Givens v. Oenga Jr.

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RAYMOND C. GIVENS )
)
Plaintiff, )
)
vs. )
)
LEROY OENGA, JR., )
) No. 3:21-cv-0008-HRH
Defendant. )
_______________________________________)
O R D E R
Motion for Reconsideration
Plaintiff Raymond C. Givens moves1 for reconsideration of the court’s amended
order2 on defendant Leroy Oenga, Jr.’s motion to dismiss. The court permitted defendant to
file a response to the motion for reconsideration, which defendant timely filed.3 The court
also permitted plaintiff to file a reply brief, which plaintiff has timely filed.4 In addition, the
1Docket No. 44.
2Docket No. 42.
3Docket No. 47.
4Docket No. 49.
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court asked the parties “to consult and consider seeking an opinion from bar counsel with
respect to the interpretation of Alaska Bar Rule 34(c)(1).”5 The parties did so and have
provided the court with an opinion from Bar counsel, dated August 16, 2021.6 Plaintiff has
responded to Bar counsel’s opinion in his opposition7 to defendant’s motion for a stay of
proceedings.8 In turn, defendant has responded to some of plaintiff’s arguments related to
the Bar counsel’s opinion in his reply to his motion for a stay of proceedings.9 Oral argument
was not requested on the motion for reconsideration and is not deemed necessary.
Background
This case involves an attorney fee dispute arising out of plaintiff’s representation of
the Oenga heirs, which included defendant’s father. The Oenga heirs claimed that “the U.S.
Department of Interior, Bureau of Indian Affairs (‘BIA’), [had] breach[ed] its fiduciary
duties to them in approving a lease of a restricted Native Allotment, located at Point Heald,
east of Prudhoe Bay, Alaska. . . .”10 At the time plaintiff was representing the Oenga heirs,
5Order re Motion for Reconsideration at 1 n.3, Docket No. 45.
6Docket No. 50.
7Docket No. 51.
8Docket No. 48.
9Docket No. 52.
10Complaint [etc.] at 2, ¶ 6, Docket No. 1.
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he “was admitted to practice law in Washington State and Idaho. . . .”11 Under plaintiff’s
agreement with the Oenga heirs, he “was to be paid a percentage, on a sliding scale, of any
increases in past and future rents he was able to obtain from the Allotment.”12
Plaintiff “filed suit on behalf of the Oenga heirs in the Court of Federal Claims
(‘CFC’) against the United States.”13 Plaintiff alleges that “[a]fter years of intensive
litigation, on February 8, 2011, the CFC issued its Final Decision and Judgment in favor of
the Oenga heirs, awarding them substantial damages for the failure to collect proper past
rents, and a substantial increase in past and future rents from the Allotment.”14 Plaintiff
alleges that an appeal was taken, but the parties ultimately entered into mediation and
reached a comprehensive settlement.15 The mediation took place on June 23, 2011, in
Fairbanks, Alaska, and resulted in the execution of a confidential term sheet. Plaintiff was
present in Fairbanks for the mediation.16
11Declaration of Raymond C. Givens at 1, ¶ 2, Docket No. 21.
12Complaint [etc.] at 2, ¶ 6, Docket No. 1.
13Id. at 3, ¶ 7.
14Id. at 3, ¶ 9.
15Id. at 3-4, ¶ 10.
16Exhibit A, Declaration of Counsel (Rachel B. Laussen), which is appended to
Motion for Reconsideration of Order on Motion to Dismiss, Docket No. 32.
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On August 5, 2011, plaintiff and the Oenga heirs executed a Contingent Fee Contract
First Amendment. Plaintiff was present in Fairbanks for the execution of the amended fee
agreement.17
On May 24, 2012, a final settlement agreement and a fee/cost reduction agreement
were executed by the parties to the litigation and by the Oenga heirs and plaintiff. Plaintiff
was present in Fairbanks for the signing of these agreements.18
Plaintiff alleges that defendant initially complied with his obligations under the
amended Contingency Fee Contract, but plaintiff alleges that he “did not receive, and has not
received, payment from [d]efendant from his share of rent from the Allotment for calendar
year 2020” or calendar year 2021.19
On January 19, 2021, plaintiff commenced this action,20 in which he asserts a breach
of contract claim and claims for declaratory relief and specific performance for past and
future payments due.
17Exhibit B, Laussen Declaration, which is appended to Motion for Reconsideration
of Order on Motion to Dismiss, Docket No. 32.
18Exhibit C, Laussen Declaration, which is appended to Motion for Reconsideration
of Order on Motion to Dismiss, Docket No. 32.
19Complaint [etc.] at 7-9, ¶¶ 17-18, 20-21, Docket No. 1.
20Docket No. 1.
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On May 7, 2021, defendant moved to dismiss21 this action pursuant to Alaska Bar
Rule 39, which provides, in relevant part:
At the time of service of a summons in a civil action against his
or her client for the recovery of fees for professional services
rendered, an attorney will serve upon the client a written “notice
of client’s right to arbitrate or mediate,” which will state:
You are notified that you have a right to file a Petition for
Arbitration of Fee Dispute or a Request for Mediation and stay
this civil action. Forms and instructions for filing a Petition for
Arbitration of Fee Dispute or a Request for Mediation and a
motion for stay are available from the Alaska Bar Association,
P.O. Box 100279, Anchorage, AK 99510-0279, or contact (907)
272-7469 for the Alaska Bar Association’s street address. If you
do not file the Petition for Arbitration of Fee Dispute or a
Request for Mediation within twenty (20) days after your receipt
of this notice, you will waive your right to arbitration or
mediation.
Failure to give this notice will be grounds for dismissal of the
civil action.
By order of June 9, 2021,22 the court denied defendant’s motion to dismiss, finding
that Alaska Bar Rule 39 did not apply to plaintiff. Defendant moved for reconsideration,23
and by order of July 13, 2021,24 the court granted the motion for reconsideration and
reinstated defendant’s motion to dismiss. On July 21, 2021, the court entered an amended
21Docket No. 17.
22Docket No. 30.
23Docket No. 32.
24Docket No. 41.
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order on defendant’s motion to dismiss.25 The parties’ arguments and the court’s analysis
focused on whether plaintiff fell outside the jurisdiction of the Alaska State Bar pursuant to
an exception set out in Alaska Bar Rule 34(c)(1). The court framed the dispute as one “over
whether a ‘material portion of the legal services [plaintiff provided to the Oenga heirs] were
rendered in the state of Alaska.’”26 The court concluded that “[b]ecause a material portion
of plaintiff’s legal services were rendered in the State of Alaska, plaintiff should have
complied with the notice requirements of Alaska Bar Rule 39[,]” which he had not done.27
But, rather than dismissing plaintiff’s complaint, the court determined that the “more
practical solution [would] be to give defendant an opportunity to pursue arbitration or
mediation as contemplated by Alaska Bar Rule 39[.]”28 Thus, the court denied defendant’s
motion to dismiss and gave defendant twenty days in “which ‘to file a Petition for Arbitration
or a Request for Mediation’ and to file a motion for a stay of proceedings in this court
pending resolution of a Petition for Arbitration or a Request for Mediation.”29 On August
10, 2021, defendant filed a motion for “a stay of these proceedings pending . . . resolution
25Docket No. 42.
26Id. at 6 (quoting Alaska Bar Rule 34(c)(1)).
27Id. at 8.
28Id.
29Id.
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of a Petition for Fee Arbitration filed with the Alaska Bar Association pursuant to Alaska Bar
Rule 39.”30 The motion to stay remains pending.
Pursuant to Local Rule 7.3(h)(1)(A), plaintiff now moves for reconsideration of the
amended order on defendant’s motion to dismiss.
Discussion
Local Rule 7.3(h)(1)(A) provides for reconsideration if there has been a “manifest
error of the law or fact[.]” Plaintiff argues that the court made two manifest errors of law in
its amended order. First, plaintiff argues that the court made a manifest error of law by
granting defendant leave to file a petition for arbitration or a request for mediation because
in doing so, the court has denied plaintiff his right to a jury trial. Second, plaintiff argues that
the court erred in concluding that the Alaska Bar Association has jurisdiction over him.
As defendant points out, these are new arguments raised for the first time in a motion
for reconsideration. A motion for reconsideration generally “may not be used to raise
arguments or present evidence for the first time when they could reasonably have been raised
earlier in the litigation.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th
Cir. 2000). But, in this instance, the court finds it appropriate to consider plaintiff’s new
arguments because the issues presented by defendant’s motion to dismiss are sufficiently
complex and novel.
30Docket No. 48 at 1.
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Turning then to plaintiff’s new arguments, the court begins with plaintiff’s second
argument, namely that he is not subject to the jurisdiction of the Alaska Bar Association and
the mandatory fee arbitration rules. Alaska Bar Rule 34(d) governs this issue.
Bar Rule 34(d), entitled Attorney Jurisdiction, provides that
[a]ny attorney admitted to the practice of law in Alaska, or any
other attorney who appears, participates or otherwise engages in
the practice of law in this state, unless exempted under Section
(c)(1) of this rule, is subject to the jurisdiction of the courts of
this state, the Board of Governors of the Alaska Bar Associa-
tion, and these rules of attorney fee dispute resolution.
Bar Rule 34(d) plainly subjects two groups of lawyers to the jurisdiction of the Alaska Bar
Association and the mandatory fee arbitration rules. The first group is lawyers who are
admitted to practice law in Alaska. The second group is lawyers “who appear[], participate[]
or otherwise engage[] in the practice of law” in Alaska. Alaska Bar Rule 34(d). Bar Rule
34(d) also plainly provides an exemption for some attorneys from the jurisdiction of the
Alaska Bar Association and the mandatory fee arbitration rules. This exemption is set out
in Alaska Bar Rule 34(c)(1).
Bar Rule 34(c)(1) provides that
[a]ll disputes concerning fees charged for professional services
or costs incurred by an attorney are subject to arbitration under
these rules except for:
(1) disputes where the attorney is also admitted to practice in
another state or jurisdiction and (s)he maintains no office in the
state of Alaska and no material portion of the legal services
were rendered in the state of Alaska, unless (s)he appeared
under Alaska Civil Rule 81[.]
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In the prior briefing on defendant’s motion to dismiss, plaintiff argued that he fell within this
exemption, thereby excusing him from complying with the mandatory fee arbitration rules.
However, plaintiff now argues that in the amended order on defendant’s motion to
dismiss, the court erred in focusing on the “material portion” requirement in Bar Rule
34(c)(1) because the exemption in Bar Rule 34(c)(1) only applies if the lawyer in question
is both a member of the Alaska Bar Association and “is also admitted to practice in another
state or jurisdiction. . . .” Alaska Bar Rule 34(c)(1) (emphasis added). In other words,
plaintiff argues that in order for the exemption to apply, the lawyer in question must be both
a member of the Alaska bar and admitted to the bar in another state. Plaintiff argues that any
other construction of the rule would render the word “also” superfluous. If Bar Rule 34(c)(1)
is so construed, then the rule would not apply to plaintiff because it is undisputed that
plaintiff was not a member of the Alaska Bar Association when he was representing the
Oenga heirs. If Bar Rule 34(c)(1) does not apply to him, then plaintiff argues that it was
manifest error for the court to focus on whether a “material portion” of the legal services he
provided to the Oenga heirs were rendered in Alaska.
Bar counsel, however, opines that plaintiff’s new proposed construction of Bar Rule
34(c)(1) is not a reasonable interpretation. Although Bar counsel does “agree . . . that the
word ‘also’ can be said to support” plaintiff’s new proposed construction, Bar counsel does
not “agree that 34(c)(1) was written to only provide an exemption for a lawyer who was
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licensed in Alaska and in another jurisdiction.”31 Bar counsel contends that “the last clause
of Bar Rule 34(c)(1) - ‘unless (s)he appeared under Alaska Civil Rule 81’ - suggests that the
Rule was also meant to provide an exemption for an out-of-state attorney who did not
provide any material portion of their legal services in Alaska, so long as that attorney did not
appear under Alaska Civil Rule 81 via a motion for pro hac vice admission.”32 Bar counsel
contends that under plaintiff’s proposed construction of Bar Rule 34(c)(1), this final clause
would be superfluous because “[i]f a lawyer was admitted to practice law in Alaska, they
would not need to seek pro hoc vice admission under Alaska Civil Rule 81.”33 Bar counsel
opines that Bar Rule 34(c)(1) should be construed to provide an exemption from mandatory
fee arbitration for 1) “[a] lawyer who is admitted to practice in Alaska and in another state,
who does not maintain an office in Alaska, and who represents a client wholly in that other
jurisdiction,” and 2) “a non-Alaska lawyer . . . if no material portion of their legal services
were rendered in Alaska, unless the attorney appeared under Alaska Civil Rule 81.”34
Plaintiff, however, argues that Bar counsel’s interpretation of Bar Rule 34(c)(1) reads
the word “also” out of the rule. Plaintiff concedes that Bar Rule 34(c)(1) is “internally
31Bar Counsel Opinion at 6, Docket No. 50-1.
32Id.
33Id.
34Id.
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inconsistent”35 but plaintiff argues that Bar counsel’s resolution of the inconsistency makes
no sense. Plaintiff argues that it would make more sense to find that the final clause of Bar
Rule 34(c)(1) was intended to be placed elsewhere in the rule. Plaintiff suggests that the
final clause of Bar Rule 34(c)(1), the “unless (s)he appeared under Alaska Civil Rule 81”
clause, should have been placed in Bar Rule 34(d), rather than Bar Rule 34(c)(1). Plaintiff
argues that if Bar Rule 34(c)(1) were read to exclude the “Rule 81”clause and Bar Rule 34(d)
were read to include that clause, then both subsection (c) and subsection (d) of Bar Rule 34
would make sense. Bar Rule 34(c)(1) would provide an exception to Bar Rule 34(d) for
lawyers who are admitted to the Alaska Bar and another state’s bar. And, Bar Rule 34(d)
would provide that a non-Alaska attorney who did not “engage in the practice of law” would
not be subject to the jurisdiction of the Alaska Bar Association unless that attorney was
admitted pro hac vice to a particular Alaska case. Thus, plaintiff urges the court to adopt his
new proposed construction of Bar Rule 34(c)(1) and not give any deference to Bar counsel’s
opinion as to the interpretation of the rule.
The Alaska Supreme Court relies on the rules of statutory construction when
interpreting bar rules. Application of Payne, 430 P.2d 566, 568-69 (Alaska 1967). Under
such rules, “[a] statute should be construed so that effect is given to all its provisions, so that
no part will be inoperative or superfluous, void or insignificant.” Peninsula Marketing Ass’n
v. Rosier, 890 P.2d 567, 573 (Alaska 1995) (citation omitted). And, “[e]ach section of a
35Opposition to Motion for Stay of Proceedings at 3, Docket No 51.
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statute should be read together with every other section so as to produce a harmonious
whole.” Peninsula Marketing Ass’n v. State, 817 P.2d 917, 921 (Alaska 1991). But, it is
a bridge too far to rewrite Bar Rule 34 as plaintiff is suggesting. The court cannot rewrite
Bar Rule 34 and move the “Rule 81” clause from Bar Rule 34(c)(1) to Bar Rule 34(d)
without a much clearer signal that this was the intent of the drafters of the rule. That leaves
the court with two proposed constructions of Bar Rule 34(c)(1) both of which render some
part of the rule superfluous. Under plaintiff’s new proposed construction, the “Rule 81”
clause is superfluous, and under Bar counsel’s proposed construction, the “also” is
superfluous. Between these two constructions, plaintiff’s new proposed construction is the
better one. The court concludes that Bar Rule 34(c)(1) only applies if the lawyer in question
is both a member of the Alaska State bar and the bar of another jurisdiction.
That means that the court erred by focusing on the exemption in Bar Rule 34(c)(1) in
the amended order on defendant’s motion to dismiss. Because the court erred, plaintiff’s
motion for reconsideration is granted and the court must once again consider whether
plaintiff’s complaint is subject to dismissal for failure to comply with Alaska Bar Rule 39.
As set out above, whether plaintiff was required to comply with Bar Rule 39 is
governed by Bar Rule 34(d). Bar Rule 34(d) provides that any attorney who has “appear[ed],
participate[d] or otherwise engage[d] in the practice of law in” Alaska is subject to the
Alaska Bar Association’s jurisdiction and the mandatory fee arbitration rules. The parties’
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arguments focus on the question of whether plaintiff was engaged “in the practice of law”
in Alaska during his representation of the Oenga heirs.
Plaintiff contends that what constitutes “the practice of law” in Alaska is governed by
Alaska Rule of Professional Conduct 5.5, which is entitled “Unauthorized Practice of Law;
Multijurisdictional Practice of Law.” More specifically, plaintiff cites to Alaska Rules of
Professional Conduct 5.5(c)(2) and (3) which provide that
[a] lawyer admitted in another United States jurisdiction . . . may
provide legal services on a temporary basis in this jurisdiction
that . . .
(2) are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another jurisdiction, if the
lawyer, or a person the lawyer is assisting, is authorized by law
or order to appear in that proceeding or reasonably expects to be
so authorized; [or]
(3) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution
proceeding in this or another jurisdiction, if the services arise
out of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice and are
not services for which the forum requires pro hac vice admis-
sion[.]
Plaintiff argues that the legal services that he provided to the Oenga heirs fall within these
two subsections of ARPC 5.5, which would mean that he was not engaged in the practice of
law in Alaska during his representation of the Oenga heirs. Plaintiff contends that this is
consistent with what he was told by Steve Van Goor, Alaska Bar Counsel, at the time he
commenced his representation of the Oenga heirs. Plaintiff avers that Van Goor told him that
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he “could not hold myself out as an Alaska lawyer, and . . . that if I filed litigation on behalf
of the Oenga heirs against the oil companies in the state or federal courts in Alaska, I would
have to associate with local Alaska counsel.”36 But, because he did not hold himself out to
be an Alaska lawyer and did not file suit in Alaska, plaintiff argues that he was not engaged
in the practice of law in Alaska. And, because he was not engaged in the practice of law in
Alaska, plaintiff argues that he is not subject to the jurisdiction of the Alaska Bar Association
and the mandatory fee arbitration rules.
Defendant, however, argues that the legal services plaintiff provided to the Oenga
heirs do not fall under the definition of “temporary services” in ARPC 5.5(c)(2) and (3).
Defendant points out that “[t]here is no single test to determine whether a lawyer’s services
are provided on a ‘temporary basis’ in this jurisdiction” and that “[p]resence may be systemic
and continuous even if the lawyer is not physically present” in Alaska. Comments, Alaska
R. Professional Conduct 5.5.
But, as plaintiff is quick to point out, “[s]ervices may be ‘temporary’ even though the
lawyer provides services in this jurisdiction on a recurring basis, or for an extended period
of time, as when the lawyer is representing a client in a single lengthy negotiation or
litigation.” Id. Plaintiff insists that during the time he was representing the Oenga heirs, he
only provided “temporary services” in Alaska, given that he was only in Alaska for a
mediation, a settlement conference, and the execution of amendments to the fee contract.
36Corrected Declaration of Raymond C. Givens at 3, ¶ 5, Docket No. 46.
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Bar counsel has also weighed in on this issue. Bar counsel contends that ARPC 5.5
“does not purport to define what constitutes the practice of law in Alaska, but instead, it
defines what would constitute the unauthorized practice of law.”37 Bar counsel contends that
Rule 5.5(c) “may, indeed, establish that [plaintiff] did not engage in the unauthorized practice
of law in Alaska, but it does not establish that he did not engage in the practice of law in
Alaska.”38 Bar counsel contends that if plaintiff were providing “temporary services” to the
Oenga heirs as he claims, then he plainly was engaged in the practice of law in Alaska
because “[i]t is difficult to imagine how a lawyer could be providing legal services – even
if temporary – without engaging in the practice of law.”39 Bar counsel contends that this
interpretation of ARPC 5.5 is consistent with two comments to the rule. One comment reads:
“A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) and (d) or
otherwise is subject to the disciplinary authority of this jurisdiction[;]” and the other reads:
“In some circumstances, a lawyer who practices law in this jurisdiction pursuant to
paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice
law in this jurisdiction.” Comments, Alaska Rule of Professional Conduct 5.5. Bar counsel
contends that these comments make clear that a lawyer providing “temporary services” under
ARPC 5.5(c) and (d) is “practicing law” in Alaska. Thus, Bar Counsel opines that “an
37Docket No. 50-1 at 4.
38Id. at 5.
39Id.
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attorney, not licensed in Alaska, who provides legal services on a temporary basis under
ARPC 5.5(c), is practicing law in Alaska when they do so.”40
Plaintiff disagrees with Bar counsel, arguing that the distinction between “temporary
services” and the “practice of law” that Bar counsel draws makes no sense. Plaintiff argues
that it would make no sense to inform non-Alaska attorneys handling non-Alaska cases that
they can perform “temporary services” in the state but that in doing so, they would be subject
to the jurisdiction of the Alaska Bar Association for purposes of fee arbitration. Plaintiff
contends that ARPC 5.5(c) provides that performing “temporary services” in Alaska does not
require membership in the Alaska Bar or association with local counsel. Plaintiff argues that
it follows that performing “temporary services” should not be considered the “practice of
law” under Bar Rule 34(d).
The comments to ARPC 5.5 make clear that the rule is not intended to define what
constitutes “the practice of law.” The comments state that “[t]he definition of the practice
of law is established by law and varies from one jurisdiction to another. Whatever the
definition, limiting the practice of law to members of the bar protects the public against
rendition of legal services by unqualified persons.” Comments, ARPC 5.5. This comment
makes it clear that Rule 5.5 is intended to address the unauthorized practice of law, rather
than define what constitutes the “practice of law.” As for what does constitute the “practice
of law” for purposes of Bar Rule 34(d), the Alaska Supreme Court has never defined the
40Id. at 6.
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term. Black’s Law Dictionary defines it as “[t]he professional work of a lawyer, encompass-
ing a broad range of services such as conducting cases in court, preparing papers necessary
to bring about various transactions from conveying land to effecting corporate mergers,
preparing legal opinions on various points of law, drafting wills and other estate-planning
documents, and advising clients on legal questions.”41 The legal work plaintiff did for the
Oenga heirs falls within this definition, and some of this work was done in Alaska, although
some of it was obviously done outside of Alaska. But, Bar Rule 34(d) simply provides that
a lawyer who was engaged in the practice of law in Alaska is subject to the jurisdiction of
the Alaska Bar Association and the mandatory fee arbitration rules. It does not require that
a certain portion of the work be done in Alaska. But, even if it did, the court has previously
determined that a “material portion” of plaintiff’s legal services were rendered in Alaska.42
The court concludes that plaintiff was engaged in the practice of law in Alaska while
he was representing the Oenga heirs, which means that he is subject to the jurisdiction of the
Alaska Bar Association and the mandatory fee arbitration rules. Because he is subject to the
mandatory fee arbitration rules, plaintiff was required to comply with the notice requirements
of Bar Rule 39, which he did not do. Because plaintiff did not comply with Bar Rule 39, his
complaint is subject to dismissal. See Alaska Bar Rule 39(a). But once again, rather than
dismissing plaintiff’s complaint, the court finds that the more practical solution will be to
41Black’s Law Dictionary (11th ed. 2019).
42Amended Order re Motion to Dismiss at 7, Docket No. 42.
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give defendant an opportunity to obtain a stay of this case while he pursues arbitration or
mediation.
Plaintiff argues that giving defendant an opportunity to pursue arbitration or mediation
will violate plaintiff’s right to a jury trial. In a diversity action such as this, the court “must
follow state substantive law and federal procedural law when adjudicating state law claims.”
Sonner v. Premier Nutrition Corp., 971 F.3d 834, 839 (9th Cir. 2020). “Federal courts . . .
have applied Erie to hold that the right to a jury trial is a federal procedural issue controlled
by federal law.” In re County of Orange, 784 F.3d 520, 528 (9th Cir. 2015). Thus, plaintiff
argues that he “has the right, under the Seventh Amendment and Rule 39 of the Federal Rules
of Civil Procedure, to have any factual issues in this action decided by a jury presided over
by this [c]ourt.”43
A similar argument was made in Kelley Drye & Warren v. Murray Industries, Inc.,
623 F. Supp. 522 (D.C.N.J. 1985). There, Kelley Drye sued Chris-Craft “to recover the sum
of $109,268.37 for services rendered and disbursements incurred during the representation
of Chris-Craft in an action in this court entitled Image Boat Company v. Murray Chris-Craft
Sport Boats, Inc., et al., 84 Civ. 2381.” Id. at 523. “Chris-Craft filed a Request For Fee
Arbitration with the District Fee Arbitration Committee of the Supreme Court of New
Jersey” and instead of answering Kelley Drye’s complaint, “moved to dismiss the complaint
or, in the alternative, to compel arbitration and stay all proceedings.” Id. In response, Kelley
43Plaintiff’s Motion for Reconsideration at 3, Docket No. 44.
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Drye argued that “to submit the claim to binding arbitration would deny it its Seventh
Amendment right to a jury trial.” Id. at 524. The court rejected this argument, explaining
that
the right to a jury trial can be given up, as parties do when they
agree to arbitrate. Here Kelley Drye has voluntarily given up its
right to a trial of any kind if a client elects to arbitrate a fee
dispute. No one has an absolute right to practice law, and the
State may impose reasonable conditions and limitations upon
those who wish to exercise that privilege. Here the Court Rules
are reasonable and Kelley Drye has opted to be bound by them.
No Seventh Amendment rights are implicated.
Id. at 527.
Here, although plaintiff was not, and is not, an active member of the Alaska Bar
Association, as discussed above, plaintiff was engaged in the practice of law in Alaska
during his representation of the Oenga heirs. By engaging in the practice of law in Alaska,
as that term is defined for purposes of Bar Rule 34(d), plaintiff voluntarily subjected himself
to jurisdiction of the Alaska Bar Association and the mandatory fee arbitration rules. Thus,
plaintiff’s right to a jury trial has not been implicated.
Conclusion
Plaintiff’s motion for reconsideration is granted. On reconsideration, the court once
again denies defendant’s motion to dismiss. Defendant may continue to pursue arbitration
of the fee dispute which he has begun with the filing a petition for arbitration with the Alaska
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Bar Association.44 The court will take up defendant’s motion to stay these proceedings
shortly.
DATED at Anchorage, Alaska, this 24th day of September, 2021.
/s/ H. Russel Holland
United States District Judge
cc: Philip E. Shanahan, Bar Counsel
Alaska Bar Association
840 K Street, Suite 100
Anchorage, AK 99501
44See Motion for Stay of Proceedings at 1, Docket No. 48.
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