In the Disciplinary Matter Involving 

DEBORAH IVY, 

Respondent. 

 

 

 

 

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 

) Supreme Court No. S-15450 

ABA File No. 2010D233 

O P I N I O N 

No. 7002 – May 1, 2015 

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Appeal from the Alaska Bar Association Disciplinary Board. 

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

Cole, Fairbanks, for Respondent. Kevin G. Clarkson, Brena, 

Bell & Clarkson, P.C., Anchorage, Special Bar Counsel for 

Alaska Bar Association. 

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

Justices. [Maassen, Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

The Alaska Bar Association Disciplinary Board recommends disbarment 

of Deborah Ivy for making false statements as a party to litigation in violation of Alaska 

Rules of Professional Conduct 3.3, 3.4, and 8.4 and Alaska Bar Rule 15. We agree the 

record establishes that Ivy made false statements in violation of Professional Conduct 

Rule 8.4 and Bar Rule 15. But we conclude that Rules 3.3 and 3.4 do not apply because 

they are intended to govern attorneys acting as advocates and not in their personal 
 

 

 

 

capacities. We therefore remand this matter to the Board for reconsideration of its 

recommended sanction. 

II. FACTS AND PROCEEDINGS

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

in now-settled litigation, including the Kyzer Partnership Litigation1 and the 

Kyzer/McManamin Litigation. 2 This litigation involved the dissolution and unwinding 

of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and 

others.3

 In the Kyzer Partnership Litigation, Ivy counterclaimed against Kyzer, alleging, 

among other things, that Kyzer created a hostile work environment and committed 

“intentional tortious acts,” by behaving abusively toward her for decades. Relations 

between Kyzer and Ivy grew so acrimonious during the litigation that a no-contact order 

was issued in December 2007, prohibiting in-person or telephone contact between the 

parties without an attorney present and prohibiting each party from coming within 500 

feet of the other’s residence. 

During the course of the litigation, Ivy alleged and testified that Kyzer 

made improper contact with her on three occasions, two of which are relevant to this 

appeal. Kyzer filed a grievance with the Alaska Bar Association alleging Ivy fabricated 

these incidents and violated the Professional Conduct Rules by testifying falsely about 

them. 

1 This was superior court case number 3AN-05-09242 CI. 

2 This was superior court case number 3AN-07-10578 CI. 

3 In the Kyzer Partnership Litigation, Kyzer sued Ivy individually and on 

behalf of The Kyzer Group. In the Kyzer/McManamin Litigation, the plaintiffs were 

John McManamin, Nancy McManamin, Robin McManamin, and Jerry Ulmer. The 

four Kyzer siblings, The Kyzer Group, and Deborah Ivy, LLC were the defendants. 

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The first such incident allegedly occurred December 29, 2007, when Ivy 

claims Kyzer stalked her at a women’s clothing store. Ivy was scheduled to have her 

deposition taken in the McManamin litigation in January. Ivy did not appear at the 

scheduled date; the deposition did not occur until March 13, 2008. At the deposition, Ivy 

testified about the alleged stalking. According to Ivy, she was shopping at the store from 

approximately 3:15-3:45 p.m., saw Kyzer in his car outside the store, and completed her 

shopping while continuing to look out the window at Kyzer. Ivy claimed that after 

completing her purchase, she hurried to her car, and while she was backing out, Kyzer’s 

vehicle pulled up next to her so close that she thought they would collide. She testified 

she could see Kyzer in his car “focused, intent, locked in to me” and her “reaction was 

just to flee.” Ivy stated that she and Kyzer then drove off in different directions. 

Ivy testified she could not recall whether she contacted the police that day. 

She stated she did not file a police report that day and could not recall whether she asked 

anyone else to file one for her. She recalled contacting the police multiple times about 

the incident but could not remember when. But she provided a detailed statement to a 

police officer over a week later. The police report states, “[I]f what she provided could 

be corroborated, it still would not amount to criminal activity.” The police officer 

encouraged her to apply for a domestic violence restraining order. The police report 

stated that Ivy’s attorney at the time called the police officer after hearing from Ivy about 

their conversation. The officer told Ivy’s attorney that he would be willing to request a 

telephonic hearing for the restraining order because Ivy was afraid to come to the 

courthouse. 

Ivy also alleged Kyzer assaulted her in a courtroom on June 29, 2010, 

before a hearing in the Kyzer/McManamin Litigation. According to Ivy’s affidavit: 

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Just prior to the commencement of the hearing, I was 

standing behind the bar, waiting to come forward and join my 

attorneys . . . , who were in front of the bar . . . . 

. . . David Kyzer surreptitiously approached me from 

the rear, and using force, repeatedly thrust his groin into my 

buttocks area. 

. . . . 

. . . I not only felt his groin and crotch (penis), but he 

also pushed [his] entire frontal area extremely hard against 

me, from his upper chest/lower neck all the way through his 

legs (which were so entangled that he tripped while 

disengaging himself). 

. . . His pushing/pressure during the attack caused me 

pain . . . . 

. . . . 

. . . While he was attacking me, his mouth was near my 

ear, and he was talking into my ear, calling me “Debbie.” 

. . . . 

. . . I [cried] out[,] “[D]on’t touch me.” 

Ivy alerted her attorney, who reported to the judge that Kyzer had 

“physically accost[ed]” Ivy. The judge reminded the parties about the requirements of 

the no-contact order and proceeded with the hearing. 

Two days after the hearing, Ivy emailed her attorney details of the alleged 

assault. This email appears to be the first documented allegation the assault was sexual. 

Ten days later Ivy’s attorney filed a “Notice of Sexual Assault” with the court, 

accompanied by Ivy’s affidavit. Subsequently, both Kyzer and Ivy obtained a copy of 

the courtroom security video of this incident. 

In December 2010 Kyzer filed a grievance with the Alaska Bar Association 

against Ivy, alleging she violated Alaska Professional Conduct Rules 3.1, 3.3(a)(1) and 

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(3), and 8.4(a) through (c) by falsely testifying that Kyzer stalked and assaulted her.4 

Special Bar Counsel Kevin Clarkson was appointed to review the grievance. He found 

there was probable cause to believe Ivy committed the alleged violations. The Board 

Discipline Liaison approved the filing of a Petition for Formal Hearing, and the Petition 

was filed in March 2012. The Petition charged Ivy with the same violations as Kyzer’s 

grievance, except it did not charge her with violating Rule 3.1. It also charged Ivy with 

violating Rule 3.4(b) and Alaska Bar Rule 15(a)(3).5 

An Area Hearing Committee was appointed to conduct the hearing, which 

was held in February and March 2013. The Committee found Kyzer had not stalked Ivy 

and suggested Ivy may have fabricated the incident in an effort to avoid her 2008 

deposition. The Committee found Ivy’s testimony about the alleged stalking was not 

credible and her description of the movements of Kyzer’s vehicle in the clothing store 

parking lot was “not physically possible.” The Committee stated, “When confronted with 

this physical reality during cross-examination, Ms. Ivy fabricated a new story . . . .” The 

Committee found Ivy continued to testify falsely at the hearing and did not admit her 

previous testimony was mistaken. 

The Committee credited testimony from Kyzer and his wife that they were 

driving a different vehicle that day to run errands (for which they provided receipts), did 

not go to the women’s clothing store, and returned home to watch a football game before 

Ivy arrived at the store. The Committee also credited the testimony of the Kyzers’ two 

4 Ivy also had alleged under oath that Kyzer trespassed on her property. 

Kyzer’s grievance charged Ivy with fabricating this incident as well. Because there was 

conflicting evidence concerning this incident, Ivy was found not to have violated any 

rule by testifying about it, so it is not at issue on appeal. 

5 Bar Rule 15(a)(3) makes “knowing misrepresentation of any facts or 

circumstances surrounding a grievance” grounds for discipline regardless of whether the 

conduct “occurred in the course of an attorney-client relationship.” 

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sons, who testified Kyzer was home in the afternoon to watch a pre-game show and 

football game. And it relied on the testimony of two store clerks who helped Ivy that 

day; they testified Ivy never told them she was in a hurry and did not look worried or 

nervous. The Committee found by clear and convincing evidence Ivy knowingly 

provided false testimony at the deposition and hearing. 

The Committee also found there was clear and convincing evidence Ivy 

knowingly provided a false affidavit about the alleged courtroom assault. The 

Committee found the courtroom security videotape accurately depicted the events 

leading up to the court hearing and that although Kyzer’s “hip or buttocks may have 

brushed Ms. Ivy’s right hip” as he passed by her to take his seat, the other allegations in 

Ivy’s affidavit were false. The Committee concluded: 

It is not reasonably possible for someone to have experienced 

the inadvertent and minor bump of a brother attempting to be 

excused and then to pass by his sister, as is seen on the 

courtroom security videotape . . . , and then to honestly or 

mistakenly believe that they had been sexually assaulted . . . . 

The Committee noted that Ivy testified she had not been mistaken about the 

incident and denied imagining or hallucinating it. Instead, the Committee found she 

continued to fabricate new evidence at the disciplinary hearing, producing pants she 

claimed to have worn that day and contending they contained marks evidencing the 

sexual assault. The Committee found, “She also newly claimed that she had gone to a 

doctor who had diagnosed a bruised ‘pubic bone’ as a result of her encounter.” 

The Committee concluded Ivy violated Professional Conduct Rules 

3.3(a)(1) and (3); 3.4(b); 8.4(a), (b), and (c); and Alaska Bar Rule 15(a)(3). The 

Committee recommended that the appropriate sanction was disbarment. Ivy appealed 

the Committee’s decision to the Board of Governors in July 2013; the Board adopted the 

Committee’s findings and recommendation for disbarment in full. Ivy appeals. 

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III. STANDARD OF REVIEW
 

“We independently review the entire record in attorney disciplinary 

proceedings, though findings of fact made by the Board are entitled to great weight.”6 

“When the Board’s findings of fact are appealed, the respondent attorney bears the 

burden of proof in demonstrating that such findings are erroneous.”7 “We apply our 

independent judgment to questions of law and questions concerning the appropriateness 

of sanctions.”8 

IV. DISCUSSION 

A. We Agree With The Board’s Findings Of Fact. 

Ivy challenges the factual findings concerning the alleged assault and 

stalking incidents made by the Committee and adopted by the Board. With respect to the 

alleged stalking incident, we note the Committee had the opportunity to observe the 

witnesses presented by both parties and make findings about their credibility. The 

Committee determined Ivy was not credible, whereas the Kyzers and the store clerks 

testified credibly. We generally will not disturb factual findings by an area hearing 

committee when the findings are based on conflicting evidence.9 And Ivy fails to 

demonstrate that the Committee erred in weighing the witnesses’ credibility. We concur 

with the Board’s findings about the alleged stalking incident. 

6 See In re Disciplinary Matter of Miles, 339 P.3d 1009, 1018 (Alaska 2014) 

(quoting In re Disciplinary Matter of Shea, 273 P.3d 612, 619 (Alaska 2012)) (internal 

quotation marks omitted). 

7 Id. (quoting In re Disciplinary Matter of Rice, 260 P.3d 1020, 1027 (Alaska 

2011)) (internal quotation marks omitted). 

8 Id. (quoting In re Shea, 273 P.3d at 619) (internal quotation marks omitted). 

9 Id. 

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The Board’s findings concerning the events in the courtroom are well 

supported by the courtroom video of the encounter between Kyzer and Ivy and the 

testimony presented to the Committee. We therefore adopt the Board’s findings about 

the courtroom incident. 

Ivy also argues the Bar Association did not prove by clear and convincing 

evidence that she “knew” that her testimony was false. In response, the Bar Association 

contends the Board’s factual findings regarding each incident were supported by 

sufficient circumstantial evidence suggesting Ivy subjectively knew her testimony was 

false. 

The Rules of Professional Conduct define “knowingly” as “actual 

knowledge of the fact in question,” adding that “[a] person’s knowledge may be inferred 

from circumstances.”10 Accordingly, “knowingly” making a false statement for purposes 

of the Rules requires both that the statement be false and that the speaker know so. But 

even the speaker’s subjective knowledge of a sworn statement’s falsity can be proven 

through circumstantial evidence.11 

We agree there was sufficient circumstantial evidence to establish that Ivy 

knew her testimony was untrue. The incredibility of Ivy’s testimony about the alleged 

stalking, the testimony of six witnesses who contradicted her account, and her motive to 

lie collectively permit the inference she knew her testimony was false. Concerning the 

10 Alaska R. Prof. Conduct 9.1(h). 

11 Cf. Adams v. Adams, 131 P.3d 464, 466-67 (Alaska 2006) (“[W]e note that 

actual knowledge can be inferred from circumstantial evidence. Otherwise, it would be 

nearly impossible to establish actual knowledge in the context of a claim of fraudulent 

misrepresentation unless the affirming party admitted that it knew of the fraud.”); Jerrel 

v. State, 851 P.2d 1365, 1370-71 (Alaska App. 1993) (holding that circumstantial 

evidence of state of mind could be used to establish whether defendant believed her 

statements were true). 

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courtroom incident, Ivy contends that she made a reasonable mistake due to her fear of 

Kyzer. But even after Ivy had the opportunity to see the video of what actually occurred, 

she continued to insist that Kyzer thrust against her repeatedly and caused her 

“excruciating” pain. She did not acknowledge a mistake or misperception. And she did 

not introduce any evidence that her ability to perceive events was compromised by a 

mental or physical impairment. 

We agree with the Board’s conclusion that Ivy’s testimony is objectively 

false and that she did not credibly explain that she mistakenly believed it was true. 

B.	 Rules 3.3 And 3.4 Do Not Apply To An Attorney’s Actions In Her 

Personal Capacity. 

The Alaska Rules of Professional Conduct are organized in several sections, 

including Client-Lawyer Relationship, Counselor, Advocate, Transactions With Persons 

Other Than Clients, and Maintaining The Integrity Of The Profession.

12 Rule 3.3, 

regarding “Candor Toward the Tribunal,” is in the section titled Advocate. Rule 

3.3(a)(1) provides that “[a] lawyer shall not knowingly . . . make a false statement of fact 

or law to a tribunal or fail to correct a false statement of material fact or law previously 

made to the tribunal by the lawyer.” Rule 3.3(a)(3) provides that a lawyer shall not 

knowingly “offer evidence that the lawyer knows to be false.” 

Rule 3.4, regarding “Fairness to Opposing Party and Counsel,” is in the 

same section, titled Advocate. Rule 3.4(b) provides, “A lawyer shall not falsify 

evidence” or “counsel or assist a witness to testify falsely.” 

Rule 8.4, regarding “Misconduct” is in the section titled Maintaining the 

Integrity of the Profession. This rule provides in pertinent part: 

There are additional sections entitled Law Firms And Associations, Public 

Service, and Information About Legal Services. 

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12 
 

 

 

 

 

 

 

 

 

 

 

 

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; 

(c) engage in conduct involving dishonesty, fraud, 

deceit, or misrepresentation . . . . 

Ivy argues she did not violate Rules 3.3 and 3.4 because these rules are 

limited to a lawyer’s conduct when representing a client. The Alaska Bar Association 

contends Rules 3.3 and 3.4 apply to all attorney conduct, whether the attorney is 

representing a client or acting in a personal capacity. To resolve this dispute, we must 

“interpret each part or section of [the rules] with every other part or section, so as to 

create a harmonious whole.”13 

13 Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 

1076 (Alaska 2009) (quoting State, Dep’t of Commerce, Cmty., & Econ. Dev., Div. Of 

Ins. v. Progressive Casualty Ins. Co., 165 P.3d 624, 629 (Alaska 2007)) (internal 

quotation marks omitted); see also People v. Santiago, 925 N.E.2d 1122, 1129-30 (Ill. 

2010) (construing a Rule of Professional Conduct in the context of the Rules as a whole 

“in order to make them harmonious and consistent.”); Carlson v. Workforce Safety & 

Ins., 765 N.W.2d 691, 700-01 (N.D. 2009) (stating that “canons of statutory 

construction” apply to the interpretation of the Professional Conduct Rules and that 

“[r]ules are construed as a whole, giving meaning to each word and phrase, if possible”); 

LK Operating, LLC v. Collection Grp., LLC, 331 P.3d 1147, 1158 (Wash. 2014) (en 

banc) (“When interpreting the meaning of any [Professional Conduct Rule], we apply 

settled principles of statutory construction. Our goal is to give effect to the intent behind 

the rule, which we discern, where possible, from the plain language of the rule at issue 

in the context of the [Professional Conduct Rule] as a whole.” (citation omitted)). 

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The Alaska Rules of Professional Conduct are based on the Model Rules 

of Professional Conduct adopted by the American Bar Association (ABA).14 The Alaska 

Bar Association relies on cases holding that other jurisdictions’ versions of Model Rules 

3.3 and 3.4 apply to an attorney’s personal conduct.15 These cases rely on strong policy 

arguments supporting high ethical standards for all attorneys, whether inside the 

courtroom or not.16 

However, the ABA adopted some clarifying commentary to Rule 3.3 in 

17 18 2002, which we added to the Alaska Rules of Professional Conduct in 2009. The 

Commentary now suggests that the rule is limited to the conduct of a lawyer in a 

representational capacity before a court or another tribunal: 

14 See AM. BAR ASS’N, STATE ADOPTION OF THE ABA MODEL RULES OF 

PROFESSIONAL CONDUCT AND COMMENTS 1 (2011), available at 

http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/comments.authcheckd 

am.pdf. 

15 See, e.g., People v. Albright, 91 P.3d 1063, 1067-68 (Colo. 2003) (applying 

Rule 3.3 to misrepresentations about personal assets and income in lawyer’s personal 

bankruptcy filing); In re Disciplinary Action Against Fuller, 621 N.W.2d 460, 469 

(Minn. 2001) (per curiam) (applying Rule 3.4 to attorney’s submission of misleading 

evidence in disciplinary proceeding). 

16 See Disciplinary Counsel v. Robinson, 933 N.E.2d 1095, 1102-03 (Ohio 

2010) (per curiam) (“[I]n applying Prof. Cond. R. 3.4(a)[,] . . . we recognize that 

respondent’s conduct, be it in a personal or professional capacity, demonstrates a lack 

of respect for the law that he has been sworn to uphold, thereby undermining public 

confidence in our justice system.”). 

17 See Margaret Colgate Love, The Revised ABA Model Rules of Professional 

Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441, 442-44, 

464-66 (2002). 

18 See Alaska Supreme Court Order No. 1680 (Oct. 28, 2008); see also AM. 

BAR ASS’N, supra note 14. 

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This Rule governs the conduct of a lawyer who is 

representing a client in the proceedings of a tribunal. . . . It 

also applies when the lawyer is representing a client in an 

ancillary proceeding conducted pursuant to the tribunal’s 

adjudicative authority, such as a deposition. 

. . . . 

This Rule sets forth the special duties of lawyers as 

officers of the court to avoid conduct that undermines the 

integrity of the adjudicative process. A lawyer acting as an 

advocate in an adjudicative proceeding has an obligation to 

present the client’s case with persuasive force. Performance 

of that duty while maintaining confidences and secrets of the 

client, however, is qualified by the advocate’s duty of candor 

[ ] to the tribunal. 19

Our same order added clarifying commentary to Rule 4.1, regarding “Truthfulness in 

Statements to Others.”20 The text of that rule is not relevant to this dispute. But the 

commentary to Rule 4.1 now provides in part, “For dishonest conduct that does not 

amount to a false statement or for misrepresentations by a lawyer other than in the course 

of representing a client, see Rule 8.4.”21 

The Preamble to the Alaska Rules of Professional Conduct states that the 

commentary to each rule “explains and illustrates the meaning and purpose of the 

Rule.”22 “The [comments] are intended as guides to interpretation, but the text of each 

19 Alaska R. Prof. Conduct 3.3 cmt. 

20 See Alaska Supreme Court Order No. 1680 at 190-91 (Oct. 28, 2008). 

21 Alaska R. Prof. Conduct 4.1 cmt. 1. 

22 Alaska R. Prof. Conduct, Scope. 

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Rule is authoritative.”23 Nonetheless, all of the cases that have considered the 2002 ABA 

amendments conclude that the new commentary to Rule 3.3 is intended to limit the broad 

language of that rule. 

For example, the Iowa Supreme Court considered the application of rules 

identical to Rules 3.3 and 3.4 to a lawyer’s failure to disclose two pending contingent-fee 

cases in a proceeding for dissolution of his marriage.24 The court recognized that the 

comments to Rule 3.3 suggest the rule applies only to an attorney acting in a 

representational capacity.25 The court also noted that the application of this commentary 

was supported “by the fact that [the] rule is found in a section of the rules [titled] 

‘Advocate.’ ”26 The Iowa court ultimately concluded that Rules 3.3 and 3.4 do not apply 

to an attorney who is not representing a client in a court or similar proceeding.27 

23 Id. 

24 Iowa Supreme Court Attorney Disciplinary Bd. v. Rhinehart, 827 N.W.2d 

169, 172, 176-77 (Iowa 2013). 

25 Id. at 176 (“We have noted lawyers ‘are required to obey the disciplinary 

rules when acting pro se or in a personal capacity.’ Nevertheless, some rules target only 

the conduct of an attorney while serving as an advocate representing a client. For 

example, the comments to [Rule 3.3] indicate the rule applies only to an attorney 

representing clients in the proceedings of a tribunal . . . .” (quoting Iowa Supreme Court 

Attorney Disciplinary Bd. v. Stowers, 823 N.W.2d 1, 13 (Iowa 2012))). We note that 

Rhinehart involved an attorney representing himself pro se. Rhinehart, 827 N.W.2d at 

171. While we find the Iowa Supreme Court’s analysis supportive of the proposition that 

Rule 3.3 does not apply to an attorney acting in a non-representational capacity, i.e., as 

a witness, we do not express an opinion on whether an attorney acting pro se is acting 

in a representational or personal capacity for purposes of determining Rule 3.3’s 

applicability. 

26 Id. 

27 Id. at 177. 

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Reviewing the same commentary, the Supreme Courts of Colorado, Minnesota, and the 

Northern Mariana Islands have reached similar conclusions in cases involving Rule 3.3.28 

In the language of the Preamble, the commentary to Rule 3.3 “explains” the 

“meaning” of the rule: the rule is limited to dishonest misconduct by a lawyer acting in 

a representational capacity before a tribunal. This meaning is supported by the inclusion 

of Rules 3.3 and 3.4 in the section titled “Advocate.”29 The commentary to Rule 4.1 also 

suggests that a lawyer engaging in dishonest misconduct in a personal capacity may be 

disciplined under Rule 8.4.30 Limiting Rules 3.3 and 3.4 to representational conduct thus 

28 People v. Head, 332 P.3d 117, 128-29 (Colo. 2013) (noting that the 

commentary to Rule 3.3, while not binding, was persuasive); In re Disciplinary Action 

Against Albrecht, 845 N.W.2d 184, 191 (Minn. 2014) (per curiam) (concluding that Rule 

3.3 only applies to a lawyer representing a client); In re Disciplinary Proceeding of 

Yana, No. 2012-SCC-0017-ADA, 2014 WL 309314, at *3, *12 (N. Mar. I. Jan. 28, 

2014) (per curiam) (quoting MODEL RULES OF PROF’L CONDUCT R. 3.3 cmt. 1 (2011) 

(concluding that the scope of Rule 3.3 is limited to “the conduct of a lawyer who is 

representing a client in the proceedings of a tribunal,” including a lawyer acting pro se); 

see also State ex rel. Okla. Bar Ass’n v. Dobbs, 94 P.3d 31, 52 (Okla. 2004) (holding that 

Rule 3.3 “addresses professional misconduct as an advocate for making false statements 

to a tribunal, not false statements by a lawyer as a witness” (emphasis in original)). 

29 Although the heading of this section is not determinative, it may be 

considered to resolve doubt as to the drafter’s intent. See Tweedy v. Matanuska-Susitna 

Borough Bd. of Adjustment & Appeals, 332 P.3d 12, 18 (Alaska 2014) (“[T]he title of 

a statutory provision or code . . . can be an interpretive tool . . . where the legislative 

meaning is in doubt”); see also 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, 

SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47:14 (7th ed. 2007) (stating 

that section headings may “help illuminate legislative intent”). We apply this principle 

of statutory interpretation when interpreting legislative intent, and it is equally applicable 

when interpreting model rules and commentary. See Rhinehart, 827 N.W.2d at 176-77 

(applying this interpretive tool to the headings of professional rules of conduct). 

30 Alaska R. Prof. Conduct 4.1 cmt 1. 

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prevents overlap with Rule 8.4 without rewarding attorneys who commit dishonesty as 

parties or witnesses.31 

We conclude that Rules 3.3 and 3.4 do 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. We remand the question of sanctions in light of this 

holding. 

C. The Disciplinary Hearing Complied With Due Process. 

Ivy also claims her state and federal constitutional due process rights were 

violated in the disciplinary proceeding. She appears to argue the disciplinary process is 

inherently biased because a finding of misconduct allows the Board to order the payment 

of attorney’s fees, resulting in a financial benefit for the Bar Association.32 But we 

cannot conclude that the specter of attorney’s fees alone prevented members of either the 

Committee or the Board from serving as neutral and disinterested decision-makers.33 

31 Cf. Adamson v. Municipality of Anchorage, 333 P.3d 5, 16 (Alaska 2014) 

(“When we interpret a statute, we presume that no words or provisions are superfluous 

and that the legislature intended ‘every word, sentence, or provision of a statute to have 

some purpose, force, and effect.’ ” (quoting Monzulla v. Voorhees Concrete Cutting, 254 

P.3d 341, 345 (Alaska 2011))). 

32 Ivy’s reply brief also seems to suggest that the composition of the area 

hearing committee is inherently biased. Because she did not address this topic in her 

opening brief, we will not consider it. Alliance of Concerned Taxpayers, Inc. v. Kenai 

Peninsula Borough, 273 P.3d 1128, 1134 n.19 (Alaska 2012) (“Attention to [an] issue 

[inadequately briefed in the opening brief] in a reply brief does not resuscitate it.” 

(quoting Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140, 145 (Alaska 

1991) (internal quotation marks omitted))). 

33 See Alaska Bar R. 12(g)(1), (5) (“A Hearing Committee member may not 

consider a matter when . . . (s)he is a party or is directly interested [or] (s)he believes 

that, for any reason, (s)he cannot give a fair and impartial decision.”). We note that Ivy 

(continued...) 

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Nor does Ivy allege she was denied any other procedural protections, and we agree with 

the Bar Association that “a full six days of formal hearing” provided ample due process. 

D. The Attorney’s Fees Award Was Not Erroneous. 

Ivy also appeals the award of attorney’s fees to the Bar Association. She 

argues that in calculating the award, the Board failed to consider that she prevailed on one 

of the charges alleged in the Petition: that she falsely testified that Kyzer trespassed on 

her property. But Ivy gives this issue only cursory treatment, mentions it only in her 

statement of the case, and cites no legal authority requiring the Board to reduce its 

attorney’s fee award in light of the Bar’s failure to carry its burden of proof on only one 

of several serious counts.34 

Bar Rule 16(c)(3) provides that when a finding of misconduct is made, the 

attorney may be ordered to pay the costs, “including attorney’s fees, of the proceedings 

33 (...continued) 

could have challenged any of the hearing members for cause but did not. See Alaska Bar 

R. 12(h). 

34 Ivy also argues that if this court reverses the Board’s conclusions 

concerning Professional Conduct Rules 3.3 and 3.4, we should similarly vacate the 

attorney’s fee award. But Ivy argues the attorney’s fees should be vacated only in her 

reply brief, and accordingly, this argument is waived for failure to raise in her opening 

brief. See Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) (citing “our wellestablished rule that issues not argued in opening appellate briefs are waived”); Hitt v. 

J.B. Coghill, Inc., 641 P.2d 211, 213 n.4 (Alaska 1982) (“Appellant set forth other 

grounds for reversal in her statement of points on appeal, one of which she argued in her 

reply brief, but argued none of them in her opening brief. Accordingly, these points are 

waived.”). Even if this issue were properly raised, it is not apparent from this 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. 

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or investigation or any parts thereof,”35 upon consideration of a number of factors. The 

Board considered the factors required by the rule.36 And we have previously approved 

attorney’s fees awards recommended by the Board.37 Accordingly, we find no fault with 

the attorney’s fees award. However, the Board may revise the award if it determines that 

reconsideration of the award is warranted in light of our ruling on Professional Conduct 

Rules 3.3 and 3.4. 

V. CONCLUSION 

We agree with the Board’s findings and its conclusion that Ivy violated 

Professional Conduct Rule 8.4. But we disagree with the Board’s conclusion that Ivy 

violated Professional Conduct Rules 3.3 and 3.4. We therefore REMAND this matter to 

the Board to reconsider the question of sanctions. 

35 Alaska Bar R. 16(c)(3). 

36 See Alaska Bar R. 16(c)(3)(A)-(J). 

37 See, e.g., In re Disciplinary Matter of Friedman, 23 P.3d 620, 624-25, 635 

n.74 (Alaska 2001) (assessing $3,213 in costs and attorney’s fees incurred by bar counsel 

in the proceedings against Friedman for mishandling client funds). 

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