Kentucky Bar Association v. Geisler

938 S.W.2d 578 (1997)

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Nature of the Case

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Facts

D filed a civil action on behalf of Milton F. McNealy for injuries he sustained when he was struck by an automobile while walking along a street. The defendant's counsel, Ford, filed a notice to take the deposition of McNealy. D contacted Ford and told him that McNealy was physically unable to give a deposition since he was in very poor health. The deposition of McNealy was never taken. McNealy died on January 26, 1995. D then contacted Ford and stated that her client wanted to settle the case and asked him to forward an offer of a settlement. A settlement was reached on February 9, 1995. On February 23, 1995, McNealy's son, Joe, was duly appointed as the administrator of his father's estate. Ford eventually forwarded the settlement documents along with a settlement check to D on March 13, 1995. On March 22, 1995, Ford received back the settlement documents which had been executed by Joe. Ford learned for the first time of McNealy's death. Ford sent the agreed order of dismissal to the circuit court which was signed and entered by the court. No appeal was taken. Ford filed a bar complaint against D on May 5, 1995, due to her failure to advise Ford that her client, McNealy, had passed away during the settlement negotiation period of January 26, 1995 through February 9, 1995. P determined that D was guilty of the charge and recommended to this Court that it issue a private reprimand and a public opinion against an unnamed attorney for the benefit of other members of the KBA. The American Bar Association Standing Committee on Ethics and Professional Responsibility [hereinafter ABA], squarely addressed this issue when it issued Formal Opinion 95-397 entitled, 'Duty to Disclose Death of Client.' When a lawyer's client dies in the midst of the settlement negotiations of a pending lawsuit in which the client was the claimant, the lawyer has a duty to inform opposing counsel and the Court in the lawyer's first communications with either after the lawyer has learned of the fact. When the death occurs the lawyer ceases to represent that identified client. The ABA determined that a lawyer must inform her adversary of the death of her client in her first communication with the adversary after she has learned of that fact. A failure to disclose the death of a client is tantamount to making a false statement of material fact within the meaning of Model Rule 4.1(a). The Supreme Court of the State decided sua sponte to address the case.