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Jackson v. Harris11/7/2003
d the claim, with a defendant. Obviously, the failure to disclose the death in that case violated ethical considerations because the settlement of the personal injury claim likely involved claims of future wage loss, future medical expenses, and future pain and suffering, claims which had been extinguished by the death of the client. See Gailor v. Alsabi, Ky., 990 S.W.2d 597, 603 (1999). To negotiate a settlement with a defendant under such circumstances was clearly improper.
Second, I do not believe the Geisler case is applicable because the basis of the Kentucky Supreme Court's opinion therein was its adoption of ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 95-397. Id. at 580. That opinion imposes an ethical duty on a lawyer to inform opposing counsel of the death of his client "in the midst of settlement negotiations of a pending lawsuit in which the client was the claimant." (Emphasis added.) That is not the case herein, and the ABA opinion is not applicable to these facts.
The majority cites no authority other than Geisler for the proposition that an ethical duty exists under these facts. The court in the Geisler case relied on SCR 3.130-4.1 which states that " n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person." However, the Comment to that rule notes that a lawyer "generally has no affirmative duty to inform an opposing party of relevant facts." Harris's attorney did not "knowingly make a false statement of material fact" and, unless the Geisler case is applicable, had no ethical duty to do so. Furthermore, Harris's attorney had requested and obtained a written opinion from the Kentucky Bar Association Ethical Hotline Advisor that he had no affirmative ethical duty to disclose the death of his client to Jackson.
I admit that the circuit court's ruling dismissing the case left a harsh result. In connection with this observation, I note that in the federal courts the applicable civil rule, Fed. R. Civ. P. 25(a)(1), was amended in 1963 to require a motion for substitution to be filed within ninety days from the time a "suggestion of death" was filed and properly served. See Grandbouche v. Lovell, 913 F.2d 835, 836 (10th Cir. 1990). The original rule was amended " n order to alleviate the inequities caused by the inflexibility of this rule." Id. Prior to the amendment of the federal rule, Fed. R. Civ. P. 25(a)(1) was "rigorously applied, often with harsh results." Rende v. Kay, 415 F.2d 983, 984 (D.C. Cir. 1969). For example, see Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428, 91 L.Ed. 436 (1947), where the U.S. Supreme Court upheld the dismissal of a plaintiff's suit that was not revived in a timely manner even though the plaintiff had no knowledge of the defendant's death until time for reviving the action had expired.
The point is that the federal version of Rule 25(a) prior to the 1963 amendment of the rule is similar to the present Kentucky rule. Prior to the amendment of the federal rule, dismissal was often the harsh result. Because Kentucky's rule has not been amended to provide that a suggestion of death be filed before the time period for revival begins to run, I conclude that dismissal is required in this case. An amendment to the Kentucky rule might be appropriate to alleviate the harshness of the result in future cases.
Having concluded that Harris's attorney did not have an ethical duty to disclose the death of his client, I also conclude that Harris was not estopped by the conduct of his attorney from obtaining a dismissal of the claim. While it is true that Harris's attorney participated in a mediation conference following
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