Legislature(2001 - 2002)

02/20/2002 01:42 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
         SB 273-EXTEND BOARD OF GOVERNORS OF AK BAR ASSN                                                                    
                                                                                                                                
MS. PAT  DAVIDSON, Legislative  Auditor,  said in accordance  with                                                              
statutes Legislative Budget and Audit  conducted a sunset audit of                                                              
the Board of  Governors of the Alaska Bar Association  (Bar).  The                                                              
conclusion  they  reached  was  the  Bar  is  functioning  and  is                                                              
providing  qualified  applicants for  licensure  to  the State  of                                                              
Alaska.  They  found the Bar is working generally  in an efficient                                                              
and effective  manner.  Therefore  they recommend  the legislature                                                              
extend the termination date of the Bar until June 2006.                                                                         
                                                                                                                                
MS. DAVIDSON said they made a couple  of recommendations.  But she                                                              
did  not  think they  are  of  import  that  it would  affect  the                                                              
extension date of the Bar at all.                                                                                               
                                                                                                                                
CHAIRMAN  TAYLOR  said  as  usual   her  department  had  done  an                                                              
excellent job and he thanked her  and her staff for the quality of                                                              
work he had seen over the last several years.                                                                                   
                                                                                                                                
SENATOR THERRIAULT said  a concern had been expressed  to him over                                                              
whether  the Bar  should  conduct  itself more  like  a board  and                                                              
commission.  He  asked if that was something that  she reviewed or                                                              
heard about.                                                                                                                    
                                                                                                                                
MS. DAVIDSON  said one of the questions  that had come  up was the                                                              
fact that  the Bar  Association does  act more independently  with                                                              
regard  to  its  budget  than most  Executive  Branch  Boards  and                                                              
Commissions.   They did a little  research on that.  She  said she                                                              
was not  an attorney  and could not  succinctly put the  argument.                                                              
It has  to do  with the  Alaska Constitution  providing the  court                                                              
system with certain powers and duties  to administer itself.  This                                                              
Bar Association  function comes under  that.  It is by  court rule                                                              
that the fees are paid the way they  are.  So the Supreme Court is                                                              
the administering  body of the Bar  Association.  She  expected an                                                              
attorney could give  them a more succinct explanation  of that but                                                              
it has  to do with  it being wrapped  up in what  the Constitution                                                              
gives the Supreme Court in terms  of ability and then it goes into                                                              
the court rules.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT said  the court system is a  separate branch of                                                              
government but the legislature still  budget for them.  He said he                                                              
did not believe even in the budget  they pass for the court system                                                              
that the Bar function is a subset  in that budget.  He believed it                                                              
appeared nowhere.                                                                                                               
                                                                                                                                
MS. DAVIDSON  said that was true.   While the court  system budget                                                              
itself does go through the legislative  process this one does not.                                                              
It is not included in the court system's  budget.  For all intents                                                              
and purposes it is off budget.                                                                                                  
                                                                                                                                
SENATOR THERRIAULT  said there was  some question of  whether that                                                              
is what it should be.                                                                                                           
                                                                                                                                
MS. DEBORAH O'REGAN,  Executive Director, Alaska  Bar Association,                                                              
said it is  correct that the Bar  is under the judicial  branch of                                                              
the government.   It is correct that they do not  find them in the                                                              
court system budget because the Bar  Association receives no state                                                              
funding  whatsoever.   All  the funding  for  the Bar  Association                                                              
comes from bar member dues, admission  fees, seminar fees and that                                                              
kind of thing.  All the money is  privately raised.  They have not                                                              
received any money from the state  since 1986 when the legislature                                                              
last gave them  some funding for the public members  on the board.                                                              
There are three public members on  the board that are appointed by                                                              
the governor and  the Bar Association does pay for  the travel and                                                              
per diem for those public members.                                                                                              
                                                                                                                                
SENATOR  THERRIAULT said  in the  current statute  all boards  and                                                              
commissions have to be self-funding  basically and they do that by                                                              
raising licensing fees.   Those monies do come into  the state and                                                              
they  have to  be appropriated  back out  for that  function.   In                                                              
addition, boards and licensing commissions  have to make sure they                                                              
are not overcharging.   There is a function so that  if they raise                                                              
more money than it takes to perform  the function then the fees go                                                              
down  the next  year.   Part  of  the question  he  had heard  was                                                              
whether that  same mechanism  is available  to attorneys  that pay                                                              
the Bar fee and if not why not.                                                                                                 
                                                                                                                                
MS. O'REGAN  said the Alaska Bar  Act Statute does give  the board                                                              
the  power  and  the  duties  to   set  the  budget  for  the  Bar                                                              
Association and  to expend  money.  She  thought because  they are                                                              
not a  state agency  but rather  an instrumentality  of the  state                                                              
they  don't  have  the  same requirements  as  all  of  the  state                                                              
agencies  because  they  are  not  a  state  agency  they  are  an                                                              
instrumentality of the state under Alaska Statute.                                                                              
                                                                                                                                
MS. MAURI LONG, President, Alaska  Bar Association, apologized for                                                              
her late arrival.  She said she heard  a good part and thought Ms.                                                              
O'Regan had answered well.  She said  they are not responsible for                                                              
setting themselves up  but did not hear the question  initially so                                                              
was not  sure if there  was anything she could  add.  She  said if                                                              
they had specific questions she would be happy to answer them.                                                                  
                                                                                                                                
MR.  STEVE  CONN,  Executive  Director,   Alaska  Public  Interest                                                              
Research Group  (AKPIRG), said the  testimony he would  share with                                                              
the committee was  created and is being communicated  to them by a                                                              
subset of their operation, Barbara  Williams, who is the President                                                              
of Alaska Injured  Workers Alliance.  She  provides representation                                                              
of  a voluntary  and  lay nature  to  injured  workers engaged  in                                                              
workers  compensation hearings  in both  administrative and  court                                                              
hearings.  He said he would be speaking as if he were her.                                                                      
                                                                                                                                
MR. CONN explained  these hundreds of workers,  including one that                                                              
she was  working with at  that minute, cannot find  representation                                                              
because  only a  handful of  attorneys  take workers  compensation                                                              
cases.   Some of these  people suffer  not only from  the physical                                                              
disability  but  also  from  mental illness.    Almost  all  these                                                              
injured workers  confront licensed Alaskan attorneys  on the other                                                              
side.  She asked  the Bar repeatedly to spot  check hearings where                                                              
attorneys represent  one side but not the other to  see if ethical                                                              
violations or  other unusual or  overbearing conduct occurs.   She                                                              
did not seek  attendance at every hearing but  spot-checking.  The                                                              
Bar  refuses saying  that its  budget is  insufficient and  people                                                              
like these  should file ethics  complaints.  These  clients cannot                                                              
tell when ethical violations occur.                                                                                             
                                                                                                                                
He said  the Legislative  Audit encourages  the  Bar to make  sure                                                              
lawyers on the  referral list are qualified.  But  what it doesn't                                                              
mention is  that many of  the people who  call the lawyers  on the                                                              
list  to whom they  are referred  are  turned down.   He said  Ms.                                                              
Williams knows this  is the case with workers  compensation cases.                                                              
There is really  only one attorney  on the list.  All  the private                                                              
attorneys refer injured workers to  her.  He noted that on page 21                                                              
where they  have the statistics,  320 people, and  something close                                                              
to  that  each  and  every  year,  sought  referrals  for  workers                                                              
compensation in  2001.   He asked where  they went and  who helped                                                              
them.  The Bar  does not follow up to discover  how many referrals                                                              
actually  took place  and what  service  was received.   In  other                                                              
words there  is no quality or  consumer evaluation except  when it                                                              
comes in  the form of an ethics  complaint.  The  referral process                                                              
becomes mere window dressing.                                                                                                   
                                                                                                                                
MR. CONN  said Ms. Williams  concluded by  urging them  to mandate                                                              
evaluation from the consumer perspective  of the referral process.                                                              
She urged them to  mandate spot checks by the ethics  staff of the                                                              
board  the administrative  and  judicial hearings  where  licensed                                                              
attorneys  come  up against  un-represented  working  people.   He                                                              
urged them  to seek  an amendment  to the  composition of  the Bar                                                              
Association to include  not just any public member  but one who is                                                              
familiar  with  the  masses  of people  who  must  either  be  un-                                                              
represented or helped by a volunteer.   She thanked the committee.                                                              
                                                                                                                                
CHAIRMAN  TAYLOR asked Mr.  Conn to  carry his  words back  to Ms.                                                              
Williams.   He said  the bill is  before them  and it is  probably                                                              
because it is a target of opportunity  to criticize the Bar who at                                                              
least tries to have some level of  referrals.  The true villain in                                                              
this process  is the legislature.   The last time they  did one of                                                              
those group grope  operations where they brought  in the employers                                                              
and all the  unions, they sat down  and cut a deal  that basically                                                              
sold  the injured  workers  of our  state  right  down the  river.                                                              
Sadly what  happened is  an attorney  cannot charge an  attorney's                                                              
fee to a workers  compensation client.  That fee  can only be paid                                                              
by  the Workers  Compensation  Board.   The  Workers  Compensation                                                              
Board has been set up with a schedule  of payments and fees and so                                                              
on that makes  it almost impossible for anyone  to represent folks                                                              
in the workers  compensation field and make money  doing it.  What                                                              
they probably ought  to do in the legislature is  mandate that all                                                              
doctors in  the state have  to do appendectomies  for free  and we                                                              
will see how many  appendectomies get done too.   They won't do it                                                              
either.                                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR said the real problem  is right here in Juneau and                                                              
he would be happy  to work with anyone who wishes  to address that                                                              
problem and take  it on.  But the forces allied  against them come                                                              
both from  the private  sector and  the union  sector.   They felt                                                              
they made  the best deal  they could and  they don't want  to open                                                              
that can  of worms without recreating  that entire task  force and                                                              
spending a couple of years to do it.                                                                                            
                                                                                                                                
He said  Ms. Williams  is absolutely  correct in her  frustration.                                                              
He said as an attorney who has not  done workers compensation work                                                              
for many years,  he continually finds himself  referring people to                                                              
Chancy Crofts  office in Anchorage in  the hope he may  be able to                                                              
find time  to help  them.   He is  one of the  only ones  Chairman                                                              
Taylor knew  of doing the  work.  It  is a very frustrating  thing                                                              
and he believes  the Bar probably shares the level  of frustration                                                              
that Ms.  Williams talked  about.   If somebody  can find  a third                                                              
party negligence growing  out of a workers compensation  case they                                                              
will usually  find somebody that will  take the case in  the hopes                                                              
they can then  seek subrogation against the third  party defendant                                                              
and actually  get some  level of  compensation  for the amount  of                                                              
work they have done.  In Alaska today  very few people are willing                                                              
to work for nothing and that is about  what it amounts to when you                                                              
take on a workers  compensation case.  He said  he appreciated Ms.                                                              
Williams'  comments very  much and  Mr.  Conn taking  the time  to                                                              
bring them before the committee.                                                                                                
                                                                                                                                
MR. CONN  said he would  return to the  office and  share Chairman                                                              
Taylor's thoughts with her.                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR said if Mr. Conn  can find support for that effort                                                              
he pledged to him  that he would help lead that  attack because it                                                              
desperately needs to  be done.  The injured workers  of Alaska are                                                              
not being taken  care of.  He  said he guaranteed when  workers go                                                              
into a  court room the insurance  industry has the  best attorneys                                                              
money can  buy standing  there beating  the heck  out of  them and                                                              
doing video tapes  of them and all kinds of other  things and they                                                              
have a whole cadre of doctors that  in his opinion are little more                                                              
than  prostitutes   for   the  insurance   industry.    There   is                                                              
legislation pending  for that because of the  notorious reputation                                                              
that many of these  doctors have.  They always seem  to show up at                                                              
workers compensation  hearings and  they can  never find  that the                                                              
worker  was  ever  injured  and they  just  happen  to  be  making                                                              
thousands and  thousands of dollars  every year off  the insurance                                                              
industry.  Chairman  Taylor said it is a major problem  and one he                                                              
would be  happy to work  on.  He  believed many others  around the                                                              
legislature  felt as he  does and  would be  willing to  work with                                                              
them on it.  He  told Mr. Conn if he wants to  take this one on it                                                              
is an 800-pound gorilla.                                                                                                        
                                                                                                                                
SENATOR  COWDERY  made  a  motion  to  move SB  273  to  the  next                                                              
committee of referral  with individual recommendations.   He asked                                                              
for  unanimous consent.    There being  no  objection, the  motion                                                              
carried.                                                                                                                        

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