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Jackson v. Harris11/7/2003
s calendar and allowed dates for both the pretrial conference and trial to be scheduled. In addition, Myers scheduled a medical examination for Jackson's infant son, noticed multiple discovery depositions and signed an agreed order rescheduling the pretrial conference. Jackson's counsel asserts that all of these actions were in addition to numerous informal contacts between attorneys for the parties. Finally, Myers sought an advisory ethics opinion from the Kentucky Bar Association wherein he stated that the action appeared likely to be dismissed for failure to revive and inquired whether he had a duty to inform opposing counsel of his client's death. Unfortunately, he was advised that he did not. Therefore, Jackson first learned of Harris's death from Myers' motion to dismiss for failure to revive on June 10, 2002.
At the hearing, Jackson raised the issue of Myers' failure to notify regarding Harris's death; however, the trial court, in a tersely worded order, dismissed the action. The trial court failed to address the Kentucky Supreme Court's prior determination that, in Kentucky, a lawyer whose client dies has an ethical duty to disclose that fact to opposing counsel the next time they communicate. Kentucky Bar Association v. Geisler, Ky., 938 S.W.2d 578 (1997). In Geisler, a case with similar facts to this one, the Court analyzed Geisler's arguments regarding her failure to inform the plaintiff's attorney of her client's death as follows:
Finally, [Geisler] contends that Ford knew McNealy had been in poor health and that McNealy's death was a matter of public record reported in the daily newspaper. Respondent argues that she felt she had an ethical duty not to volunteer information about her client's passing. Thus, respondent maintains that is was Ford's own fault to have mistakenly believed that McNealy was alive at the time the settlement was negotiated, because if Ford had wanted to know whether McNealy was dead, all he had to do was ask respondent about it.
Id. at 579-580. The Court concluded that an attorney who negotiates a case on behalf of a deceased client without informing opposing counsel of the defendant's death has engaged in conduct which is the equivalent to a knowing, affirmative misrepresentation. Jackson argues that Myers' almost identical conduct precludes Harris from asserting his right to have the action dismissed. We conclude that Jackson reasonably relied on Myers' failure to inform opposing counsel of Harris's death and, therefore, Jackson is entitled to revive the claim by substituting Harris's estate as defendant.
For the forgoing reason, the order of the Christian Circuit Court dismissing Jackson's claim is reversed and this case is remanded for further proceedings consistent with this opinion.
GUIDUGLI, JUDGE CONCURS.
BUCKINGHAM, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
BUCKINGHAM, JUDGE, DISSENTING.
The majority opinion reverses an order of the Christian Circuit Court dismissing Jackson's complaint and remands the matter to the circuit court for the revival of her claim. The basis of the majority opinion is that Harris's attorney had an ethical duty to disclose the death of his client to Jackson and/or her attorney and failed to do so. Because I do not believe that such an ethical duty exists and because I believe the doctrine of estoppel is not applicable, I respectfully dissent.
The majority bases its conclusion on the Geisler case. I do not believe that case is applicable for two reasons. First, in the Geisler case the attorney that failed to disclose the death of her client was a plaintiff's attorney who engaged in settlement negotiations, and actually settle
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