My personal injury plaintiff died and the estate's beneficiary wants me to settle. Do I have to tell the defendants and the court about the death before accepting a settlement offer?

Plain-English summary

The inquiring attorney represented the plaintiff in a personal injury case pending in superior court. The plaintiff recently died, and the beneficiary of the decedent's estate urged the attorney to settle, aware that additional steps such as probate proceedings and amending the complaint would be needed to settle on behalf of the estate. The attorney asked whether the attorney had an obligation to notify the defendants of the plaintiff's death before accepting a settlement offer.

The panel concluded that the Rules require the attorney to inform both the defendants and the court of the plaintiff's death. As a preliminary matter, the attorney had no client and thus no authority to continue settlement negotiations without first obtaining the approval of a duly qualified personal representative. On the ethical disclosure question, the panel applied Rule 4.1 (truthfulness in statements to others) and Rule 3.3 (candor toward the tribunal), noting that misrepresentations can occur by failure to act and that failing to make certain disclosures to a court is equivalent to an affirmative misrepresentation. Failing to disclose the plaintiff's death to the adversary was equivalent to a false statement of material fact under Rule 4.1(a), and appearing before the court without disclosing it was tantamount to a false statement to a tribunal under Rule 3.3. The attorney therefore had to inform the adversary before proceeding with settlement negotiations and to inform the court of the death at the next appearance.

Currency note

This opinion was issued in January 1997, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 4.1 and 3.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Must a lawyer disclose that a client has died to the other side?

A: The opinion concluded yes: failing to disclose the plaintiff's death to the adversary before settling is equivalent to a false statement of material fact under Rule 4.1(a).

Q: Does the lawyer also have to tell the court?

A: Yes. The opinion held that appearing before the court without disclosing the death is tantamount to a false statement to a tribunal under Rule 3.3, so the lawyer must inform the court at the next appearance.

Q: Can the lawyer keep negotiating a settlement after the client dies?

A: The opinion said the lawyer then has no client and no authority to continue negotiations without first obtaining the approval of a duly qualified personal representative.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 4.1 and 3.3. Rule 4.1 bars a lawyer from knowingly making a false statement of material fact to a third person, and the comment recognizes that misrepresentations can occur by failure to act. Rule 3.3 requires candor toward the tribunal, bars knowingly false statements of fact, and its comment treats failure to disclose to a court as equivalent to an affirmative misrepresentation. The panel applied both to conclude that silence about the client's death would be a material misrepresentation.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.1 / RI RPC 4.1 (truthfulness in statements to others)
• Model Rule 3.3 / RI RPC 3.3 (candor toward the tribunal)

Cases:

• Washington v. Caseyville Health Care Ass'n, No. 5-96-0022 (Ill. App. Ct. 5th Dist. Oct. 11, 1996), no authority to settle before a representative of the deceased client is appointed
• Virgi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983), duty to inform the court and opposing counsel of a client's death

Other opinions cited:

• ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-397 (1995): duty to disclose a client's death to the adversary and the court

See also

• RI EAP Op. 99-06: The duty to report a client leaving court-ordered treatment
• RI EAP Op. 97-14: Copying a represented party on an extraneous letter

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2097-01.pdf

Original opinion text

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

Final

                        RHODE ISLAND SUPREME COURT
                           ETHICS ADVISORY PANEL
                       OPINION NO. 97-01, REQUEST NO. 702
                              Issued January 9, 1997

FACTS:

    The inquiring attorney represents the plaintiff in a personal injury case which is pending

in superior court. The plaintiff recently died. The beneficiary of the decedent's estate has urged
the inquiring attorney to settle the case. The inquiring attorney states that the beneficiary is
aware that additional steps, such as probate proceedings and amending the complaint, must be
taken in order to settle the claim on behalf of decedent's estate.

ISSUE PRESENTED:

    The inquiring attorney asks whether he/she has an obligation to notify the defendants of

the plaintiff's death prior to accepting an offer of settlement.

OPINION:

   The Rules of Professional Conduct require that the inquiring attorney inform the defen-

dants and the court of the plaintiff's death.

REASONING:

    A preliminary question that the inquiring attorney must consider is the extent of his/her

authority to enter into or to continue settlement negotiations after his/her client's death. The in-
quiring attorney has no client. Therefore he/she has no authority to proceed with negotiations
without first obtaining the approval of a duly qualified personal representative. See Washington
v. Caseyville Health Care Ass'n, Ill. App. Ct. 5th Dist, No. 5-96-0022, 10/11/96 (lawyer had no
authority to settle case before representative of deceased client was appointed).

    Turning to the ethical question of disclosure, the Panel believes that Rule 4.1 and Rule

3.3 govern the conduct of the inquiring attorney in this situation. Rule 4.1 entitled "Truthfulness
in Statements to Others" provides:

           In the course of representing a client a lawyer shall not knowingly:
                 (a) make a false statement of material fact or law to a third
           person; or
                 (b) fail to disclose a material fact to a third person when
           disclosure is necessary to avoid assisting a criminal or fraudulent

act by a client, unless disclosure is prohibited by Rule 1.6.
Final
Op. 97-01
Page 2

Misrepresentations can occur by failure to act. Comment to Rule 4.1.

      Rule 3.3 which requires attorneys to act with candor toward tribunals provides in perti-

nent part:

     (a) A lawyer shall not knowingly:
          (1) make a false statement of material fact or law to a tribunal;
                                         ***
          (4) offer evidence that the lawyer knows to be false. If a
          lawyer has offered material evidence and comes to know of
          its falsity, the lawyer shall take reasonable remedeial meas-
          ures
     (b) The duties stated in paragraph (a) continue to the conclusion of
   the proceeding, and apply even if compliance requires disclosure of in-

formation otherwise protected by Rule 1.6.

Failure to make certain disclosures to the court is equivalent to an affirmative misrepresentation.
Comment to Rule 3.3.

   The Panel is of the opinion that the inquiring attorney's failure to disclose the plaintiff's

death to his/her adversary is equivalent to making a false statement of material fact under Rule
4.1(a). Similarly, an appearance by the inquiring attorney before the court without disclosing the
plaintiff's death is tantamount to making a false statement to a tribunal under Rule 3.3.

  The Panel therefore concludes that the inquiring attorney has an obligation to inform

his/her adversary of the death of the client before proceeding with settlement negotiations. The
inquiring attorney also has a duty to inform the court of the plaintiff's death when he/she next
appears before the court on this matter. See Virgi v. Grand Trunk Warehouse & Cold Storage
Co., 571 F. Supp. 507 (E.D. Mich. 1983) (attorney had obligation to inform court and opposing
counsel of client's death); ABA Comm. on Ethics and Professional Responsibility, Formal
Op. 95-397 (1995) (attorney has duty to disclose client's death to adversary and to court).