Petition for Rehearing
Attorney Eugene B. Cyrus seeks rehearing of our decision to fine him under Appellate Rule 510(c) for failing to bring McGhee v. State, 951 P.2d 1215 (Alaska 1998), to our attention when we were trying to assess the validity of the Cooksey plea entered by his client, David Tyler.
Our reasons for imposing this fine are fully explained in our prior opinion, Tyler v. State, Alaska App. Opinion No. 1763 (September 14, 2001). We briefly summarize those reasons here:
Recapitulation of the litigation thus far
David Tyler was convicted of felony DWI. He appealed, contending that his two prior DWI convictions (which were based on pleas of no contest) were flawed by errors in the entry-of-plea process. Tyler argued that because his two prior convictions were flawed, he should be treated as a first offender and his current felony conviction should be reduced to a misdemeanor.
Tyler's appeal proceeded through preparation of the record and the filing of Tyler's opening brief. But then, instead of filing an appellee's brief, the State moved to dismiss the appeal.
The State declared that Tyler's opening brief misstated this court's jurisdiction to hear the case. According to the State's motion, Tyler was not convicted at a trial (as Tyler's opening brief claimed). Rather, Tyler entered a Cooksey plea, purporting to preserve his attack on his two prior convie-tions. The State argued that this Cooksey plea was not valid because the issue preserved (Tyler's attack on his prior convictions) was not a dispositive issue. The State contended that even if Tyler's pleas to the two prior DWIs were flawed, Tyler could be re-prosecuted for the two prior DWIs-and, if those renewed prosecutions were successful, Tyler would still be a third offender for purposes of his current DWL.
Mr. Cyrus filed an opposition to the State's motion to dismiss. He argued that Tyler's Cooksey plea was valid because the State's legal analysis was wrong. According to Mr. Cyrus, if Tyler prevailed on appeal and had his two prior DWI convictions vacated, then even if the State later successfully re-prosecuted Tyler for those prior DWIs, he would remain a first offender for purposes of his current offense, because those two other DWI convictions would no longer be "prior" to his current offense.
*1111It was in this pleading that Mr. Cyrus failed to mention the supreme court's decision in McGhee-a case that we ultimately determined was fatal to Mr. Cyrus's argument about the prior offenses. Because Mr. Cyrus was the attorney who represented the petitioner-motorist in McGhee, we knew that Mr. Cyrus was aware of the McGhee decision. Under Alaska Professional Conduct Rule 3.3(a)(8), an attorney is obligated to disclose directly adverse authority if the opposing attorney has not brought the adverse authority to the court's attention. We therefore ordered Mr. Cyrus to show cause why he should not be sanctioned for failing to cite McGhee when he responded to the State's motion to dismiss.
Mr. Cyrus filed a lengthy response in which he argued that he was under no obligation to cite McGhee because McGhee was not "controlling authority". According to Mr. Cyrus, there were substantial procedural differences between Tyler's case and the litigation in McGhee, and thus the decision in McGhee was distinguishable.
In Tyler, we concluded that desbite the arguable differences between the facts of McGhee and the facts of Tyler's case, Mr. Cyrus was still under an obligation to bring McGhee to our attention. Interpreting Professional Conduct Rule 8.8(a)(8), we held that "directly adverse" authority encompassed more than "controlling" authority and that Mr. Cyrus was under a duty to disclose McGhee even though he reasonably believed it could be distinguished from Tyler's case.
Mr. Cyrus's petition for rehearing
Mr. Cyrus présents two arguments in his petition for rehearing.
First, Mr. Cyrus asserts that he did not intend to deceive this court when he omitted any mention of McGhee in his opposition to the State's motion to dismiss the appeal. Mr. Cyrus points out that he cited McGhee in his opening brief. This is true. However, Mr. Cyrus cited McGhee for an unrelated point of law.
The question of the validity of Tyler's Cooksey plea, and McGhee's relevance to this question, had not yet arisen when Mr. Cyrus filed Tyler's opening brief. Mr. Cyrus's opening brief falsely stated that Tyler had been convicted following a court trial. Until the State filed its motion to dismiss, this court had no idea that Tyler had in fact been convicted based on a Cooksey plea. Civen these facts, Mr. Cyrus obviously did not address the validity of Tyler's Cooksey plea until he responded to the State's motion to dismiss the appeal. We fined Mr. Cyrus for failing to cite McGhee when he opposed the State's motion to dismiss Tyler's appeal.
The fact that Mr. Cyrus cited McGhee on a different point in his opening brief may be an interesting coincidence, but it is not relevant to our decision to impose the fine. - The irrelevance of the citation to McGhee in the opening brief is underscored by this fact: when Mr. Cyrus responded to our order to show cause, he failed to mention that he had cited McGhee in his opening brief, Either Mr. Cyrus forgot that he had cited McGhee (because the case was cited for an unrelated point), or he knew that his citation of McGhee on an unrelated point did not provide a defense to our order to show cause.
Finally, we note that when we imposed sanctions on Mr. Cyrus, we expressly did so under the assumption that Mr. Cyrus had not actively tried to deceive us-that he "did not act in bad faith when he chose not to cite McGhee."1 Although we found that Mr. Cyrus "consciously decided not to mention McGhee", we assumed "that he honestly believed that McGhee was distinguishable and that Rule 3.3(a)(38) only required him to disclose controlling authority.2 We therefore reject Mr. Cyrus's first argument for rehearing.
Mr. Cyrus's second argument is that he did not violate Professional Conduct Rule 3.3(a)(8) when he purposefully chose not to cite McGhee in his opposition to the State's motion to dismiss Tyler's appeal.
Mr. Cyrus points out that Rule 8.3(a)8) forbids an attorney from "knowingly ... *1112fail[ing] to disclose ... legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client". (Emphasis added) Mr. Cyrus contends that he did not violate Rule 8.8(a)(8) because he did not know that McGhee was directly adverse to his position.
Mr. Cyrus's argument is based on the fact that the definition of "directly adverse" has a certain amount of vagueness to it. In Tyler, we referred to different formulations of the "directly adverse" test. The chief definitions we used were:
(1) legal authorities "which would reasonably be considered important by the judge [deciding] the case"3 and
(2) legal authorities "that could reasonably be interpreted as directly contrary to [the lawyer's] position"4 or that "could reasonably [be] interpret[ed] as being directly inconsistent with, or at least substantially undercutting" the lawyer's position.5
Mr. Cyrus argues that there is so much imprecision in these definitions that it will be rare for an attorney to know that a case is "directly adverse". Mr. Cyrus contends that there will always be a few cases that are clearly "directly adverse" and a few other cases that are clearly not "directly adverse"-leaving "a vast middle-ground" of cases that one can not easily categorize because "[t]here is no bright-line test for making the determination."
In Tyler, we concluded that any imprecision in the definition of "directly adverse" did not matter-because Mr. Cyrus never argued that he failed to understand McGhee's relevance to Tyler's appeal:
[An attorney violates Rule 8.8(a)(8) only if the attorney knew that the omitted legal authority was directly adverse to the attorney's position. But in Mr. Cyrus's response to our order to show cause, he does not claim ignorance of McGhee's potential importance to Tyler's appeal. Rather, he claims that he was not obliged to bring McGhee to our attention because he honestly believed that McGhee was factually distinguishable from Tyler's case and that, therefore, McGhee did not control our decision.
Tyler, Alaska App. Opinion No. 1763, opinion at 1107.
Now, in his petition for rehearing, Mr. Cyrus makes the argument that he failed to make before. Through another attorney (an associate at his law firm), Mr. Cyrus asserts that he was in fact ignorant of McGhee's potential importance to Tyler's appeal. Mr. Cyrus's attorney declares:
[Flaced with a somewhat vague standard[, Mr. Cyrus] reasonably believed that McGhee was so far over the line [i.e., so easily distinguishable from, and so obviously irrelevant to Tyler's case] that ... mention [of McGhee] would not be useful to the Court.... [Mr.] Cyrus submits that [an attorney's] good faith belief that a decision ... involves greatly different facts and legal issues ... obviates [the attorney's] duty to disclose it.
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[When Mr. Cyrus responded] to this Court's show-eause order, [Mr.] Cyrus repeatedly emphasized that McGhee was not "controlling authority". This, of course, is not precisely the issue.... [But] the same reasons advanced by [Mr.] Cyrus in his response ... support a finding that [Mr.] Cyrus did not knowingly fail to disclose directly adverse authority [because] at some point the dissimilarities between authoritative cases and pending cases become[ ] so great as to mandate the conclusion that the authorities are not directly adverse to the pending cases.
We reject this argument for two reasons.
First, we refuse to credit Mr. Cyrus's assertions about his mental state and his subjective analysis of McGhee because these assertions are not supported by Mr. Cyrus's affidavit or by any other statements that we can attribute to him personally. The current assertions about Mr. Cyrus's legal evaluation of McGhee and his intentions when he failed *1113to cite McGhee are all contained in a pleading signed by another attorney-George Dozier, an associate of Mr. Cyrus.
Second, it is now too late for Mr. Cyrus to present an alternative defense to our order to show cause. He had his chance to defend himself, and he never argued that he believed McGhee was irrelevant to the validity of Tyler's Cooksey plea-only that McGhee was not "controlling" on this issue. As we stated in Booth v. State, 903 P.2d 1079 (Alaska App.1995), when we denied the State's petition for rehearing:
Appellate Rule 506(a) allows a party to seek rehearing when this court "has overlooked ... or failed to consider a principle directly controlling" the decision on appeal, or when this court "has overlooked ... [a] material ... proposition of law". However, Rule 506(a) was not intended to allow parties to raise new arguments after they have had a chance to analyze an appellate court's decision.
Id. at 1090.
For these reasons, Mr. Cyrus's petition for rehearing is DENIED.
Entered at the direction of the court.
. Tyler, opinion at 1110.
. Id.
. Tyler, opinion at 1104 and 1105 (quoting ABA ethics opinions).
. Id., opinion at 1105 (main text).
. Id., opinion at 1107.