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Cogan’s Corner – Illinois Wrongful Death Act

Originally published August 8, 2013 in the Chicago Daily Law Bulletin

The representation of multiple family members with potentially conflicting interests in terms of sharing the damages can be a virtual hornet’s nest.

Illinois Wrongful Death Act lays unwitting traps for attorneys

The Illinois Wrongful Death Act has presented its fair share of legal perils for lawyers representing the next of kin of deceased victims. While the all-out brawl between the beneficiaries of Northwestern football phenom Rashidl Wheeler’s estate may have been an aberration, smaller battles are being waged in our courtrooms every day. The fact is that when prosecuting a wrongful-death case attorneys ultimately serve more than one master and one of those masters may be someone they have never met.

This issue came to the fore recently when the 1st District Appellate Court ruled unequivocally that a lawyer who is retained to pursue a wrongful-death action automatically owes a duty to the decedent’s next of kin regardless of whether they have a direct attorney-client relationship. Estate of Powell v. John C. Wunsch, PC, Ill App. Ct. 1st Dist. No. 1-12-1854 (March 29, 2013).

The act expressly identifies the next of kin as the exclusive beneficiaries of a wrongful-death claim and reminds us that although the decedent’s personal representative must bring the action, the legislative intent is that the claims are those of the individual beneficiaries. It was on this basis that the court reversed the trial court’s decision that lawyers had no legal duty to the disabled next of kin who had no attorney-client relationship.

Notably, before any court had rules, Wuncsch received a formal reprimand from the Attorney Registration & Disciplinary Commissin (ARDC) for his conduct in conjunction with this case. In the Matter of: John C. Wunsch, No. 6183633, 2011 WL 7548202 (Dec. 13,2011).

Last year’s Illinois Supreme Court ruling in Carter v. SSC Odin Operating Co., 2012 IL 118204 (Ill. 2012) similarly focuses on the true intended beneficiaries of the act. The court held that the plaintiff in a wrongful-death action is not bound by the decedent’s agreement to arbitrate such a claim. Rather, the court reasoned, the claim is not on behalf of the decedent who signed the arbitration agreement, it is brought for the next of kin and the plaintiff personal representative is merely a statutory trustee filing suit on their behalf.

The Wrongful Death Act can also raise conflicts of interest that present ethical dilemmas in opposition to Rules of Professional Conduct 1.7. The representation of multiple family members with potentially conflicting interests in terms of sharing the damages can be a virtual hornet’s nest. While it is ultimately up to the court to approve the apportionment of the settlement or award, attorneys might be viewed by the parties as advocating one client’s interest (a spouse or parent) against another client’s (the surviving children) as to who is entitled to the largest share.

As raised in Wunsch, a disabled or minor next of kin may require the appointment of a guardian as an additional layer of protection for his or her interests. The key to avoiding any impropriety is communication with all of the next of kin regardless of the person named on your retainer agreement. Also, essential to your success is full disclosure of the circumstances of the case, the legal basis for any apportionment of the amount and the benefits to each party. Best practices dictate that you obtain written consent from each beneficiary to proceed on a suggested apportionment.

Conflicts of interest can also be presented in other ways. One ethics opinion describes a scenario in which parents of a minor child who was severely injured while on the property of a family friend pursued a claim. IL Adv. Op. 96-D6 (ISBA 1996). Their attorney filed a personal-injury claim on behalf of the minor and pursuant to the Medical Expense Act on behalf of the parents.

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Cogan’s Corner Illinois Wrongful Death Act from rarbel

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