Alaska Employment Law

The Ethics Committee of the Alaska Bar Association has addressed this issue:

The question presented here is whether an attorney pursuing an insurer’s subrogated claim at the request of the insured may also be said to “represent” the insurer for purposes of the Alaska Rules of Professional Conduct, at least in the absence of an express disclaimer of such representation by the insurer itself.

The question is significant. For example, if the insurer were automatically deemed a “client” in this context, a lawyer for the defendant would be prohibited, without the consent of the lawyer, from directly contacting the insurer to discuss settlement or other matters.  ARPC 4.2.  Likewise, the lawyer for the insured plaintiff would, with regard to the insurer, be subject to all of the ethical responsibilities owed to other clients, including obligations regarding fees and fee agreements (ARPC 1.5), communication (ARPC 1.4) and conflicts of interest (ARCP 1.7; ARCP 1.8; ARCP 1.9). Obviously, such questions can affect the way the underlying legal matter is handled on both sides.

The Committee concluded:

The subrogated insurer’s right to receive proceeds from the insured plaintiff’s recovery in a lawsuit does not make the insurer a “client” of the lawyer under the ethics rules.

Alaska Ethics Opinion 2008-2, 2008 WL 4354841 (Alaska Bar Ass’n Eth. Comm. Sept. 11, 2008)(footnote omitted)