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Duty to Heirs When Filing Wrongful Death Action

Adopted: October 19, 2007

Opinion rules that a lawyer owes no ethical duty to the heirs of an estate that he represents in a wrongful death action except as set forth in Rule 4.4.

Editor's Note: This opinion is a substitute for 2007 Formal Ethics Opinion 1 which was adopted by the State Bar Council on April 20, 2007, and subsequently withdrawn by the council on July 13, 2007.

Inquiry #1:

When a lawyer files a wrongful death action on behalf of an estate, what are the lawyer's duties to the heirs of the deceased?

Opinion #1:

Pursuant to RPC 137, a lawyer representing an estate represents the personal representative in his or her official capacity and the estate as an entity. Although the heirs are interested parties and may benefit from a successful wrongful death action, they are not clients of the lawyer in the matter. The personal representative and the estate are the lawyer's clients, to whom the lawyer owes the ethical duties of loyalty, confidentiality, accountability, and independent professional judgment. The ethical duties owed to the heirs are those set out in Rule 4.4 With regard to tort liability, see Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, disc. rev. denied, 311 N.C. 758, 321 S.E.2d 136 (1984)(holding that heir has standing as non-client third party to sue lawyer in tort for malpractice when lawyer gives erroneous advice to personal representative that causes heir harm).

Inquiry #2:

Can the lawyer advise the heirs of their respective rights to share or not to share in any recovery in the wrongful death action?

Opinion #2:

The lawyer does not represent the heirs and he should inform the heirs of his role in representing the estate. If the heirs are not represented by counsel, the lawyer may not give the heirs legal advice, other than the advice to secure their own counsel. Rule 4.3. With the consent of the estate's personal representative, the lawyer may provide the heirs with factual information concerning the wrongful death action. See Rule 1.6; Rule 1.2.

Inquiry #3:

On behalf of the estate, the lawyer settles a wrongful death claim for a decedent who is survived by her mother and father. The mother, as personal representative of the estate, asks the lawyer not to pay proceeds from the settlement to the father because the mother alleges that the father willfully abandoned the child during her lifetime. N.C. Gen. Stat. §31A-2 prohibits a parent who abandoned a child from participating in the proceeds of a wrongful death action.

May the lawyer communicate an offer from the mother to the father requesting the father to reduce his claim to the proceeds of the settlement to a nominal amount; may the lawyer convey offers and counter offers between the mother and the father without advising either party with respect to their rights or the likelihood of success at a hearing to determine abandonment?

Opinion #3:

Yes. Determining whether there is a legal prohibition to participation in the proceeds of the wrongful death settlement is an appropriate role of the personal representative of the estate and the lawyer should provide legal advice to the personal representative on this issue. Based upon this advice, the estate's personal representative will establish the objectives of the lawyer's representation of the estate on this issue. The lawyer's responsibility is to carry out those objectives provided they are consistent with the personal representative's fiduciary duties. In doing so, the lawyer continues to represent the estate and the personal representative in her official capacity. On behalf of the estate, the lawyer may negotiate with the father to reduce his claim to the wrongful death proceeds. The lawyer must make his role clear to the father and may not give the father legal advice. Rule 4.3.

Inquiry #4:

May the lawyer for the estate file an action to deny the father's right to share in the proceeds of the settlement pursuant to N.C. Gen. Stat. §31A-2?

Opinion #4:

Yes. The lawyer may file a motion with the court to determine whether the father is entitled to any proceeds from the settlement. The filing of such a motion comports with the lawyer's duty to see that the estate proceeds are properly administered.

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