It’s every lawyer’s nightmare: You are representing a client in an intense litigation or negotiation and she dies suddenly. It can be heartbreaking, especially in a longstanding lawyer-client relationship or where the lawyer was working closely with a client on a matter that was important to the client personally.
But what is the lawyer to do? Who is the client at that point? Do you even have a client anymore if the client dies? Can you keep the death a secret from the adversary? Must you keep it a secret? The Virginia Supreme Court recently clarified the applicable rule in the Commonwealth with the approval of its latest legal ethics opinion. (Unlike many jurisdictions, ethics opinions approved by the Virginia Supreme Court have the force of law.)
The short answer is that the lawyer, at least in Virginia, must disclose the client’s death to the adversary, and to the court if it’s a litigation, at least before any further communications about the matter with either the adversary or the court take place.
But why?
As the opinion highlights, the analysis begins with the principle that the death of a client terminates the representation. Given this, and given a lawyer’s duty to be truthful with others (Rule 1.4), she may not allow the opposing party to proceed under the belief that the lawyer represents the deceased client—she doesn’t. Similarly, the failure to disclose the death to the court would violate the lawyer’s duty of candor to the court (Rule 3.3).
In support of this conclusion, the Virginia opinion relies on the ABA’s Opinion 397 from 1995:
When [a client’s] death occurs, the lawyer ceases to represent that identified client. Accordingly, any subsequent communication to opposing counsel with respect to the matter would be the equivalent of a knowing, affirmative misrepresentation should the lawyer fail to disclose the fact that she no longer represents the previously identified client.
This all makes logical sense, right? Interestingly, though, this hasn’t always been the position Virginia took. This latest opinion, indeed, overrules the Commonwealth’s prior opinion (LEO 952) that a lawyer may accept a settlement offer without disclosing a client’s death, so long as the opposing party does not directly inquire about the client’s health. Now, since a lawyer ceases to have a client when the client dies, the lawyer has no client and no authority to settle a claim regardless of whether the adversary inquires about the client’s health.
So, what is the lawyer to do if the client dies? One option is to represent the estate of the deceased client in the same proceeding or transaction. But that is a separate representation with a different client, requiring a separate engagement by a person authorized to do so on behalf of the estate. And it is that representative of the estate who will guide the representation going forward, regardless of what directions the deceased client may have given the lawyer about the matter.
Thus, under Virginia’s latest opinion, upon the death of a client, the lawyer should immediately determine whether she will represent the estate of the deceased client. The opinion clarifies, however, that the lawyer may avoid substantive communications with the opposing party while determining whether she will represent the estate.
But what the lawyer cannot do is communicate with the adversary or court without informing them of the death of the client. To do so would violate the lawyer’s duty to be truth with both the adversary and the court.
February 28, 2024
