatdisbarment isgenerally appropriate 

where a lawyer engages in serious criminal conduct, involving falsely swearing, 

misrepresentation, or fraud, or where a lawyer engages in any other intentional conduct 

involving dishonesty, fraud, deceit, or misrepresentation. And among the aggravating 

and mitigating factors applied in Purdy’s case were Purdy’s prior disciplinary offense, 

her dishonest or selfish motive, her criminal conviction, her expression of remorse, and 

her cooperativeattitudetoward disciplinary authorities. But theBar and Purdy stipulated 

that “[a]dditional factors that may be considered in mitigation include the following: 

Ms. Purdy’s conduct did not cause monetary loss to any person; the conduct did not 

affect any client; and the conduct did not occur within the practice of law.”29 

Similarly, in In re Stump, we approved a five-year suspension for an 

attorney who falsified evidence for use on his own behalf in civil litigation in which he 

24 In re Purdy, No. S-08996 (Stipulation for Suspension, filed Mar. 8, 1999, 

at 2-5). 

25 Id. at 4. 

26 Id. at 11. 

27 In re Purdy, No. S-08996 (Alaska Supreme Court Order, Mar. 26, 1999). 

28 In re Purdy, No. S-08996 (Stipulation for Suspension, filed Mar. 8, 1999, 

at 10). 

29 Id. (emphasis added). 

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wasadefendant and subsequently affirmed the authenticity of that evidenceunder oath.30 

Purdy and Stump both testified falsely under oath in their non-representative capacities. 

Here, Ivy also lied in her personal litigation; yet, rather than a five-year suspension, the 

court has ordered her disbarment. Such a disparity is unsupported and unjust. 

Further, even when attorneys have committed violations in representative 

capacities involving dishonest misappropriation of client funds that directly harmed a 

client, the resulting sanctions have been much less severe than Ivy’s. In In re Stepovich, 

In re Friedman, and In re Mann, all cases involving attorneys who misappropriated 

client funds, we reduced sanctions from the ABA-recommended disbarment to 

suspensions of two or three years,31 despite the fact that we have recognized that “[t]here 

are few more egregious acts of professional misconduct . . . than the misappropriation 

of [a] client’s funds held in trust.”32 And in In re Rice, we approved a suspension of four 

years for an attorney who misappropriated client funds and “cause[d] [his clients] 

potential harm, which is sufficient under the ABA Standards to justify even the harshest 

sanctions, . . . and . . . arguably cause[d] actual harm to public trust in the legal system.”33 

We justified the harsher four years — as opposed to the three-year suspensions given in 

30 621 P.2d 263 (Alaska 1980), abrogated by In re Buckalew, 731 P.2d 48 

(Alaska 1986). While In re Stump and other earlier cases were abandoned by our 

decision in Buckalew to adopt the ABA Standards, our decision in Stump nevertheless 

relied on the Standards and should be considered instructive here. Id. at 265 n.6 & n.10 

(referencing the 1979 draft ABA Standards for Lawyer Discipline and Disability 

Proceedings). 

31 In re Stepovich, 143 P.3d 963 (Alaska 2006); In re Friedman, 23 P.3d 620 

(Alaska 2001); In re Mann, 853 P.2d 1115 (Alaska 1993). 

32 In re Buckalew, 731 P.2d at 55 (quoting In re Beckman, 400 A.2d 792, 793 

(N.J. 1979)). 

33 260 P.3d 1020, 1035 (Alaska 2011). 

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Friedman and Mann — in part because the Bar found that Rice exhibited a “lack of 

remorse”34 and had not turned himself in.35 In all of these cases, the attorneys committed 

one of the most serious forms of professional misconduct, yet they received suspensions 

ranging from two to four years. Although Ivy’s misconduct was limited to the context 

of her contentious and painful personal litigation, she is to be disbarred from the practice 

of law. 

Moreover, a review of cases in which we have approved disbarment of 

attorneys reveals the extent to which Ivy’s disbarment represents a departure from 

precedent. In In re Buckalew, we recommended disbarment as an appropriate sanction 

for an attorney who fabricated a false settlement document, forging the signatures of 

another attorney and a superior court judge, and embezzled $67,000 fromtwo client trust 

accounts.36 In In re Miles, we found disbarment warranted when the attorney 

misappropriated more than $20,000 of a deceased client’s funds and then deceptively 

concealed that conduct.37 And in In re Wiederholt, we disbarred an attorney after eight 

separate parties filed grievances against the attorney for conduct including putting an 

unauthorized signature on a check, making improper sexual advances to a client, kicking 

opposing counsel, improperly delaying discovery, threatening to disclose client 

confidences, contacting an opposing party after being notified that the party was 

represented by an attorney, and filing an improper claim on behalf of a client to funds 

34 Id. at 1033. 

35 Id. at 1035. 

36 731 P.2d at 48. 

37 339 P.3d 1009 (Alaska 2014). 

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deposited in court.38 Ivy’s conduct simply does not rise to the egregious level of the 

actions that resulted in disbarment of these attorneys. 

We have recognized that the ABA Standards promote uniformity and 

prevent “[i]nconsistency of sanctions.”39 This “goal was one of the major driving forces 

behind promulgation of the ABA Standards.”40 The introduction to the Standards notes 

that “[i]nconsistent sanctions, either within a jurisdiction or among jurisdictions, cast 

doubt on the efficiency and the basic fairness of all disciplinary systems.”41 Here, the 

court’s order disbarringIvyis entirelyinconsistent with our previousdisciplinedecisions 

and thereby undermines the fundamental purpose of our reliance on the ABA Standards. 

II.	 ATTORNEY’S FEES 

Finally, I disagree with the court’s decision to affirm the attorney’s fee 

award of $61,282.75 against Ivy. An evaluation of the ten enumerated factors to be 

considered under Alaska Bar Rule 16 when determining an appropriate award of 

attorney’s fees does not support the award.42 Although the Board found that Ivy’s 

38	 877 P.2d 765, 766 (Alaska 1994). 

39	 In re Buckalew, 731 P.2d at 52 n.13. 

40	 Id. 

41	 ABA STANDARDS, supra note 9, at § I.A. 

42	 Rule 16(c)(3) lists the following factors to be considered: 

(A)	 the complexity of the disciplinary matter; 

(B)	 the duration of the case; 

(C)	 the reasonableness of the number of hours expended by Bar Counsel 

and the reasonableness of the costs incurred; 

(D)	 the reasonableness of the number of Bar Counsel used; 

(continued...) 

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attorney “tested the limits of zealous advocacy” and made the disciplinary proceedings 

unnecessarily complex, apparently applying the factor relating to “the reasonableness of 

the defenses raised by the Respondent,”43 at least one of Ivy’s defenses was well-taken. 

We ruled in Ivy’s favor in concluding that the Alaska Rules of Professional 

Responsibility 3.3 and 3.4 were inapplicable to her case. This seems to suggest that her 

attorney’s advocacy was appropriately zealous on that issue. And the attorney’s fees 

were never reduced to reflect that Ivy was successful in her argument that Rules 3.3 and 

3.4 did not apply.44 For that reason alone, the fees must be reduced. It is unclear why 

Ivy should be required to pay attorney’s fees for time spent litigating the question of the 

applicability of Rules 3.3 and 3.4 when she was successful in that effort. Her obligation 

should be reduced accordingly. 

III.	 CONCLUSION 

I respectfully dissent from the court’s decision to disbar Ivy. I believe a 

five-year suspension from the practice of law is the correct sanction for Ivy’s conduct 

42	 (...continued) 

(E)	 Bar Counsel’s efforts to minimize fees; 

(F)	 the reasonableness of the defenses raised by the Respondent; 

(G)	 vexatious or bad faith conduct by the Respondent; 

(H)	 the relationship between the amount of work performed by Bar 

Counsel and the significance of the matters at stake; 

(I)	 the financial ability of the Respondent to pay attorney’s fees; and 

(J)	 the existence of other equitable factors deemed relevant. 

43 Rule 16(c)(3)(F). 

44 In re Ivy, 350 P.3d 758, 762-65 (Alaska 2015). 

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and is most consistent with our prior discipline decisions. And regardless of the 

sanction, Ivy’s obligation to pay attorney’s fees should be reduced. 

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