Bench & Bar November/December 2025

LEGAL ETHICS BY SHELDON G. GILMAN ETHICS CORNER O ur Supreme Court authorized the creation of an Ethics Hotline which professional obligations to discover poten tial wrongful death beneficiaries.

the KBA’s Ethics Committee for general information regarding the operation of the Hotline, and to determine if it is appropriate for the Committee to consider the issuance of a Formal Opinion. A copy is sent to the executive director for statistical informa tional purposes. Copies are not sent to the Office of Bar Counsel. Hotline members are granted immunity from process and are not available to testify or give an opinion to the court or others in connection with their advice. POSSIBLE REPRESENTATION OF CHILD You advise that a mother (“Mother”) engaged your services to pursue a wrongful death claim against the party who caused her son’s death. You met with Mother and the deceased son’s girlfriend (“Girlfriend”) to execute the appropriate “paperwork.” At that meeting Girlfriend told you that she was pregnant. After having Mother appointed administrator of her son’s estate, you proceeded with the wrongful death claim and have now settled the claim. You know that if the son’s Girlfriend had a child, the child would be the only wrongful death beneficiary, otherwise the beneficiaries would be the son’s parents, which of course includes Mother. At the time you were able to obtain a settle ment of the claim Mother told you that she does not believe there was a posthumous child because Mother found a negative pregnancy test in the room Girlfriend was staying in before she moved out of Mother’s home. Also, Mother advises you that her son’s sister saw Girlfriend working several months after the son’s death, and at that time the Girlfriend did not appear to be pregnant. You have been unable to find Girlfriend despite hiring a private inves tigator. You have tried calling Girlfriend and other family members without any success. As Mother is the personal repre sentative of her son’s estate, and is the only party entitled to bring a wrongful death claim, you ask if you may distribute the funds to Mother. You also ask about your

has now been in existence for more than 30 years. This Ethics Corner presents a sample of Hotline opinions for the purpose of illustrating ethical and practical issues that lawyers might face in their everyday practice and how Hotline attorneys may be of help. SCR 3.530 (5) provides that an attorney will not be disciplined for any professional act performed by that attorney in compliance with an infor mal opinion furnished by the Hotline attorney “provided that the written request clearly, fairly, accurately and completely states such attorney’s contemplated professional act.” In addition to ethics advice, Hotline attorneys will, in many instances,

I assume you have not undertaken to rep resent Girlfriend, but you have reason to believe that Girlfriend is aware of the child’s potential rights if there was a recovery for the wrongful death claim. Assuming such is the case, then your ethical obligations are guided by the following Kentucky Rules of Professional Conduct: 1. Rule 1.2(d) (cannot assist a client in conduct the lawyer knows is fraudulent). 2. Rule 3.3 (candor toward the tribunal). 3. Rule 4.1 (truthfulness in statements to others). 4. Rule 1.15 (safekeeping property) Under Kentucky law, the personal repre sentative of the decedent is the only proper party to bring a wrongful death action, however, the proceeds of any recovery are distributed to statutory beneficiaries, not to the estate itself. If the decedent left a child, that child would be the sole benefi ciary. Otherwise, the parents would be the beneficiaries. 1 Based on our telephone conversation and your email, it is clear that you have actual knowledge of information that raises a substantial question as to whether a child of the decedent exists. Although Mother disputes the pregnancy, Girlfriend’s state ment that she was pregnant is a material fact in determining the proper distribution of wrongful death proceeds. You are cor rect in concluding that you cannot simply ignore it. Hence, you are obligated to make reasonable inquiry into whether such a ben eficiary exists. It does appear that you have started to take reasonable steps to determine whether Girlfriend was pregnant and whether

use their years of experience to help the concerned lawyer exam ine the issue from a practical point of view, and sometimes ask the requesting attorney: “Are you really sure you want to do this?” Hotline attorneys are not per mitted to render an opinion on questions of law, about past conduct, about another attorney’s conduct, about

the subject of a pending grievance or a matter that is pending in court. Hotline opinions are not intended to be used as an expert opinion; they are not binding on any court; and do not reflect the opinion of the KBA. Hotline attorneys must retain the caller’s inquiry

confidential, but the requesting attorney may waive confi dentiality. Copies of Hotline opin ions are sent to the chair of

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