Things You Stone Kolb Can’t Do.

So, today’s post involves an ongoing (recently initiated in fact) disciplinary matter. Accordingly, the details available are based entirely on the one-sided positions set out in the disciplinary complaint.

The ABA Journal has run a story about it, but once again, it first got on my radar screen because of discussion over at The Legal Profession Blog. Regardless of whether there is more to the story available so far, however, the details on offer are true-to-life as far as my own experiences in that the story clearly offers a tale of something that a lawyer can never do but, in fact, is done by lawyers all the same (not routinely but with some frequency).

The base level teaching point the story raises for lawyers is a reminder of how limited your options are if tragedy befalls a client and they pass away at a time when you are representing them? If defending litigation against a client, the lawyer likely does not hesitate in their desire to provide the required notice to the Court and opposing counsel because, depending on the nature of the causes of action being litigated, they may or may not even survive the death of the defendant/client. But even if for some strange reason, the lawyer does not want to make known what has happened, they have an obligation to do so. If representing the plaintiff in litigation and the plaintiff passes away, the lawyer may have some initial reluctance about people finding out about the development, but they also must alert the Court and opposing counsel if they are going to be able to move forward.

Why is this true when you work your way through the ethical obligations of the lawyers involved? In part, it is because once a litigant passes away then, unless certain additional things happen, there likely will no longer be any “case or controversy” that would allow the court you are in to issue anything other than an advisory opinion. But, to a much more significant degree, it is because if you do not do so then inevitably you are going to end up engaged in conduct that violates RPC 3.3, 4.1, or 8.4 or perhaps all three at the same time.

The new disciplinary matter that inspires this post offers a crystal-clear example (if the allegations are true) of a lawyer doing what they absolutely cannot when confronted with the death of a client and underscores that the problems for a lawyer can be significant even if litigation hasn’t already been initiated (and by implication then even when the underlying matter has nothing to do with litigation).

According to the complaint, an Illinois lawyer was representing a passenger in a taxi ride who was in an accident when the driver of another automobile crashed into the taxicab. Thereafter, the passenger hired the lawyer to represent him in pursuing claims for injuries sustained in the accident.

Months later, but before the lawyer had filed any lawsuit, the client died from a cause unrelated to the motor vehicle accident. Within two days of the death, a parent of the client notified the lawyer. Another more than nine months went by before the lawyer did anything further. That further step was to send a demand letter to the insurance company for the potentially at-fault driver making a settlement demand. In describing the demand, the lawyer indicated that his (actually dead) client would have “future pain and physical limitations” and sustained injuries “which will likely result in significant arthritis.”

Isn’t rigor mortis really the most significant arthritis of all? No, no it’s not. (And, yes, I acknowledge that Mike Frisch also offered something of a joke along these lines in the title of his write up of the situation, but, respectfully, I think my joke is better.)

The insurance company responded with a counteroffer for roughly 1/5 of what was demanded, the lawyer countered by asking for an additional $10,000, and then the insurance company communicated it agreed to the settlement. Thereafter, and in what is likely the clearest sign that the lawyer somehow did not know that he couldn’t do what he was doing, the lawyer made a record in the file indicating that the settlement occurred with the adjustor not being aware of the death of the client.

After that, some steps were made to try to un-ring these bells by having an estate opened and the court presiding over the estate approved the settlement, but once the insurance company learned of the timing of the death, all the consequences flowed freely therefrom.

In addition to specifically alleging violations of RPC 4.1 and RPC 8.4, the complaint against this lawyer also makes the point that deciding to settle the claim of a client who was dead also amounts to a violation of RPC 1.2(a) because the decision whether to settle a case is that of the client and not a lawyer. You can read the entire complaint here.

Of the disciplinary charges, that one may be the hardest one to actually prove given that, to some extent, it bumps up against the reality of the fact that while attorney-client privilege survives death, the attorney-client relationship does not. It seems difficult to simultaneously acknowledge that the death of the client meant that the lawyer no longer had any client and claim that the effort to settle violates RPC 1.2(a). The conduct is unethical for a number of other reasons, but I’m not sure that allegation can truly be proven as it involves violating a duty defined as being owed to a client. Of course, arguments that there is also no violation of RPC 4.1 can be down the same path in such a situation since that rule applies only to a lawyer “representing a client.” Any lawyer in the situation though is going to end up squarely facing the consequences of a violation of RPC 8.4 for conduct involving dishonesty, misrepresentation, and perhaps even fraud.

N.B: My next post will be my 500th post. Feels like a lot of pressure. Stay tuned.

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