If my client dies while a personal injury claim is pending, do I have to tell the opposing side and the court?

Plain-English summary

A lawyer represented a corporation in which a husband and wife were the principal officers and shareholders, and separately represented the wife in a personal injury claim that had not yet been filed as suit. Both husband and wife died. The lawyer asked whether the Rules required disclosing the deaths in the corporation's pending bankruptcy-related litigation, or to the insurer in the personal injury claim.

On the corporate matter, the opinion applied Rule 1.13(a), under which the lawyer represents the organization acting through its duly authorized constituents. Because a corporation's existence is generally perpetual and the client is the corporation, the opinion concluded the lawyer has no duty under the Rules to disclose the deaths of principal officers or shareholders unless the circumstances make those deaths material to the matter (separate from any disclosure required by procedural rules in discovery or by court order).

On the personal injury claim, the opinion concluded the death materially alters the claim and triggers a disclosure duty. It applied Rule 4.1 (truthfulness to third persons) and Rule 8.4(a)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and followed ABA Formal Opinion 95-397, which concluded that continuing settlement negotiations without disclosing the client's death is an implied false representation that the lawyer still has a living client. The opinion concluded the same result follows under Illinois Rule 4.1(a), that the claimant's death is a material fact under Rule 4.1(b) where the lawyer is authorized to continue the claim for the estate, and that nondisclosure could constitute deceit or misrepresentation under Rule 8.4(a)(4). It concluded the lawyer must make timely disclosure of the death in the personal injury matter.

Currency note

This opinion was issued in 1996, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.13, 4.1, and 8.4), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Must a lawyer disclose a client's death in a pending personal injury claim?

A: The opinion concluded yes. Continuing without disclosure is an implied false representation that the lawyer still has a living client, and the death is a material fact, so timely disclosure is required under Rules 4.1 and 8.4.

Q: When must the disclosure be made?

A: Following ABA Formal Opinion 95-397, the opinion concluded the lawyer must disclose the death the next time the lawyer communicates with opposing counsel, and in any event make timely disclosure.

Q: Does the lawyer have to report the death of a corporate client's officers?

A: The opinion concluded no, not under the Rules, because the client is the corporation, whose existence is generally perpetual, unless the deaths are material to the matter. Procedural rules in discovery or a court order may separately require disclosure.

Background and rules framework

The opinion interpreted Rule 1.13 (organization as client, acting through constituents; Model Rule 1.13), Rule 4.1 (truthfulness in statements to third persons and the duty to disclose a material fact to avoid assisting a fraud; Model Rule 4.1), and Rule 8.4(a)(4) (dishonesty, fraud, deceit, or misrepresentation; Model Rule 8.4). It followed ABA Formal Opinion 95-397 on disclosing a client's death during settlement.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.13 (organization as client) / Illinois Rule 1.13(a)
• Model Rule 4.1 (truthfulness in statements to others) / Illinois Rule 4.1(a), (b)
• Model Rule 8.4 (misconduct) / Illinois Rule 8.4(a)(4)

Statutes:

• 735 ILCS 5/13-209(a) (survival of personal injury action)
• 735 ILCS 5/2-1008(b) (substitution on death of a party)
• 740 ILCS 180/1 (Wrongful Death Act)

Other opinions cited:

• ABA Formal Opinion No. 95-397 (disclosing a client's death during settlement)
• ISBA Advisory Opinions Nos. 95-15 and 95-01

See also

• ISBA Ethics Op. 95-14: Disclosing a Client's Fraud on the Court
• ISBA Ethics Op. 09-01: Communications With Corporate Constituents

Source

• Landing page: https://www.isba.org/ethics/opinions/9603