In re McNally

MOORE, Chief Justice,

with whom MATTHEWS, J., joins, dissenting.

In voting to affirm, Justice Rabinowitz adopts the court of appeals’ reading of this court’s opinion in Davis v. Superior Court, 580 P.2d 1176 (Alaska 1978). Because, on the facts of this case, I believe that the superior court was required to give a warning prior to the imposition of sanctions under Davis, I respectfully dissent.

In Davis, the superior court fined the Fairbanks District Attorney, Harry Davis, fifty dollars for failing to send a prepared attorney to an omnibus hearing in a case Davis was actively handling. In remanding *420the case to the trial court to allow Davis an opportunity to present any excuse he might have for this failure, the Davis court discussed the propriety of sanctions against a supervising attorney:

We believe that some further comment is required with reference to the administrative duties of a person, such as the district attorney, who is in charge of a multi-attorney office. We do not believe that by virtue of his office, such a person may individually be held responsible for all derelictions of those serving under him. If, however, a court finds that violations of rules are occurring due to mismanagement of assignments, we believe it to be preferable for the judge initially to advise the managing attorney of the problem. If such problem is not alleviated, we see no reason why the court should not then be able to proceed by issuing appropriate orders and compelling compliance under either its contempt powers or, in the case of violation of rules of court, by means of sanctions imposed under Rule 95(b).

Id. at 1180. Thus, in most cases, a supervising attorney must be first advised of the alleged “mismanagement” and given an opportunity to address the problem before sanctions are appropriate.

Judge Cranston concluded that Davis did not require the court to issue McNally a warning prior to imposing sanctions in this case. In affirming this ruling, the court of appeals emphasized that “McNally was not simply being sanctioned vicariously for the inappropriate acts of an assistant [but] was responsible in his own right, as District Attorney, for failure to take the type of institutional measures that could have prevented the unfortunate situation that occurred.” McNally v. Superior Court, Mem.Op. & J. No. 2770 at 8-9 (Alaska App., September 22, 1993). I find this rationale unpersuasive.

Whenever a court seeks to hold a supervising attorney responsible for the misconduct of a subordinate under an “administrative mismanagement” theory, the court is seeking to impose sanctions for violations of court rules caused by the supervising attorney’s own negligent conduct as an administrator. I believe that a warning should be dispensed with only in those cases where the supervising attorney either knew of or condoned a subordinate’s violation of court rules, or where the attorney’s “administrative mismanagement” was so grossly negligent that knowledge of such violations may be imputed.1

Applying this rule to the instant case, I would hold that the problems which arose at the Kenai calendar call did not stem from the kind of “administrative mismanagement” which merits immediate punitive sanctions. There is no evidence suggesting that McNally knew of or condoned Berkowitz’ non-appearance. There is also no evidence suggesting that McNally was “grossly negligent” in assigning responsibility for the Seward cases to Berkowitz or in relying on Berkowitz’ discharge of this responsibility. Finally, there is no evidence suggesting that the Ke-nai superior court had experienced previous difficulties with McNally’s office. Because I would reverse the court of appeals’ decision and vacate the superior court’s orders imposing sanctions against McNally entered in State v. Knight (Case No. 3KN-S92-630 Cr.) *421and State v. Wheeler (Case No. 3KN-S92-738 Cr.), I dissent.2

. In this context, the Alaska Rule of Professional Conduct governing the responsibilities of a partner or supervisory lawyer provides useful guidance.

Rule 5.1. Responsibilities of a Partner or Supervisory Lawyer.

(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c)A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

. Because I would resolve the case on this issue, I do not address the other arguments presented on appeal.