Informal Opinion Number: 20000102

QUESTION: Attorney represents both Husband and Wife in a personal injury claim against two defendants. Wife has a loss of consortium claim against the defendants and Husband has a claim for extensive physical injuries, lost wages, permanent disability and pain. Recently, Husband died from what appears to be unrelated causes. The week before Husband passed, Attorney sent a demand letter and all the medical records. When must Attorney inform opposing counsel that Husband is dead? Attorney has not made any representations that Husband is still alive. However, may Attorney go forward deposing fact witnesses and expert witnesses without disclosing this information?
ANSWER: Attorney owes a duty to Wife to protect any interests she has in the deceased´s claim. Someone will have to obtain authority to represent Husband´s estate. Therefore, it seems likely that Attorney needs to disclose Husband´s death in order to pursue a valid settlement of his claim. Attorney may not expressly or impliedly represent that Husband is still alive. It would not be impossible to depose witnesses without making such a representation, but it seems unlikely.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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