Legislature(2021 - 2022)BUTROVICH 205
05/05/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB129 | |
| HB109 | |
| SB11 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 129 | TELECONFERENCED | |
| + | HB 109 | TELECONFERENCED | |
| + | SB 11 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 109-EXTEND BAR ASS'N BOARD OF GOVERNORS
2:08:19 PM
CHAIR HOLLAND announced the consideration of HOUSE BILL NO. 109,
"An Act extending the termination date of the Board of Governors
of the Alaska Bar Association; and providing for an effective
date."
2:08:50 PM
MATT CLAMAN, Alaska State Legislature, Juneau, Alaska, sponsor
of HB 109, paraphrased the sponsor statement:
HB 109 extends the termination date of the Board of
Governors of the Alaska Bar Association until June 30,
2029, in accordance with the recommendation of the
Legislative Auditor.
The Board is currently scheduled to terminate on June
30, 2021. The Division of Legislative Audit, having
concluded an audit of the Board of Governors,
determined that the board is operating in the public's
interest and has complied with its duties and
responsibilities to the public. It recommends that the
termination date be extended to June 30, 2029.
The Division of Legislative Audit has also determined
that the Board of Governors should again recommend to
the Alaska Supreme Court that it amend the Alaska Bar
Rules so as to increase the number of mandatory
Continuing Legal Education credit hours, commonly
known as "CLE hours." Currently, bar members shall
compete 3 hours of ethics CLE, and "may" complete 9
hours of general CLE.
The Board of Governors serves an important public
service by regulating the practice of law, promoting
reform in the law and in judicial procedure,
facilitating the administration of justice,
investigating complaints, requiring continuing legal
education for membership, and increasing the public
service and efficiency of the Bar.
REPRESENTATIVE CLAMAN disclosed that he is a member of the
Alaska Bar Association.
2:11:06 PM
KRIS CURTIS, Legislative Auditor, Legislative Agencies and
Offices, Juneau, Alaska, presented audit findings on HB 109. She
stated that the audit concluded that the board served the public
interest by effectively admitting qualified members to the
Alaska Bar Association (Bar) and investigating complaints made
against Bar members. She noted that members have a copy of the
audit [Audit control number 41-20119-20] in their packets.
MS. CURTIS turned to the admission and exam statistic table on
page 8 of the audit. The table provides 2017 to 2019 exam
statistics. On average, 120 Bar members were approved each year
and the average Bar exam pass rate was 54 percent. The audit
reviewed a random sample of 15 new member application files and
found all 15 members had completed applications and met
admittance requirements. She referred to page 6 to the Board of
Governors of the Alaska Bar Association Disciplinary Statistics.
Between January 1, 2017, and December 31, 2019, 689 complaints
were filed with the Bar. Of those, 82 percent were not accepted
for further investigation because the complaints were
incomplete, did not identify ethical misconduct, or were not
within the Bar's jurisdiction. Five complaints resulted in
discipline, and 89 complaints were open at the time of the
audit.
2:12:53 PM
MS. CURTIS reviewed the continuing legal education (CLE). In
2011, to promote competency, the board created a committee. She
reported that 91 percent were not in favor of increasing the
hours to promote competency and professionalism. She reported
that active Bar members must obtain three CLE credits per year
and be encouraged to obtain nine additional credits voluntarily.
The number of mandatory CLE requirements for practicing
attorneys is significantly below that of other states. As of
March 2020, 37 states require 12 or more CLE hours. The low
number of mandatory CLE hours was identified as a finding in the
three prior board sunset audits. In 2011, the board formed a
committee to review the mandatory CLE program. The review
included electronically surveying Bar members. Ninety-one
percent of over 900 Bar member respondents did not favor
increasing the number of mandatory CLE credits.
2:13:37 PM
MS. CURTIS reviewed the audit [control number 41-20119-20]
recommendations beginning on page 11.
MS. CURTIS reviewed Recommendation No. 1: The executive director
should ensure meetings are properly posted on the state's Online
Public Notice System and provide time for public comment. Of the
nine reviewed, seven meetings were not published on the state's
Online Public Notice System, and six did not include public
comment as part of the meeting agenda. According to the
executive director, the notices were published in the Bar Rag
publication and posted on the Alaska Bar Association (Bar)
website. However, that notice does not technically comply with
the state's Online Public Notice System.
2:14:11 PM
MS. CURTIS reviewed Recommendation No. 2 on page 12: The board
should improve internal controls over the Bar's online
admissions system and case management database.
She reported that the audit identified two deficiencies that
could affect the security and availability of data contained in
the Bar's online admissions system and case management database.
The audit report does not provide details to ensure the
weaknesses are not exploited. Pertinent details were
communicated to agency management in a separate confidential
document. The agency provided corrective actions it would take
to remedy the two deficiencies.
2:14:37 PM
MS. CURTIS reviewed Recommendation No. 3 on page 12: The board
should recommend an increase in the non-ethics mandatory CLE for
attorneys.
MS. CURTIS stated that although over 99 percent of Bar members
did complete the three hours of mandatory continuing legal
education (CLE), only 55 percent voluntarily completed the
additional 9 hours of continuing legal education. CLE benefits
the public and the profession by ensuring attorneys remain
competent regarding the law and the profession's obligations and
standards.
2:15:12 PM
MS. CURTIS reviewed management's response to the audit. On page
29, the court system's general counsel, Nancy Meade, agreed that
the board should recommend the number of mandatory continuing
legal education hours for its consideration. The board's
response on page 31 agreed with Recommendations 1 and 2.
Regarding Recommendation 3 related to mandatory continuing legal
education (CLE), the board agreed to discuss appointing a
committee to review mandatory CLE at its upcoming board meeting.
2:15:51 PM
SENATOR SHOWER referred to page 6 to the increase in open
disciplinary cases. He asked if she had any explanation for the
rise in cases. Second, he noted the audit recommended extending
the board's termination date for eight years to June 30, 2029.
He asked if five years would be better. He recalled interest in
reducing the sunset review time for improved legislative
oversight.
MS. CURTIS responded that her recommendation of the maximum
number of years between reviews is reserved for those entities
that she believes are well run and have no significant issues in
serving the public interest. She said she has little concern
about this board except for the continuing education issue under
the Alaska Supreme Court's purview. She highlighted that this
issue was raised for the court's consideration. She also noted
that there is a cost to oversight. Thus, she weighed the cost of
conducting an audit with the risk of the public interest. She
maintained that she does not have any problem recommending an
eight-year extension.
SENATOR SHOWER maintained that the committee should consider
shortening the extension time to keep the legislature involved
in the process.
2:18:20 PM
SENATOR HUGHES disclosed that she has two siblings who are
Alaska Bar Association members. She asked for estimated audit
costs.
MS. CURTIS responded that single audit costs are billed out to
agencies. She offered her belief that the audit costs are $79
per hour. The overall cost would depend on the length of time
for an audit. However, she offered her belief that the agency
cannot perform an audit in accordance with standards for less
than 300 hours. Most audits of well-run agencies take 450 hours,
but it could take up to 1,000 hours. She estimated the audit for
the Bar would cost $65,000.
2:19:36 PM
SENATOR HUGHES recalled that medical professionals must perform
100 continuing education hours biennially. Although the Alaska
Supreme Court makes decisions on CLE, members polled themselves
and chose not to opt for additional hours. She asked if
continuing education should be considered statutorily.
MS. CURTIS responded that the Alaska Bar Association is
empowered to make recommendations to the Alaska Supreme Court.
She said she had heard previous testimony on CLE and the Bar
makes good points. For example, the law does not change as
dramatically as the medical or accounting professions. She said
auditors reviewed other states' best practices to determine
their recommendations. She pointed out that the auditors
recommended the Bar reconsider the number of CLE hours.
2:21:13 PM
SENATOR HUGHES remarked on her surprise that the extension is
for eight years because of Bar members' resistance to an
increase in CLE hours. She said she would like to hear from the
Alaska Bar Association on members' resistance.
2:21:47 PM
SENATOR KIEHL asked if the continuing education hours for
medical professionals and attorneys are calculated similarly.
MS. CURTIS answered that an hour is an hour in time. She
explained that an accountant must be in training for 15 minutes
to count for one continuing professional education (CPE) unit
for accounting. She said the accounting profession CPE could
cover technical, management or supervisory training. She
acknowledged that every occupation was different.
2:23:19 PM
REPRESENTATIVE CLAMAN explained that the Alaska Supreme Court
supervises the Bar, so the Alaska Bar Association makes
recommendations, and the court makes the decision on whether to
change continuing legal education (CLE) hours. In fact, on
disciplinary matters, the Bar makes recommendations to the
court. However, the Alaska Supreme Court always has the final
authority on whether to impose the discipline.
REPRESENTATIVE CLAMAN said in 2008 he was president of the Bar
when the decision was made to go from voluntary continuing legal
education (CLE) to requiring three hours of mandatory ethics
CLE. Although he could not speak to the court's decision, he
recalled the Bar's arguments, including that ethics is the core
part of protecting the public. He said there is broad support
for ethics continuing education.
REPRESENTATIVE CLAMAN said the non-ethics CLE is more about
expertise, so it tends to be subject more to market control. He
explained that when practitioners hold themselves out as
providing a certain level of expertise, CLE can help. There was
a sense of letting the market have more control. Second, except
for continuing ethics education, as practitioners get more
experience, CLE seems less relevant to them. He suggested that
tax lawyers would likely sign up for classes that explain the
changes to the tax code.
He said in contrast, basic standards for good trial practice
tend not to change. The court has been less interested in
mandating additional CLE hours other than ethics because the
market tends to drive that more effectively than regulation. He
recalled that the Washington State Bar Association requires 54
hours every three years. He said he spent time last month online
watching CLEs. While some are interesting, others he has heard
repeatedly over the years. The most interesting ones were
appellate updates on US or Alaska Supreme Court decisions. He
said he is also licensed as an Emergency Medical Technician,
which requires more CE hours.
2:26:58 PM
SENATOR KIEHL asked for the audit cost to the entity.
MS. CURTIS said the cost for entities to respond to an audit
certainly would vary. The division spends time preparing a
planning phase and scope of work, estimating the number of hours
to conduct the audit, which is tracked.
2:28:09 PM
SENATOR SHOWER maintained his interest in reducing the time for
the sunset audit review based on legislative oversight and the
limited number of continuing legal education (CLE) hours.
2:29:07 PM
CHAIR HOLLAND turned to invited testimony.
2:29:36 PM
BEN HOFMEISTER, President, Board of Governors of the Alaska Bar,
Office of the Governor, Anchorage, Alaska, turned to the
response to the audit. He reported that two of the audit
recommendations were addressed. In terms of the continuing legal
education credits (CLE), the Alaska Bar Association has a
standing committee that has been reviewing CLE for six months.
The Board anticipates taking up the committee's recommendation
at its meeting on May 6, 2021. Given Ms. Meade's letter
indicating that the Alaska Supreme Court was willing to consider
expanding CLE, he anticipated that something would likely be
proposed. He said the court could make changes even without the
Bar making recommendations. He said the decision to reduce the
time between sunset audit reviews is a policy decision for the
legislature. The Bar is not resistant to increasing the
mandatory CLE credits required for renewal. It is currently
reviewing the requirements and will forward recommendations to
the court.
2:32:16 PM
PHIL SHANAHAN, Bar Counsel, Alaska Bar Association, Anchorage,
Alaska, echoed Mr. Hofmeister's remarks. He agreed the board
would consider CLE requirements at its board meeting on May 6,
2021. He said the Bar has put in significant work on this issue
since its October 2020 meeting. The Alaska Supreme Court has the
authority to determine CLE requirements, but the Bar continues
to work on its recommendations for the court.
2:33:04 PM
DANIELLE BAILEY, Executive Director, Alaska Bar Association,
Anchorage, Alaska, emphasized that in 2008 the Alaska Supreme
Court imposed a requirement for three ethics hours, which made
it the highest of any state. At that time, in the commentary to
the rule, the court said the ethics requirement was to focus on
protecting the public and make sure lawyers remain mindful of
their obligation to their clients and address topics related to
the majority of questions and complaints the Bar receives. She
stated that most states require one hour of ethics training.
2:34:25 PM
SENATOR HUGHES asked if the Alaska Bar Association would report
back to the committee on its recommended CLE hours. She said CLE
is important, that Alaskans can spend a lot of money for an
attorney, so the attorneys must be well equipped to serve the
public.
MS. BAILEY offered to report back any findings to the committee.
She surmised that the Board of Governors could assign a
subcommittee to address CLE. She highlighted that the Bar
submits its annual report to the legislature to keep legislators
informed. She stated that the association will have continued
oversight.
2:36:29 PM
CHAIR HOLLAND opened public testimony and, after first
determining no one wished to testify, closed public testimony on
HB 109.
[HB 109 was held in committee.]