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  • InsideTrack
  • September 18, 2019

    Ethical Dilemma:
    On the Death of a Client

    What are a lawyer's duties when their client dies while a case is pending? When does a lawyer's authority to act on behalf of a client end?

    Timothy J. Pierce

    question mark box

    Sept. 18, 2019 A cornerstone of the legal profession involves the lawyer-client relationship: a lawyer is the advocate and can act in authority on behalf of the client. But does that relationship – and authority – end if a client passes away while a case is pending?

    Question

    I represent a client in a personal injury action. The suit has been filed and discovery is underway, but opposing counsel made what I consider to be a fair offer that I believe my client would accept.

    Tim PierceTim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    I was just shocked to learn, however, that my client has unexpectedly passed away from causes unrelated to the accident.

    I would like to accept the offer because I believe my client would do so and the money will go to his family. Of course, I could not disclose the fact the client had passed away because the offer would be withdrawn.

    May I accept offer on behalf of the client without disclosing the client’s death?

    Answer

    SCR 20:4.1 governs a lawyer’s obligation of truthfulness to third parties, including opposing counsel. The rule prohibits making false statements of material fact to third parties. ABA Comment [1] states as follows:

    [1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.

    (emphasis added)

    This comment sets up two competing obligations for the lawyer:

    • There is no obligation to inform the opposing party of relevant facts.

    • The lawyer must be careful, however, not to engage in misrepresentation by omission, as opposed to an affirmative statement.

    The death of the client, however, is not just a relevant fact. Lawyers are the agents of clients, and when the principal (the client) dies, the lawyer-client relationship ends. The general rule is that the lawyer’s actual authority to act on behalf of the client ends when the client dies.1

    This leads to the conclusion reached in ABA Formal Op. 95-397, which addresses the question of whether a lawyer representing a personal injury client in settlement discussions must disclose the fact that the client has died. The opinion states:

    The death of a client means that the lawyer, at least for the moment, no longer has a client and, if she does thereafter continue in the matter, it will be on behalf of a different client. We therefore conclude that a failure to disclose that occurrence is tantamount to making a false statement of material fact within the meaning of Rule 4.1(a). (As noted above, Comment [1] to Rule 4.1 states that misrepresentations can “occur by failure to act.”) Prior to the death, the lawyer acted on behalf of an identified client. When, however, the death occurs, the lawyer ceases to represent that identified client. Accordingly, any subsequent communication to opposing counsel with respect to the matter would be the equivalent of a knowing, affirmative misrepresentation should the lawyer fail to disclose the fact that she no longer represents the previously identified client.

    Similarly, any appearance by the lawyer before the court without disclosing the client's death would be tantamount to making a “false statement of material fact … to a tribunal” within the meaning of Rule 3.3. Therefore, the lawyer must disclose the fact of death to the tribunal.

    What this means is that the lawyer must inform her adversary of the death of her client in her first communication with the adversary after she has learned of that fact.

    (footnotes omitted)

    Courts also agree that lawyers have an affirmative duty to disclose the death of the lawyer’s client.2 Lawyers who failed to do so have faced professional discipline.3

    Of course, a lawyer may be able to continue the representation with a substituted client, such as a personal representative of the deceased client’s estate. In this instance, the lawyer must take reasonable steps to protect the interests of the deceased client. Comment e to §30 of the Restatement (Third) of the Law Governing Lawyers states:

    e. A client's death or incompetence. A client's death terminates a lawyer's actual authority (see Restatement Second, Agency § 120). The rights of a deceased client pass to other persons –executors, for example – who can, if they wish, revive the representation. Procedural rules usually provide for substitution for the deceased client in actions to which the client was a party. The lawyer for the deceased client must cooperate in such a transition and seek to protect the deceased client's property and other rights (see § 33). In extraordinary circumstances, the lawyer may exercise initiative, for example taking an appeal when the time for doing so would expire before a personal representative could be appointed (see § 33, Comment b).

    Thus, the death of a client is a material fact which must be disclosed to courts and opposing parties.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    • Office Clean Up: Considerations in Closed Client Files, Aug. 21, 2019
      File cleanup: What do you need to know in storing and destroying old files from closed client cases? How long do you have to wait before destroying closed client files? And do you need permission of the former client before destroying them?

    • Job Negotiations and Conflicts, July 17, 2019
      Job searches can give rise to conflicts for lawyers. Just when do lawyers have to notify clients that they are seeking a new position?

    Endnotes

    1 See the Restatement (Third) of the Law Governing Lawyers, §30 (2)(b).

    2 See, e.g., Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F.Supp. 507 (E.D. Mich. 1983); Kingsdorf v. Kingsdorf, 797 A.2d 206 (N.J. Super. Ct. App. Div. 2002).

    3 See, e.g., In re Rosen, 198 P.3d 116 (Colo. 2008); Kentucky Bar Ass'n v. Geisler, 938 S.W.2d 578 (Ky. 1997).


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