Could a personal-injury lawyer keep litigating without revealing that a claimant died?

Plain-English summary

A lawyer jointly represented an injured husband and his wife, who had a consortium claim. The husband died after a demand letter, and the lawyer asked about telling opposing counsel while litigation continued.

The opinion said the lawyer owed a duty to protect the wife's interests in the deceased husband's claim and that someone needed authority for the estate. It found disclosure likely necessary for a valid settlement and barred any express or implied assertion that the husband was alive. Depositions without such an implication were possible in theory but seemed unlikely.

Currency note

This opinion was issued in 2000, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Could counsel imply the husband was still alive?

A: No. The opinion expressly barred that representation.

Q: Did the opinion say a valid settlement likely required disclosure?

A: Yes, because authority to represent the husband's estate would be needed.

Background and rules framework

The published answer addressed truthful litigation conduct and the joint clients' interests without citing a numbered rule.

See also

• Missouri Informal Op. 20010050: Uninsured Motorist Notice

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000102/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney represents both Husband and Wife in a personal injury claim against two defendants. Wife has a loss of consortium claim against the defendants and Husband has a claim for extensive physical injuries, lost wages, permanent disability and pain. Recently, Husband died from what appears to be unrelated causes. The week before Husband passed, Attorney sent a demand letter and all the medical records. When must Attorney inform opposing counsel that Husband is dead? Attorney has not made any representations that Husband is still alive. However, may Attorney go forward deposing fact witnesses and expert witnesses without disclosing this information?

ANSWER: Attorney owes a duty to Wife to protect any interests she has in the deceased´s claim. Someone will have to obtain authority to represent Husband´s estate. Therefore, it seems likely that Attorney needs to disclose Husband´s death in order to pursue a valid settlement of his claim. Attorney may not expressly or impliedly represent that Husband is still alive. It would not be impossible to depose witnesses without making such a representation, but it seems unlikely.