One of Connecticut’s tribal courts is seeking to significantly increase the number of lawyers who practice before it — by getting rid of a mandatory bar exam.
The Mashantucket Pequot Tribal Court has required a written exam for nearly 20 years. The idea behind the test, Chief Judge Thomas Londregan said, was to make sure lawyers knew the differences between the law in state court and tribal court.
But the exam was having an unintended consequence. To ensure that new lawyers were aware of the differences between state and tribal laws and court protocols, the test morphed from a short open-book test to a two-hour ordeal. As a result, fewer people were passing the test and fewer people were sitting for it.
"We have 33 titles of law spanning two full volumes, so it just started to became a daunting task to read and prepare for a written exam," Londegran said.
"There were a lot of lawyers who wanted to practice here but they did not want to spend the time to study for another bar exam," he said. "They did that once in their career and they didn’t have the desire to do that again after 10 or 20 years of practicing law. And quite frankly, I don’t blame them."
He expects to see more new lawyers now.
Ed Gasser, who is president of the Mashantucket Pequot Tribal Court Bar Association, and runs an insurance defense practice in Avon, said the high bar exam failure rate was causing the small tribal bar to stagnate. While the overall Connecticut Bar Exam pass rate last year for the much more involved, two-day test was 77 percent, the tribal bar exam passage rate was less than 50 percent.
"I’m not saying we don’t have great lawyers practicing, we do," he said, referring to the tribal bar. "But having more lawyers in tribal court would be beneficial."
With the impediment of a written exam removed, he expects the number of attorneys who practice before the court to increase by 50 percent. Instead of 200 lawyers arguing cases in the court, there could soon be 300, Gasser said.
"I think that would be a good thing," he said. "I know a number of very good attorneys who have said they won’t practice before the tribal court because the bar exam has become so difficult."
The Mashantucket Pequot tribe and the nearby Mohegan tribe are recognized as sovereign nations under federal law, and are immune from being sued in state court. That sovereignty extends to tribal members who settle their disputes in the two tribal courts.
Both tribes run large casinos that bring in a combined $3 billion a year, and as a result, they attract a large number of liability claims, such as slip-and-falls by casino patrons. In recent years, the small number of lawyers who handled the majority of claims against the tribes and tribal members were finding it more challenging to handle the number of referrals brought before them. Already, there have been 30 lawsuits filed in the Mashantucket court in 2013.
For now, the Mohegan Tribal Court will continue to require a special written exam for attorneys who want to represent clients before it. Dropping the test "is not something that is currently being discussed," said Paul Guernsey, who is the chief judge for both the tribal court and Mohegan Gaming Court.
The main differences between the state and tribal laws are few, but significant. For one thing, the statute of limitations for a civil action in both tribal courts is one year, instead of two in the state court system.
There are also liability caps of twice the physical damage for most claims. That leads to more trials, and fewer settlements, since the defense knows it can’t be hit with a stunningly high verdict.
There are also laws that protect the tribe and its interests in family court and employment disputes.
"Anyone who is practicing in the area of Indian law, it’s important to be aware of the principals of tribal sovereignty and sovereign immunity," said Andrew Houlding, a principal with Rome McGuigan and chair of the Indian Law Section of the Connecticut Bar Association.
For example, Houlding said, the state has no authority to regulate conduct of tribal employers. That means tribal employers have much broader rights to terminate employees. The tribes are also protected against being sued for monetary damages in employment cases. However, tribal officials who act beyond the scope of their authority can be sued for damages individually. Some of the differences are subtle. But there is a lot to know.
John Strafaci, a New London personal injury lawyer, tries cases in both tribal courts.
"Our practice is growing, and my opinion is, there’s always room for another good lawyer," Strafaci said. In recent years, the solo attorney has attracted 60 percent of its business through referrals from attorneys who were not admitted to practice in the tribal courts.
"It’s something of a specialized area," he said. "For most firms, it doesn’t make sense to devote the time and energy of getting involved in one particular case. I think that will remain the case. Even without the bar exam, I think it will still be a fairly limited bar with regard to plaintiffs counsel."
For now, Strafaci and a handful of other personal injury lawyers have been handling the lions’ share of the civil suits. Strafaci is currently handling a potential multimillion-dollar lawsuit on behalf of 20 plaintiffs who were involved in a fatal accident of a bus that was on its way to Manhattan’s Chinatown from the Mohegan Sun Casino. In all, 15 people were killed.
When Ed Gasser became appointed to practice before the Mashantucket Pequot Tribal Court 20 years ago, there was no bar exam. Lawyers were referred for bar admission by members of the tribe, and all that was required was an application and being in good standing with the state bar.
Soon, a test was added. Judges who made changes to the tests over the years tended to make the exams more difficult. "It became a pretty onerous exam to take," Gasser said. "When it was open book, almost no one failed it. But then they closed the book a few years ago, and it became much harder to pass. As a result, only eight new attorneys have been appointed to handle cases in the court since 2011."
Tribal law, while difficult, can be an attractive practice area, Gasser said. For one thing, there are not as many procedural delays. A case can be tried six months after it is filed, he said.
Because pain and suffering, or nonphysical, damages are capped, parties know exactly what they can expect if damages are sought. "I think the tribal courts are in many ways more user-friendly than the state courts," said Gasser. "For clients, having more of a choice of who their attorney will be is a significant benefit."
Now the Mashantucket bar admission rules allow attorneys who are in good standing to practice in any other state, or federal court, to be admitted upon filing an application.
In addition to answering questions about any ethical violations on their records, attorneys must certify that they know the key distinctions between tribal law and state law. For instance, in family court matters, the attorneys must certify that they understand tribal law requires children to be placed with tribal members only, or with tribe-approved foster homes.
In criminal matters, only Native Americans can be prosecuted by the tribal court, but they are then subjected to adjudication in state court as well. The maximum punishment for any offense, Londregan said, is a $5,000 fine and one year in jail.
It’s a completely independent process, and neither the state court nor tribal court has any bearing on the other, Londregan said. It’s important that criminal lawyers recognize this.
Another point all attorneys must certify that they understand, Londregan said, is that the court does not allow any cause of action for claims of losses related to gaming. Those claims are handled by a separate Gaming Commission. There is also a $125 application fee.
"We wanted to come up with a compromise between taking a full written bar exam and just admitting somebody," said Londregan, "so we created something that we think will work pretty well."