When a lawyer files a wrongful death action for an estate, are the heirs the lawyer's clients, and what duties are owed to them?

Plain-English summary

This opinion (a substitute for an earlier 2007 FEO 1 that was withdrawn) addresses a lawyer's duties to the heirs of a deceased person when the lawyer files a wrongful death action on behalf of the estate. The central point is identifying the client. Citing RPC 137, the opinion concludes the lawyer represents the personal representative in his or her official capacity and the estate as an entity, and owes those clients loyalty, confidentiality, accountability, and independent professional judgment. The heirs, though they may benefit from a recovery, are interested parties, not clients; the duties owed to them are those Rule 4.4 sets for non-clients. (On tort liability, the opinion cites Jenkins v. Wheeler, recognizing an heir's standing to sue a lawyer for malpractice based on erroneous advice to the personal representative that harms the heir.)

Because the heirs are not clients, the lawyer must make his role clear to them and, if they are unrepresented, may not give them legal advice other than the advice to obtain their own counsel (Rule 4.3). With the personal representative's consent, the lawyer may provide the heirs factual information about the wrongful death action (Rule 1.6, Rule 1.2).

The opinion then applies these principles to a dispute over settlement proceeds. Where the mother (as personal representative) believes the father abandoned the child and so is barred from sharing under N.C. Gen. Stat. 31A-2, the lawyer may, on the estate's behalf, negotiate with the father to reduce his claim and may convey offers and counteroffers between the parties, provided the lawyer makes his role clear to the father and gives him no legal advice (Rule 4.3). Advising the personal representative on whether a legal bar to participation exists is an appropriate role, and the personal representative then sets the objectives the lawyer carries out, consistent with her fiduciary duties. The lawyer may also file a motion asking the court to determine whether the father is entitled to any proceeds under N.C. Gen. Stat. 31A-2, which comports with the duty to see that the estate's proceeds are properly administered.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the lawyer's client in a wrongful death action is the estate and its personal representative, not the heirs, so the lawyer's loyalty and confidentiality run to those clients while the heirs receive only the protections Rule 4.4 affords non-clients. Per the opinion, the lawyer must disclose his role to the heirs and, if they are unrepresented, may advise them only to secure their own counsel (Rule 4.3), though with the personal representative's consent he may share factual information.

Per the opinion, the lawyer may, for the estate, negotiate with and convey offers between heirs (such as over a statutory abandonment bar under N.C. Gen. Stat. 31A-2) without advising them, and may file a motion for the court to determine an heir's right to share in the proceeds.

Common questions

Q: In a wrongful death case, does the lawyer represent the heirs?

A: No. The opinion concludes the lawyer represents the personal representative in an official capacity and the estate as an entity; the heirs are interested parties, not clients, and are owed only the duties due a non-client under Rule 4.4.

Q: Can the lawyer advise the heirs about their right to share in a recovery?

A: Only to get their own lawyer. The opinion concludes that, because the heirs are not clients, the lawyer must disclose his role and may not give unrepresented heirs legal advice other than to secure their own counsel (Rule 4.3), though he may share factual information with the personal representative's consent.

Q: Can the lawyer negotiate with one heir to reduce that heir's claim to the proceeds?

A: Yes, for the estate. The opinion concludes the lawyer may, on the estate's behalf, negotiate with the father and convey offers and counteroffers between the parties, as long as the lawyer makes his role clear and gives the father no legal advice (Rule 4.3).

Q: Can the lawyer ask the court to decide whether an allegedly absent parent can share?

A: Yes. The opinion concludes the lawyer may file a motion for the court to determine whether the father is entitled to any settlement proceeds under N.C. Gen. Stat. 31A-2, consistent with the duty to see the estate's proceeds are properly administered.

Background and rules framework

The opinion applies North Carolina Rule 4.4 (respect for the rights of third persons), Rule 4.3 (dealing with an unrepresented person), Rule 1.6 (confidentiality), and Rule 1.2 (scope of representation and allocation of authority), and relies on RPC 137 for the principle that the estate's lawyer represents the personal representative and the estate, not the heirs. These track the corresponding Model Rules. The opinion also cites Jenkins v. Wheeler on an heir's tort standing, a legal point rather than an ethics holding.

Citations and references

Rules of Professional Conduct:

• MR 4.4 / NC Rule 4.4 (duties owed to non-clients/third persons)
• MR 4.3 / NC Rule 4.3 (dealing with an unrepresented person)
• MR 1.6 / NC Rule 1.6 (confidentiality); MR 1.2 / NC Rule 1.2 (scope and objectives)

Statutes:

• N.C. Gen. Stat. 31A-2 (a parent who abandoned a child may not share in wrongful death proceeds)

Cases:

• Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, disc. rev. denied, 311 N.C. 758, 321 S.E.2d 136 (1984) (heir's standing to sue a lawyer in tort for harmful advice to the personal representative).

Other opinions cited:

• NC RPC 137: the lawyer for an estate represents the personal representative and the estate, not the heirs.

See also

• ABA Formal Op. 94-380: Counseling a Fiduciary
• ABA Formal Op. 02-426: Lawyer Serving as Fiduciary for an Estate or Trust

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2007-formal-ethics-opinion-1/

Original opinion text

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

Editor's Note: This opinion is a substitute for 2007 Formal Ethics Opinion 1 which was adopted by the State Bar Council on April 20, 2007, and subsequently withdrawn by the council on July 13, 2007.

Inquiry #1:

When a lawyer files a wrongful death action on behalf of an estate, what are the lawyer's duties to the heirs of the deceased?

Opinion #1:

Pursuant to RPC 137, a lawyer representing an estate represents the personal representative in his or her official capacity and the estate as an entity. Although the heirs are interested parties and may benefit from a successful wrongful death action, they are not clients of the lawyer in the matter. The personal representative and the estate are the lawyer's clients, to whom the lawyer owes the ethical duties of loyalty, confidentiality, accountability, and independent professional judgment. The ethical duties owed to the heirs are those set out in Rule 4.4 With regard to tort liability, see Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, disc. rev. denied, 311 N.C. 758, 321 S.E.2d 136 (1984)(holding that heir has standing as non-client third party to sue lawyer in tort for malpractice when lawyer gives erroneous advice to personal representative that causes heir harm).

Inquiry #2:

Can the lawyer advise the heirs of their respective rights to share or not to share in any recovery in the wrongful death action?

Opinion #2:

The lawyer does not represent the heirs and he should inform the heirs of his role in representing the estate. If the heirs are not represented by counsel, the lawyer may not give the heirs legal advice, other than the advice to secure their own counsel. Rule 4.3. With the consent of the estate's personal representative, the lawyer may provide the heirs with factual information concerning the wrongful death action. See Rule 1.6; Rule 1.2.

Inquiry #3:

On behalf of the estate, the lawyer settles a wrongful death claim for a decedent who is survived by her mother and father. The mother, as personal representative of the estate, asks the lawyer not to pay proceeds from the settlement to the father because the mother alleges that the father willfully abandoned the child during her lifetime. N.C. Gen. Stat. §31A-2 prohibits a parent who abandoned a child from participating in the proceeds of a wrongful death action.

May the lawyer communicate an offer from the mother to the father requesting the father to reduce his claim to the proceeds of the settlement to a nominal amount; may the lawyer convey offers and counter offers between the mother and the father without advising either party with respect to their rights or the likelihood of success at a hearing to determine abandonment?

Opinion #3:

Yes. Determining whether there is a legal prohibition to participation in the proceeds of the wrongful death settlement is an appropriate role of the personal representative of the estate and the lawyer should provide legal advice to the personal representative on this issue. Based upon this advice, the estate's personal representative will establish the objectives of the lawyer's representation of the estate on this issue. The lawyer's responsibility is to carry out those objectives provided they are consistent with the personal representative's fiduciary duties. In doing so, the lawyer continues to represent the estate and the personal representative in her official capacity. On behalf of the estate, the lawyer may negotiate with the father to reduce his claim to the wrongful death proceeds. The lawyer must make his role clear to the father and may not give the father legal advice. Rule 4.3.

Inquiry #4:

May the lawyer for the estate file an action to deny the father's right to share in the proceeds of the settlement pursuant to N.C. Gen. Stat. §31A-2?

Opinion #4:

Yes. The lawyer may file a motion with the court to determine whether the father is entitled to any proceeds from the settlement. The filing of such a motion comports with the lawyer's duty to see that the estate proceeds are properly administered.