Legislature(2003 - 2004)

05/05/2004 08:24 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        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                                                              
MS. TONDINI said she did not see why not.                                                                                       
SENATOR  THERRIAULT  asked  if that  also  applies  to  intrastate                                                              
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                                                              
SENATOR  FRENCH  argued  that  the  same can  be  said  about  any                                                              
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.                                                                     

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