Legislature(2005 - 2006)CAPITOL 120
04/26/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB316 | |
| SB206 | |
| HB322 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 206 | TELECONFERENCED | |
| *+ | HB 316 | TELECONFERENCED | |
| = | HB 502 | ||
| + | HB 322 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 316 - EXTEND BOARD OF GOVERNORS ABA 1:09:24 PM CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 316, "An Act extending the termination date for the Board of Governors of the Alaska Bar Association; and providing for an effective date." 1:09:39 PM REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, speaking as one of the prime sponsors of HB 316, relayed that although the Alaska Division of Legislative Audit recommended [an eight- year] sunset extension for the Board of Governors ("Board") of the Alaska Bar Association (ABA), the bill proposes a three-year extension. CHAIR McGUIRE asked Representative Stoltze whether there were any other recommendations made by division that he'd considered adopting. REPRESENTATIVE STOLTZE said that the issue of disclosure was considered, as was the issue of continuing legal education (CLE), but he'd not made any changes to the bill. 1:12:18 PM JONATHAN A. KATCHER, Esq., President, Board of Governors ("Board"), Alaska Bar Association (ABA), expressed the Board's hope that HB 316 will pass with the maximum sunset that the legislature will allow. 1:13:02 PM STEVE VAN GOOR, Bar Counsel, Alaska Bar Association (ABA), relayed that he acts as disciplinary counsel and general counsel to the Board, and offered to answer questions. CHAIR McGUIRE, in response to a question, relayed that the Alaska Division of Legislative Audit, in a report released by the Legislative Budget and Audit Committee, had recommended improved disclosure of disciplinary actions against ABA members [and perhaps a move away from self-regulation]. Self-regulation is a privilege that comes with an added level of responsibility, she remarked, and thus the disclosure recommendation should be considered further. MR. VAN GOOR clarified that the division's recommendation was that the Board should consider developing a database of disciplined lawyers that the public could access on the ABA's web site. He explained that the ABA had already planned to do that and hopes to have that available this summer or fall; meanwhile, such information is being made available to those who request it. REPRESENTATIVE GARA asked Mr. Katcher whether he would be amenable to changing the ABA's requirements so that those who do not remain an inactive member of the ABA do not have to take the bar exam again. MR. KATCHER expressed disfavor with that concept, and opined that the $180 annual fee is justified because ABA dues provide the ABA with the resources it needs to serve the public. Furthermore, doing so would essentially constitute a revision of the rules promulgated by the courts, and would therefore more appropriately fall within the province of the [Alaska] Supreme Court, not the legislature. REPRESENTATIVE GARA disagreed, and opined that there is an aspect of the ABA that is very monopolistic and self-preserving, citing as examples the ABA's refusal to allow a person to "waive in" through passage of the multistate exam and the ABA's protection of its [active] members through having their fees subsidized by the fees of [inactive members]. REPRESENTATIVE GRUENBERG relayed that he is a member of the ABA and therefore may have a potential conflict of interest. CHAIR McGUIRE objected, thus requiring Representative Gruenberg to participate. REPRESENTATIVE GRUENBERG, speaking as one of the prime sponsors of HB 316, said he is very pleased that the Board is recommending a rule change regarding mandatory CLE, particularly since he'd expressed an interest in doing it via legislation should the ABA not take it up. Mandatory CLE will protect the public and be good for ABA members as it will require them to keep up with current law. 1:24:30 PM JOHN TIEMESSEN, Esq., President-Elect, Board of Governors ("Board"), Alaska Bar Association (ABA), indicated that the ABA recommends advancement of HB 316, adding that it will be good for Alaskans. He then provided a bit of background on the ABA, which serves and protects the citizens of Alaska through a board of governors consisting of 12 members - 9 attorney members and 3 public members - and 17 staff and currently serves more than 2,800 active instate members. Noting that sunset [legislation] gives the Board the opportunity to interact with the legislature, he suggested that the Board should interact more often - perhaps annually - with the legislature outside of the context of sunset legislation. CHAIR McGUIRE remarked that sunset legislation gives the legislature the opportunity to review how well an entity is performing its tasks and meeting its goals, and this is important, particularly when it involves an entity that has been delegated to perform a state function. MR. TIEMESSEN agreed, reiterating that the ABA should have more dialog and interaction with the legislature. He said that the ABA appreciates the thoroughness of the division's audit and is prepared to address the concerns raised in the ensuing report, and mentioned that the Board's 2005 annual report is now out and that the Board has just voted to publish the mandatory CLE rule. With regard to the division's recommendation to develop a database of disciplined lawyers and post it on the ABA's web site, he said that the Board expects to have a problematic software issue resolved by no later than the first quarter of 2007. He also mentioned that there is no fiscal note associated with the ABA. MR. TIEMESSEN said that the three things the ABA does are, "discipline, admissions, and ... 'other,'" with the first two items being the most important and not strictly membership- directed functions but rather part of the core services provided to the public; those functions serve to assure the Alaska Supreme Court and the public that every applicant for the ABA is ethically qualified and competent. The discipline process also serves to recertify that every member of the ABA continues to be worthy of public trust and the trust of the court system. Under the heading of "other" fall member services such as CLE, the "Alaska Law Review", the "Alaska Bar Rag", insurance benefits, a lawyer referral service, a drug and alcohol referral service, and various other services. 1:33:43 PM DEBORAH O'REGAN, Executive Director, Board of Governors ("Board"), Alaska Bar Association (ABA), in response to a question, said that the Board did receive the "blank" fiscal note that was sent to it. REPRESENTATIVE GARA again raised the issue of possibly allowing applicants to "waive in" to the ABA if they pass the multistate exam elsewhere. After commenting on the difficulty of passing that exam, he relayed that he'd once been told by a member of the Board that the reason such isn't allowed is, "We don't want it to be so easy for people to come up here." CHAIR McGUIRE noted that other states set a threshold score which must be reached in order for an applicant to "waive in" for that portion of the particular state's test. Furthermore, some states only require the multistate exam. She opined that the process of licensure should be fair to all, both those that have already obtained licensure and those that are considering applying for licensure. She added: We want people to be competent when they practice in this state, ... but we don't want to create a system that simply allows for a monopoly and protects only those who have the license to the detriment, I would argue, not only of those who might want entry into it, but to the public, because, after all, the public benefits from a diversity of lawyers to choose from. REPRESENTATIVE ANDERSON noted that an acquaintance of his had passed the bar in Missouri but decided not to apply for entry into the Alaska bar - even though he'd heard there were openings in Alaska in a field of law he was interested in - because he did not want to have to retake the multistate exam. CHAIR McGUIRE clarified that the question is, how is asking an applicant who has already passed the multistate to retake that exam an indication of his/her competence, particularly given that he/she is also being asked to answer a series of essay questions demonstrating proficiency in Alaska law? MR. VAN GOOR, after acknowledging the difficulty of passing the multistate exam, said that the reason it is required for all applicants has nothing to do with limiting the number of persons who can practice law in Alaska; instead, the reason is scientific, and testing expert Dr. Steven Kline (ph) from the Rand Corporation was instrumental in designing a "sea-change" in the exam in the early '80s. Prior to 1982, the Alaska exam consisted of one day of California questions, a half day of Alaska questions, and the multistate bar examination. Because of the small size of the ABA back then, the California portion of questions was sent back to California and graded by California examiners, but there came a time when California decided not to do that anymore. The model that Dr. Kline subsequently came up with is basically the model used today, and it consists of a day of Alaska questions, a half day of long essay questions, a half day of short essay questions - questions provided by the National Conference Of Bar Examiners (NCBE) - and the multistate bar exam. MR. VAN GOOR mentioned that at one time the multistate exam score could be transferred from another state and used in the ABA's exam computations. However, Dr. Kline pointed out that there would be greater precision in scores when the universe of people taking the multistate exam is the same universe of people taking the essay exam. There are three different ways of combining the multistate exam scores and the essay scores, but the standard the ABA has been using for the last several years is the "standard deviation method," which allows the ABA to statistically compare the range of performance of the class of those taking the multistate exam with the range of performance of the same class of applicants taking the essay exam. Those scores are combined and then divided by two, and those who have a combined score of 140 or above pass the ABA. He predicted that were Dr. Kline to testify on this issue he would say that this method gives the Alaska bar exam a high degree of credibility. 1:46:58 PM CHAIR McGUIRE pointed out, however, that a similar model could be achieved simply by taking a person's multistate exam score and combining it with the essay exam score, and that ABA members also take a multistate professional responsibility exam that is taken independent of the other two exams, follows the member into most other states, and is good for five years. REPRESENTATIVE GARA recalled that when he'd proposed his bar rule change regarding accepting multistate exam scores, Dr Kline testified before the ABA, and although Dr. Kline did not respond to any of his questions, what became clear during that hearing was that the ABA could "take the last bar exam and figure out whatever half the score was" and say that that's the acceptable multistate exam score, and then, for those applicants who obtain that score and "waive in," score them separately on the Alaska portion so that their results don't contaminate the results of those taking both parts of the exam, and finally require those that waive in to have an Alaska score at least as high as half the score of those who took both parts of the exam. It's not like it can't be done, he opined, regardless of Dr. Kline's numerous arguments that it couldn't. He said he and "Judge Tan" and others have been quite displeased with the ABA's response on this issue. MR. TIEMESSEN, in response to comments and a question, pointed out that there is not as yet universal reciprocity and that there are limitations on the reciprocity rule as it relates to the states that Alaska does have reciprocity with. 1:51:33 PM MR. VAN GOOR, in response to another question, said that although Alaska does have reciprocity with the state of Washington, Washington doesn't require either the multistate bar exam or the multistate professional responsibility exam, both of which are required by the ABA. Instead, an Alaska applicant to the Washington bar would have to take the Washington ethics examination in order to qualify for reciprocity admission. MS. O'REGAN, in response to a comment, clarified that Alaska has reciprocity with about 30 states. MR. VAN GOOR offered his belief that Alaska's reciprocity is designed to be an accommodation for lawyers who, in these other states, have done two important things: they've passed a written bar examination in their state, and they've actively practiced law during five of the last seven years. So while it is true that reciprocity applicants from other states are not tested specifically on Alaska law, it is also true that Alaska attorneys seeking reciprocity in another state are not required to demonstrate knowledge of that other state's law. He offered his belief that the type of reciprocity rules that Alaska has adopted reflect what he thinks will become more and more of a national trend, that being that clients will be able to choose a lawyer without regard to where the lawyer is living, and predicted that the future might bring with it national licensure. MR. VAN GOOR, with regard to the question of how he would go about ensuring that a lawyer from Washington seeking reciprocity with Alaska demonstrates competency in Alaska law, pointed out that the very first rule of the rule of professional conduct requires a lawyer to be competent, which in turn requires the necessary study, experience, [and] desire to become proficient in a particular area of law; therefore, if a lawyer from Washington desires reciprocity from Alaska, he/she will be held to the same standard that a lawyer in Alaska will be held to regarding knowledge of Alaska law. "I think reciprocity ... basically reflects more or less a reality of interstate practice, perhaps more in the Lower 48 than up here because we have no bordering states, but I think historically that's the reason that Alaska has moved along with reciprocity," he concluded. 1:55:44 PM CHAIR McGUIRE remarked, "I think historically the reason it has is because your main job is to serve the lawyers that are already licensed, and those lawyers want the ability to practice in other states ...." MR. VAN GOOR concurred. REPRESENTATIVE GRUENBERG asked Ms. O'Regan to provide the committee with a list of the states and other jurisdictions that have reciprocity or partial reciprocity with Alaska. MS. O'REGAN said she would do so, that such a list is already available on the ABA's web site, and that there are no states that have only partial reciprocity with Alaska. CHAIR McGUIRE set HB 316 aside.
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