If a personal-injury client dies after the insurer makes a settlement offer within the authorized range, must the lawyer tell the insurer about the death before accepting?

Plain-English summary

A client authorized an attorney to settle his personal-injury case within a range of values. A demand was made and the insurer sent a counteroffer. After the counteroffer, the client died, and the administrator of the estate authorized the attorney to accept the last settlement offer, which fell within the range the client had authorized.

On those facts, the committee opined that it was not improper for the attorney not to disclose the client's death to the insurance company absent a direct inquiry from the insurer about the client's health. To avoid an appearance of impropriety, the committee opined that the attorney should disclose the client's death at the time he accepts the offer, and let the opposing side know that the client had authorized the settlement range before his death and that the estate's administrator had also authorized the settlement, citing DR 1-102(A)(4). The committee note adds that, if the client's death would arguably affect the settlement, failing to disclose it might violate current Rule 3.3(a)(2) and Rule 4.1(b), which bar a lawyer from knowingly failing to disclose a fact when disclosure is necessary to avoid assisting a client's criminal or fraudulent act.

Currency note

This opinion was issued in 1987, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note describes the analysis under current Rule 3.3(a)(2) and Rule 4.1(b). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer volunteer that a personal-injury client has died before accepting a settlement?

A: Under this 1987 opinion, not absent a direct inquiry from the insurer about the client's health. The committee found it not improper to accept an authorized settlement without volunteering the death.

Q: What did the committee advise the lawyer to do anyway?

A: To avoid an appearance of impropriety, the committee opined that the lawyer should disclose the death when accepting the offer and explain that both the client and the estate's administrator had authorized the settlement.

Q: Could non-disclosure ever be a problem?

A: The committee note states that if the death would arguably affect the settlement, failing to disclose it might violate current Rule 3.3(a)(2) and Rule 4.1(b).

Background and rules framework

The opinion interpreted former Virginia DR 1-102(A)(4), which bars conduct involving dishonesty, fraud, deceit, or misrepresentation, in the context of settlement negotiations with an insurer. The committee note maps the question onto current Virginia Rule 4.1(b) (truthfulness in statements to others; failure to disclose to avoid assisting a client's crime or fraud) and Rule 3.3(a)(2) (candor toward the tribunal), the counterparts of ABA Model Rules 4.1 and 3.3.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation)
• Virginia Rule 4.1(b) / ABA Model Rule 4.1 (truthfulness to others; disclosure to avoid assisting client crime or fraud)
• Virginia Rule 3.3(a)(2) / ABA Model Rule 3.3 (candor toward the tribunal)

See also

• VA LEO 1477: Settlement Negotiations and Unamended False Interrogatory Answers
• VA LEO 1093: Duty to Disclose Fraud to a Tribunal and Report Co-Counsel
• VA LEO 1448: Advising a Client to Secretly Record an Unrepresented Party

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0952.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
July 31, 1987
LEGAL ETHICS OPINION 952

INSURANCE – DISCLOSING DEATH OF
CLIENT.

A client authorized an attorney to settle his personal injury case within a range of
values. A demand was made and a counteroffer was received from the insurer. Following
receipt of the counteroffer, the client died and the administrator of the estate authorized
the attorney to accept the last settlement offer which was within the range authorized by
the client.
It is not improper, given the above, for the attorney not to disclose the death of his
client to the insurance company absent a direct inquiry from the insurance company
regarding the client's health. The committee opines that in order to avoid an appearance
of impropriety, the attorney should disclose the death of his client at the time he accepts
the offer of settlement and let the opposing side know that the client authorized the
range for settlement prior to his death and that the estate's administrator has also
authorized the settlement. [ DR:1-102(A) (4)]
Committee Opinion
July 31, 1987
Legal Ethics Committee Notes. – If the client’s death would arguably affect the
settlement, failing to disclose the death might violate Rule 3.3(a)(2) and Rule 4.1(b),
which prohibits a lawyer from knowingly failing to disclose a fact if disclosure is
necessary “to avoid assisting a criminal or fraudulent act by a client.”