Legislature(2003 - 2004)
05/03/2004 08:17 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 549(JUD)am-UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
MS. VANESSA TONDINI, staff to Representative McGuire, sponsor of
HB 549, told members this bill prohibits an attorney from
contacting passengers or their families in the aftermath of an
aviation accident for 45 days. She noted that attorneys are
bound by rules of professional conduct; Rule 7.3 is applicable
to this type of conduct. That rule states:
Attorneys shall not solicit by in person or live
telephone contact special employment from a
prospective client, with whom the lawyer has no family
or prior professional relationship when a significant
motive for the lawyer's doing so is the lawyer's
pecuniary gain.
She explained the reason behind Rule 7.3 is that prospective
clients who are feeling overwhelmed may find it difficult to
evaluate all alternatives with reasoned judgment after an
accident. Those situations are fraught with the possibility of
undue influence or intimidation. However, even though Rule 7.3
has been in place for some time, it has not controlled the
"feeding frenzy" that takes place in the aftermath of awful
accidents. The federal government tried to correct the problem
by passing the Aviation Disaster and Family Assistance Act in
1996. That law mandated that air carriers provide specific
support to families of those injured or killed and prohibited
unsolicited contact by attorneys for 30 days. In 2000 that law
was amended to expand the scope to include associate agents,
employees, or other representatives of attorneys and it expanded
the time frame to 45 days. She pointed out that enforcement of
the federal law requires action by the Civil Aeronautics Board
or the U.S. Attorney General. The penalty for a violation is
close to a $1,000 fine. Currently, little enforcement of this
law takes place and there is debate about whether the federal
law is enforceable against attorneys who violate it regarding
accidents that happen entirely within Alaska. She thought
everyone would agree that passengers and their families are very
vulnerable to pressure by others in the aftermath of an
accident, especially in rural Alaska. She pointed out that this
bill will apply only to flights that take place entirely inside
of Alaska.
MS. TONDINI indicated that CSHB 549(JUD)am merely codifies the
federal law except that a reference to the air carrier's
attorney has been added to make it clear that all attorneys are
to refrain from making contact. The main reason that
Representative McGuire included a criminal sanction in the bill
is because she felt a civil financial penalty would be
inadequate because the contingency fees for representing these
clients are high. In addition, people are hesitant to file bar
complaints against their neighbors in small towns, just as they
would be hesitant to file a civil claim. Also, the Alaska Bar
Association will take notice of a criminal case. The crime is a
class A misdemeanor with a fine of $100,000 or the attorney's
legal fee, whichever is greater.
TAPE 04-60, SIDE A
MS. TONDINI further explained that CSHB 549(JUD)am only prevents
attorneys from making initial contact; a client can initiate
contact at any time.
10:00 a.m.
CHAIR SEEKINS asked if the definition of an "attorney" include
an agent or representative of an attorney.
MS. TONDINI said it does on page 1, line 10, and in subsection
(b).
CHAIR SEEKINS said he wanted it on the record that the
definition of attorney extends to anyone who is soliciting on
the attorney's behalf as well. He then took public testimony.
MS. MARCIA DAVIS, ERA Aviation, stated support for CSHB
549(JUD)am.
SENATOR FRENCH asked Ms. Davis if she has ever settled a claim
that happened on an ERA flight and, if so, when.
MS. DAVIS said ERA has settled. When ERA is contacted by someone
who claims to have suffered an injury during a flight, ERA asks
the person to submit medical bills, which it pays immediately.
If the person asks for extraneous damages, such as lost work
time, ERA pays those as well if they seem reasonable. However,
if ERA believes the person is trying to take advantage of the
situation, ERA tries to settle those cases fairly, which
sometimes involves offering additional air transportation. She
said she cannot think of any cases in which the passenger was
dissatisfied with how the claim was resolved when ERA was able
to deal with the claim directly. However, in instances, for
example, where a person had a bumpy flight out of Bethel and had
an attorney write a letter, those situations have not gone well,
primarily because the individual did not intend to sue but was
encountered by a lawyer. Individuals have admitted that.
MR. ART WARBELOW, Warbelow Air Adventures, stated support of
CSHB 549(JUD)am.
MR. BRUCE McGASSON, Grant Aviation, stated support for CSHB
549(JUD)am.
MR. ED GRAEGER, ALG Insurance, stated support of CSHB
549(JUD)am.
SENATOR OGAN asked if people who got a bruise on a bumpy flight
actually file claims.
MR. GRAEGER replied:
Unfortunately, what we do see is attorney solicitation
of claims for very minor injuries and that's what's
part of eating into capacity and cost for providing
liability coverage for the various air carriers in
Alaska is that minor matters are getting pursued
aggressively by counsel and it affects, over a long
period of time, the costs of providing perhaps, larger
limits for people who are more deserving with more
serious injuries. So, our interest in this is to avoid
unnecessary solicitation of minor matters so that
greater capacity can be available to respond to more
serious injuries.
He told members ALG Insurance covers the full gamut of aviation
carriers.
SENATOR FRENCH asked Ms. Tondini if the attorney general would
be nervous about filing a civil complaint against a lawyer.
MS. TONDINI said she does not know that "nervous" is the right
word but she does not believe civil suits would be filed as
aggressively as criminal suits would be. She said everyone
agrees such conduct on an attorney's part is wrong so the
penalty in the bill is strong enough to be worth enforcement.
SENATOR FRENCH noted that he asked, at a prior hearing, to hear
from people who have been harassed by attorneys.
MS. TONDINI deferred to the aviation representatives to discuss
some of those situations, however they would not release names
to her because of privacy concerns.
MS. DAVIS related a current case in which a nose wheel snapped
off on a landing outside of Bethel. Although no one was injured
at the scene, all passengers were brought to Bethel for medical
care as a safety precaution. ERA offered the passengers free
tickets. A passenger told an ERA employee that a lawyer
contacted him and a friend afterward. The passenger told the
lawyer he had no intention of suing but the friend succumbed to
pressure from the lawyer and is now pursuing a claim for damages
for emotional trauma. She said it is difficult to get people to
talk about their neighbors who are sometimes the lawyers. She
noted that ERA does not file bar complaints because that is one
of the last things it would want to do while in the midst of
litigation and trying to settle. In addition, it is problematic
from a public relations aspect.
CHAIR SEEKINS noted that he would hold CSHB 549(JUD)am until the
next day and adjourned the meeting at 10:13 a.m.
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