2004-3.

• Case Date: September 13, 2004
• Court: Alaska

Alaska Ethics Opinion 2004. 2004-3. ALASKA BAR ASSOCIATIONETHICS OPINION 2004-3September 13, 2004Responsibilities of an Attorney When a Client Cannot be Contacted.Question PresentedThe Committee has been asked whether a lawyer may file a lawsuit where the statute of limitations is expiring and the client cannot be contacted. The facts presented are these: A cruise ship passenger was injured in a fall from the gangway to the Juneau dock. A year after the injury, and a year before the statute of limitations expired, the passenger telephoned an Alaska personal injury lawyer and said he wanted to file a lawsuit. The lawyer interviewed the passenger, and told him that she would need to conduct an investigation before deciding whether to take the case. The lawyer pursued the investigation and decided that the passenger has a colorable claim. Certain facts indicate comparative negligence, but if liability is proved damages will be substantial. The lawyer was not in contact with the passenger during her investigation. Shortly before the statute of limitations ran, the lawyer sent the passenger a letter with questions about the problematic facts together with a proposed contingent fee agreement for signature. The lawyer has tried to reach the passenger by phone several times without success. The statute of limitations is about to expire. The lawyer is reluctant to file suit without the client's authorization and a signed engagement letter in the file, and is concerned that she may not do so under the ethical rules. May the lawyer file a lawsuit under these circumstances?Conclusion The Committee concludes that that the lawyer may file the complaint if the lawyer reasonably believes that the passenger has authorized her to file suit and is relying on her to do so, or if she believes that failing to file would materially and adversely affect the client's interests. See, Alaska Rules of Professional Conduct 1.3 and 1.16.AnalysisThere are several closely interrelated ethical issues that led to the lawyer's dilemma. 1. No Written Agreement. To start with, there is a lack of certainty about the scope of representation. It is not clear whether the client understands the lawyer limited her activities to an initial investigation. The client may believe the lawyer is going to file suit if she decides the case has merit, and may be relying on her...