Can a lawyer who serves as both administrator and attorney settle a wrongful-death claim the heirs have rejected because he thinks the case cannot be won?

Plain-English summary

A nonresident with no Kentucky heirs or property was killed in a fall from a passenger train passing through Kentucky. His brother employed a Kentucky firm on a contingent fee to have a personal representative appointed and to prosecute a wrongful-death suit; a firm member qualified as administrator and timely filed suit. The attorneys and the administrator concluded they could not prove the case but persuaded the defendant to make a full-settlement offer. When the offer was communicated to the heirs they disapproved it; the attorneys then asked the heirs to pay a fee based on the offer and to employ other counsel, but the heirs did neither. Believing the offer was the best obtainable, the lawyers asked whether they and the administrator could settle. The committee answered that they should not.

The committee described the matter as one of several embarrassing situations that may arise when an attorney undertakes to act as a fiduciary. Its conclusion was that, after due notice to the heirs, the administrator should resign and the attorneys should then withdraw from the action.

Currency note

This opinion was issued in 1962 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific point mentioned here.

Common questions

Q: Can a lawyer-administrator settle a wrongful-death claim the heirs have rejected?

A: Under this opinion, no. The committee said that where the lawyer believes the case cannot be proven but the heirs reject settlement, he should resign and withdraw rather than settle over their objection.

Q: What should the lawyer do instead?

A: After due notice to the heirs, the administrator should resign and the attorneys should withdraw from the action.

Q: Why did serving as both administrator and attorney create the problem?

A: The committee treated it as one of the embarrassing situations that arise when a lawyer also acts as fiduciary, where the interests of the role and the heirs can diverge.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, on conflicting interests, to a lawyer serving simultaneously as estate fiduciary and attorney. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest, including the lawyer's own competing role) and Model Rule 1.16 (declining or terminating representation, including withdrawal), with Kentucky's counterparts at SCR 3.130(1.7) and SCR 3.130(1.16).

Citations and references

Rules of Professional Conduct:

• Canon 6 (conflicting interests; lawyer as fiduciary); modern analogs Model Rules 1.7 and 1.16

See also

• KBA Ethics Op. E-14: Family Lawyers and Estate Fees
• KBA Ethics Op. E-73: Fee After Discharge in a Contingent-Fee Case

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-003.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-3
Issued: March 1962

Question:

May an attorney-administrator settle a wrongful death claim and continue as attorney and fiduciary where he feels a case cannot be proven, but heirs reject settlement?

Answer:

No.

References:

Canon 6
OPINION

A nonresident of Kentucky was killed in a fall from a passenger train while passing through the state in 1957. He had no heirs or property within Kentucky. His brother employed a Kentucky law firm, on a contingent fee basis, to see to the appointment of a personal representative and the prosecution of a suit to recover for the wrongful death. A member of the firm qualified as Administrator, suit was timely filed, and the case is now pending. The attorneys and the Administrator have concluded that they cannot prove a case, but have persuaded the defendant to make an offer in full settlement of the claim. This offer was communicated to the heirs-at-law, but they disapproved the proposed settlement. The attorneys then requested the heirs to pay them a fee based upon the offer, and employ other counsel to try the case, but the heirs have failed to comply with either request. The attorneys believe the offer is the best that can be obtained. The question is: Is it proper under these facts for the attorneys and the Administrator to settle the claim? This is only one of several embarrassing situations that may arise when an attorney undertakes to act as a fiduciary. It is our opinion that, after due notice to the heirs, the Administrator should resign and the attorneys should then withdraw from the action.
____

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.