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In re Forrest

Supreme Court of New Jersey
730 A.2d 340 (1999) (1999)
ELI5:

Rule of Law:

An attorney has an affirmative duty of candor to both the tribunal and opposing counsel to disclose the death of a client, as it is a material fact to the litigation. Concealing a client's death under the guise of zealous representation or as a negotiation tactic is a violation of the Rules of Professional Conduct.


Facts:

  • Robert and Mary Ann Fennimore retained attorney Robert Forrest's law firm for a personal injury lawsuit after a car accident.
  • Mr. Fennimore claimed to have suffered permanent injuries as a result of the accident.
  • Sometime between April and December 1993, Mr. Fennimore died from causes unrelated to the car accident.
  • Mrs. Fennimore notified Forrest of her husband's death.
  • Knowing Mr. Fennimore was deceased, Forrest served unsigned answers to interrogatories on behalf of Mr. Fennimore on the opposing counsel, Christopher Walls.
  • At a subsequent arbitration hearing, when the arbitrator inquired about Mr. Fennimore's absence, Forrest stated that his client was "unavailable."
  • Forrest advised Mrs. Fennimore not to voluntarily reveal her husband’s death during her testimony at the arbitration.
  • Forrest continued to engage in settlement negotiations with Walls and ignored multiple requests for Mr. Fennimore to undergo a medical examination, only revealing the death after a court order was issued compelling the examination.

Procedural Posture:

  • The District XIII Ethics Committee (DEC) filed an ethics complaint against respondent Robert J. Forrest.
  • Following an investigation, the DEC found that Forrest had engaged in unethical conduct and recommended a public reprimand.
  • The matter then proceeded to a hearing before the Disciplinary Review Board (DRB).
  • The DRB found Forrest had violated several Rules of Professional Conduct and recommended his suspension from the practice of law for three months.
  • Forrest's petition for review of the DRB's decision was denied by the Supreme Court of New Jersey.
  • The Supreme Court of New Jersey issued an order to show cause why Forrest should not be disbarred or otherwise disciplined.

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Issue:

Does an attorney violate the Rules of Professional Conduct by knowingly failing to disclose the death of his client to opposing counsel and a tribunal during discovery, arbitration, and settlement negotiations?


Opinions:

Majority - Per Curiam

Yes, an attorney violates the Rules of Professional Conduct by knowingly failing to disclose the death of his client. An attorney owes an affirmative duty of candor and frankness to the court and opposing counsel regarding a material fact such as a client's death. Respondent's conduct violated RPC 3.3(a)(5) by failing to disclose a material fact to a tribunal, which includes both the court and the arbitrator. His statement that the deceased was 'unavailable' was a concealment of a material fact that misled the arbitrator. Furthermore, he violated RPC 3.4(a) by obstructing his adversary's access to evidence, as the client's death was a critical fact that would have significantly impacted settlement willingness and the nature of the legal action. The overall pattern of behavior, including misleading his adversary and the arbitrator, constituted conduct involving dishonesty, deceit, and misrepresentation in violation of RPC 8.4(c). The court rejected the argument that this was acceptable 'puffing' or 'bluffing,' holding that zealous representation is not a license for deceit.



Analysis:

This case establishes a clear, affirmative duty for attorneys to disclose a client's death, reinforcing that the duty of candor to the tribunal and fairness to opponents overrides any perceived tactical advantage from concealment. The decision explicitly extends this high standard of honesty to arbitration proceedings, treating them as an integral part of the judicial system where the same ethical rules apply. By rejecting the 'zealous advocacy' defense for misrepresenting a material fact, the court provides a bright-line rule against this type of deception. This precedent serves as a critical ethical guidepost, warning attorneys that withholding such crucial information is not a strategic choice but a serious ethical breach with severe consequences.

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