When a personal-injury client dies before suit is filed and the family declines to open an estate, what must the lawyer do, and must the lawyer tell the insurance adjuster the client died?

Plain-English summary

A lawyer represented a client in a personal-injury matter and had been talking to the would-be defendant's insurance adjuster, but no lawsuit had been filed. The client died of unrelated causes, no estate was opened and no personal representative appointed, and the client's only child told the lawyer they would not open an estate or pursue the claim, with the statute of limitations approaching. The lawyer asked what the rules require regarding the deceased client's representation and whether the lawyer must tell the opposing party the client had died.

The Committee concluded the representation terminated at the client's death, so the lawyer has no authority to act on the client's behalf. It noted (as a matter of substantive law, on which it does not opine) that South Carolina courts hold a lawyer's authority generally ends with the client's death (Bunch v. Dunning; Hillman v. Pinion), though the lawyer may continue if a new relationship is formed with a duly qualified personal representative. Under Rule 1.16(d), upon termination the lawyer must act to the extent reasonably practicable to protect the client's interest; read with Rule 1.6, that means the lawyer may take steps reasonably necessary to protect the client's interest, such as identifying and notifying appropriate potential successors in interest of the claim and the limitations deadline. Because the only known successors (the family) declined to open an estate or pursue the claim, the lawyer satisfied the obligation to protect the deceased client's interest. The Committee also noted the duty of confidentiality continues after the representation and after the client's death and cannot be waived by third parties.

On disclosing the death, the Committee observed that most jurisdictions addressing the question did so in the context of pending litigation and court appearances, where the majority require disclosure to avoid violating candor and truthfulness rules (Rules 3.3, 4.1, 8.4), because failing to disclose passively misrepresents the lawyer's authority. Here, however, discussions with the adjuster had occurred but no litigation had commenced. The Committee concluded those facts are sufficiently different that affirmative disclosure at this stage is not required, as it could prejudice the client or a potential successor in interest. The lawyer would not violate Rule 4.1(a) by avoiding substantive communication with the adjuster, but should be mindful of Rules 4.1(a) and 8.4(d) and (e) and be careful not to misrepresent the client's vital status.

In practice

Under this opinion, when a personal-injury client dies before suit, the representation ends and the lawyer has no authority to act, but the lawyer must take reasonably practicable steps under Rule 1.16(d) to protect the client's interest, such as notifying potential successors of the claim and the limitations deadline. The opinion holds that this duty is satisfied when the known family declines to open an estate or pursue the claim, that confidentiality survives the client's death, and that pre-suit the lawyer need not affirmatively disclose the death to the adjuster but must not misrepresent the client's vital status.

Common questions

Q: Does a lawyer's authority continue after the client dies?

A: No. The opinion concludes the representation terminates at the client's death and the lawyer has no authority to act unless a new relationship is formed with the client's duly qualified personal representative.

Q: What must the lawyer do when a PI client dies before suit?

A: The opinion concludes the lawyer must take reasonably practicable steps under Rule 1.16(d) to protect the client's interest, such as identifying and notifying appropriate potential successors of the claim and the limitations deadline.

Q: Is the duty satisfied if the family declines to pursue the claim?

A: Yes. The opinion concludes that where the only known successors (the family) decline to open an estate or pursue the claim, the lawyer has satisfied the obligation to protect the deceased client's interest.

Q: Must the lawyer tell the insurance adjuster the client died?

A: Not at this pre-suit stage. The opinion concludes affirmative disclosure is not required because litigation has not commenced and disclosure could prejudice the client or a successor, but the lawyer must not misrepresent the client's vital status.

Background and rules framework

The opinion interprets Rule 1.16(d) (steps to protect a client's interest on termination), Rule 1.6 (confidentiality surviving the client's death), and Rules 3.3, 3.4(a), 4.1(a), and 8.4(d) and (e) (candor and truthfulness), against the substantive-law premise that a client's death ends the lawyer's authority. South Carolina's rules correspond to the ABA Model Rules. The Committee discussed Bunch v. Dunning, Hillman v. Pinion, its Opinion 05-09, and out-of-state authority (Virginia Op. 1900, ABA Formal Op. 95-397, and others).

Citations and references

Rules of Professional Conduct:

• MR 1.16 / SC RPC 1.16(d) (protecting the client's interest on termination)
• MR 1.6 / SC RPC 1.6 (confidentiality; survives the client's death)
• MR 4.1 / SC RPC 4.1(a) (truthfulness in statements to others)
• MR 3.3 / SC RPC 3.3 (candor toward the tribunal)
• MR 8.4 / SC RPC 8.4(d), (e) (misconduct)

Cases:

• Bunch v. Dunning, 106 S.C. 300, 91 S.E. 331 (1917), a lawyer's authority ends with the client's death.
• Hillman v. Pinion, 347 S.C. 253, 554 S.E.2d 427 (Ct. App. 2001), continuing by agreement with the estate's personal representative.

Other opinions cited:

• ABA Formal Op. 95-397: failing to disclose a client's death in pending settlement is a false statement under Rule 4.1(a).
• Va. Legal Ethics Op. 1900 (2024): disclosing a client's death to the opposing party and court.
• S.C. Bar EAC Op. 05-09: confidentiality extends beyond the client's death.

See also

• ABA Formal Op. 06-439: Truthfulness in Negotiation and Mediation
• NY State Bar Op. 982: Disclosing Potential Fraud on a Tribunal

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-24-03/
• Original PDF: https://www.scbar.org/media/xcjnfl5e/eao-24-03-final-adopted-opinion.pdf

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER'S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

S.C. Rules of Professional Conduct: 1.6, 1.16(d), 3.3, 3.4(a), 4.1(a), and 8.4 (d) and (e).

Facts: Lawyer represents Client in a personal injury matter. A lawsuit has not been initiated, but Lawyer has been talking to the would-be-Defendant's insurance adjustor. Client dies of unrelated causes, and an estate has not been opened nor a personal representative appointed. Client's only child has communicated to Lawyer that they decline to open an estate or pursue the personal injury claim. The statute of limitations will soon expire.

Questions Presented:

• What action, if any, do the South Carolina Rules of Professional Conduct require Lawyer to take regarding Lawyer's representation of the now deceased Client?

• Do the South Carolina Rules of Professional Conduct require Lawyer to inform the would-be-opposing party in the personal injury matter that Client is deceased?

Summary: In this instance, Lawyer's representation of Client terminated upon Client's death, and Lawyer has no authority to act on behalf of Client. Rule 1.16(d) provides that, upon termination of representation, a lawyer shall act to the extent reasonably practicable to protect a client's interest. In the absence of an estate with an executor and/or personal representative, Lawyer may use their discretion to identify and notify any appropriate potential party(ies) of the existence of a personal injury claim and when the statute of limitations will run. When, as here, the only known successors in interest – i.e., the family – have informed Lawyer that they will not be opening an estate and do not desire to pursue the personal injury claim, Lawyer has satisfied their ethical obligation to protect the deceased client's interest. As litigation has not commenced, affirmative disclosure of Client's death to the insurance adjustor is not required as it could possibly prejudice Client or any potential future successor in interest. However, Lawyer should be careful not to misrepresent the vital status of Client.

Opinion:

What action must Lawyer take regarding representation of the deceased Client? The South Carolina Rules of Professional Conduct provide that, "for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to [the] Rules determine whether a client- lawyer relationship exists." Scope at [4], RPC, Rule 407, SCACR. This Committee does not express opinions on questions of law, but, to address the questions raised by Lawyer, the Committee recognizes that our appellate courts have held that a lawyer's authority to act for a client generally ends with the client's death. Bunch v. Dunning, 106 S.C. 300, 91 S.E. 331 (1917) (any authority a lawyer has as counsel for a client ceases with the client's death such that the lawyer no longer has any power or authority to further represent the deceased client); Hillman v. Pinion, 347 S.C. 253, 258 at 5, 554 S.E.2d 427, 430 at 5 (Ct. App. 2001). However, the lawyer for a deceased client may continue to act in the matter if a new attorney-client relationship is entered with the deceased's duly qualified personal representative who authorizes the substitution of parties. See, e.g. Hillman v. Pinion, 347 S.C. 253, 258, 554 S.E.2d 427, 430 (Ct. App. 2001) (while authority of lawyer to act on behalf of client ends upon client's death, under specific facts of case – lawyer for deceased client was representing client's estate by agreement with personal representative of estate, a fact known by all parties – lawyer had authority to act for client). See also Va. Eth. Op. 1900 (2024) (even if a client's death is disclosed at the same time, a lawyer cannot accept or make a settlement offer on the deceased client's behalf because the lawyer has no client and authority to do so unless and until retained by the administrator of the estate or other successor in interest to pursue any remaining claim on behalf of the estate); N.Y. Eth. Op. 1211 (2020) ("If a lawyer is handling a personal injury matter for a client who dies during the case, the attorney-client relationship automatically terminates, but the lawyer may enter into a new attorney client relationship with the former client's putative personal representative."); Restatement (Third) of the Law Governing Lawyers §31 at Comment e (Am Law Inst. 2000) (client's death ends a lawyer's authority, and the rights of the decedent pass to others, e.g., personal representatives, who can, if they choose, revive the lawyer's representation).

The basic principles underlying the Rules include the obligation of a lawyer to zealously protect a client's legitimate interest within the bounds of the law. Preamble at [9]. Rule 1.6 prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or disclosure is specifically permitted by the Rule.[1] This duty of confidentiality continues after the attorney-client relationship has terminated, Rule 1.6, Comment [22]. This Committee has previously concluded that it also extends beyond the death of the client, and there is no authority that it can be waived by third parties. S.C. Bar Eth. Adv. Op. 05-09. Rule 1.16(d) provides that, upon termination of representation, a lawyer shall act to the extent reasonably practicable to protect a client's interest. Rules 1.6 (a) and 1.16(d) can be read together to mean that, upon the death of a client, a lawyer may take steps immediately and reasonably necessary to protect and preserve the interests of the client. For example, in the absence of an estate with an executor and/or personal representative, Lawyer may, in the Lawyer's discretion, identify and notify any appropriate potential successors in interest of the existence of a personal injury claim and when the statute of limitations will run.[2]

Must Lawyer inform the would-be opposing party that Client has died or that representation has terminated? Most jurisdictions that have addressed the question whether a lawyer must disclose a client's death have done so in the context of pending litigation and court appearances. The majority have held the lawyer must disclose the client's death to avoid, either through affirmative misrepresentations or failure to make disclosure, violating Rules identical or similar to our Rules 3.3 (Candor toward the Tribunal), 4.1 (Truthfulness in Statements to Others), or 8.4 (Misconduct).

The ethical duties begin with the legal conclusion that the death of the client terminates the representation and the lawyer's actual authority to act for the client. Given that foundation, any act or omission that perpetuates the belief that the lawyer represents the client or has any authority to act on behalf of a client violates Rule 4.1 either by affirmatively misrepresenting the lawyer's authority or by failing to act and therefore passively misrepresenting the lawyer's authority.

VA Legal Eth. Op. 1900 at 2 (lawyer must disclose client's death to opposing party before any further substantive communication, and if the matter is before a court, disclosure must be made to it no later than next communication with or appearance before the court). See also, e.g., Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507 (E.D.Mich.1983) (lawyer whose client with a pending lawsuit dies owes duty of candor to court, which requires disclosure of client's death); In the Matter of Feofanov, IL Disp. Op. M.R. 28670 (Ill. Sup. Ct. 2017) and IL Disp. Op. 2017-PR-00009 (2017) (after lawsuit was filed, lawyer learned client had died, but continued representation without authority from estate or family and without disclosing client's death to opposing counsel or during court appearances in violation of Rules 3.3(a)(1), 4.1(a), and 8.4(c)); Kentucky Bar Assn. v. Geisler, (1997) (when client dies during settlement negotiations in pending lawsuit, lawyer must tell opposing counsel of such, and failure to do so is affirmative misrepresentation in violation of SCR 3.130-4.1); ABA Formal Eth. Op. 95-397 (when client-claimant dies during settlement negotiations in pending lawsuit, failure of lawyer to disclose death to opposing counsel and court in first communications with either is tantamount to making false statement of material fact within meaning of Rule 4.1(a), MRPC).

The facts presented by this inquiry indicate that discussions with the insurance adjustor have occurred, but not that litigation has commenced. Thus, they are sufficiently different than those involved in the opinions cited above to lead the Committee to conclude that affirmative disclosure at this stage is not required by the Rules as it could possibly prejudice Client or any potential successor in interest. See PA Eth. Op. 93-51 (1993). While Lawyer would not violate Rule 4.1(a) by avoiding any substantive communication with the adjustor (see Va. Eth. Op. 1900), Lawyer should be mindful of Rules 4.1(a), and 8.4(d) and (e) and be careful not to misrepresent the vital status of Client.

[1] None of the disclosures permitted under Rule 1.6(b) are applicable under the facts presented here.

[2] South Carolina substantive law contemplates that clients may die during representation. See, e.g., S.C. Code Section 62-3-109 ("The running of any statute of limitations on a cause of action belonging to a decedent which had not been barred as of the date of his death is suspended during the eight months following the decedent's death but resumes thereafter unless otherwise tolled."); Rule 265, SCACR (upon death of a party, court may allow substitution of the party); Rule 25(a), SCRCP (upon death of a party, court may allow substitution if the death does not extinguish the claim).