Legislature(2021 - 2022)BUTROVICH 205
05/05/2021 01:30 PM Senate JUDICIARY
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Audio | Topic |
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Start | |
SB129 | |
HB109 | |
SB11 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
*+ | SB 129 | TELECONFERENCED | |
+ | HB 109 | TELECONFERENCED | |
+ | SB 11 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
HB 109-EXTEND BAR ASS'N BOARD OF GOVERNORS 2:08:19 PM CHAIR HOLLAND announced the consideration of HOUSE BILL NO. 109, "An Act extending the termination date of the Board of Governors of the Alaska Bar Association; and providing for an effective date." 2:08:50 PM MATT CLAMAN, Alaska State Legislature, Juneau, Alaska, sponsor of HB 109, paraphrased the sponsor statement: HB 109 extends the termination date of the Board of Governors of the Alaska Bar Association until June 30, 2029, in accordance with the recommendation of the Legislative Auditor. The Board is currently scheduled to terminate on June 30, 2021. The Division of Legislative Audit, having concluded an audit of the Board of Governors, determined that the board is operating in the public's interest and has complied with its duties and responsibilities to the public. It recommends that the termination date be extended to June 30, 2029. The Division of Legislative Audit has also determined that the Board of Governors should again recommend to the Alaska Supreme Court that it amend the Alaska Bar Rules so as to increase the number of mandatory Continuing Legal Education credit hours, commonly known as "CLE hours." Currently, bar members shall compete 3 hours of ethics CLE, and "may" complete 9 hours of general CLE. The Board of Governors serves an important public service by regulating the practice of law, promoting reform in the law and in judicial procedure, facilitating the administration of justice, investigating complaints, requiring continuing legal education for membership, and increasing the public service and efficiency of the Bar. REPRESENTATIVE CLAMAN disclosed that he is a member of the Alaska Bar Association. 2:11:06 PM KRIS CURTIS, Legislative Auditor, Legislative Agencies and Offices, Juneau, Alaska, presented audit findings on HB 109. She stated that the audit concluded that the board served the public interest by effectively admitting qualified members to the Alaska Bar Association (Bar) and investigating complaints made against Bar members. She noted that members have a copy of the audit [Audit control number 41-20119-20] in their packets. MS. CURTIS turned to the admission and exam statistic table on page 8 of the audit. The table provides 2017 to 2019 exam statistics. On average, 120 Bar members were approved each year and the average Bar exam pass rate was 54 percent. The audit reviewed a random sample of 15 new member application files and found all 15 members had completed applications and met admittance requirements. She referred to page 6 to the Board of Governors of the Alaska Bar Association Disciplinary Statistics. Between January 1, 2017, and December 31, 2019, 689 complaints were filed with the Bar. Of those, 82 percent were not accepted for further investigation because the complaints were incomplete, did not identify ethical misconduct, or were not within the Bar's jurisdiction. Five complaints resulted in discipline, and 89 complaints were open at the time of the audit. 2:12:53 PM MS. CURTIS reviewed the continuing legal education (CLE). In 2011, to promote competency, the board created a committee. She reported that 91 percent were not in favor of increasing the hours to promote competency and professionalism. She reported that active Bar members must obtain three CLE credits per year and be encouraged to obtain nine additional credits voluntarily. The number of mandatory CLE requirements for practicing attorneys is significantly below that of other states. As of March 2020, 37 states require 12 or more CLE hours. The low number of mandatory CLE hours was identified as a finding in the three prior board sunset audits. In 2011, the board formed a committee to review the mandatory CLE program. The review included electronically surveying Bar members. Ninety-one percent of over 900 Bar member respondents did not favor increasing the number of mandatory CLE credits. 2:13:37 PM MS. CURTIS reviewed the audit [control number 41-20119-20] recommendations beginning on page 11. MS. CURTIS reviewed Recommendation No. 1: The executive director should ensure meetings are properly posted on the state's Online Public Notice System and provide time for public comment. Of the nine reviewed, seven meetings were not published on the state's Online Public Notice System, and six did not include public comment as part of the meeting agenda. According to the executive director, the notices were published in the Bar Rag publication and posted on the Alaska Bar Association (Bar) website. However, that notice does not technically comply with the state's Online Public Notice System. 2:14:11 PM MS. CURTIS reviewed Recommendation No. 2 on page 12: The board should improve internal controls over the Bar's online admissions system and case management database. She reported that the audit identified two deficiencies that could affect the security and availability of data contained in the Bar's online admissions system and case management database. The audit report does not provide details to ensure the weaknesses are not exploited. Pertinent details were communicated to agency management in a separate confidential document. The agency provided corrective actions it would take to remedy the two deficiencies. 2:14:37 PM MS. CURTIS reviewed Recommendation No. 3 on page 12: The board should recommend an increase in the non-ethics mandatory CLE for attorneys. MS. CURTIS stated that although over 99 percent of Bar members did complete the three hours of mandatory continuing legal education (CLE), only 55 percent voluntarily completed the additional 9 hours of continuing legal education. CLE benefits the public and the profession by ensuring attorneys remain competent regarding the law and the profession's obligations and standards. 2:15:12 PM MS. CURTIS reviewed management's response to the audit. On page 29, the court system's general counsel, Nancy Meade, agreed that the board should recommend the number of mandatory continuing legal education hours for its consideration. The board's response on page 31 agreed with Recommendations 1 and 2. Regarding Recommendation 3 related to mandatory continuing legal education (CLE), the board agreed to discuss appointing a committee to review mandatory CLE at its upcoming board meeting. 2:15:51 PM SENATOR SHOWER referred to page 6 to the increase in open disciplinary cases. He asked if she had any explanation for the rise in cases. Second, he noted the audit recommended extending the board's termination date for eight years to June 30, 2029. He asked if five years would be better. He recalled interest in reducing the sunset review time for improved legislative oversight. MS. CURTIS responded that her recommendation of the maximum number of years between reviews is reserved for those entities that she believes are well run and have no significant issues in serving the public interest. She said she has little concern about this board except for the continuing education issue under the Alaska Supreme Court's purview. She highlighted that this issue was raised for the court's consideration. She also noted that there is a cost to oversight. Thus, she weighed the cost of conducting an audit with the risk of the public interest. She maintained that she does not have any problem recommending an eight-year extension. SENATOR SHOWER maintained that the committee should consider shortening the extension time to keep the legislature involved in the process. 2:18:20 PM SENATOR HUGHES disclosed that she has two siblings who are Alaska Bar Association members. She asked for estimated audit costs. MS. CURTIS responded that single audit costs are billed out to agencies. She offered her belief that the audit costs are $79 per hour. The overall cost would depend on the length of time for an audit. However, she offered her belief that the agency cannot perform an audit in accordance with standards for less than 300 hours. Most audits of well-run agencies take 450 hours, but it could take up to 1,000 hours. She estimated the audit for the Bar would cost $65,000. 2:19:36 PM SENATOR HUGHES recalled that medical professionals must perform 100 continuing education hours biennially. Although the Alaska Supreme Court makes decisions on CLE, members polled themselves and chose not to opt for additional hours. She asked if continuing education should be considered statutorily. MS. CURTIS responded that the Alaska Bar Association is empowered to make recommendations to the Alaska Supreme Court. She said she had heard previous testimony on CLE and the Bar makes good points. For example, the law does not change as dramatically as the medical or accounting professions. She said auditors reviewed other states' best practices to determine their recommendations. She pointed out that the auditors recommended the Bar reconsider the number of CLE hours. 2:21:13 PM SENATOR HUGHES remarked on her surprise that the extension is for eight years because of Bar members' resistance to an increase in CLE hours. She said she would like to hear from the Alaska Bar Association on members' resistance. 2:21:47 PM SENATOR KIEHL asked if the continuing education hours for medical professionals and attorneys are calculated similarly. MS. CURTIS answered that an hour is an hour in time. She explained that an accountant must be in training for 15 minutes to count for one continuing professional education (CPE) unit for accounting. She said the accounting profession CPE could cover technical, management or supervisory training. She acknowledged that every occupation was different. 2:23:19 PM REPRESENTATIVE CLAMAN explained that the Alaska Supreme Court supervises the Bar, so the Alaska Bar Association makes recommendations, and the court makes the decision on whether to change continuing legal education (CLE) hours. In fact, on disciplinary matters, the Bar makes recommendations to the court. However, the Alaska Supreme Court always has the final authority on whether to impose the discipline. REPRESENTATIVE CLAMAN said in 2008 he was president of the Bar when the decision was made to go from voluntary continuing legal education (CLE) to requiring three hours of mandatory ethics CLE. Although he could not speak to the court's decision, he recalled the Bar's arguments, including that ethics is the core part of protecting the public. He said there is broad support for ethics continuing education. REPRESENTATIVE CLAMAN said the non-ethics CLE is more about expertise, so it tends to be subject more to market control. He explained that when practitioners hold themselves out as providing a certain level of expertise, CLE can help. There was a sense of letting the market have more control. Second, except for continuing ethics education, as practitioners get more experience, CLE seems less relevant to them. He suggested that tax lawyers would likely sign up for classes that explain the changes to the tax code. He said in contrast, basic standards for good trial practice tend not to change. The court has been less interested in mandating additional CLE hours other than ethics because the market tends to drive that more effectively than regulation. He recalled that the Washington State Bar Association requires 54 hours every three years. He said he spent time last month online watching CLEs. While some are interesting, others he has heard repeatedly over the years. The most interesting ones were appellate updates on US or Alaska Supreme Court decisions. He said he is also licensed as an Emergency Medical Technician, which requires more CE hours. 2:26:58 PM SENATOR KIEHL asked for the audit cost to the entity. MS. CURTIS said the cost for entities to respond to an audit certainly would vary. The division spends time preparing a planning phase and scope of work, estimating the number of hours to conduct the audit, which is tracked. 2:28:09 PM SENATOR SHOWER maintained his interest in reducing the time for the sunset audit review based on legislative oversight and the limited number of continuing legal education (CLE) hours. 2:29:07 PM CHAIR HOLLAND turned to invited testimony. 2:29:36 PM BEN HOFMEISTER, President, Board of Governors of the Alaska Bar, Office of the Governor, Anchorage, Alaska, turned to the response to the audit. He reported that two of the audit recommendations were addressed. In terms of the continuing legal education credits (CLE), the Alaska Bar Association has a standing committee that has been reviewing CLE for six months. The Board anticipates taking up the committee's recommendation at its meeting on May 6, 2021. Given Ms. Meade's letter indicating that the Alaska Supreme Court was willing to consider expanding CLE, he anticipated that something would likely be proposed. He said the court could make changes even without the Bar making recommendations. He said the decision to reduce the time between sunset audit reviews is a policy decision for the legislature. The Bar is not resistant to increasing the mandatory CLE credits required for renewal. It is currently reviewing the requirements and will forward recommendations to the court. 2:32:16 PM PHIL SHANAHAN, Bar Counsel, Alaska Bar Association, Anchorage, Alaska, echoed Mr. Hofmeister's remarks. He agreed the board would consider CLE requirements at its board meeting on May 6, 2021. He said the Bar has put in significant work on this issue since its October 2020 meeting. The Alaska Supreme Court has the authority to determine CLE requirements, but the Bar continues to work on its recommendations for the court. 2:33:04 PM DANIELLE BAILEY, Executive Director, Alaska Bar Association, Anchorage, Alaska, emphasized that in 2008 the Alaska Supreme Court imposed a requirement for three ethics hours, which made it the highest of any state. At that time, in the commentary to the rule, the court said the ethics requirement was to focus on protecting the public and make sure lawyers remain mindful of their obligation to their clients and address topics related to the majority of questions and complaints the Bar receives. She stated that most states require one hour of ethics training. 2:34:25 PM SENATOR HUGHES asked if the Alaska Bar Association would report back to the committee on its recommended CLE hours. She said CLE is important, that Alaskans can spend a lot of money for an attorney, so the attorneys must be well equipped to serve the public. MS. BAILEY offered to report back any findings to the committee. She surmised that the Board of Governors could assign a subcommittee to address CLE. She highlighted that the Bar submits its annual report to the legislature to keep legislators informed. She stated that the association will have continued oversight. 2:36:29 PM CHAIR HOLLAND opened public testimony and, after first determining no one wished to testify, closed public testimony on HB 109. [HB 109 was held in committee.]