A client’s death terminates the attorney–client relationship. Simply stated when the client dies the lawyer no longer has a client. But what ethical obligations does a lawyer have upon such an event? Are there any disclosure requirements that the lawyer must follow? On January 4, 2024, the Supreme Court of Virginia recently adopted Legal Ethics Opinion 1900, which outlines a lawyer’s ethical obligation to inform both opposing counsel and the Court of his or her client’s death before any further substantive communication.
Many jurisdictions impose significant limits on a lawyer’s conduct when a client dies. In Georgia and Illinois, for example, a lawyer may not continue representing the decedent’s interests unless and until the personal representative retains them. Otherwise, the lawyer must move to withdraw or notice a substitution of new counsel. In California, however, local court rules require lawyers to promptly serve and file a notice with the court when their client—a party to a case—dies. These types of notices function much like a suggestion of bankruptcy, which essentially pauses any pending litigation.
In Virginia, the duty to disclose a client’s death is generally implied, but judicial opinions have addressed the issue only occasionally. Virginia’s LEO 1900 now addresses this issue explicitly. The opinion is based on Rules 3.3 and 4.1 of the Virginia Rules of Professional Conduct, and it overrules LEO 952 (1987).
LEO 952 allowed a lawyer to settle a case on the client’s behalf after making a demand and receiving a counteroffer from the insurer that was within a range that the client previously authorized. In the facts giving rise to LEO 952, the client died, but the estate administrator authorized the lawyer to accept the counteroffer and settle the case. Under those circumstances, a lawyer had no obligation to disclose the client’s death to the insurer absent direct inquiry about the client’s health. But a lawyer needed to disclose the client’s death at the time they accepted the settlement offer and let the opposing side know that the client had authorized the settlement range before dying and the estate administrator had authorized the settlement. Any failure to disclose the client’s death if the death would “arguably affect” the settlement might have violated Rules 3.3 and 4.1.
LEO 1900 overrules LEO 952, thus removing any uncertainty surrounding a lawyer’s failure to disclose a client’s death. Virginia Rule of Professional Conduct 3.3 prohibits a lawyer from falsely stating fact or law to a tribunal. It also requires a lawyer to disclose facts to the tribunal when disclosure is necessary to avoid assisting a client’s criminal or fraudulent act. A client’s death substantively affects the attorney–client relationship, a material fact that a court should know. Because the scope of a lawyer’s representation is a material fact for the court, a lawyer’s failure to disclose a client’s death violates Rule 3.3. Thus, a lawyer’s first communication with or appearance before a court after a client dies must disclose the client’s death.
LEO 1900 applies the same reasoning to disclosure to opposing counsel or an opposing pro se party. Virginia Rule of Professional Conduct 4.1 requires a lawyer to make truthful statements to others during client representation. Part of that truthfulness pertains to a lawyer’s authority to act for the client. A lawyer cannot act on a client’s behalf unless they have actual authority. When a client dies, the lawyer has no client and, thus, no authority to act on that deceased client’s behalf. Accordingly, the lawyer must inform the opposing counsel or the opposing pro se party of the client’s death before any further substantive communication. Any other conduct that suggests continued representation risks violating Rule 4.1 as a material misrepresentation of fact. However, a lawyer does not violate Rule 4.1 by delaying further substantive communication with the other side while trying to find an estate administrator.
A client’s death affects more than a lawyer’s ethical duties of truthfulness and candor to the opposition and the court. It affects a lawyer’s ability to even settle a case on the deceased client’s behalf. A lawyer cannot offer or accept a settlement on the deceased client’s behalf even if they disclose the client’s death. The lawyer has no client and lacks authority to make settlement decisions unless and until an estate administrator or successor in interest retains them to pursue any outstanding claims. These new obligations now control.
Legal Ethics Opinion 1900 now states what was once implied: a lawyer must inform both the opposing side and the court about a client’s death before any further substantive communication. Any failure to do so risks violating Rules 3.3 and 4.1. In light of LEO 1900, it is important for Virginia-licensed lawyers to develop and implement a clear strategy for handling deceased client situations.