Monday, January 26, 2009
Duty to disclose client's death
In class we discuss a couple of cases on whether it is misconduct not to disclose the death of a client or of a witness. Today, the Legal Profession Blog reports on a Colorado hearing board decision available here holding that that an experienced personal injury attorney violated ethical standards for not disclosing his client's death. His conduct, however, was worse than that of the attorneys in the cases we read in class. As described in the Legal Profession Blog, the attorney was retained to pursue a claim for injuries that the client had sustained in an automobile accident. While the matter was pending, the client died. The attorney settled the matter with the defendant's insurer without disclosing the death, which the hearing board found to be material. Part of the settlement was $9,000 for pain and suffering, a claim that was extinguished under Colorado law with the client's death. Further, the attorney continued to press claims based on the deceased client's need for future treatment. When the insurer learned of the death from the client's brother, the lawyer falsely claimed he had only recently been advised of the demise. The hearing board found that the lawyer had "acted dishonestly and deceitfully in his negotiations with [the insurer] but that the evidence failed to establish that he committed the felony of attempted theft. The sanction was affirmed by the Colorado Supreme Court.