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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RICHARD M. GROVE, )
) Court of Appeals No. A-10622
Appellant, ) Trial Court No. 3GL-07-46 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2309 - May 27, 2011
)
Appeal from the Superior Court, Third Judicial District,
Glennallen, Daniel Schally, Judge.
Appearances: David E. George, Anchorage, for the Appellant.
Michael Sean McLaughlin, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Richard M. Grove, who faced felony charges in the superior court, entered
into a plea agreement with the State; under this agreement, Grove pleaded guilty to third
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1 2
degree assault and felony eluding a police officer. During the negotiations leading up
to this plea agreement, and at the entry of plea and sentencing, Grove was represented
by James Wheeler. Wheeler was an employee of the Alaska Public Defender Agency.
He was a law school graduate, but he was not a licensed attorney.
After Grove was sentenced, he filed a petition for post-conviction relief in
which he asserted that he had been denied the assistance of counsel. Grove contended
that Wheeler had been practicing law as a "legal intern" for the Public Defender Agency
under Alaska Bar Rule 44, and that Wheeler had violated the terms of his internship by
appearing in court and representing Grove without the supervision of a licensed attorney.
(Section 5(a) of Bar Rule 44 states that legal interns may appear and participate in
superior court proceedings "if the [licensed] attorney representing the client is personally
present and able to supervise the intern." A legal intern can be either a law student or a
law school graduate.)
The State responded that Wheeler had not been practicing law as a legal
intern under Bar Rule 44, but rather had been practicing law under the authority of
AS 08.08.210(d). This statute provides:
Employees of the Department of Law, the Public Defender
Agency, and the Office of Public Advocacy, whose activities
would constitute the practice of law ... are required to obtain
a license to practice law in Alaska no later than 10 months
following the commencement of their employment.
1 AS 11.41.220.
2 AS 28.35.182(b).
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The State argued that, under this statute, Wheeler could represent clients on behalf of the
Public Defender Agency for up to ten months without being licensed as an attorney, and
without a supervising attorney being present.
The superior court adopted the State's position on this matter and denied
Grove's petition for post-conviction relief. Grove now appeals the superior court's
decision.
In his brief to this court, Grove takes the position that attorneys practicing
under the authority of AS 08.08.210(d) should be subject to Bar Rule 44. In other words,
he argues that AS 08.08.210(d) is a statute that purports to exempt legal interns from the
requirements of Alaska Bar Rule 44 if the interns are practicing law on behalf of the
Department of Law, the Public Defender Agency, or the Office of Public Advocacy. If
this were indeed the case - that is, if the Alaska Legislature enacted AS 08.08.210(d)
for the purpose of abrogating or relaxing the rules and requirements governing legal
interns under Bar Rule 44 - then AS 08.08.210(d) would probably be invalid.
The Alaska Supreme Court has repeatedly held that the judicial branch of
government, not the legislative branch, has the authority to regulate the practice of law
and to set the rules that define who will be allowed to practice law.3 In particular, the
supreme court has repeatedly held that when there is a conflict between a statute and a
bar rule regarding the rules that define who is eligible to practice law, the bar rule
controls - because bar rules are enactments of the supreme court. As the supreme court
3 Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 165 (Alaska
1991);Application of Stephenson , 511 P.2d 136, 140-41 (Alaska 1973);Application of Park ,
484 P.2d 690, 691 (Alaska 1971); Application of Houston , 378 P.2d 644, 645 (Alaska 1963).
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stated in Application of Houston ,4 "the legislature ... may not require this court to admit
[persons to the practice of law] on standards other than those accepted or established by
this court."5
Thus, the ultimate question is whether the challenged statute, AS 08.08.
210(d), conflicts with Alaska Bar Rule 44, or whether the statute establishes an
alternative method - i.e., a method apart from the internships defined in Bar Rule 44 -
for authorizing law school graduates to practice law even though they have not been
admitted to the practice of law by the Alaska Bar Association in the normal manner, and
whether this alternative method has been accepted by the Alaska Bar Association.
We have examined the website maintained by the Alaska Bar Association,
and it is apparent that the Bar Association treats AS 08.08.210(d) as a separate
authorization to practice law, different from the authorization given to legal interns under
Bar Rule 44. According to the Bar Association's web site, a person may apply to
practice law either under the statute (which the Bar refers to as the "10-month rule") or
under Bar Rule 44. The Bar Association sets forth different application processes
depending on whether the applicant is seeking authorization to practice law under the
statute or the bar rule.6
It is possible to argue that, because AS 08.08.210(d) provides an additional
method for law school graduates to practice law in this state, the statute does not simply
augment the Alaska Bar Rules, but rather conflicts with the Bar Rules. But our decision
4 378 P.2d 644 (Alaska 1963).
5 Houston, 375 P.2d at 645.
6 See Alaska Bar Assoc., https://www.alaskabar.org/servlet/content/admissions.html
(follow "legalinterns/waivers/pro hac vice" hyperlink) (last visited Mar. 29, 2011).
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on this issue must be shaped by the fact that the Alaska Bar Association does not
perceive a conflict between the statute and the bar rules.
The Bar Association is the agency charged with policing the practice of law
and with determining which persons are eligible to practice law. Accordingly, we must
defer to the Bar Association's interpretation of this matter unless we are convinced that
the Bar Association's interpretation is clearly untenable or unreasonable. As the supreme
court stated in Wilber v. Commercial Fisheries Entry Commission,7 "[w]hen the
interpretation of a statute or other question of law implicates agency expertise as to
complex matters or as to the formulation of fundamental policy, we defer to the agency's
interpretation so long as it has a reasonable basis in the law."8
The issue of whether AS 08.08.210(d) conflicts with Bar Rule 44 or
whether, instead, the statute provides an alternative method for law school graduates to
practice law in Alaska is a matter involving "the formulation of fundamental policy."
And the Bar Association's conclusion - that the statute does not conflict with the bar
rule - does not appear to be clearly untenable or unreasonable.
Indeed, while this opinion was undergoing technical review by the staff of
this court, the Alaska Supreme Court resolved any doubt on this issue by amending Bar
Rule 44 to explicitly acknowledge AS 08.08.210(d) as a discrete method by which a
person can be authorized to practice law in this state.
On March 18, 2011, the supreme court issued Supreme Court Order No.
1708. This order, which took effect on April 1, amended Bar Rule 44 by adding a new
section - Section 8 - that addresses the practice of law under AS 08.08.210(d):
7 187 P.3d 460 (Alaska 2008).
8 Id. at 465 (quotations omitted).
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Practice of Law Under Statutory Authority. To be
eligible to practice law without a license under the provisions
of AS 08.08.210(d), a person must meet the eligibility
requirements for obtaining a legal permit listed in Section
3(c)(1), (2), and (3) of this rule. Persons practicing under
AS 08.08.210(d) must obtain a license to practice law in
Alaska no later than 10 months following commencement of
their employment. The authority for those persons to practice
law terminates upon the failure of that person to pass any bar
examination administered by Alaska or any other state of the
United States or the District of Columbia.
With the enactment of Section 8 of Bar Rule 44, the supreme court has
formally ratified the position adopted by the Bar Association: the view that AS 08.08.
210(d) establishes an alternative method, separate from the internships defined in Bar
Rule 44, for authorizing law school graduates to practice law even though they have not
been admitted to the practice of law by the Alaska Bar Association in the normal manner.
The supreme court's enactment of Section 8 of Bar Rule 44 also answers
an objection that Grove raises to the specific content of the statute.
In his brief to this court, Grove argues that AS 08.08.210(d) is unreasonable
on its face - because, unlike the internships defined by Bar Rule 44, the authority to
practice law granted by the statute is not explicitly limited to law school graduates or
upper division law students. The statute merely refers to "employees" of the Department
of Law, the Public Defender Agency, and the Office of Public Advocacy. Grove argues
that the statute is written so broadly that any employee of these agencies - even those
not trained in law - could theoretically practice law for up to ten months.
It is true that AS 08.08.210(d) does not explicitly require the agency
employee to have a legal education, but we believe that this requirement is implicit in the
statute. The statute declares that all persons practicing law under the statute "are
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required to obtain a license to practice law in Alaska no later than 10 months following
the commencement of their employment." This requirement to obtain a license to
practice law within the next 10 months makes sense only if the agency employees
mentioned in the statute either (1) are eligible to take the next Alaska bar examination
under the various provisions of Alaska Bar Rule 2, or (2) have already taken the Alaska
bar examination and are awaiting the results, or (3) are already licensed to practice law
in another jurisdiction and are eligible to be admitted upon motion pursuant to Section 2
of Bar Rule 2. We therefore hold that, at the time of the litigation in Grove's case,
AS 08.08.210(d) required employees of the Public Defender Agency practicing under
AS 08.08.210(d) to have met one of the foregoing criteria.
We note that, effective April 1, 2011, the newly enacted Section 8 of Bar
Rule 44 addresses and resolves this same issue.
The first sentence of Section 8 declares: "To be eligible to practice law
without a license under the provisions of AS 08.08.210(d), a person must meet the
eligibility requirements for obtaining a legal permit listed in Section 3(c)(1), (2), and (3)
of [Bar Rule 44]." Under these three referenced clauses of Section 3(c), a person
practicing law under the authority of the statute (1) must be a graduate of an accredited
American law school (or the graduate of an equivalent foreign law school); (2) must
never have failed the Alaska bar examination; and (3) must never have failed a bar
examination administered by any other American jurisdiction unless, after failing the
examination, the person subsequently passed a bar examination administered by an
American jurisdiction.
The Alaska Supreme Court has the authority to set the rules that define who
will be allowed to practice law, despite any contrary statutes enacted by the legislature.
Thus, even if the legislature did not envision these precise requirements when it enacted
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AS 08.08.210(d), the new provisions of Section 8 of Bar Rule 44 take precedence.
Beginning April 1, 2011, these provisions govern the practice of law under
AS 08.08.210(d).
For the reasons explained here, we agree with the superior court that James
Wheeler, a law school graduate and an employee of the Public Defender Agency, was
validly practicing law under AS 08.08.210(d) when he represented Grove. The judgment
of the superior court is AFFIRMED.
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MANNHEIMER, Judge, concurring.
I write separately to discuss the legislative origins of the "ten-month rule"
codified in AS 08.08.210(d), and the apparent rationale for this rule.
This statute was originally enacted in 1976; see SLA 1976, ch. 181, § 9.
The underlying session law (SLA 1976, ch. 181) began life in 1975 as Senate Bill 296
(9th Legislature). The bill was introduced in March 1975 1 and it passed the Senate the
next month. 2 However, the House did not take up Senate Bill 296 in earnest until the
following year (1976). 3
The House eventually passed Senate Bill 296, but only after the House
amended the bill in several ways. 4 The "ten-month rule" was the result of an eleventh-
hour amendment offered by Representative Fred Brown during the House floor debate.
According to the 1976 House Journal at pages 934-35 (April 14, 1976), the
House first voted to adopt the amended version of Senate Bill 296 authored by the House
Rules Committee; then, various members of the House offered amendments from the
floor to the Rules Committee's version of the bill. The first of these amendments was
Representative Brown's proposal to amend the section that ultimately became
AS 08.08.210(d) by adding the phrase "no later than ten months following the
commencement of their employment" to the end of the sentence. (This sentence
1 See 1975 Senate Journal 502.
2 See 1975 Senate Journal 775.
3 See 1975 House Journal 853 and 1976 House Journal 399.
4 See 1976 House Journal 924 and 934-37.
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formerly ended with the word "Alaska"). This amendment was adopted by unanimous
consent.
The 1976 House Journal contains no description of Representative Brown's
rationale for adding this limiting clause. But the ten-month period appears to be based
on the frequency with which the Alaska bar examination is given.
The Alaska bar examination is administered twice yearly, at the end of
February and at the end of July. It takes approximately ten to twelve weeks for the Bar
Association to assess the examination results and to engage in the other necessary
inquiries to determine which applicants will be certified to the supreme court for
admission to the bar. The Bar Association publishes the list of successful applicants in
May (for the February exam) and October (for the July exam), and the installation
ceremonies for new attorneys are generally held in mid-May (for the February exam) and
mid-October (for the July exam).
Thus, if a person arrives in Alaska and begins working for the Department
of Law, the Public Defender Agency, or the Office of Public Advocacy in early August
(i.e., shortly after the July bar examination is given), they will have to wait until the
following February to take the bar exam. And even if they successfully pass the exam,
they will not become members of the bar until the middle of May - in other words,
nearly ten months after their arrival.
This, I believe, is the rationale for the ten-month period specified in
AS 08.08.210(d). And given this rationale, AS 08.08.210(d) clearly envisions that the
agency employees covered by the statute will have a legal education, and that they will
be eligible to take the next Alaska bar examination - or that they will otherwise be
admitted to the Alaska bar within the ten-month period because (1) they have already
taken the Alaska bar examination and are waiting for the results, or because (2) they are
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already licensed to practice law in another jurisdiction and are eligible to be admitted
upon motion pursuant to Section 2 of Bar Rule 2.
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