HB 549-UNSOLICITED COMMUNICATION:AIRCRAFT CRASH  MS. VANESSA TONDINI, staff to Representative McGuire, chair of the House Judiciary Committee, which sponsored HB 549, reminded members she presented the bill at a previous hearing and was available to answer questions. CHAIR SEEKINS noted that with no one wishing to testify, public testimony was closed and the bill was under consideration by committee members. SENATOR FRENCH said he had been hoping to hear from someone who has been badgered by a lawyer during a time of personal family grieving or other emotional turmoil, in relation to this bill. Instead, he has only heard from businesses that have said that attorneys continue to file lawsuits against them. He stated: With all due respect to the folks who brought us this bill, it's been brought to us under the guise of perspective clients who maybe feel overwhelmed by the circumstances, giving rise to the need for legal services - you know, the families of the deceased or injured are vulnerable to the external pressures of others. And we've heard absolutely zero testimony about that - none, not a bit. For that reason I think this bill is more about giving some kind of a break to the small aviation operators in Bush Alaska - and they may need a break - but that's not the reason that the bill came to us under - the auspices. And so I look at section (d), which would make it a crime to send a postcard or make a phone call to someone offering them legal services 30 days after an accident. It would fine them $100,000 for having done so and indeed, the cases that have been brought to our attention are head bump cases - they're not serious cases, they're cases where the aviation operator feels aggrieved because someone's chasing after someone with a head bump. And I just see something that's going to get tossed out of court and it's going to be found to be wildly out of proportion to the harm that's done by someone making a phone call or signing up a client. SENATOR FRENCH then moved [Amendment 2] to strike section (d) and to make it a civil penalty. He explained that if the attorney general wants to file a civil case against a lawyer and pursue a reasonable fine, he feels that would be acceptable. He argued that if a person is unwilling to bring a bar complaint against one of these attorneys, the person is unlikely to want to testify in a criminal case. CHAIR SEEKINS asked Senator French if Amendment 2 is a conceptual amendment. SENATOR FRENCH said it is. SENATOR OGAN objected for the purpose of discussion and asked if Amendment 2 is to strike section (d). He said if so, that is not a conceptual amendment. SENATOR FRENCH said his intent is to strike section (d) and to replace it with language that authorizes the attorney general to bring an action to enforce and pursue a civil penalty up to $100,000 for such activity. He said that would put some sideboards on the amount the attorney general could pursue. MS. TONDINI said the sponsor would oppose Amendment 2 because she feels strongly that a criminal penalty is appropriate and necessary and is the reason for the bill. She furthered that the federal law contains a very weak civil penalty of $1,000, which is not enforced. She also cautioned that it is possible that the bar association would not take notice of civil enforcements, therefore Representative McGuire wanted to have a criminal conviction on the person's record to make it noticeable. She said the $100,000 fine is designed to get people's attention and indicated that the awards in these cases can be very large so a large fine is necessary to deter such behavior. SENATOR OGAN asked if there are sanctions for this same activity in other areas. MS. TONDINI said the Senate State Affairs Committee members asked why this same penalty hasn't been put into law for other types of accidents. She said the large penalty in this bill is due to the fact that aviation accidents receive a lot of media attention, are usually of a tragic nature and involve large amounts of money. SENATOR THERRIAULT asked Ms. Tondini to review the federal law. MS. TONDINI said under the federal law, the violation is a civil penalty and carries a $1,000 fine. It requires the Civil Aeronautics Board or the U.S. Attorney General to take action to be enforced. She noted it has not been enforced much but the other issue is that it does not apply to intrastate flights; it only applies to interstate flights, so, for example, it would not cover flights between Anchorage and Bethel. SENATOR THERRIAULT asked if the owner of an aviation service can only file a bar complaint on an interstate flight based on the federal law. MS. TONDINI recalled the testimony of Marsha Davis, who said the aviation companies would have the ability to file a bar complaint but that is not an advantageous thing to do during a settlement agreement. She said people are hesitant to file bar complaints for that reason and because they are reluctant to pursue a bar complaint while grieving over a family loss. SENATOR THERRIAULT asked if the person who has that available as a remedy is the person who was injured or lost a loved one. MS. TONDINI said she believes anyone can file the bar complaint. SENATOR THERRIAULT asked if that would apply to the owner of the aircraft. MS. TONDINI said she did not see why not. SENATOR THERRIAULT asked if that also applies to intrastate flights. SENATOR FRENCH said if the attorney was operating in Alaska and a member of the bar, a bar complaint could be filed. SENATOR THERRIAULT asked what the basis of the claim would be involving an intrastate flight if the federal law does not apply to them. MS. TONDINI said the claim would be brought under the Alaska Rules of Professional Conduct, namely Rule 7.3(a). She read: An attorney shall not solicit by in person or live telephone contact professional employment from a perspective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. SENATOR THERRIAULT asked why no one is filing claims under that rule now. SENATOR FRENCH said that is his point. He said the rationale he has heard from the lawyers representing the airline companies is, "Well that's just too inflammatory, that's too combative, we'll get all beat up, they'll be mean to us if we do that. It's too aggressive." He said his response is that is no more aggressive than asking a district attorney to file a criminal complaint on someone and brand them with a criminal action with a $100,000 fine. That is simply passing on one's obligation to do what's right to somebody else. CHAIR SEEKINS said in his opinion, the issue goes back to whether the activity was done knowingly, since rules of conduct exist. SENATOR FRENCH argued that the same can be said about any profession. MS. TONDINI said it is her understanding that if a culpable mental state is not specifically described, the standard is knowingly, so that would apply in HB 549. SENATOR FRENCH said if an attorney made contact 43 days after an accident instead of 45 days, due to a miscalculation, that would not be a defense. CHAIR SEEKINS announced an at-ease. Upon reconvening, he said he would bring HB 549 up during the afternoon to give Ms. Tondini time to talk to the sponsor about some of the concerns expressed by committee members. He thanked Ms. Tondini for her time. SENATOR THERRIAULT noted that bar complaints are a huge problem for attorneys so he is trying to balance the fact that there is a system available that the public may not know how to avail itself of but when a bar complaint is filed, it gets the attention of the attorneys. He said if an attorney had a number of these complaints filed against him, the bar association would definitely take notice. CHAIR SEEKINS announced the committee would take up HB 342.