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, 

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THE SUPREME COURT OF THE STATE OF ALASKA 

BRANT MCGEE, 

Petitioner, 

v. 

ALASKA BAR ASSOCIATION, 

Respondent. 

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) Supreme Court No. S-15636 

ABA File No. 2013D160 

O P I N I O N 

No. 7023 – July 24, 2015 

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Original Application from a decision by Bar Counsel for the 

Alaska Bar Association. 

Appearances: Brant McGee, pro se, Anchorage, Petitioner.1 

Louise R. Driscoll, Assistant Bar Counsel, Alaska Bar 

Association, Anchorage, for Respondent. 

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

Bolger, Justices. 

WINFREE, Justice. 

I. INTRODUCTION 

When an ethics grievance against a lawyer is filed with the Alaska Bar 

Association, Bar Counsel may, after a preliminary review, determine that a formal 

investigation is unwarranted and close the file. The complainant may request that the 

decision be reviewed by the Bar’s Discipline Liaison — designated by the Bar’s Board 

1 McGee is an inactive member of the Alaska Bar Association. 
 

 

 

 

of Governors — and if the Discipline Liaison agrees with Bar Counsel, then no further 

action is taken and the matter is closed. In Anderson v. Alaska Bar Ass’n we held that 

we will directly review a grievance-closing decision.2 In that case we reviewed the 

grievance closure for abuse of discretion and concluded that Bar Counsel had not abused 

his discretion in determining that a formal investigation was unwarranted.3 

We now consider a complainant’s application for relief contending that Bar 

Counsel erred in closing the complainant’s grievance without a formal investigation. 

Resolving this matter requires explaining more fully how we review a grievance closure. 

First, we expect Bar Counsel will base a grievance closure on the facts of record, 

applicable law and policy, practicality, and professional experience and judgment; when 

Bar Counsel does so we will afford Bar Counsel broad discretion. Second, when 

reviewing a grievance-closing decision for abuse of discretion, we look to ensure that the 

decision is not arbitrary, capricious, or the result of a breakdown in the process. On that 

standard we see no abuse of discretion in Bar Counsel’s decision to close this 

complainant’s grievance without a formal investigation. 

II. DISCUSSION 

A. Legal Framework 

Former Alaska Bar Rule 22(a) implied that if a properly filed grievance 

contained “allegations which, if true, would constitute grounds for discipline” Bar 

Counsel was required to open a formal investigation.4 Bar Rule 22(c) provided that after 

2 91 P.3d 271, 272 (Alaska 2004). 

3 Id. 

4 Former Alaska Bar R. 22(a) (Jan. 1985); Alaska Supreme Court Order No. 

614 (Dec. 6, 1984). 

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a formal investigation had been opened, Bar Counsel could dismiss the grievance if 

“there is no probable cause to believe that misconduct has occurred.”5 

We amended Rule 22(a) in 2003 to confirm Bar Counsel’s prosecutorial 

discretion when deciding whether to open a formal investigation, and Rule 22(a) now 

requires Bar Counsel to open a formal investigation only when a properly filed grievance 

“contains allegations that warrant investigation.”6 But we also added a provision that a 

complainant could request review of Bar Counsel’s grievance-closing decision by the 

Bar’s Discipline Liaison, who could direct that a formal investigation be opened on one 

or more of the grievance allegations.7 We did not change Rule 22(c)’s language. 8 

In Anderson v. Alaska Bar Ass’n we held that there was no right to appeal 

grievance-closing decisions to the superior court, but that based on “the presumption of 

reviewability pertaining to all final administrative orders, and the inherent authority of 

this court to regulate the practice of law,” we would directly review such decisions.9 

Citing but not discussing Vick v. Board of Electrical Examiners, we stated our “review 

should be deferential, namely, whether bar counsel abused his or her discretion in 

5 Alaska Bar R. 22(c) (Jan. 1985); Alaska Supreme Court Order No. 614 

(Dec. 6, 1984). 

6 Alaska Bar R. 22(a); Alaska Supreme Court Order No. 1454 (July 23, 

2003). 

7 Alaska Bar R. 22(a); Alaska Supreme Court Order No. 1454 (July 23, 

2003); see also Alaska Bar R. 10(f) (regarding appointment and duties of the Discipline 

Liaison). 

8 See Alaska Supreme Court Order No. 1454 (July 23, 2003) (amending only 

Alaska Bar R. 22(a)). 

9 91 P.3d 271, 272 (Alaska 2004). 

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determining that the allegations contained in the grievance do not warrant an 

investigation.”10 

In the cited portion of Vick we had stated: 

When an agency functions to protect the public in 

general, as contrasted with providing a forum for the 

determination of private disputes, the agency normally 

exercises its discretion in deciding whether formal 

proceedings should be commenced. In matters of 

occupational licensure the decision to initiate proceedings for 

revocation or suspension is comparable to the function of a 

public prosecutor in deciding whether to file a complaint.4 

Questions of law and fact, of policy, of practicality, and of 

the allocation of an agency’s resources all come into play in 

making such a decision. The weighing of these elements is 

the very essence of what is meant when one speaks of an 

agency exercising its discretion. 

4 Prosecuting power includes not only criminal 

prosecution, but also civil proceedings such as license 

suspension and revocation. DAVIS, ADMINISTRATIVE LAW 

TEXT, § 4.09 at 110 (1972). The analogy to public 

prosecution is broad, but not precise. But in many instances 

the consequences to the licensee can be more serious than 

those which would result from a criminal prosecution, 

[ ] depending, of course, upon the particular setting. 11

Assuming that a grievance has been processed in accordance with applicable rules and 

procedures, the Vick analysis applies. 

We expect that when considering whether a grievance warrants a formal 

investigation, Bar Counsel will consider the following: the known facts; whether 

10 Id. (citing Vick v. Bd. of Elec. Exam’rs, 626 P.2d 90, 93 (Alaska 1981)). 

11 626 P.2d at 93. 

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additional material facts reasonably could be brought to light with a formal investigation; 

applicable law and policy; and the practicality of pursuing a grievance in light of the 

need to prove an ethical violation by clear and convincing evidence,12 including relevant 

allocations of resources.13 We further expect that Bar Counsel will apply experience and 

professional judgment when weighing these various considerations in a grievanceclosing decision. When Bar Counsel does this, we will afford broad discretion in making 

that decision. We will conclude there is an abuse of discretion only if, based on the 

record and the reasoning expressed by Bar Counsel, the decision is arbitrary and 

capricious or it is clear the grievance process has broken down. 

B. McGee’s Grievance And Application For Relief 

Brant McGee filed a grievance with the Alaska Bar Association against an 

attorney in the Office of Public Advocacy (OPA).14 The grievance arose from an 

ongoing dispute between McGee and OPA about OPA’s former contracts with a private 

criminal defense investigator. McGee has contended the contracting process was 

corrupt, the investigator is a demonstrated liar, and OPA nonetheless wrongfully 

continued using the investigator. He also has contended that OPA attorneys, including 

12 See 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, by act or 

omission, committed misconduct [that is grounds for discipline].”). 

13 We do not suggest that an otherwise meritorious grievance should not be 

formally investigated based solely on an asserted lack of resources. 

14 OPA provides legal representation at public expense in a variety of 

contexts. AS 44.21.400-.410. Among other duties, OPA represents indigent criminal 

defendants when the Public Defender Agency has a conflict of interest, provides legal 

representation to indigent respondents in guardianship proceedings, and provides legal 

representation and guardian ad litem services to children in both custody and child in 

need of aid cases; it also serves in the role of public guardian. AS 44.21.410(a). 

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some in administrative and supervising positions within the agency, were guilty of 

ethical violations either during the contracting process or when allowing the investigator 

to continue working for OPA when he might be impeached devastatingly at trial to OPA 

clients’ detriment. McGee’s concerns previously led to proceedings described below and 

to Bar Counsel’s consideration of five other grievances against OPA attorneys.15 

In March 2012 an Administrative Law Judge (ALJ) issued a 14-page 

decision that OPA’s 2011 request for investigator proposals had been unduly restrictive 

and there was at least an appearance that the ultimate contract winner, the then-current 

investigator, had been favored. (In the matter before the ALJ, McGee represented an 

investigator who did not meet the qualifications in the request for proposal.) The ALJ 

remedially ordered that the contract not be renewed in June 2012; the ALJ also ordered 

the Department of Administration’s Chief Procurement Officer to investigate an earlier 

2006 contract with the investigator to determine whether corrective administrative action 

or a referral to the Department of Law was necessary. 

In November 2012, in response to the ALJ’s order and McGee’s follow-up 

demand that OPA’s former investigator be barred from future contracts, the Chief 

Procurement Officer issued a 14-page report. He concluded that although there had been 

problems with OPA’s contracting process, McGee’s allegations about the investigator 

were mostly untrue and those that were true did not rise to the level that debarment was 

appropriate. 

After McGee’s subsequent 16-page letter to the Department’s 

Commissioner contradicting the Chief Procurement Officer’s report and describing it as 

a “whitewash,” the Department of Law responded with a 14-page letter in April 2013. 

These grievances were closed without formal investigations. Our review 

of these grievance closures was not sought. 

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It reiterated that although there were some longstanding systemic problems in OPA’s 

contracting process, no knowing or intentional procurement violations had been 

uncovered in the investigation and no civil or criminal penalties would be pursued 

against OPA employees or the investigator. 

Later in 2013 McGee filed the Bar grievance that is the basis of his 

application for relief. In a May 2014 letter Bar Counsel advised McGee that a formal 

investigation would not be opened, stating in relevant part: 

You alleged that [the OPA attorney] violated a series 

of rules dealing with a lawyer’s duties to his client. These 

alleged violations resulted from allowing [the investigator] to 

provide investigative services to OPA criminal defense staff 

and OPA contract attorneys. You alleged that [the 

investigator] obtained a contract to provide investigative 

services through a flawed bidding process because [the 

investigator] misrepresented his investigative experience and 

training when he responded to a request for proposal. After 

contracting for services, [the investigator] submitted time 

sheets that you believe misrepresented time he actually spent 

in performance of services for OPA. You alleged that his 

mendacity makes [the investigator] a target for devastating 

cross examination and impeachment. 

. . . . 

[The attorney] did not create the request for proposal 

or enter into the OPA contract with [the investigator] in 2006. 

At most, he inherited a problem that you identified. [He] 

sought to remedy the problem when he suspended the use of 

[the investigator’s] services during the investigation. But 

[he] did not create the problem with which defense counsel 

may have to grapple. . . . 

. . . . 

A lawyer’s duties to clients encompass the duties to 

preserve client property, preserve client confidences, avoid 

conflicts of interest, act with reasonable diligence and 

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promptness in representing a client, provide competent 

representation, and act with candor. Issues of [the 

investigator’s] candor based on his resume and questionable 

time sheets do not warrant opening an investigation into 

whether [the OPA attorney] has breached duties to OPA 

clients. 

. . . . 

. . . I cannot justify opening a grievance for 

investigation of [this attorney] on the basis of your 

speculation that . . . OPA could utilize [the investigator’s] 

services. 

[The investigator’s] contract as an OPA investigator 

has been the subject of an administrative hearing, a 

Department of Administration investigation, a Department of 

Law investigation and several grievances. [The investigator] 

no longer has a contract with OPA. If this case were to go to 

hearing, in my opinion, we would not meet our burden [of] 

proof in order to show a violation of rules of professional 

conduct. The disciplinary process is time-consuming, and at 

the hearing and Disciplinary Board stages it relies on 

volunteer labor. It has always been our policy to decline 

prosecution of cases in which we believe that we could not 

meet our burden of proof at hearing. Under the fairly unique 

and complicated circumstances of this case, a hearing 

committee could not reasonably conclude that [this attorney] 

breached ethical rules of conduct. 

McGee requested that the Discipline Liaison review the grievance-closing 

decision, and provided the Discipline Liaison another 11 pages of argument. The 

Discipline Liaison concurred with the decision to close the matter without a formal 

investigation. 

McGee then sought our review of the grievance-closing decision. Although 

styled as a petition for review under Alaska Appellate Rules 402 and 403, relating to our 

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review of court orders, review of a grievance-closing decision is more appropriately an 

original application for relief under Rule 404(a)(1): 

An original application for relief may be filed with the 

appellate court or a judge or justice thereof in any matter 

within its jurisdiction, whenever relief is not available from 

any other court and cannot be obtained through the process 

of appeal, petition for review, or petition for hearing. Grant 

of the application is not a matter of right but of sound 

discretion sparingly exercised. 

We will consider McGee’s petition for review as an original application for 

relief. 

C. Resolution Of McGee’s Application For Relief 

McGee argues that when deciding not to open his grievance for formal 

investigation Bar Counsel used the wrong legal standard. McGee contends Bar Counsel 

refused to open a formal investigation because McGee had not proved an ethical 

violation by clear and convincing evidence at the grievance intake stage. We agree with 

McGee that the grievance process does not require presenting clear and convincing 

evidence of an ethical violation at the grievance intake stage. But we do not read the 

grievance-closing letter in the same manner as McGee.16 

The grievance-closing letter reflects that, in addition to McGee’s submittals 

and arguments, Bar Counsel considered: (1) the ALJ decision and underlying record 

regarding the allegations of impropriety in OPA’s contracting process; (2) the 

Department of Administration’s report about OPA’s contracting process and McGee’s 

16 McGee may be influenced in part by some inartful language by the 

Discipline Liaison in one of the other grievance files, mentioned above at note 15, 

affirming Bar Counsel’s decision not to open a formal investigation because McGee had 

not “overcome the evidentiary standard required to proceed with this grievance.” Bar 

Counsel actually had declined to open a formal investigation in that matter for essentially 

the same reasons Bar Counsel declined to open a formal investigation in this matter. 

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allegations of wrongdoing by OPA’s contract investigator and attorneys; and (3) the 

Department of Law’s response to McGee’s assertion that the Department of 

Administration’s investigative report was a “whitewash.” We conclude that Bar Counsel 

reasonably could determine that a formal investigation would not bring to light any new 

material facts relevant to McGee’s grievance. 

The letter also reflects the application of experience and professional 

judgment based on the existing record and relevant considerations: Bar Counsel 

provided a reasonable explanation that the known facts did not suggest a connection 

between OPA’s use of the investigator and any possible ethical violation by the attorney 

involved in this matter, that a violation would have to be proved to an area hearing 

committee by clear and convincing evidence, and that there was no good reason to use 

Bar resources to present a case to volunteer area hearing committee members when there 

was very little likelihood of proving an ethical violation. The Discipline Liaison 

reviewed McGee’s grievance file and the grievance-closing decision, as requested by 

McGee, and concurred that a formal investigation was unwarranted. McGee has not 

suggested that either Bar Counsel or the Discipline Liaison was improperly motivated 

or influenced in the decision-making process, and it is clear that there was no breakdown 

in the grievance process. 

Bar Counsel has discretion to close a grievance when further pursuit is 

unwarranted.17 Bar Counsel’s decision to close McGee’s grievance without a formal 

17 We earlier noted that Bar Rule 22(c) allows Bar Counsel to dismiss a 

grievance after initiating a formal investigation if Bar Counsel determines that “there is 

no probable cause to believe that misconduct has occurred.” In light of our 2003 

amendment to Rule 22(a), we interpret Rule 22(c)’s language to mean that, even after 

initiating a formal investigation, Bar Counsel may dismiss a grievance when further 

pursuit is not warranted in light of all the considerations applicable to closing a grievance 

(continued...) 

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investigation was not arbitrary or capricious, and we see no breakdown in the grievance 

process warranting interference with Bar Counsel’s decision. 

III. CONCLUSION 

McGee’s application for relief is DENIED. 

(...continued) 

without a formal investigation, as discussed in this opinion. 

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