OPINION: Alaska Bar Association’s complaint system protects the powerful at victims’ expense

The Alaska Bar Association (ABA) has a complaint system in place that I believe protects powerful men from consequences and silences victims of sexual harassment and fraud. This should concern every Alaskan, and particularly members of the legal profession who see justice as an essential pillar of good government.

For those unfamiliar with the ABA, the organization exists to regulate the legal profession in Alaska. It provides professional development to its membership, enforces rules of professional conduct, and ensures that many needy Alaskans receive free legal services.

The ABA is more than your run-of-the-mill professional organization; it is integral to Alaska’s legal system. It operates with relative autonomy to oversee ethical legal practices, and this self-governance means it must ensure that its regulations are in the public interest.

The problems with their complaint process are best examined through the lens of a specific example, so let’s discuss the very public case of former Attorney General Kevin Clarkson, who resigned in disgrace after sending 558 text messages to a junior state employee over the course of about a month. In news reports, we learned that these messages were often punctuated with kissy-face emojis and comments about the woman’s beauty.

If you were the victim of similar workplace sexual harassment by a powerful lawyer, or if you were treated unprofessionally, discriminated against, or defrauded as their client, you might lodge a complaint with the ABA. And perhaps the victim in this case did lodge such a complaint, but Alaskans will never know. This is because the Bar Association Rules require strict confidentiality around disciplinary proceedings. Once a victim has made a complaint, they can’t discuss that complaint or how it’s proceeding. If they do, they can be held in contempt of court.

This threat of contempt of court charges, a power not available to other professional organizations, effectively silences victims and forces them to navigate a complex system without aid from friends, family, community, or even their elected representatives in the legislature. It also prevents a victim from speaking to the press about matters related to the complaint, even when it is in the public interest to do so.

Getting back to the case of former Attorney General Kevin Clarkson, it’s impossible to know if a complaint was made by the victim. It’s impossible to know if several complaints were made and if this was perhaps an ongoing pattern of behavior. If a complaint was made, it’s impossible to know how that complaint was adjudicated by the Bar Association. And worse yet, if a complaint was mishandled or handled unfairly, the victim’s only option is to appeal one last time to the ABA and then never to speak of it again.

As members of the public, all we get to see is that Clarkson received no admonition, not even a slap on the wrist, from the Alaska Bar Association. He continues to practice law in Alaska with no repercussions for his actions despite clearly violating rules of professional conduct. Was this even discussed by the Alaska Bar Association? The public doesn’t get to know, because the process is completely and unnecessarily opaque.

The ABA’s Rules of Professional Conduct seem to say that with great power comes great responsibility: “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

Does greater responsibility mean greater accountability when the public trust is betrayed?

Another Dunleavy appointee, former Attorney General Ed Sniffen, was indicted by a grand jury on three counts of sexual abuse of a minor by an authority figure. His case was dismissed because too much time had passed for him to be charged with the alleged 1991 crime. But no such statute of limitations exists in the ABA’s Rules of Professional Conduct.

Was a complaint ever filed? Was it rejected? Is a complaint, even now, working its way through a lengthy review process? The public doesn’t get to know unless his victim wants to flirt with being held in contempt of court.

Why might the Alaska Bar Association choose to be so secretive about their disciplinary proceedings if not to protect these powerful men from consequences?

It’s been explained to me that one reason for this strict confidentiality is to protect the reputation of those in the legal profession from frivolous complaints.

I think we’re perhaps a little too good at protecting the reputations of powerful men. If the consequence is silencing victims and hiding this process out of the sight of journalists and members of the public, it doesn’t seem like the scales balance. It certainly doesn’t serve the public interest.

One final wiggle. The rule dealing with complaints about attorneys states that confidentiality must be maintained “prior to” the initiation of formal proceedings. I was informed by the Alaska Bar Association that they interpret this “prior to” language to mean “unless.” That is, unless formal proceedings are initiated, the duty of confidentiality is maintained. Forever.

Pat Race is a small-business owner and a founding member of Alaska Robotics, a group in Juneau publishing short films, comics and many other creative works.

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