Legislature(2003 - 2004)
05/05/2004 08:24 AM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 549-UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
MS. VANESSA TONDINI, staff to Representative McGuire, chair of
the House Judiciary Committee, which sponsored HB 549, reminded
members she presented the bill at a previous hearing and was
available to answer questions.
CHAIR SEEKINS noted that with no one wishing to testify, public
testimony was closed and the bill was under consideration by
committee members.
SENATOR FRENCH said he had been hoping to hear from someone who
has been badgered by a lawyer during a time of personal family
grieving or other emotional turmoil, in relation to this bill.
Instead, he has only heard from businesses that have said that
attorneys continue to file lawsuits against them. He stated:
With all due respect to the folks who brought us this
bill, it's been brought to us under the guise of
perspective clients who maybe feel overwhelmed by the
circumstances, giving rise to the need for legal
services - you know, the families of the deceased or
injured are vulnerable to the external pressures of
others. And we've heard absolutely zero testimony
about that - none, not a bit. For that reason I think
this bill is more about giving some kind of a break to
the small aviation operators in Bush Alaska - and they
may need a break - but that's not the reason that the
bill came to us under - the auspices. And so I look at
section (d), which would make it a crime to send a
postcard or make a phone call to someone offering them
legal services 30 days after an accident. It would
fine them $100,000 for having done so and indeed, the
cases that have been brought to our attention are head
bump cases - they're not serious cases, they're cases
where the aviation operator feels aggrieved because
someone's chasing after someone with a head bump. And
I just see something that's going to get tossed out of
court and it's going to be found to be wildly out of
proportion to the harm that's done by someone making a
phone call or signing up a client.
SENATOR FRENCH then moved [Amendment 2] to strike section (d)
and to make it a civil penalty. He explained that if the
attorney general wants to file a civil case against a lawyer and
pursue a reasonable fine, he feels that would be acceptable. He
argued that if a person is unwilling to bring a bar complaint
against one of these attorneys, the person is unlikely to want
to testify in a criminal case.
CHAIR SEEKINS asked Senator French if Amendment 2 is a
conceptual amendment.
SENATOR FRENCH said it is.
SENATOR OGAN objected for the purpose of discussion and asked if
Amendment 2 is to strike section (d). He said if so, that is not
a conceptual amendment.
SENATOR FRENCH said his intent is to strike section (d) and to
replace it with language that authorizes the attorney general to
bring an action to enforce and pursue a civil penalty up to
$100,000 for such activity. He said that would put some
sideboards on the amount the attorney general could pursue.
MS. TONDINI said the sponsor would oppose Amendment 2 because
she feels strongly that a criminal penalty is appropriate and
necessary and is the reason for the bill. She furthered that the
federal law contains a very weak civil penalty of $1,000, which
is not enforced. She also cautioned that it is possible that the
bar association would not take notice of civil enforcements,
therefore Representative McGuire wanted to have a criminal
conviction on the person's record to make it noticeable. She
said the $100,000 fine is designed to get people's attention and
indicated that the awards in these cases can be very large so a
large fine is necessary to deter such behavior.
SENATOR OGAN asked if there are sanctions for this same activity
in other areas.
MS. TONDINI said the Senate State Affairs Committee members
asked why this same penalty hasn't been put into law for other
types of accidents. She said the large penalty in this bill is
due to the fact that aviation accidents receive a lot of media
attention, are usually of a tragic nature and involve large
amounts of money.
SENATOR THERRIAULT asked Ms. Tondini to review the federal law.
MS. TONDINI said under the federal law, the violation is a civil
penalty and carries a $1,000 fine. It requires the Civil
Aeronautics Board or the U.S. Attorney General to take action to
be enforced. She noted it has not been enforced much but the
other issue is that it does not apply to intrastate flights; it
only applies to interstate flights, so, for example, it would
not cover flights between Anchorage and Bethel.
SENATOR THERRIAULT asked if the owner of an aviation service can
only file a bar complaint on an interstate flight based on the
federal law.
MS. TONDINI recalled the testimony of Marsha Davis, who said the
aviation companies would have the ability to file a bar
complaint but that is not an advantageous thing to do during a
settlement agreement. She said people are hesitant to file bar
complaints for that reason and because they are reluctant to
pursue a bar complaint while grieving over a family loss.
SENATOR THERRIAULT asked if the person who has that available as
a remedy is the person who was injured or lost a loved one.
MS. TONDINI said she believes anyone can file the bar complaint.
SENATOR THERRIAULT asked if that would apply to the owner of the
aircraft.
MS. TONDINI said she did not see why not.
SENATOR THERRIAULT asked if that also applies to intrastate
flights.
SENATOR FRENCH said if the attorney was operating in Alaska and
a member of the bar, a bar complaint could be filed.
SENATOR THERRIAULT asked what the basis of the claim would be
involving an intrastate flight if the federal law does not apply
to them.
MS. TONDINI said the claim would be brought under the Alaska
Rules of Professional Conduct, namely Rule 7.3(a). She read:
An attorney shall not solicit by in person or live
telephone contact professional employment from a
perspective client with whom the lawyer has no family
or prior professional relationship when a significant
motive for the lawyer's doing so is the lawyer's
pecuniary gain.
SENATOR THERRIAULT asked why no one is filing claims under that
rule now.
SENATOR FRENCH said that is his point. He said the rationale he
has heard from the lawyers representing the airline companies
is, "Well that's just too inflammatory, that's too combative,
we'll get all beat up, they'll be mean to us if we do that. It's
too aggressive." He said his response is that is no more
aggressive than asking a district attorney to file a criminal
complaint on someone and brand them with a criminal action with
a $100,000 fine. That is simply passing on one's obligation to
do what's right to somebody else.
CHAIR SEEKINS said in his opinion, the issue goes back to
whether the activity was done knowingly, since rules of conduct
exist.
SENATOR FRENCH argued that the same can be said about any
profession.
MS. TONDINI said it is her understanding that if a culpable
mental state is not specifically described, the standard is
knowingly, so that would apply in HB 549.
SENATOR FRENCH said if an attorney made contact 43 days after an
accident instead of 45 days, due to a miscalculation, that would
not be a defense.
CHAIR SEEKINS announced an at-ease. Upon reconvening, he said he
would bring HB 549 up during the afternoon to give Ms. Tondini
time to talk to the sponsor about some of the concerns expressed
by committee members. He thanked Ms. Tondini for her time.
SENATOR THERRIAULT noted that bar complaints are a huge problem
for attorneys so he is trying to balance the fact that there is
a system available that the public may not know how to avail
itself of but when a bar complaint is filed, it gets the
attention of the attorneys. He said if an attorney had a number
of these complaints filed against him, the bar association would
definitely take notice.
CHAIR SEEKINS announced the committee would take up HB 342.
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