Do attorneys ignore the NTSB's 45-day rule?

The likely crash of a Malaysia Airlines’ plane highlights the 45-day rule, which bans early contact between attorneys and victims’ families.

It is widely known among aviation lawyers that attorneys are supposed to wait 45 days before contacting the families of victims involved in an airline crash in order to solicit them as clients.

The reasoning behind such a rule – passed by Congress in 1996 – is that it allows a family privacy at a very traumatic time. It probably makes sense from a strategic point of view, too. Often, it takes a while for the basic facts of a case to be revealed, such as information from a plane’s black box.

But there are those attorneys, eager to get clients, who do not value the rule. The rule, some sources add, may not apply outside of the continental United States. This would be important in the case of the missing Malaysia Airlines plane, given most of its passengers are from overseas, especially from China and other parts of Asia. 

And even with regards to violating the 45-day rule in the United States, opponents may argue they want to sign up a client quickly in a very competitive (and lucrative) field of legal practice. Plus, they might argue that relatives of passengers have a right and need for legal counsel, before insurance companies and other possible defendants try to settle with them. 

In the case of the still-missing Malaysia Airlines’ plane, now assumed to have crashed in the Indian Ocean, there was speculation by some attorneys in private practice that the federal government was monitoring whether plaintiff’s lawyers were following the 45-day rule.

The National Transportation Safety Board (NTSB) could not be reached for immediate comment on Friday. A spokesman for the U.S. Attorney’s office in Chicago said on Friday he would neither confirm nor deny if any investigation was taking place.

Already, one law firm, Ribbeck Law of Chicago, has filed a petition for discovery, preparing the way for a lawsuit in response to the missing Malaysian plane. The firm claims it expects to represent half of the victims’ families. It is not clear how they became counsel for them, if they did not contact their relatives. They did specify one relative of a passenger who appears to be a client. 

The Christian Science Monitor has reported that William Wang, who works for Ribbeck as Of Counsel, and is licensed to practice in China, “headed for Beijing as soon as he heard that the plane had disappeared,” and “says he has offered his firm’s services to the relatives of more than 100 passengers on a ‘no win, no fee’ contingency basis, and that about 10 have signed up with Ribbeck.” 

What is known is that in 2009 Ribbeck’s solicitation practices were highlighted in web reports on how they procured clients after a plane crash in Buffalo. “I questioned whether it was violating both New York’s 30-day moratorium on contacting victims/families as well as the federal 45-day rule that prohibits solicitation,” according to a recent blog post from New York attorney Eric Turkewitz. 

Last year, there were more questions over Ribbeck’s solicitation of clients involving the crash of Asiana Flight 214 in San Francisco. The NTSB reported the law firm to the Illinois agency that regulates attorneys in response to questions about its online communications and in-person meetings with passengers on that flight, according to a report from The Associated Press.

In the Asiana crash, the NTSB “received an unspecified number of complaints about solicitations since the July 6 accident that killed three Chinese teenage girls and injured 180,” The AP said. 

On Friday, James Grogan, deputy administrator for the Illinois Attorney Registration & Disciplinary Commission, said there was a pending public disciplinary proceeding against Monica Ribbeck of Ribbeck Law regarding a Turkish Airlines crash. The commission could not confirm or deny if the commission was looking at her for any other incidents.

Grogan did confirm too that the commission would consider federal law when it comes to the solicitation of business by attorneys regarding air or railroad crashes. 

Key in this could be the 45-day rule, which is found in 49 U.S.C. 1136 (G)(2), and explains unsolicited communications.

“In the event of an accident involving an air carrier providing interstate or foreign air transportation and in the event of an accident involving a foreign air carrier that occurs within the United States, no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.”

 

Related stories:

Filing over missing Malaysia Airlines flight called premature as search for plane continues

Asiana Airlines to pay $10,000 to San Francisco crash survivors

 
 

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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