Legislature(2007 - 2008)CAPITOL 120
04/27/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB22 | |
| HB163 | |
| HB194 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 22 | TELECONFERENCED | |
| += | HB 225 | TELECONFERENCED | |
| + | HB 163 | TELECONFERENCED | |
| + | HB 195 | TELECONFERENCED | |
| += | HB 194 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 22 - EXTEND BOARD OF GOVERNORS ABA 1:06:01 PM CHAIR RAMRAS announced that the first order of business would be HOUSE BILL 22, "An Act extending the termination date for the Board of Governors of the Alaska Bar Association; and providing for an effective date." 1:06:34 PM JAMES ARMSTRONG, Staff to Representative Bill Stoltze, Alaska State Legislature, relayed on behalf of Representative Stoltze, joint prime sponsor, that HB 22 extends the appointment of the Alaska Bar Association (ABA) board of governors from July 1, 2007, to July 1, 2010. REPRESENTATIVE HOLMES noted that the audit report recommends the extension to 2014. She asked why the bill only extends the board to 2010. MR. ARMSTRONG replied that the sponsors felt that three years would be fine for right now. If this initial extension went well, then they would probably recommend this for an eight-year extension. CHAIR RAMRAS, speaking as one of the joint prime sponsors of HB 22, surmised that the bill has some complicated components, and that there would be considerable discussion as to who would be the stewards of the bar funds, when the bill is heard in the House Judiciary Standing Committee. 1:08:31 PM JOHN TIEMESSEN, President, Alaska Bar Association (ABA), offered that the one thing the ABA enjoyed about the sunset clause is the ability to communicate with the legislature, even though, unfortunately, it is often the only communication between the ABA and the legislature. He suggested annual meetings between the ABA and the House and Senate Judiciary Standing Committees. MR. TIEMESSEN noted that many policies proposed during the last year started with members from this committee: mandatory continuing legal education (CLE); a diversity initiative to increase Native Alaskan membership in the ABA; and a program to initiate discussions of careers in the legal and judicial profession with the youth and others from the villages. He observed that lawyers have been licensed in Alaska since 1895, and that the ABA has existed since 1955. He commented that the ABA was an old institution and an old instrumentality of the state. MR. TIEMESSEN outlined the audit report recommendations from the past two audits: CLE, which the board passed, and online access for [ABA] disciplinary history, though an old software system had slowed this progress. Disciplinary history would be part of the new database in 2007 or 2008. MR. TIEMESSEN commented that the ABA core mission of admission and discipline is taken very seriously. With the 130-140 applicants to the bar each year, the ABA conducts a full background check, administers and grades the three-day bar examination, and makes recommendations to the Alaska Supreme Court for admissions to the bar. He observed that discipline is the board's most important role, as it involves their core mission of protection of the public interest. The ABA recognizes its unique professional position, as directly supervised by the supreme court, to ensure only qualified, ethical, honorable individuals appear before the Alaskan courts. He said the audit report demonstrates that the board and the ABA have done a "wonderful job" with their core missions. 1:14:00 PM MR. TIEMESSEN, in response to Chair Ramras, relayed that disciplinary matters are confidential until they reach a certain level. REPRESENTATIVE COGHILL, referring to the issue of ethics, questioned how the ABA avoids the perceived conflict of interest of having attorneys on the board. MR. TIEMESSEN explained that the board has twelve voting members, nine of which are attorneys, and three of which are lay members. One of the board's responsibilities is fact finding to support their disciplinary recommendations to the Alaska Supreme Court. All attorney discipline is done by the Alaska Supreme Court. The Alaska Supreme Court is hardly "a rubber stamp" he remarked, as often matters are sent back to the board for further findings. As attorneys, he pointed out, they know what is and is not right. The board maintains very strict accounting and accountability of members. There is a good balance on the board between the attorney members and the lay members. The lay members bring a lay perspective and other expertise. As attorney members, they do not want any "whiff" of impropriety among their [board] members. 1:17:43 PM REPRESENTATIVE COGHILL concurred. CHAIR RAMRAS asked a question regarding the aggregate money in trust accounts and the interest that money accrued. MR. TIEMESSEN explained that the Alaska Interest on Legal Trust Accounts (IOLTA) system is available for attorneys to participate in. This is an "opt out" system. In 2006, the IOLTA earned $146,822 in interest, and awarded grants totaling $104,000. These grants went to Alaska Immigration Justice Project, Alaska Pro Bono Program, United Youth Courts of Alaska, and Alaska Legal Services Corporation. Much of the money went to provide legal representation for the indigent, and for access to justice programs. CHAIR RAMRAS suggested to Mr. Tiemessen that he speak with Senator McGuire regarding possible use of the IOLTA funds to help fund the Alaska Legal Services Fund. Chair Ramras also asked how much money is in the broader trust account. MR. TIEMESSEN in response to the question on trust accounts replied it would be difficult to know how much money is in all the legal trust accounts, but he could extrapolate that gross amount using a calculation for a three percent interest return. He further explained that "opt out" means the interest return is not required to be used for legal justice programs. For large amounts of money placed in trust account deposits, some clients would prefer to have the accrued interest returned to them. CHAIR RAMRAS asked for clarification that the interest money does not go to the attorney. MR. TIEMESSEN responded that the money never goes to the attorney. REPRESENTATIVE LYNN asked how many complaints were investigated that continued through disciplinary action, and what were the typical areas of complaint or misbehavior. 1:21:56 PM STEVE VAN GOOR, Bar Counsel, Alaska Bar Association (ABA), relayed that his principal responsibilities are to supervise the discipline section of the ABA. The discipline section consists of 7 of the 17 employees of the bar. The discipline section's task is to field grievances filed against attorneys, and to give the public information about the grievance process. He and his colleagues at the ABA office also provide informal ethics advice to help lawyers stay out of trouble. Historically, the ABA annually receives 200-300 complaints concerning members of the ABA. This is about a 10 percent complaint rate, similar to the rate of complaints throughout the nation. MR. VAN GOOR commented that about half the complaints fell into the "intake stage." This "intake stage" is a stage in which the lawyer is immediately served with the complaint. At this point, the ABA asks for a voluntary response, and most lawyers do respond at this time. The ABA is then able to identify and determine which complaints should be formally investigated, and which misconducts should be prosecuted. Of all the complaints received, 5-10 percent of the complaints may result in some form of discipline. An even smaller percentage of the complaints results in public discipline. This is reserved for those offenses that everyone would recognize as problems, for example, lying, cheating, and stealing. MR. VAN GOOR went on to explain that trust accounts, and mismanagement, misappropriation, or stealing from these accounts are the "third rail" of attorney discipline. Lawyers are entrusted with billions of transaction dollars being held in escrow and this money is not bonded. There is not a bond for the money because the consequence for misappropriating this money is significant suspension or disbarment from the practice of law. He also explained that the discipline section is identifying those lawyers that have no business being lawyers because of misconduct, and performing an educational role in fielding almost 900 calls each year from lawyers requesting legal ethics advice. REPRESENTATIVE LYNN remarked this is similar to the ethics procedure for the Board of Realtors. 1:25:37 PM REPRESENTATIVE SAMUELS asked for a description of the ABA internal review process for an ethics violation. MR. TIEMESSEN conveyed that once a written complaint is received, it is screened by Bar Counsel, who makes a determination whether the allegations, if proven true, would have a basis for discipline. The attorney is then provided with an opportunity to respond to the allegations, and the complainant is allowed to reply. There could then be a second response from the attorney. After this, Bar Counsel would conduct an investigation and make a decision. At this point, the matter is either resolved, or it may go on to an area-wide hearing committee. This committee, consisting of two attorneys and one lay person, will then issue a decision. If the issue is still not resolved, it can go to the ABA Board of Governors sitting as a disciplinary board. The ABA Board of Governors can make a recommendation for discipline to the Alaska Supreme Court. REPRESENTATIVE SAMUELS asked what happens if the complaint is against a justice on the supreme court. MR. TIEMESSEN responded that a special counsel is appointed if there is a complaint by or against the Board of Governors. 1:28:45 PM [Chair Ramras turned the gavel over to Vice Chair Dahlstrom.] MR. VAN GOOR further informed that if there is a complaint against any judge in the state of Alaska, including a supreme court justice, the complaint would go to the Alaska Commission on Judicial Conduct (CJC), which has a process similar to the ABA Bar Counsel. Most commonly, the complaint would be with regard to a decision made by a judge, and these do not usually result in a formal investigation. If the commission determines that an investigation is necessary, it would move to a higher special counsel to handle the prosecution. The commission itself, consisting of three judges, three lawyers, and three public members appointed by the governor, would consider the case, and, in a case of serious misconduct, make a recommendation to the Alaska Supreme Court. If this concerned a justice of the supreme court, that justice would not participate. In this instance, Mr. Van Goor surmised that the supreme court would appoint a superior court judge as a supreme court judge pro tem to sit in on the disciplinary matter. MR. VAN GOOR recalled that there have been two instances in the past wherein the supreme court did appoint a superior court judge pro tem. REPRESENTATIVE SAMUELS pointed out, though, that it is a very small group of people that are judging themselves and who also have to do business with each other. He pointed out that if the legislature attempted something similar with regard to ethics complaints, the electorate would not approve. This would allow a small group of people to have an inordinate amount of control over an entire branch of government. The public has very little say in this, as only three members of the Board of Governors of the ABA are confirmed. He asked Mr. Van Goor to comment on the idea of an amendment which would state that all 12 members of the Board of Governors would need to be confirmed. [Vice Chair Dahlstrom returned the gavel to Chair Ramras.] REPRESENTATIVE SAMUELS said that he didn't know how to fix the perceived problem but opined that he'd once attempted to hire an attorney to file a complaint against a supreme court justice, but he was told "I have to do business in front of those people." Representative Samuels commented that he realized the practicality of the entire situation, and that he would need to find a different method to even file the complaint. 1:33:59 PM MR. TIEMESSEN acknowledged that point, but offered that there are public members throughout the system. He offered his personal feeling that when an attorney that he knows comes before him, his first inclination is "not to cut them slack," rather "to flog them" because he knows them. If anything, he knows that he must instead pull that inclination back. It can be much easier to be objective with an attorney he does not know. He went on to further describe that one change in recent years is public censure as a discipline by the court. This used to be an order from the court, but now it is an order to appear before the full court. The person stands in front of the full court and gets "chewed out" by the entire supreme court. MR. TIEMESSEN reiterated that he understood the concern, but could only give his personal assurance of a harsher discipline for those attorneys appearing before the board who are known by a committee member. REPRESENTATIVE SAMUELS reiterated his comments regarding the makeup of the legal counsels and boards being over weighted with attorneys who are internally picked and not elected. The pool of people picking the attorneys is even smaller. He asked Mr. Tiemessen how many attorneys are in Alaska. MR. TIEMESSEN responded there are 2,800 active members of the ABA. REPRESENTATIVE SAMUELS surmised that not all those are active in selecting the board and counsel members. REPRESENTATIVE GRUENBERG pointed out that although those numbers sound small, Alaska is small state in terms of population and thus has a smaller pool of attorneys. He recalled that when he took the bar exam in California, 2,000 members were admitted to the California bar; but when he took the bar exam in Alaska, only 32 new members were admitted. REPRESENTATIVE COGHILL remarked on the need for the public to be assured [of the integrity of all branches of the government]. One of the reasons for the one-year extension [of the ABA board] is to try to figure out the best way to ensure integrity. One of the recommendations is that [an ABA board appointment] fall to the Alaska Supreme Court as an appointed position. He asked Mr. Tiemessen how the board felt about this. MR. TIEMESSEN reiterated that the Alaska Supreme Court does do discipline. All the supreme court says to the Board of Governors is that it is busy being the supreme court on a day- to-day basis and so asks the board to find the facts, do conclusions of law, and make recommendations on disciplinary matters to the supreme court. REPRESENTATIVE COGHILL proposed that an analogous commentary in the legislature would be that the House majority leader screens all the legislative issues that go before the ethics committee, and then make recommendations to the ethics committee. 1:41:43 PM MR. TIEMESSEN explained that the current board system is a tremendously powerful and effective method of screening out "nut" complaints, many of which are by prisoners against the district attorney, for obvious reasons. CHAIR RAMRAS asked Ms. Davidson to give a cursory review of the [legislative audit] recommendations. He offered that it appears there were two issues to address: an issue with funding that should be addressed by the finance committees, and an issue to address the ethical aspect of self-policing. He asked Ms. Davidson to limit her remarks to the ethical aspect. REPRESENTATIVE SAMUELS clarified his concern is for lack of oversight of the judiciary branch by the people. MR. TIEMESSEN relayed that the board would be willing to look into that point. He mentioned that in this context, the board does serve two masters. The board is a creation of and serves delegated duties from the Alaska Supreme Court, as well as serves under sunset authority from the legislature. This highlights the conflict as he perceived. 1:45:04 PM PAT DAVIDSON, Legislative Auditor, Division of Legislative Audit, Alaska State Legislature, responded that the concern of the Division of Legislative Audit was addressed at the disciplinary level, as the disciplinary function was occurring within the ABA. For example, the Department of Commerce, Community, and Economic Development (DCCED) investigative staff does not report directly to the boards under its purview, in terms of what they investigate. The investigative staff are employees of the division, and once they conclude their investigation, they make recommendations to the board in question. Therefore, members of the profession are not doing the investigations, though an investigator may require expertise, and so may go to the board to ask for recommendations or discuss some of the issues. There is a separation, though, between the occupational licensing boards and the investigative function of the division. The legislative audit's suggestion to the ABA was to remove the investigation function from the ABA itself. MS. DAVIDSON commented that the responses by the court system and the ABA were that the audit suggestion did not feel either "particularly workable" or "totally necessary." REPRESENTATIVE GRUENBERG noted that the third recommendation from the legislative audit was that the board [of the ABA] should adopt a due date for its annual report. This would ensure that it is made available to the supreme court, the legislature, and the public on a timely basis. MR. TIEMESSEN responded that the recommendation has been implemented both in practice and rule. There was an internal error in tardiness from the ABA, and this would not be repeated. REPRESENTATIVE COGHILL opined that the transparency issue ought to be addressed as it pertains to the court system. REPRESENTATIVE GRUENBERG said he'd planned to introduce a mandatory continuing legal education bill or amendment, but did not do so because the board of governors agreed to discuss this with the Alaska Supreme Court, and has since submitted a proposed rule for mandatory CLE. The supreme court had reviewed this rule, and sent it back for further work. He said the public demands CLE. He continued, stating that this is not just mandatory reporting, but really good programs so that lawyers keep up with the law and don't commit malpractice. REPRESENTATIVE SAMUELS offered to assist Representative Coghill with the concerns being raised regarding ethics. He expressed some of the problems with the structure of review boards, and the background of the members who comprise the boards. CHAIR RAMRAS added that a reallocation for the distribution of the trust funds might resolve some of the issues. MR. TIEMESSEN remarked that of the $14.5 million in trust, assuming a 3 percent return, about 53 percent of the distributed funds went directly to pro bono work. The current problem that the Alaska Legal Services Corporation faces in funding was not caused by a drop in the IOLTA percentage; it was caused by a drop in the interest rates. 1:53:50 PM REPRESENTATIVE GRUENBERG moved to report HB 22 out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, HB 22 was reported from the House Judiciary Standing Committee.
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