*2 Justice, MATTHEWS, Chief Before BRYNER, FABE, and EASTAUGH, CARPENETI, Justices.
OPINION CARPENETI, Justice. INTRODUCTION I. defen- formerly pro se Brown, a
Wesley denial superior dant, appeals judgment a default aside set to motion his injury case. personal him notice entitled he was asserts Brown was default, entry of before entry of entitled Robert plaintiff and judgment, default inquire obliged both attorney was notify the and intentions Brown's about him be- contact attempt Brown's court matters default. seeking the fore Brown: disagree we impression, first and validly entered was default profes- independent no Brown attorney owed But because notice. give him duty to sional entered was judgment defendants, two between apportioning and judgment vacate must further remand proceedings. PROCEEDINGS AND FACTS
II Wesley Brown's struck boat Willis's John 1995, injuring 7,May on Kake near boat Lange. Robert passenger, Willis's and Brown drinking alcohol had been men All three go they decided accident day of while occurred collision boating. - hat to retrieve stopped was boat and Willis Brown Both Lange. belonging to while watercraft operating convicted were intoxicated. (the passen- 1996,Lange 22, February
On Willis against both suit filed ger) excess damages in drivers) seeking (the copy awith served was $50,000. Brown home complaint summons contained summons 4. The March on Kake Win- Lessmeier, & Lessmeier L. Michael "IF type: in boldface language following Juneau, appellant. ters, YOU FAIL [ANSWER TO THE COM- made appearance on Brown's behalf and PLAINT] JUDGMENT BY DEFAULT April 8 Brown moved through counsel to MAY BE TAKEN AGAINST YOU FOR set aside the default judgment on two THE RELIEF DEMAND[ED] IN THE grounds: that Brown's failure to answer COMPLAINT." complaint neglect" "excusable On March therefore the default telephoned *3 Lange's attorney should be set pursuant and left a aside recorded mes- Alaska Rule sage asking (Brown) Civil 60(b)(1); Procedure was "going to that court." Lange's His call was by returned Lange's engaged had "fraud" attorney's receptionist, not notifying Brown either who reached of the default or mother and informed her of the that no judgment court date hearing, and that had been scheduled and that therefore the judgment Brown needed should be set aside complaint pursuant and mail copies 60(b)(8). to Civil Rule the court Lange's attorney. superior The court declined to set aside Brown did not answer the complaint. the default judgment On against Brown on ei- April 19, 1996, a default was against entered ther of grounds. appeal This followed. him. Brown was not notified of entry this III,. STANDARD default. Willis also OF answer, REVIEW failed to default was against entered 29, him April on Normally, we will reverse the trial - 1997.1 A hearing to Lange's determine dam court's refusal to set aside a default judg ages was held special before a master on pursuant ment 60(b) to Civil Rule only for 3, July 1997; Brown was not notified of this abuse of However, discretion.2 appeal this hearing. special master recommended a turns on proper interpretation damages $272,424.80. award of superior "appear" term in Civil Rule 55. When inter court accepted this and, recommendation on preting rule, a civil we exercise our indepen 21, July entered judgment against Brown 3 dent judgment and "adopt the rule of law and Willis for amount, that plus interest, that is persuasive most in light of precedent, attorney's fees, and costs. The judgment 4 reason, policy." against Brown and Willis $821,490.15. totaled Determining whether superior The court did not apportion fault between court committed Brown and reversible error Again, Willis ap not Brown was not portioning fault notified judgment judgment is an been entered issue against of statutory him. interpretation, which we review under the substitution judgment On 3, 1997, November superior court standard.5 issued an order commanding Brown ap- pear and restraining him from disposing of IV, DISCUSSION his property. Brown was served with this notice, which was the first A. Brown Was Not Entitled To Have formal communi- cation Brown received from either the court Either the Emtry or the of Default or Lange since complaint. Judgment Set Aside Default Lange's Failure Brown To then Provide contacted Notice. Alaska Legal Ser- vices, who referred him pro to its above, As noted pro- bono Brown telephoned Lange's gram. January 9, On 1998, an attorney attorney and asked (Brown) when he 1. Willis has appealed. The record does not '"involve interpretation rule, of a civil we why, show obtaining after an of default exercise independent our judgment"). against 1996, April Brown in Lange waited over year obtaining of default 4. Guin v. Ha, 591 (Alaska P.2d 1281, 1284 n. 6 Willis. Key Alaska, Benedict v. Bank 916 P.2d (Alaska 1996) Longwith 489, 491 v. (citing State, Bauman Dep't v. Natural Re- Day, sources, 257, 848 (Alaska (Alaska P.2d P.2d 1992) 1995)). 260 n. 5 817, 828-29 (citing Madison v. Dep't Alaska Fish and 3. See Ford Municipality v. Anchorage, 813 P.2d (Alaska Game, 1985); P.2d 168, 173 Kelly (Alaska 1991) (holding that Zamarello, in cases that (Alaska 486 P.2d 1971)). defined explicitly have never While claims now to court." "going the Alaska in the context '"appear" term under Civil "appearance" an constituted this Procedure, v. Winters11 in Case Civil of Civil Rules of application Because Rule 55. appearance an rejected the idea depend we varies procedures Rule 55's presentation "appears," place take could the defendant whether court. Case call, sort which of some whether submission issue threshold proceedings. com two involved only response was Brown's custody change one, a motion for Civil filed "appearance" a wife constituted plaint, sup past child it did not. holdWe purposes.6 and to obtain Rule 55 ap entered Attorney Hellenthal port. leaving an "appear" did the second husband. for the pearance message with telephone ambiguous later, a new filed the wife case, year filed unpaid sup attorney. "damages" for seeking complaint *4 in appear not did Although Hellenthal port. the explicitly defined have never We at wife's case, the he contacted Alaska of the second context the "appear" term of time requested an extension torney and interpret But in Procedure. Civil Rules of request was His complaint. the answer looked have often rules we civil ing our ex extension time for the but after granted guidance.7 counterparts for federal identical him in attorney notified wife's pired, the analog federal interpreting the courts Other apply for de intended writing she that expansive an taken Rule 55 have to our Civil wife's nothing. The did Hellenthal fault. And is8 "appearance" - an concept of what Rule under Civil a default attorney requested "appear an have found courts federal some hus 55(a) or serving Hellenthal without action did defendant's ance" even where filed, and been appearance no band since submission or presentation some "involve not 9 Shortly thereafter federal entered. Still, rule in the a default court. to the that After consolidated. were two cases in appearance "an "normally" that is system held, again damages was hearing on a default or sub presentation some 'involves an action 0 up until that held This court notice. without the court.1 mission County v. Ore- Dist. Sch. generally Morrow See 8. 55(a)(1) provides: Rule 6. Civil - 716 296, Co., 78 Or.App. and Water gon Land judgment for party whom ("The When cases 766, federal n. 4 769 P.2d appear sought failed has relief is appearance. affirmative Almost reading to ... give a broad by provided as defend party or otherwise is interest- answer and that the indicates anything that omitted); suffice.") (citation affidavit will is shown case fact ed in the rules, and a default. and enter Miller Wright, shall Arthur R. the clerk otherwise, Alan or Charles 10A Kane, required if the Procedure and application Practice Mary Kay Federal Service of ed.1998) general (noting 2686, (3d "the appear. 47 § at party failed to has an constitutes defining conduct judgments liberality en- what 55(c)(1) governs default Rule Civil party appearance"). provides "[if It by courts. tered sought has judgment default against whom action, (or, appear- party if 44; at see appeared § 2686, 8, Wright note al., et supra representative) party's F.3d by representative, Brown, 84 v. Ins. Co. New York also Life Cir.1996) (finding appearance (5th applica- 137, of the written notice with 141-42 be served shall and opposing counsel spoke with days prior to a three where claimant judgment at least for tion suit contest would claimant him that informed application." on the decision con telephonic settlement participated in and Key v. Bank judge); magistrate 767, ference before Berzanske, 704 P.2d v. generally Hertz 349, (1st Co., 353 F.3d 74 Textile 60(b) Tablecloth 55(e) 1985) ("Since (Alaska Rules 770 defendant's Cir.1996) where (finding appearance ... we federal to their counterparts, identical are during negotia plaintiff contacts informal supersed guidance.") case law for federal look to agreement tions, including informal in McCon grounds as noted other on ed statute notice, indicated of default seek entry 1996). (Alaska Hart, n. 4 407 key P.2d suit). to defend intent a clear are Civil Procedure Rules of Although Federal no Rules Alaska Civil exactly as the same worded 41-42, § Wright al., note et supra 55(c)(1), between 55(a)(1) the similarities 47-49. listed at authorities and see appropri- it make Alaska schemes federal for case law federal to look us ate for (Alaska P.2d 11. 689 "appearance." interpreting guidance in the time of the consolidation neither the hus write Civil Rule 55 from the bench-an ac band "nor Hellenthal was entitled to tion we decline to take.15 prior entry service of the of default because 'no service need be made Since parties Brown did not appear, de he was fault appear.1 for failure to We went on not entitled to notice Lange's appli- to hold that cations onee the cases were consolidated de- of default (after judgment. the default was entered in the second case) Hellenthal was entitled to written no application of Civil Rule 55 ex tice of application judgment plicitly depends upon whether the defendant 55(c)(1). under Civil Rule Weset aside the "appeared" has in the action.16 If the defen judgment, but we affirmed the dant appear, does not upon plaintiffs liability default on in the second case.13 application the clerk may of court enter a default without requiring service of appli A concurrence was filed in Case. The con upon cation Then, the defendant.17 upon ap curring justices would have held that plication, again without notice to the contacts between Hellenthal defendant, the clerk of may enter a counsel amounted an appearance by Hel- if damages are "for a purposes lenthal for of Civil Rule 55. The sum certain or for a sum which can com concurrence cited a number of federal cases putation be made certain.18 When the appearance had found an even without a damages cannot certain, be reduced to a sum presentation or submission to the court.14 *5 in hand,19 as the case at superior the court But the concurrence's view that an appear "may conduct hearings such or order such ance merely can arise contacts between references as it deems necessary proper" parties
the rejected by was majority the to "determine the amount of damages. Case. superior The may damages conduct its proceedings parte, ex
Even if
without requiring
adopt
were to
no
expansive
a more
tice to a defendant who
"appearance,"
notion of
previ
has failed
Brown's minimal con
ously appear in the action.21
duct here would not
new,
meet
the
more
relaxed standard.
only
action came
superior
court in this case did not err
eighteen days after receiving
complaint
the
by conducting
parte
ex
hearings to determine
when he
single
made a
telephone call to
plaintiff's
damages, without
requiring
Lange's attorney and left message
asking
that Brown be notified of the hearings. The
"when he
going
to court." While under
superior court's
comported
actions
with the
sympathetic
view this
may
action
have
requirements
of the
Moreover,
civil rules.
evinced Brown's intention at that moment to Brown's interests must be
balanced
lawsuit,
defend the
it nevertheless
fails to
Lange,
interests of
who
right
has a
to a
rise to the level of an "appearance" as that
timely determination of his damages so that
word is used in Civil Rule 55. To read more
may begin
his efforts toward
recovery
into Brown's action would strain
meaning
of his losses. Accordingly, we hold that the
"appearance"
of
so fundamentally
as to re
court did not err when it did not
Id.
(quoting
5(a)).
at 469
Alaska R. Civil P.
55(b)(1).
18. Alaska R.Civ.P.
$8.
13. See id. at 470 n.
In the context of Civil Rule 55, we have stated
"[dJamages
bodily injury
pain
See id.
at 471.
suffering by
very
their
nature are not a fixed or
Beck,
Caterpillar
Tractor Co. v.
624 P.2d
sum,
liquidated
nor can the sum be made certain
(Alaska 1981) ("Rule
changes are more
Davis v.
computation."
Criterion Ins. Co., 754
appropriately accomplished by
upon
amendment
(Alaska 1988).
P.2d 1331, 1333 n. 3
recommendation
of
rules
committee,
bench, and the barg”).
55(c)(1).
20. Alaska R.Civ.P.
55(a)(1),
(b)(1),
(c)(1)-(4).
Alaska R.Civ.P.
21. See id.
55(a)(1).
17. See Alaska R.Civ.P.
Providence
the case to
referred
I have
further notification
require
Company for a re
Washington Insurance
in the action.
appear
failed to
you
hear
will be
assume
sponse, and
that no
In the event
them soon.
from
No Pro-
Under
Attorney Was
B.
let me
forthcoming, please
response
Notify Brown
To
Obligation
fessional
appearance
I will enter our
know and
Entry
Seeking the
Default
of
Before
it
protect
City of Valdez
behalf
Judgment.
the Default
against default.29
Thus,
attorney explicitly asked
city's
deci
argues that our
Brown further
courtesy
professional
v. Salomon22
Valdes
City
sions
to re
carrier's failure
insurance
of its
event
here.
reversal
command
Herts v. Berzanske23
appear
city
make an
could
spond so that the
attorney's failure
argues that
But when the
prevent
default30
ance to
to defend
intention
to Brown's
inquire as
plaintiff's attor
respond,
carrier did not
the duties
a breach
action constituted
a de
and obtained
applied for
ney instead
held
we have
While
conduct.
professional
city's attorney.31
notifying the
fault without
by professional
obliged
lawyers are
attorney was
the defendant's
part
In
because
they
inquiries when
courtesy to make such
principle
expecting that
justified in
in contact
identity
and have been
know the
observed, we
be
would
we stated
Cook
counsel,24we have
party's
opposing
later refusal
superior court's
held that the
context,
we have
limited
so in a
done
discreti
an abuse of
that default was
set aside
pro se
principle to
same
extended the
never
on.32
parties.
Berganske33
we extended
In Herts v.
Motors, Inc.,25we first
Aurora
party's
Cook
to cover
holding City
Valdes
Hertz,
lawyers
agent had
that when
principle
the defendant's
agent.34
announced
counsel, they
identity
opposing
attorney
know the
to obtain
plaintiff's
contacted
in
of their
complaint.
inform
should
of time
extension
granted
the de
plaintiff's
*6
City
entry
default.26
an
of
tent to seek
Salomon,27
this
extension,35
referred to
twenty-day
Valdes
agent
fendant's
28
the defendant
in which
day after the
in a case
principle
one
an
of default
filed for
notifying the
plaintiff's
without
attorney
written to
of the extension
city's
bad
end
reversing
the cour
trial
asked for
attorney
specifically
agent.36 In
defendant's
default, we
aside the
refusal
to set
city's
did not
carrier
tesy
if the
of notification
holding to a
City
Valdes
extended
complaint:
respond to
1981).
at 298-99.
(Alaska
31. See id.
22.
pro se defendant who has made a single Justice, joins, dissenting. telephone call inquiring about a court date. agree I that Brown's call Lange's to attor- 09.17.080(a) C. Alaska Statute Requires ney did not amount to a "appear- Rule 55 the Apportionment Fault. of ance" disagree but with the court's conclu- argument final that the sion attorney duty had no to superior court required apportion to notify Brown of apply his intent to for damages in judgment. the final agree. We of my view, default. this court's caselaw 37. See id. at 772-73. give not unrepresented person advice to an other counsel."); than the advice to obtain Model Code 38. See Model Rules of Professional Conduct Rule of 7-104(A)(2) Responsibility, Professional DR 4.3 cmt. ("'During the course of a law- (1980). yer's client, representation lawyer of a should Gregg moved passed, day deadline of attorney to inform obliged informing Hertz either without default of default. impending court, relying This his intentions.11 Dean of Motors, the first Inc. was Aurora Cook Salomon, found the on Cook attorney's pro recognize an to cases of our his Gregg breached holding that improper, an to notice give reasonable duty to fessional opponent: notify his duty to default.1 for a applying party before opposing notes,2 correctly today opinion As the Dean a letter Gregg did send While American Col duty from this drew extension, Cook day twenty him of the advising Conduct, Trial Lawyers Code Trial lege of notify Dean of no effort he made time, which, advised: at the default, toor seek a thereafter intent a identity of knows the lawyer] [aWhen proceed. intention Dean's inquire about party, opposing an representing lawyer following rule of trial adopted the haveWe by lawyer advantage not take should conduct: to be en or dismissal any default causing identity aof lawyer] knows [a When op inquiring about first without tered party, opposing an lawyer representing proceed.3 lawyer's intention posing advantage of the take not he should obviously regards Lawyers Code Trial or dis- causing any default by lawyer is, courtesy"-that "professional a this inquir- without first be entered missal to lawyer owes anoth one obligation that an as lawyer's inten- opposing ing about common bond their virtue er proceed. tion par though both Yet even profession. counsel,4 represented apply inquiry should were ties in Cook rule of same notice describing the carefully avoided Cook identity an lawyer knows a when narrow, lawyer- kind of requirement as party, opposing representing agent the Trial quoting After duty. to-lawyer identity of know the if he does even found Cook approvingly, Lawyers Code purpose of "[The counsel. courtesy to highly desired is a practice "[this procrasti prevent is to procedure opposing side." delaying unduly from nating defendant requirement a tacti regarded as case; be Cook's reaffirmed it should We Cook, may obtain Like plaintiff v. Salomon.6 City Valdes which cal tool expense sides lawyers on both bother involved Salomon though, recently, More litigation.7 proce Gregg had the While litigation." Bersanske,8 extended expressly entry, he was Herts v. a default right to seek dural involving to situations requirement intent Hertz's the notice into inquire obligated to in litigants9 unrepresented Herts his intent Hertz of to inform proceed arising injuries Hertz sued entry.12 jured motorist a default to seek adjuster, insurance Hertz's a collision. from pre- recognizes that thus attorney, Hertz plaintiff's Dean, contacted arise can and notice inquiry days twenty additional Gregg, and asked by a non- twenty- plaintiff's contacted After the complaint.10 *8 1972). id. (Alaska 7. See 6n. P.2d 1. 503 Op. 26. at 827 n.
2. See 1985). (Alaska P.2d 767 8. 704 Lawyers Code College of Trial American 3. (1971-72), incomplete- 14(a), at 149 at 772-73. No. See id. Conduct 9. 6; n. accu- at 1049 P.2d Cook, 503 in ly quoted Salomon, 637 City rately quoted in Valdez at 768-69. 10. id. (Alaska 298, 299 P.2d 769. id. at n. 6. at 1049 P.2d Cook, 4. added). (emphasis
5.
Id.
omitted)
(emphasis
(citations
Id. at 772-73
12.
added).
299.
637 P.2d at
lawyer on behalf of the defendant.13 More
provides
Hertz
example.
useful
Hertz's
significantly,
holding
that Gregg
adjuster, Dean,
"was obli
discussed
possibility
gated
inquire
to
plaintiff's counsel,
settlement with
into
pro
Hertz's
intent
Gregg, be
to
Gregg
fore
had
ceed and to inform Hertz
complaint.17
even filed a
of his intent
La
entry,"
ter,
seek a
expressly
recog
asking
Hertz
after
Gregg for an informal exten
plaintiffs
nizes
lawyer
sion
answer,
of time to
owes this
Dean failed even to
duty not to the
agent,
acknowledge
defendant's
Gregg's
but direct
letter granting the ex
ly to the defendant.14
tension
discussing
a settlement.18 At the
Gregg applied
default,
time
Hertz's insur
Thus,
concluding
merely
that Cook
es
er, Providence Washington,
yet
had not
as
"professional
tablishes a rule of
courtesy,"
signed
attorney
case,
to the
and it
is
today's opinion misreads our caselaw. Until
unclear whether
Washington
Providence
now,
always
we have
viewed Cook's notice
even made a final decision to cover Hertz's
requirement
just
not
courtesy
as a
among
claim.19
lawyers,
duty
but as a
directly
owed
These
hardly
defendant.15
cireamstances
constitute "un
equivocal evidence" of Hertz's commitment
The court offers two reasons for limiting
to defend his claim. To
contrary,
Cook
attorneys
agents.
Neither
is
conjunction
viewed in
with Hertz's failure to
persuasive.
meet the
filing
answer,
deadline for
they
First,
"(tlhe
asserts,
the court
act of re
questions
raise serious
about his intent. Yet
taining
... unequivocally evi
despite
uncertainties-indeed,
because
dences an intent to defend the case.
But
of these uncertainties-this
court concluded
surely this overstates the
A
case.
defendant
that, Gregg
"obligated
inquire
into
just
who has
been
complaint
served with a
Hertz's
proceed
intent
and to inform
will often consult an attorney as a tentative Hertz of his intent to seek a
entry.20
step
first
in deciding what
to do.
If the By specifying
Gregg's
duty encompassed
ultimately
defendant
decides to hire the at
duty
"inquire
into Hertz's intent to
torney
case,
and defend the
the event that
proceed,
we unmistakably signaled that
"unequivocally evidences" this decision is the
Cook,
our
Salomon,
decisions in
and Herts
lawyer's
formal
appearance.
And
are founded on the existence of doubt con
because
formally
signals a commit
cerning the
defend,
defendant's intent to
not
defend,
ment
lawyer
who is consulted
unequivocal
evidence of a decision to de
about defending
subsequently
but
fails to
Thus,
fend.
driving
force
appear and
necessarily
answer
raises serious
uncertainty,
certainty.
questions about the defendant's intent.
hand,
the case at
the cireumstances
too,
So
surrounding Brown's failure to
early
defendant's
discussion of
timely
file a
through
settlement
lawyer
or a non-attor
answer raised
questions
substantial
about his
ney agent signals neither a commitment
intent
to defend.
Brown called
at
settle
unequivocal
nor an
decision to
torney's
defend.
office within the allowable time for
Dean,
Although
adjuster,
Hertz's
was hired to
intention to
resolve the matter
settlement or
investigate by
Washington,
Providence
our
litigation."
deci-
...
Id.
specifically
sion
described
ageni,
Dean as Hertz's
Washington's.
Providence
See id.
17. See Hertz,
filing an duty inquiry of the compliance with interest that gest a clear expressed but counsel or burdensome have been would message and notice his left Brown case. defending the Brown's attorney knew Lange's impractical. his also left He mail. firm's voice law the on Brown that knew and Kake, telephone lived number where telephone number community in the small parents returned his legal assistant lived with A parents. that indicates Nothing him in the record to reach unable Kake. was of call but Brown's with a spoke with reached fishing; she not have been could out Brown he was because effort.24 and of time expenditure relay to instead, minimal her and asked his mother why told cirenmstances, to see legal assistant I fail message. The these firm's Given yet had court date of that no be relieved mother should Lange's Brown's to file need Brown would that set applied been Brown have would But complaint. by an helped or an answer represented been the dead Brown of punishes not remind effect, simply did assistant court agent. In consequences answering or the litigant. line being proa se Brown for encourage did she Neither failing to answer. apply declining to reason for As its second further attorney if he had consult him to involving Salomon, cases Cook, Herts to later, with a month Less than questions.22 the fear expresses court litigants, pro se in or contact establish further effort no "the law's grounded on problems ethical intentions, Lange's attor Brown's quire into legal advice giving about concern historical entry of default. ney moved fear is the court's But party. Salomon, in Herts emphasized As we con ethical bases its The court groundless. tois procedure purpose "[the Rules of the Model Rule 4.3 of on cern from defendant procrastinating prevent Rule adopted as has Conduct,26 Alaska which Here, the cir delaying a case.23 unduly Con Professional Rules of the Alaska 4.3 of hardly surrounding the cumstances duct: procrastination; deliberate suggest client with of a dealing on behalf delay suggest strongly contrary, they counsel, represented who is person miscommunication, misun stemming from imply that not state lawyer shall view, my derstanding, or confusion. lawyer When lawyer is disinterested. kind the same generate cireumstances that the know reasonably should knows impose the us to uncertainty led misunderstands person unrepresented Salomon, Cook, inquiry and matter, lawyer lawyer's role Hertz. Salomon, Hertz, (quoting P.2d at 772 23. the con- summarized firm's records 22. law 299 n. P.2d at as follows: tact comply the failure Ernest, suggests that DLF- The court 18350-for Lange, Robert equitable might be with Cook 3/22/96, excused DLF wrote: 10:38 3/22/96-On bal- must be interests "Brown's grounds because wanted am and called this Wesley Jr. Brown Lange, has a who against the interests anced going to going to be when he know damages." of his timely right determination to a him know to let his call returned I court. demonstrates But the record Op. yet that he need- but a court date wasn't there unfounded: equitable concern it to the complaint-mail ed to answer two less than attorney applied copy to CHP. courts w/a Having complaint. filing Lange's after months he had left message as mother I left w/his than four- more waited default, he secured shortly I called. fishing go judg- moving for months before teen Willis the other John did tell me mother then, attorney was in Obviously, ment. Juneau wanting is in to serve you person are timely determination "a hurry to obtain no say that Mr. program. She did attending a ... damages." I4. [Lange's] yet. program his ... attended has not $28. Op.at phone .... # is Mr. re- that he never later indicate would 4.3 Rule (quoting Model Op. & n. 38 at 828 did not message. The trial ceived (1998)). cmt. explanation. question his *10 832 shall make reasonable efforts to correct lawyer's course of a representation of a misunderstanding.27 client, lawyer give should not advice to an unrepresented person other than the advice commentary Alaska's explains: to this rule 0 But, to obtain counsel.3 Alaska's commen An unrepresented person, particularly tary to Rule 4.8 conspicuously omits this experienced dealing one not legal with sentence of the Model commentary, Rule matters, might lawyer assume that a though even the Alaska incorporates rule loyalties disinterested in or is a disinterest rest of Model commentary. Rule 4.3's Be authority ed on the law even when the cause the commentary omitted strays so far lawyer represents a client.28 from the itself, text of the Rule Alaska's seen, As can be the Alaska Rule and its decision to omit the commentary hardly commentary nothing have to do with the surprising.31 Moreover, even if the Model present situation. Rule 4.8 and its Alaska Rule's apply Alaska, comment did it would commentary address the issue of communi not advance position, the court's since a cating unrepresented with litigants in way a plaintiff's attorney who a pro notifies se de might that cause them to misunderstand the fendant plaintiff that the apply intends to opposing lawyer's true intentions and inter a plausibly default cannot be deemed to be compliance Cook, ests. But Salomon, giving the kind of "advice to unrepresent and Heriz danger. creates no such These litigant" ed that the commentary forbids. require plaintiff's cases attorney, a before The court any thus fails to offer sound default, applying for inquire "to into [the why reason Cook should not pres extend the proceed defendant's] intent and to inform ent situation. emphasized Cook we that [the [plaintiffs] defendant] of intent to seek a purpose the chief requiring pre-default 9 default.2 purpose Because the core of this warning "help is to avoid time- unnecessary, requirement is to full ensure disclosure of an 2 consuming motions before the court.3 conflict, impending nothing in Rule 4.3 or the Lange's attorney's decision to seek commentary
Alaska
conceivably
could
bar
prior
inquiry or notice to
inquiry
such
and notice.
promised
exactly this
lengthy
kind of
suggests possible
court nonetheless
and unnecessary litigation.
present ap
problems arising from a sentence of commen
peal
promise.
fulfills the
To avoid similar
tary
appears
4.3;
in Model Rule
problems,
I would hold that the
Cook
Model Rule commentary warns: "During
inquiry
and
applied
notice
in this case.33
27. Alaska R. Prof. C. 4.3.
32.
Accordingly, default, and re- vacate judgment, merits. trial on
mand for Nancy Jerrell, CABANA, Viola
Doris
Hillstrand, Appellants/Cross-
Appellees, BOROUGH, and PENINSULA
KENAI Assembly, Borough Peninsula Kenai
Appellees/Cross-Appellants. S-9377, S-9497.
Nos. of Alaska.
Supreme Court
April27,2001. default). Some seeking entry of a counsel, parties but also to the only to courts extends rulings that this confirm themselves); Mfg., v. Midland Inc. of these Tool & Miro opposing Inc., just counsel. Mach., party, N.W.2d opposing Wis.2d (la J., (Anderson, concurring) Hart 440-43 1263-64; e.g., 711 N.E.2d Smith, See, California not follow menting well, did that Wisconsin at 4 n. 5. 498 S.E.2d inform recognizing an ethical