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Crane v. State (08/12/2005) ap-2000
Crane v. State (08/12/2005) ap-2000
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LDE CRANE,
)
) Court of
Appeals No. A-9291
Petitioner,
)
Trial Court No. 3PA-04-3370 Cr
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Respondent.
)
[No. 2000 August 12, 2005]
)
Petition for Review from the District Court,
Third Judicial District, Palmer, William L.
Estelle, Judge.
Appearances: Lde Crane, in propria persona,
Wasilla, for the Petitioner. Richard K.
Allen, Assistant District Attorney, and Roman
J. Kalytiak, District Attorney, Palmer, and
David W. M rquez, Attorney General, Juneau,
for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The petitioner, Lde Crane, is currently charged with
driving while under the influence, AS 28.35.030(a), and refusal
to take a breath test, AS 28.35.032(f). He is awaiting trial in
the district court. In this petition, Crane asserts (correctly)
that he is entitled to the assistance of counsel in defending
himself against these charges. But Crane insists that he can not
obtain the assistance of counsel because there are no counselors
at law in Alaska.
Crane contends that there is a legal distinction
between counselors at law and attorneys and that there are no
counselors at law in Alaska because the Alaska Bar Association
and the Alaska Supreme Court only license attorneys. Crane
further asserts that, because he is unable to obtain the
assistance of a counselor at law, the courts of Alaska have no
jurisdiction over him. See Johnson v. Zerbst, 304 U.S. 458,
467-68; 58 S.Ct. 1019, 1024-25; 82 L.Ed. 1461 (1938) (holding
that a deprivation of the right to counsel is equivalent to a
lack of jurisdiction).
In the alternative, even assuming that the attorneys
properly licensed by the Alaska Bar Association and the Alaska
Supreme Court qualify as counselors at law, Crane argues that the
Bar Association and the Supreme Court lost their power to license
attorneys in 1976. Crane bases this argument on the fact that,
in 1976, the Alaska Legislature repealed AS 08.08.200 a statute
that specified the procedure for admission to the practice of law
and failed to enact an equivalent statute in its place.
As we explain here, the common law did in fact
distinguish between attorneys and counselors at law, but this
distinction no longer exists under Alaska law. Instead,
attorneys perform both functions. We therefore reject Cranes
assertion that there are no counselors at law in Alaska.
And it is true that, in 1976, the legislature repealed
the statute that specified the procedure for admission to the
practice of law in this state. However, in the same 1976 session
law, the legislature gave rule-making authority to the Board of
Governors of the Alaska Bar Association, so that the admission
procedure could be specified by court rule which has been done.
We therefore conclude that, even after the legislative amendments
of 1976, the Board of Governors and the Alaska Supreme Court
properly continue to certify and admit applicants to the practice
of law.
Underlying facts
Crane is charged with driving while under the
influence and refusing to take the breath test. At his
arraignment on November 23, 2004, Crane refused to
enter a plea or even listen to the courts explanation
of his situation and his legal rights because he
protested that he could not proceed without assistance
of counsel.
Crane explained his position in more detail
when he appeared in front of District Court Judge
William L. Estelle for a pre-trial hearing on January
10, 2005. Crane told Judge Estelle that he need[ed]
assistance of counsel. But when the judge asked Crane
if he was going to hire a lawyer, Crane replied that he
needed the assistance of counsel. Cranes reply led to
the following exchange:
The Court: Would you define for us, in
25 words or less, what assistance of counsel
is, if its not a lawyer?
Crane: To be truthful with you, I dont
know what the law is [on this point], and I
dont know what [the] definition of assistance
of counsel is. ... Thats why I need [the]
assistance of counsel.
Hearing this, Judge Estelle tried to assure
Crane that counsel meant the same thing as
lawyer:
The Court: [A lawyer is someone] thats
licensed to practice [law] in the State of
Alaska, [someone who has been] to college,
[to] law school, and [has passed] the bar
exam. Thats a lawyer; thats assistance of
counsel. [So,] do you intend to hire a
lawyer?
Crane: No. Im ... trying to find
assistance of counsel [who] will assist me
here, ... not represent me. ... Im not
indigent, and I do not want anybody to
appoint me a lawyer. [But] I want assistance
of counsel to assist me, and thats it. Im
not no more debate.
The Court: But ... assistance of
counsel means a lawyer. ...
Crane: I have [it] right here:
assistance of counsel, under the Sixth
Amendment. [It] does not say attorney. No
more debate. I dont want to discuss it here,
sir.
. . .
This is the book Im reading, and it says
that I have the right, under the Sixth
Amendment, of assistance of counsel. ...
And it doesnt say attorney or lawyer.
After Judge Estelle heard this
explanation of Cranes position, he told
Crane:
The Court: You can hire a lawyer or not
hire a lawyer. But you need to be on notice
that assistance of counsel in the State of
Alaska means somebody who is licensed to
practice law. Thats what assistance of
counsel means in this state. ... [Y]ou seek
to draw a distinction between assistance of
counsel and a lawyer, and an attorney or a
counselor at law, or whatever else you want
to call a lawyer, ... but it makes no
difference, legally. Assistance of counsel,
counselor at law, attorney at law, lawyer
theyre all the same thing. ... [So] you can
represent yourself, ... or you can hire
somebody to represent you.
. . .
But if you do not hire a lawyer, you are
going to be representing yourself, and youll
be held to the same rules [in presenting your
case] as lawyers are.
Crane now seeks appellate review of
Judge Estelles ruling. He renews his
argument that attorneys are not counsel for
purposes of the right to the assistance of
counsel under the Sixth Amendment to the
United States Constitution. In addition,
Crane argues in the alternative that even if
a properly admitted attorney would qualify as
counsel for these purposes, there have been
no properly admitted attorneys in Alaska for
the past thirty years because, in 1976, the
Alaska Legislature withdrew the Alaska Bar
Associations and the Alaska Supreme Courts
right to certify and admit applicants to the
practice of law.
Cranes argument that he is entitled to the assistance
of a counselor at law and that, while there may
be attorneys at law in Alaska, there are no
counselors at law
The terms attorney and counselor originally
did have differing meanings. Both words come from
Old French, the language spoken by the Normans who
conquered England in the eleventh century.
The word attorney first appeared in Anglo-
French writing in the early 1300s. At that time,
it was written aturn‚ or atorn‚.1 This word is
the past participle in English, the -ed form of
the verb aturner (or atorner). The verb aturner
literally meant to turn to, in the sense of
turning to someone for aid or assistance. It then
came to mean to turn over to, in the sense of
entrusting ones affairs to another person. Thus,
by the time the word showed up in Anglo-French
writing, aturner (or atorner) meant to assign or
appoint someone to act as your agent or
representative for any purpose, not just
lawsuits. And the word aturn‚ (or atorn‚) meant
the person who was assigned or appointed.2
We still use the word attorney in this
broader sense when we speak of giving someone a power
of attorney to transact business or make decisions on
our behalf. And the person to whom we give a power of
attorney is still called an attorney although we use
the phrase attorney in fact because, nowadays, the word
attorney standing by itself means a legal professional.
In early English law, a private attorney was
someone who was appointed (usually, hired for pay) to
act for another person in any sort of business
including, but not limited to, legal affairs. On the
other hand, a public attorney or an attorney at law was
a person who was licensed to represent people in the
courts but not represent in the full sense that we
would understand today.
An attorney at law could investigate and
prepare cases for court, and could attend court
proceedings as the personal representative of the
person whose interests were at stake. But the attorney
could not actually plead the case (i.e., could not
participate as an advocate at the hearing or trial).
That job was assigned to the counselor or counsel the
legal professional now known as a barrister in England.
The word counsel (used as a noun rather than
a verb) comes from the Old French counseil, which meant
a plan or opinion. Thus, a counselor was a person who
formulated a plan or rendered an opinion.
Again, we still use the word counselor in
this broader sense. But the word also came to mean a
professional legal advocate a person who was versed in
the law and whose profession was to plead cases in the
courts. The terms counselor and counsel, used in this
sense, first appear in Anglo-French writing in the late
fourteenth century.3
This common-law distinction between attorney
and counsel is described by William Blackstone in his
Commentaries on the Laws of England (First Edition,
1765-69), Book III, Chapter 3, pp. 25-28:4
It is also usual in the superior courts
to have attorneys, and advocates or counsel,
as assistants.
An attorney at law ... is one who is put
in the place, stead, or turn of another, to
manage his matters of law. Formerly every
suitor was obliged to appear in person, to
prosecute or defend his suit, ... unless by
special licence under the kings letters
patent. This is still the law in criminal
cases. And [an insane person] cannot to this
day appear by attorney, but [must appear] in
person; for he hath not discretion to enable
him to appoint a proper substitute ... .
But, as in the Roman law ... , so with us,
upon the same principle of convenience, it is
now permitted ... by divers antient statutes,
whereof the first is statute West. 2. c. 10,
that attorneys may be made [i.e., appointed]
to prosecute or defend any action in the
absence of the parties to the suit. These
attorneys are now formed into a regular
corps; they are admitted to the execution of
their office by the superior courts of
Westminster-hall; and are in all points
officers of the respective courts in which
they are admitted: and, as they have many
privileges on account of their attendance
there, so they are peculiarly subject to the
censure and animadversion of the judges. No
man can practise as an attorney in any of
those courts, but such as is admitted and
sworn an attorney of that particular court
... . So early as the statute 4 Hen. IV.
c. 18[,] it was enacted, that attorneys
should be examined by the judges, and none
admitted but such as were virtuous, learned,
and sworn to do their duty. And many
subsequent statutes have laid them under
farther regulations.
Of advocates, or (as we generally call
them) counsel, there are two species or
degrees[:] barristers, and serjeants. The
former are admitted after a considerable
period of study, or at least [employment], in
the inns of court; and are in our old books
stiled apprentices, apprenticii ad legem,
being looked upon as merely learners, and not
qualified to execute the full office of an
advocate till they were sixteen years
standing; at which time, according to
Fortescue, they might be called to the state
and degree of serjeants, or servientes ad
legem. How antient and honourable this state
and degree is, the form, splendor, and
profits attending it, have been so fully
displayed by many learned writers, that they
need not be here enlarged on. I shall only
observe, that serjeants at law are bound by a
solemn oath to do their duty to their
clients: and that by custom the judges of the
courts of Westminster are always admitted
into this venerable order, before they are
advanced to the bench ... . From both these
[groups] some are usually selected to be his
majestys counsel learned in the law; the two
principal of whom are called his attorney,
and solicitor, general. ... A custom has of
late years prevailed of granting letters
patent of precedence to such barristers, as
the crown thinks proper to honour with that
mark of distinction: ... These [barristers]
... rank ... with the kings counsel, and
together with them sit within the bar of the
respective courts: but receive no salaries
[from the crown], and are not sworn [in
personal allegiance to the crown]; and
therefore are at liberty to be retained in
causes against the crown. And all other
serjeants and barristers indiscriminately
(except in the court of common pleas where
only serjeants are admitted) may take upon
them the protection and defence of any
suitors, whether plaintiff or defendant; who
are therefore called their clients, like the
dependants upon the antient Roman orators.
In the eighteenth and nineteenth centuries, the word
attorney became a term of contempt in England5 so much so that
Parliament abolished the term in the Judicature Act of 1873.6
Thus, in England, the people who perform the traditional role of
attorneys at law are now known as solicitors.
However, the term attorney survived in America.
Originally, in American law, the word attorney had the same
limited meaning as under the English common law personal
representative. This older meaning is illustrated in an 1833
opinion of the Pennsylvania Supreme Court, Mercer v. Watson, 1
Watts 330, 1833 WL 3318:
[P]arties are technically and properly
said to appear [in] suits by attorney and not
by counsel ... . Counsellor and counsel are
terms familiar to the law. [The] province
[of these professionals] is not simply to
appear [in] actions [as the personal
representative of the party], [rather] it is
to conduct the suit by their advice and
advocacy through all of its progress and in
the difficult emergencies [nowadays, we would
say developments or contingencies] of a trial
by jury and of arguments before the court.
. . .
In England, attorneys, and counsel or
barristers, constitute separate and distinct
orders of the legal profession; and a
barrister or counsellor cannot act as an
attorney, unless he first apply to his
society to be disbarred. Attorneys at law,
properly so called, were introduced by the
statute of Westminster, 2 C. 10, by which
suitors were first permitted to appoint
agents in their place, stead or turn, to
manage their matters of law in their absence;
[before] which, parties were obliged to
appear in person to prosecute or defend their
suits ... . Yet it seems, says Stephens,
author of the learned and elegant treatise on
the principles of pleading, that this is only
to be understood [as] appearance by attorney,
and not the conduct of the suit after
appearance [is] once made. ... [P]leaders,
counsel and advocates ... [meaning] persons
learned in the law, and skilful in pleading
causes, [were recognized in England] as early
as the reign of William Rufus. [William II,
who reigned from 1087 to 1100] Appearance by
attorney, and appearance by counsel in a
cause, are distinctly different: the former
being the substitution of a legal agent for
the personal attendance of the suitor; the
latter, the attendance of an advocate,
without whose aid, neither the party
attending [personally], nor the attorney
[attending] in his stead, could safely
proceed.
Mercer v. Watson, 1833 WL 3318 at *13, *17.
Nevertheless, even at the time of Mercer v. Watson, the
lines between attorney and counselor were blurring in
American legal practice because the same legal
professionals normally performed both functions.
As indicated by the passage from Blackstone, and as
indicated by the Pennsylvania courts opinion in Mercer v. Watson
(1833 WL 3318 at *17), both attorneys and counsellors at law were
regulated and licensed by the government. Moreover, the opinion
in Mercer v. Watson shows that, by the 1830s, American law had
already departed from the English rule described in Mercer v.
Watson the rule that the office of attorney was completely
separate from the office of counselor, and that no counselor or
barrister could take on the role of attorney without first
resigning his office (asking to be disbarred). Rather, in
America (or, at least, in Pennsylvania in 1833), counsel are
always attorneys, and [under our rules] members of the bar are
admitted to practice ... either as attorneys or counsellors.
Mercer v. Watson, 1833 WL 3318 at *17.
In fact, the Pennsylvania court noted that the formal
procedures that distinguished attorneys from counselors were
breaking down and falling into disuse. The court discussed the
fact that, under Pennsylvania law, a counselor who was also
functioning as the attorney in a case that is, a counselor whose
client was absent from court, so that the counselor was
performing the double duty of legal advocate and personal
representative of the client was supposed to file a separate
document (a warrant of attorney what we would now call a power
of attorney) that attested to the fact that their client had
appointed them to be their attorney (in the narrow sense of the
word). Despite the existence of this law, the Pennsylvania court
acknowledged that it is not the practice, and ... never has been,
in this state, [for counselors at law] to file ... warrants of
attorney; [and yet they] still ... receive their fees and speak
[for their clients], without their authority ever being
questioned. Mercer v. Watson, 1833 WL 3318 at *17.
This merging of the two roles of counselor and attorney
continued in America to the point where, today, many legal
professionals would be unable to correctly describe the common-
law distinction between counselor and attorney at law unless they
performed legal research of the sort described above. But for
purposes of resolving the arguments raised by Crane in this
petition, the important thing is that, as a matter of Alaska law,
the term attorney now encompasses both meanings.
Alaska Bar Rule 63(b) defines the practice of law as
either ... representing another before a court or governmental
body ... , including the submission of pleadings, or[,] for
compensation, providing advice or preparing documents for another
which affect legal rights or duties.
In other words, Alaskas definition of the practice of
law includes both the common-law role of an attorney (that is, a
person who agrees to be the personal representative of a client
who is absent from court) and the common-law role of a counselor
(that is, a person who gives legal advice, submits court
documents, and pleads a clients case in court). Indeed, Alaska
Bar Rule 9(a) declares:
The license to practice law in Alaska is
a continuing proclamation by the supreme
court of the State of Alaska ... that the
holder is fit to be entrusted with
professional and judicial matters and to aid
in the administration of justice as an
attorney and counselor, and to act as an
officer of the courts.
Throughout our bar rules, the word attorney
is used as a synonym for someone licensed to
practice law.7
Thus, under Alaska law, the word
attorney is defined more broadly than it was
two centuries ago at common law. Attorney
now means someone who is authorized to
perform both the role of an attorney and the
role of a counselor (as those words were
understood in the past).
For these reasons, Crane is
mistaken when he claims that there are no
counselors at law in Alaska. Under Alaska
law, every person who is licensed as an
attorney is authorized to engage in the same
activities that, under the common law, were
performed by counselors.
For similar reasons, we reject
Cranes assertion that it is unlawful for a
defendant in a criminal case to be
represented by an attorney. Cranes assertion
is true only when the word attorney is used
in its narrow common-law sense of a personal
representative who could come to court as a
substitute for a party, thus allowing the
party to be absent from court.
Blackstone, in the passage we
quoted previously, speaks of the rule that a
criminal defendant must personally attend the
proceedings:
An attorney at law ... is one who is put
in the place, stead, or turn of another, to
manage his matters of law. Formerly every
suitor was obliged to appear in person, to
prosecute or defend his suit ... . This is
still the law in criminal cases.
Thus, at common law, although a
defendant in a criminal case might have the
assistance of counsel (i.e., the assistance
of a counselor at law or barrister), a
defendant could not appoint an attorney (in
the older, narrow sense) to be their agent
for the purpose of appearing in court as a
substitute for the defendant during the
proceedings. Instead, the defendant had to
be personally present in court.
(Alaska still follows this rule in
felony cases see Alaska Criminal Rule 38(a)
although the rule is relaxed in misdemeanor
cases. Alaska Criminal Rule 38(c)(2)
declares that, [i]n prosecutions for offenses
punishable [only] by fine or by imprisonment
for not more than one year, ... the court,
with the written consent of the defendant,
may permit arraignment, plea, trial, and
imposition of sentence in the defendants
absence.)
But as we have already explained at
length, Alaska law now defines the word
attorney in a broader sense than its common-
law meaning. Under Alaska law, an attorney
is someone who is authorized to perform both
the common-law role of an attorney (that is,
a person who agrees to be the personal
representative of a client who is absent from
court) and the common-law role of a counselor
(that is, a person who gives legal advice,
submits court documents, and pleads a clients
case in court). We therefore reject Cranes
assertion that criminal defendants can not be
represented by attorneys.
Cranes argument that the Board of Governors of the
Alaska Bar Association and the Alaska Supreme
Court lost their authority to certify and admit
applicants to the practice of law in 1976
In 1955, the territorial legislature of
Alaska passed our first integrated bar act a law
requiring all people who practice law in Alaska to
be licensed by, and to be a member of, the Alaska
Bar Association. See Laws 1955, ch. 196, which
was codified in Title 35 of the Alaska Compiled
Laws Annotated (Business and Professions) as
35-2-77a 35-2-77o.8
Under section 8 of the 1955 act, codified as
35-2-77h, the Board of Governors of the Alaska Bar
Association was given the power to adopt rules
fixing the qualifications, requirements and
procedure for admission to the practice of law,
except as otherwise provided in this Act [ 35-2-
77a 35-2-77o herein]. (Bracketed material in the
original) In other words, the Board of Governors
could adopt rules governing these matters, but
only to the extent that the legislature had not
already enacted rules on these same matters.
And, in fact, other sections of the 1955 act
did specify many rules governing eligibility for
admission to the bar and the procedure for obtaining
admission to the bar. See sections 9 and 11 of Laws
1955, ch. 196 codified as 35-2-77i and 35-2-77k,
respectively.
The section of particular importance to
Cranes petition for review is 35-2-77k. This statute
(as amended following statehood by SLA 1960, ch. 178,
5) read:
Procedure for Admission. The Board of
Governors shall pass upon all applications
for permission to practice law before the
courts of Alaska, and when satisfied that an
applicant has the requisite qualifications to
practice as an attorney and counselor, the
Board shall so certify to the Supreme Court
of Alaska. Upon receiving such
certification, unless objection be raised
there[to] within five days, the Court shall
make an order admitting the applicant, and
the Clerk shall issue him a certificate of
admission. [9]
In 1962, Alaska law was reorganized
into its present form as the Alaska
Statutes.10 The business and professions
code (what had been ACLA Title 35) was
transferred to a new business and professions
code, AS 08.08. And in this process, 35-2-
77k became AS 08.08.200. The language quoted
above was altered somewhat in AS 08.08.200,
but the differences are merely stylistic.
Former AS 08.08.200 read:
Procedure for admission. The board
shall pass upon all applications for
admission to the Alaska Bar. When the board
is satisfied that an applicant has fulfilled
the requirements for admission to the bar,
the board shall so certify to the supreme
court of the state. Upon receiving the
certification, unless objection is raised
within five days, the court shall make an
order admitting the applicant as an attorney
at law in all the courts of the state. A
certificate of admission shall thereupon be
given to the applicant by the clerk of the
court.
Crane concedes that if attorneys
are indeed counselors at law (and, in the
preceding section of this opinion, we have
just held that they are), then ACLA 35-2-77k
and its successor, AS 08.08.200, authorized
the Board of Governors of the Alaska Bar
Association to certify, and the Alaska
Supreme Court to approve and admit, all
qualified applicants as attorneys and
counselors.
But in 1976, the legislature
revised the statutes governing attorneys and
the practice of law (AS 08.08). See SLA
1976, ch. 181. As part of this 1976
revision, the legislature repealed
AS 08.08.20011 and did not enact a
substitute statute addressing this same
topic.
Based on the legislatures repeal of
AS 08.08.200, Crane argues that the
legislature took away the Board of Governors
power to certify applicants as qualified to
practice law, and likewise took away the
Alaska Supreme Courts power to approve and
admit new attorneys. Thus, Crane contends,
if there are any counselors at law in Alaska,
they had to have been admitted before AS
08.08.200 was repealed in 1976.
Cranes argument overlooks two
things. First, although the legislature may
have the power to abolish the Board of
Governors control over admission to the
practice of law, the legislature can not
strip the judicial branch of this power.
This principle that the judicial branch has
ultimate control over admission to the
practice of law was announced in the pre-
statehood decision of In re Paul, 17 Alaska
360, 366 (D. Alaska Terr. 1957): [S]ince an
attorney is an officer of the court, whether
he shall be admitted to practice before the
court is a judicial and not a legislative
question. Following statehood, this same
principle was reaffirmed by our supreme court
in Application of Stephenson, 511 P.2d 136
(Alaska 1973):
[U]nder [this] courts inherent powers
over admission to practice law, [a bar] rule
[specifying the qualifications for practicing
law] would be enforceable regardless of [a]
more lenient [statutory] requirement[.] As
we stated in Application of Houston[, 378
P.2d 644, 645 (Alaska 1963)],
We have taken jurisdiction [of this
case] pursuant to that provision of the
Alaska Constitution vesting the judicial
power of the state in this court and
under the rule followed by the great
majority of the states which holds that
the supreme court of a state has the
inherent and final power and authority
to determine the standards for admission
to the practice of law in that state.
In adopting the majority rule, we
recognize that the legislature may enact
laws governing admission to practice
law[,] but [we] hold that it may not
require this court to admit on standards
other than those accepted or established
by the court.
[We] take this opportunity to reiterate our
holding in Application of Houston as to our
inherent and final power and authority to
determine the standards for admission to the
practice of law in Alaska.
Stephenson, 511 P.2d at 140-41 (citations and footnotes omitted).
Second, and equally as important, the 1976 re-writing
of AS 08.08 did not abolish the Board of Governors authority to
determine the qualifications for admission to the practice of law
in this state, and to certify applicants who meet those
qualifications to the Alaska Supreme Court, so that the court may
license these applicants as attorneys.
It is true that the legislature repealed AS 08.08.200,
the statute that formerly defined the procedure for admission to
the practice of law in Alaska. But in the same session law (SLA
1976, ch. 181), the legislature repealed and re-enacted another
statute, AS 08.08.080, adding a new subsection (b) in the
process. This new subsection (b) in particular, subsection
(b)(1) gave the Board of Governors the authority to approve and
recommend to the state supreme court ... rules concerning
admission [to] ... and defining the practice of law. See former
AS 08.08.080(b)(1) (the 1976 version, as enacted by SLA 1976, ch.
181, 5). (This same language is now found in AS 08.08.
080(a)(1).)
In other words, even though the legislature deleted the
statutory provisions that specified the procedures for admission
to the practice of law, the legislature at the same time gave the
Board of Governors rule-making authority to establish substitute
procedures in the Alaska Bar Rules. The Board of Governors, in
conjunction with the Alaska Supreme Court, has exercised that
authority in Alaska Bar Rules 1 through 9.
Bar Rule 1, section 2, declares: Only those persons
who fulfill all requirements for admission as provided [in the
Bar Rules] shall be admitted to the practice of law in the State
of Alaska ... .
The bar rules specify the education and/or training
that applicants must have; see Bar Rule 2, sections 1(b) and 3(a)-
(c). The bar rules further specify that applicants must pass the
bar examination approved by the Board of Governors; see Bar Rule
1, section 3, Bar Rule 4, and Bar Rule 5, section 1(a)(1). In
addition, the bar rules specify that applicants must pass an
examination testing their knowledge of the rules of professional
conduct (the Multistate Professional Responsibility Examination);
see Bar Rule 4, section 4, and Bar Rule 5, section 1(a)(2).
Moreover, applicants must demonstrate that they are people whose
conduct justifies the trust of clients, adversaries, courts[,]
and others with respect to the professional duties owed to them;
Bar Rule 2, section 1(d).
Bar Rule 4, section 4, states that after the bar
examination is graded, the Board of Governors will certify a list
of qualified applicants for admission to the practice of law, and
will transmit this list to the Alaska Supreme Court for approval:
The board shall certify to the supreme
court the results of the bar examination and
its recommendations as to those applicants
who are determined [to be] qualified for
admission to the practice of law and who have
complied with the provisions of [Bar] Rule 5.
In turn, the Alaska Supreme Court, [u]pon
receiving certification of the eligibility of
an applicant[,] ... may enter an order
admitting the applicant as an attorney at law
in all the courts of the state and to
membership in the Alaska Bar Association.
Bar Rule 5, section 3.
Attentive readers will see that
these two provisions, taken together, closely
track the language that formerly appeared in
the now-repealed AS 08.08.200. Under the
procedures specified in the bar rules, the
Board of Governors still determines who is
qualified and eligible to practice law; the
Board then certifies a list of qualified
applicants to the supreme court; and the
supreme court then enters an order formally
admitting those certified applicants to the
practice of law basically the same process
that existed when former AS 08.08.200 was in
effect.
True, this procedure for admission
to the practice of law is now specified in
the bar rules rather than in a statute. But,
as we explained above, the legislature has
authorized this.
For these reasons, we conclude that
the 1976 amendments to AS 08.08 did not
abolish the authority of the Board of
Governors and the Alaska Supreme Court to
establish the qualifications and the
procedure for admission to the practice of
law in Alaska. The Board of Governors still
lawfully screens applicants and then
certifies qualified applicants to the supreme
court, and the supreme court still lawfully
admits qualified applicants to the practice
of law.
Conclusion
For the reasons we have explained here, we
AFFIRM the district courts ruling that
representation by an attorney authorized to
practice law in Alaska is the assistance of
counsel guaranteed by the Sixth Amendment to the
United States Constitution. All of the attorneys
licensed to practice law in Alaska are in fact
counselors as that term was understood at common
law.
In addition, we reject Cranes assertion that
no attorneys have been properly licensed in Alaska
since 1976. The Board of Governors and the Alaska
Supreme Court continue to have the authority to
certify and admit attorneys.
Thus, if Crane employs an attorney who is
authorized to practice law in this state, he will
receive the assistance of counsel to which he is
entitled under the federal and state
constitutions.
If, despite our ruling, Crane still does not
wish to hire an attorney to represent him, he can waive
his right to counsel and choose to represent himself.
Moreover, as the district court has already informed
Crane, if Crane deliberately refrains from hiring an
attorney, his failure to hire an attorney can be
treated as a waiver of his right to counsel. However,
before the district court either accepts a verbal
waiver of counsel from Crane or makes a finding that
Crane, by deliberate inaction, has waived his right to
counsel, the district court must explain to Crane (1)
the benefits of counsel and (2) the dangers of self-
representation.
We recently emphasized this requirement in
Gladden v. State, 110 P.3d 1006 (Alaska App. 2005),
another case where a defendant refused to hire an
attorney because the defendant maintained that
attorneys were not counselors. We urge Cranes trial
judge to read Gladden, 110 P.3d at 1009-1012, and then
to make sure that Crane is fully informed of the
consequences of his decision.
_______________________________
1 See www.etymonline.com, Attorney.
2 Id.
3 See www.etymonline.com, Counsel (noun).
4 The complete text of the first edition of Blackstones
Commentaries is available online from the Yale University
Law Schools Avalon Project. See
http://www.yale.edu.lawweb/avalon/blackstone/blacksto.htm .
5 For example, in James Boswells biography of Samuel
Johnson (Life of Johnson, 1791), the following passage appears:
Much enquiry having been made concerning a gentleman, who had
quitted a company where Johnson was, and no information being
obtained; at last Johnson observed, that he did not care to speak
ill of any man behind his back, but he believed the gentleman was
an attorney. Life of Johnson, Vol. 2, p. 36. (It should be
noted that Boswell was himself an attorney.)
6 See www.etymonline.com, Attorney.
7 For example, see the following Alaska Bar Rules: Rule
1, section 1(b); Rule 2, section 1(d)(10); Rule 2, section
2(a)(2); Rule 2, section 2(c)(2); Rule 5, section 1(a)(6);
Rule 5, section 3; Rule 7, section 5; Rule 9(c); Rule 9(e); Rule
10(c); Rule 10(e); Rule 11(a); Rule 11(b); Rule 11(d)(3); Rule
12(a)(2); Rule 12(d); Rule 12(e); Rule 12(g)(4); Rule 12(j); Rule
13(a); Rule 13(c); Rule 13(g); Rule 14(3); Rule 15(a)-(c); Rule
21(c)(5); Rule 22(b); Rule 24(a); Rule 26(a)-(h) & (k);
Rule 27(a); Rule 28(a)-(f) & (h)-(j); Rule 29(a)-(c) & (e)-(f);
and Rule 30(a)-(i).
8 For the pre-1955 statutes governing attorneys, see ACLA
(1949) 35-2-21 35-2-77. These statutes were
originally enacted in Laws 1941, ch. 32.
9 As originally enacted in 1955, this statute called upon
the Board of Governors to send its certification to the U.S.
District Court for the Judicial Division in which the
applicant resides. The next sentence then correctly stated,
unless objection be raised thereto within five days, ... .
In 1960, following statehood, when the legislature changed
the reference from the U.S. District Court to the Supreme
Court of Alaska, the legislature also (mistakenly) changed
the word thereto to therein.
10 See SLA 1962, ch. 16, 1-2, in which the legislature
adopted the bulk reorganization of the laws of Alaska
prepared by the Alaska Legislative Council under the
authority of SLA 1960, ch. 17, 7.
11 See SLA 1976, ch. 181, 11.
