Legislature(2007 - 2008)BUTROVICH 205
05/15/2007 10:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB22 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 22 | TELECONFERENCED | |
HB 22 AM -EXTEND BOARD OF GOVERNORS ABA
10:04:54 AM
CHAIR FRENCH announced the consideration of HB 22. Before the
committee was HB 22 AM.
JAMES ARMSTRONG, Staff to Representative Bill Stoltze, Juneau,
AK, said HB 22 extends the Board of Governors. The original bill
was for three years, but now it is extended for two years, until
June 30, 2009. "That's basically all the bill does," he said.
10:05:45 AM
TOM OBERMEYER said he is representing himself as someone who has
attempted to become licensed in Alaska for 23 years. In 1990 he
was licensed to practice law in Missouri, a state with which
Alaska has reciprocity. His concern is that this board is
composed of three public members appointed by the governor and
nine who are appointed by members. In his view there is almost
no control over admissions and discipline, which are the two
main functions. Also, there's continuing education under this
board and they were supposed to impose that in the last audit.
To his knowledge it hasn't been done. This is a quasi-
governmental body and the court is supposed to supervise, but
because there really isn't much supervision, the public isn't
protected by the admission practices. He said he recently sat
for the February 2007 bar exam. There were only 54 applicants
statewide and first-time-takers represented just 31 percent of
the total. The passage rate was just 48 percent, he said.
MR. OBERMEYER reviewed the results further and pointed out that
on a regular basis this bar exam has a 50-60 percent pass rate.
States such as Minnesota and Mississippi pass more than 80
percent on a regular basis and first time takers pass over 90
percent of the time. Looking at the results he suggested that as
a policy matter, this bar association for years has taken it on
itself to have the lowest passage rates in the nation. People
are not passing because this bar association doesn't want you to
pass. He noted that the admissions by motion are ironically very
high. Each year about one third of the new entrants are coming
in by motion. They don't sit for the bar. Many come in by waiver
under Rule 43 as military attorneys, Alaska Legal Services
attorneys, legal interns, and foreign law consultants. They
don't have to take reciprocity, which is not an alternative for
him, and they don't need to have 5 of 7 years of active
practice. Also, under Rule 2.2(b)(3) he is forbidden from being
licensed in Alaska if he fails the bar exam within the last 5
years.
10:11:12 AM
MR. OBERMEYER continued to say that for 23 years this bar
association has never found a way for people such as himself to
be licensed. If he had stayed outside of the state like many do,
he would not have this problem. He has wondered why nobody has
done something about this and he's concluded that it's because
no one controls this bar association. The same people have been
there for 20 years and they run around the country saying they
have a very high bar but the number of active practicing
attorneys really doesn't change that much. Why this is good for
the public is not clear. When he's challenged this he's won a
few concessions, but his options are narrowing. The long and
short is the applicant is totally isolated because there are no
advocacy groups. The three public members of the board are yes
votes and the court doesn't consider it their responsibility to
provide supervision. He suggested that there should be a review
of the admission policies because the public would benefit by
having more attorneys. Restrict it to a few and it becomes a
guild society, he said.
10:13:53 AM
MR. OBERMEYER said discipline is important and the board has not
functioned properly in that area either. Former Attorney General
Greg Renkes was not disciplined when he had a problem in trying
to work out a contract. He stepped down but he was never
disciplined. He mentioned other instances in which top legal
professionals have had serious problems and have not been
disciplined. "I have never had anything against me for character
or any other matter that has ever been produced," he emphasized.
He expressed concern that nothing will change if the legislature
does nothing. "You can give a very clear message today," he
said. There is a need for a bar, but a practicing lawyer should
be able to walk in and pass the bar exam.
10:16:09 AM
MR. OBERMEYER noted that there was precedent for ad hoc
admission in 1966. "I am asked to go through more than anybody
else has ever in this state and I'm going through bar exams
without recourse when other people are walking into the
state…and they are licensed," he stated. He said he leaves it to
the committee to either change the composition of the board or
curtail the number of years they are given.
10:17:42 AM
SENATOR MCGUIRE commented that advocates for unpopular issues
are rare. Mr. Obermeyer is a good man and he has good points
that should be listened to. When someone fails an exam, it's
difficult to stand up and talk about it. She said she would like
a formal letter from the American Bar Association responding to
the questions she posed when she chaired the Judiciary Committee
in the House.
10:19:36 AM
SENATOR MCGUIRE said some very compelling points have been made
about the fact that the bar association allows people with legal
expertise to come into the state and do a lot of different
things. Referring to SB 69 that will hopefully pass the House
today, she explained that it sets aside money for a legal
services fund. The point is that legal services are for everyone
in the criminal and the civil context because going into court
without an advocate is intimidating. To that end, she
understands that the bar has about $1.3 million in a fund to
contribute to pro bono work. She'd like to hear about the bar
dues and what is being done to stagger those dues for those who
do public service. Also, she said she has asked on three
occasions to have the bar look at the cost of the bar exam
because it is a barrier to entry for many people.
10:22:07 AM
SENATOR MCGUIRE said coming out of law school, there was great
interest in what it was like to take the bar, who passed, and
what the bar was like in different states. The feed back from
Alaska has been pretty grim, she said. For example, a very smart
woman took the bar six times and our US senator failed five
times. She said she would like to know about the costs of taking
the bar because most people don't have much money when they get
out of school. She was lucky because the firm that hired her
paid the $1,000. Some of her friends weren't so fortunate. With
that in mind she'd like to know more about holding it in a
public facility such as UAA as opposed to the expensive Egan
Center. Trying to ratchet down those rates as a barrier to entry
is important, she said.
SENATOR MCGUIRE said Mr. Obermeyer did a good job of
highlighting other states. She noted that all of the students
from had a 100 percent bar pass rate. Only an essay is required
there while Alaska has a combination. I want to hear about that,
she said. Finally, she believes the bill should pass today, but
the point of a sunset is that the legislature is supposed to be
reviewing these boards and commissions to help them do a better
job. In the case of the bar, you will not find another
profession in Alaska that has more control over its own destiny.
Even doctors have the medical licensing board, which is widely
viewed as a rubber stamp for the governor. But we don't have
that in the bar association, she said. You have a lucky and
unique circumstance and you ought to continue to strive to prove
to the public and the folks you license why you ought to have
that, she said.
10:26:11 AM
SENATOR MCGUIRE said some members are afraid to talk to the
board because it sits in judgment on their very livelihood.
"Look within your internal policies to see what you can do to be
more responsive to the people you do license," she said. It's a
difficult balance to serve a legitimate purpose in having high
quality members and not become a guild that is a barrier to
entry.
10:27:35 AM
SENATOR MCGUIRE asked the board to include in its letter, a
review of Alaska Bar Rule 43. It says that a person can receive
permission to practice law in Alaska by court waiver if they
have practiced and been a member in good standing in another
state or the District of Columbia for five years. Then it
excepts a person to practice law for Alaska Legal Services
Corporation. Then there is condition (c), which seems a bit
absurd and might create absurd results. She posed a hypothetical
situation where someone sat for and failed the Alaska bar when
they were 23 years old. Then for 20 years that person practiced
law in good standing in New York along side their partner. They
decided to move to Alaska and open a firm specializing in patent
law. Person "B" can waive in while person "A" is immediately
prohibited because they took and failed the bar 20 years ago.
That is an absurd result and someone should consider that, she
said.
CHAIR FRENCH asked a representative from the bar association to
respond.
10:29:10 AM
MATTHEW CLAMAN, President, Alaska Bar Association, Anchorage,
AK, said in addition to this short response, a separate and more
detailed letter will also be provided. Addressing bar dues he
said the board spends considerable time discussing those.
Questions that were raised in the House will result in careful
scrutiny of the budgeting process. In the past the board has
maintained a budget surplus, but there is talk about developing
a budget process that is more specific to the needs in a
particular year. Consistent with good economic practices, funds
are set aside to cover operating expenses for a certain number
of months to provide a cushion. There is also a trust fund to
protect clients who have been harmed by lawyers, but that's
separate from the operating budget. With regard to legal
services lawyers, the supreme court has approved or is about to
approve the emeritus attorney rule to allow lawyers who are not
actively practicing for money to pay minimum bar dues with the
condition that they are practicing purely pro bono.
Representative Gara specifically requested that change. Also
Senator French has discussed tiered bar dues and a committee is
looking into that for new lawyers. Another component is whether
public interest lawyers in their early years of practice should
pay lower dues. We're receptive to that, he said. A question
about the latter is how to decide what is a public interest
lawyer, because a wide range of people might fit the definition.
10:32:31 AM
MR. CLAMAN said he could provide a detailed budget of the costs
involved in the bar exam itself. Nineteen years ago he sat for
the bar exam in the Egan Center, but now a church is used so
space cost is reduced. One of the greatest costs is the multi-
state exam, which is a component that's been used for a number
of years. The board is concerned about passage rate and he
believes it's significant that the percentage of first time
takers is consistently higher than those who are taking it
subsequent times. That's also a significant distinction on a
national level, he said. The most recent exam had one of the
lowest overall passage rates and the board is trying to address
that.
SENATOR MCGUIRE observed that this is the most responsive
hearing she has every been a part of and she is appreciative.
Highlighting the 48 percent passage rate this year, she said
that is unacceptable and it would be interesting to know what's
responsible. A lot of folks who have taken the bar have gotten
high multi-state scores but they got bogged down on the
subjective essay. She suggested the board look at whether it's
the subjective part, the objective part, or the half day work
product.
10:36:00 AM
MR. CLAMAN said the February bar statistics were reviewed in
detail and the people who failed were equally divided on the
multi-state and the essay. There wasn't a trend where a group
passed one part and not the other.
SENATOR MCGUIRE suggested that the board's analysis should also
consider the point for making an appeal.
MR. CLAMAN agreed to look at that. He said the board would also
look at Bar Rule 43, but an important factor that's considered
in terms of reciprocity is whether the person is actively
engaged in the practice of law. Reciprocity applications are
heard at almost every board meeting, he added. A final important
point is that the bar association is fundamentally different
from other licensed professions in the state because it's the
only one that is supervised by the supreme court. Therefore,
everything the board does - including making a change to the bar
exam - must be approved by the court. It's appropriate that it
has the authority to license and supervise those who appear in
Alaska's courts and it's an important distinction, he said.
10:39:32 AM
SENATOR WIELECHOWSKI referred to a document summarizing bar
passage rates between 1996 to 2005 and noted that there isn't
too much difference between Alaska and the national average. He
cited several specifics and said the numbers are generally
within a few percentage points.
MR. CLAMAN said he knows that California has the lowest passage
rate of any state because it has fewer prerequisites and Alaska
has a smaller population so you'd expect to see more fluctuation
in the statistics on an annual basis.
10:41:53 AM
SENATOR WIELECHOWSKI said the Alaska bar is difficult, but the
exam serves an important function. The Alaska statistics aren't
out of line so the board should keep that in mind while it does
its review.
10:42:28 AM
SENATOR MCGUIRE ask the board to notice the years that weren't
mentioned because those figures are wildly different. She's
talking about comparing Alaska statistics against other western
states in particular rather than against the national average.
With regard to Bar Rule 43 she'd like an explanation of whether
or not condition (c) trumps active practice of law. If you're
really able to balance those factors she doesn't know why (c) is
there because it shouldn't matter. The point Mr. Obermeyer is
making that should be considered is how many people are
practicing in Alaska who have not taken this state's bar. It's a
problem that some folks waive in, she said.
SENATOR WIELECHOWSKI said he shares Mr. Obermeyer's frustration,
but he doesn't have a problem with Alaska being selective. The
Alaska average isn't out of line with respect to the rest of the
country.
10:45:17 AM
CHAIR FRENCH said he too appreciates that the bar association is
being responsive and Representative Stoltze is owed a debt of
gratitude for that. He has caused them to recognize the need to
be more responsive. He said he met with the bar association to
discuss his personal grief about the very high dues. He was told
that the reason for that is that we have a unified bar so it's
not an apples-to-apples comparison. In that conversation he
asked for a list of all the bar associations, their dues and
which are comparable to Alaska. I've not received that document
and I find that disappointing, he said. When he reviewed the bar
directory he found that most states have tiered dues like he has
advanced. This is a real issue and he hopes the bar association
takes a strong look at the system. They can find a way to be
more fair to folks who work in the public sector making far less
than colleagues in the private sector. On top of that they pay
their own bar dues whereas firms pick up the dues for colleagues
practicing in the private sector.
10:48:16 AM
STEPHEN VAN GOOR, Alaska Bar Association, Anchorage, AK,
confirmed that a detailed response to Senator McGuire's question
about reciprocity admission would be forthcoming. Referring to
Senator McGuire's hypothetical example, he said it really
addresses two sets of rules. The primary reciprocity rule is Bar
Rule 2. Under that rule the New York lawyer who failed the
Alaska bar at an early age could qualify for reciprocity
admission because the exam was taken more than five years ago.
The distinction for Bar Rule 43 is that it's basically a waiver
for lawyers who practice exclusively for Alaska Legal Services
Corporation. Condition (c) does say that a person who wants an
exemption to practice exclusively for Alaska Legal Services
Corporation can't have failed the exam. The board can look at
that to decide whether that should be a barrier to admission,
but reciprocity under Bar Rule 2 and the ability to practice for
Alaska Legal Services under Bar Rule 43 are two different
things, he said.
SENATOR McGUIRE thanked him for the clarification.
10:50:45 AM
MR. CLAMAN said in the future he anticipates that the bar
association will go to Juneau every year to meet with
legislators.
CHAIR FRENCH said it sounds like a good idea. He closed public
testimony and asked if there were questions.
SENATOR MCGUIRE motioned to report HB 22 AM from committee with
individual recommendations and attached fiscal note. There being
no objection, it was so ordered.
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