Virzi v. Grand Trunk Warehouse & Cold Storage Co. - 571 F. Supp. 507 (E.D. Mich. 1983)

Rule:

Although each lawyer has a duty to contend, with zeal, for the rights of his client, he also owes an affirmative duty of candor and frankness to the court and to opposing counsel when such a major event as the death of the plaintiff has taken place.

Facts:

Plaintiff was expected to be a good witness in his personal injury action. Plaintiff's attorney was unaware of his death at the time that a mediation panel recommended a settlement. Several days later plaintiff's attorney was informed of the death, and did not inform the court or opposing counsel. Later, the parties settled for the recommended amount, the court placed the settlement on the record, but plaintiff's counsel did not inform anyone of his client's death when the settlement was confirmed and made part of the record. After the settlement was agreed upon in chambers and placed upon the record, plaintiff's attorney, for the first time, informed defendants' attorney that plaintiff had died. Consequently, defendants filed a motion to vacate the settlement order, contending that because their lawyer did not know of plaintiff's death at the time of the settlement, and because plaintiff's attorney failed to disclose that fact, the settlement was void. Plaintiff's attorney, on the other hand, contested defendants' motion, claiming that his actions were not unethical or improper. Plaintiff argued that he had no duty to volunteer the information that his client was dead, and that the settlement entered into was a fair and reasonable settlement.

Issue:

1. Did plaintiff’s attorney have an ethical duty to advise the court and the defendant’s attorney, who was unaware of the death of plaintiff, that plaintiff had died a few weeks prior to the settlement agreement?
2. Did the failure of plaintiff attorney to inform the court and the defendant’s attorney of the death of the plaintiff warrant the reversal of the settlement order?

Answer:

1) Yes. 2) Yes.

Conclusion:

The court ordered that the settlement be set aside, holding that plaintiff's attorney had an affirmative duty of candor and frankness to the court and to opposing counsel when such a major event as the death of plaintiff had taken place. Even though plaintiff's attorney was never asked whether his client was still living, he owed a duty of candor and frankness to the court which transcended his private employment.