*1 Aрpellant has not that he is a asserted mem- class, suspect
ber of a nor has it been right
claimed that a fundamental is involved.
Therefore, apply only need Court basis, scrutiny,
lowest level of or rational considering actions of the State. prison The actions of the official were tak- protect en thеir furtherance of The Board of of the safety security prison, public, KBA], Bar Association as a re- appellant himself. This meets the mod- charges instigated sult of judicial scrutiny whereby est standard state Maria T. Geisler of found her rationally action must related be to a state guilty by 3.130-4.1 fail equal protection interest. It does not divulge op- death to grounds. posing above, For Nei- the reasons stated Court of respondent requested ther nor the Appeals is affirmed. review of this ease. motion, its ques- own to review the elected STEPHENS, C.J., respondent’s tion of whether the actions were GRAVES, JOHNSTONE, LAMBERT, scope of SCR 3.130-4.1. JJ.,
STUMBO and present The critical in- case concur. filing volve of a civil action on injuries behalf of Milton F. he by struck sustained when he was an automo- along walking bile while a street in Louis- ville, Kentucky on November 1993. Sub- sequent filing complaint, initial counsel, defendant’s Kevin P. filed a deposition McNealy. notice to take Ford and him contacted told give physically unable KENTUCKY BAR very deposition since he was health. Consequently, deposition McNealy never taken. McNealy died on Short- GEISLER, Respondent. Maria T. ly thereafter contacted Ford and stated that her wanted to and asked him to forward offer of a Supreme exchange of settlemеnt. After an offers and counter-offers, a was reached on Jan. 23, 1995, February February 1995. On son, Joe, duly appointed
McNeal/s
the administrator of his father’s estate.
eventually
Ford
forwarded
along
documents
with а settlement check to
respondent on
1995. On March
March
22, 1995, Ford received back the settlement
documents which had
executed
Joe.
documents,
Upon receipt
learned for the
first time
bring
Ford toоk no
action to
*2
579
lawyer
of an
client.
court’s attention to the settlement documents
acts on behalf
identified
however,
occurs,
the
Administrator,
Id.
the death
signed by
When
that were
the
but
instead,
lawyer
reprеsent
to
identified
ceases
that
agreed
sent the
order of dismissal to
any
ABA
client.
The
maintained that
Id.
the circuit
which was
and en-
subsequent
opposing
to
coun-
communication
appeal
the cоurt. No
was taken.
tered
respect
with
to the
would be
sel
matter
Thereafter,
complaint
a
Ford filed
bar
equivalent
knowing,
misrep-
of a
affirmative
May
against
to
due
lawyer
fail to disclose
resentation should
failure to
Ford that her
her
advise
longer represents
no
that she
passed away during
the settle-
previously identified client. Id.
negotiation
ment
of
a law-
Basically, the ABA determined that
February 9,
through
chair
1995. The
yer
adversary
death
must inform her
charged
of
inquiry
respon-
tribunal
the KBA
first communication with
her
dent with
that
after she has learned of
divulge the
to
fact of her client’s death to
Likewise,
fact.
must also
Id.
prior
counsеl
to
adversary, in
inform
communi-
her
same
negotiations. Af-
settlement
cation,
personal representative,
that
Governors,
to
ter submission
the Board
appointed,
one has
former client
the Board determined that
was
outstanding
accepting
is
offer.
charge
guilty of the
and recommended to this
ABA
that a failure
Id.
concluded
that it issue private reprimand
a
and a
to
of a
disclose the death
client is tantamount
public opinion
attorney
an unnamed
making
to
false statement material fact
a
for the benefit
other members of the KBA.
4.1(a) (the
meaning of Model
Rule
In its recommendation to this
3.130-4.1).
precursor to our SCR
Id.
KBA noted that
there is no
Ethics
Respondent argues
opinion
that
ABA’s
Opinion
point
with this matter
no
and
apply
should not
to her
it was issued
dealing directly
case law
with this
many
September
after the
months
issue.
the American
Associa-
disciplinary proceeding.
relevant
in this
Standing
tion
Committee on Ethics and Pro-
Opinion
maintains that ABA
She further
ABA],
Responsibility
fessional
conflicting
subject
397 is
to
conclusions
squarely addressed
issue when it
issued
thus,
nоt be followed.
should
entitled,
Opinion
“Duty
Formal
95-397
to
Death of
Disclose
Client.”
Relying on the additional comments
3.130-4.1, respondent
that she
contends
Deciding
duty
that counsel has the
to dis-
duty
did have
to disclose “facts” or “еvi-
death
close the
of her client to
however,
asserts,
that
dence.”
counsel and
the court when the counsel
affir-
attorney
typically
required
not
either,
spe-
next communicates with
the ABA
matively
reveal evidence that is unknown
cifically
opinion:
stated in its
potentially helpful
party.
Re-
adverse
lawyer’s
When
client dies
the midst of
spondent
maintains
that
pending
of a
ulti-
significant bearing
death
on the
lawsuit which the client was the claim-
achieved,
that
and that
mate settlement
ant,
duty
oppos-
has a
to inform
oppose the
Ford did not
ing
lawyer’s
in the
the Court
McNealy
that
was dead.
after was revealed
first
еither
communications with
after the
Finally,
Ford knew
respondent contends that
lawyer has learned of the fact.
McNealy
that
had been
health
Standing
Committee on Ethics and MeNealy’s
was a
rec-
matter
Rеsponsibility,
Formal
Professional
daily
Re-
reported
newspaper.
ord
95-397
had an
spondent argues that she felt she
opinion
duty
information
The ABA’s
further addressed the
ethical
not
volunteer
passing.
about her
question
whether an
even has
fault to
her client
is was Ford’s own
dies.
maintains
mistakenly
opinion
determined that
a have
believed that
alive at the
negotiat-
time the settlement was
misrepre-
counsel amounted to an affirmative
ed, because if Ford had wanted to know sentation in violation of our SCR 3.130-4.1.
dead,
whether
all he had to do While the comments to SCR 3.130-4.1 do
was ask
about it.
indicate that
there is no
to disclose
*3
Kentucky’s
specifically pro-
facts,”
“relevant
go
those same comments
“In
representing
vides:
the course of
a client
to state that:
knowingly
shall not
make
false
A misrepresentation can occur if the law-
statement of material fact or law to a third
yer incorporates or affirms a statement of
person.”
recently
This Court
considered the
person
another
that the
knows is
application of that
in
rule Mitchell v. Ken-
Misrepresentations
false.
can also occur
Assoc.,
Ky.,
torney thought plaintiff never guise to ask case under the that she still had the Instead, still alive. hopes inducing McNealy. to do so on behalf of settlement, plaintiffs attorney chose not to clearly imply Her letters to this. Ac- plaintiffs disclose cordingly, go this Court cannot so far as to Ultimately, Virzi at 511. Virzi say that such conduct ethical under the came down on stating: the side of disclosure cirсumstances and within SCR 3.130-4.1. honesty This Court feels that candor and noted, It should be that this Court fails to necessarily require disclosure of such a why guidelines understand are needed for an significant fact as the death of onе’s client. attorney to understand that when their client Opposing counsel does not to deal have dies, they obligation are to tell with his as he would deal marketplace. opposing counsel such information. require Standards of ethics This candor, greater honesty, greater seems to be a matter of common ethics and disclosure, greater though might just plain sense. because attor- not be the interеst of the or client his neys such as cannot discern such estate. require guidelines matters and so written Id. at 512. convictions, figure out their ethical adopts ruling hold that we failure disclose her client’s death to the rеc- upon our careful review of sup- ord, does not find that the evidence we KBA and
port the recommendation following order. adopt the
consequently we
IT HEREBY ORDERED: IS Geisler, be, and T.
That Maria is, failing to reprimanded for
hereby publicly
notify opposing counsel that her during
had died pay the respondent is further ordered to *4 B.450. pursuant action to SCR
costs of this
STEPHENS, C.J., and
GRAVES, LAMBERT, STUMBO JJ., concur.
JOHNSTONE, J., would con- dissents and Board of recommendation of the
cur with the reprimand by issuing private attorney.
against an unnamed
ENTERED: Stephens Robert F.
/s/ Chief Justice
Movant, V. Head of Randall sus- to enter an order requests this Court in Ken- practice law pending his license years pursuant of two for 3.480(3). Kentucky Bar Associa- objection to has no KBA] tion [hereinafter proposal. movant’s present disci- which led to the The conduct HEAD, Randall V. represen- from movant’s plinary action arose action filed in a civil tation of the defendants Supply by Byrd Fabrications against them BAR KENTUCKY November, Byrd] in Company [hereinafter Respondent. action, to the civil In of an answer 1992. lieu improp- for a motion to dismiss movant filed upon a claim for failure to state er venue and Supreme Court of granted. On December could be which relief Feb. 14,1992, for a default plaintiffs filed a motion granted and a motion was judgment. The against movant’s judgment entered $145,936.00, plus interests clients costs. judg- rendering
Subsequent Byrd had been ment, movant discovered filing of its case prior to the dissolved How- standing to sue. consequently, had no ever, to raise a motion movant failed final from the his clients to release CR 60.02 judgment.