Bench & Bar November/December 2025

CORNER a posthumously born child exists ( e.g. , attempting to locate Girlfriend via family members and hiring a private investigator). If further inquiry is reasonably available without having to incur an additional expense, such as checking public birth records or even requesting that a guardian ad litem be appointed, then it is appropriate for you to pursue such actions. Also, if you have not already done so, you must explain to Mother the legal framework of a wrong ful death recovery, specifically, that if a child exists, Mother may not be entitled to a share of the proceeds. Further, you must explain to Mother that you are professionally obli gated, as a matter of lawyer ethics, to make reasonable inquiry as to whether there is a posthumous child as that child might become the real party in interest. If a wrongful death action was filed, then it is appropriate that you advise the Court of the potential heir. Concealing the possible existence of a child would violate Rule 3.3 and the clear intent of Comment 2 to the Rule. 2 If Mother insists that you ignore or conceal the potential child, then you must withdraw under Rule 1.16(a) because con tinuing to assist Mother would constitute committing a fraud on the court and any adverse parties. It may also result in a mal practice action against you. In summary, you have a professional obligation to make reasonable efforts to determine whether the decedent left a child. Once you complete your reasonable inves tigation to find Girlfriend and determine if a child was born, then you may proceed to pay the proceeds to the appropriate statu tory beneficiary whether that is Mother or a posthumous child.

ENDNOTES 1 See KRS 411.130. Action for wrongful death - Personal representative to prosecute - Distribu tion of amount recovered. (1) Whenever the death of a person results from an injury inflicted by the negligence or wrongful act of another, damages may be recovered for the death from the person who caused it, … . The action shall be prosecuted by the personal representative of the deceased. (2) The amount recovered, less … shall be for the benefit of and go to the kindred of the deceased in the following order: (a) If the deceased leaves a widow or husband, and no children or their descendants, then the whole to the widow or husband. (b) If the deceased leaves a widow and children or a husband and children, then one-half (1/2) to the widow or husband and the other one-half (1/2) to the children of the deceased. (c) If the deceased leaves a child or children, but no widow or husband, then the whole to the child or children. (d) If the de ceased leaves no widow, husband or child, then the recovery shall pass to the mother and father of the deceased, … . 2 Rule 3.3. Candor toward the tribunal. (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribu nal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal published legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the posi tion of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a wit ness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evi dence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudica tive proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial mea sures, including, if necessary, disclosure to the tribunal. Comment [2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adver sary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

In Branham v. Stewart , 307 S.W. 3d 94 (Ky 2010) the Supreme Court held that a lawyer, in situations like the one you have described, has a professional duty to the real party in interest, which would be the son’s child, if there is one. In the Branham case an attorney was engaged to bring a personal injury claim against the tortfeasor whose actions resulted in the death of a minor beneficiary’s father. The minor beneficiary had a significant interest in the proceeds of the recovery and the minor’s mother served as the minor’s guardian, and as such was a fiduciary. The minor’s mother proceeded to steal the minor beneficiary’s share of the settlement proceeds. The Supreme Court held that an attorney pursuing a claim on behalf of a minor does have an attorney-cli ent relationship with the minor, and that relationship means that the attorney owes professional duties to the minor, who is the real party in interest. Hence, the minor could bring a claim for malpractice against the attorney who had been retained by the fiduciary. Therefore, in your case if son had a child, that child would be entitled to the recovery proceeds and it is reasonable to conclude that you have professional obli gations to that child. Mother’s interests in the settlement proceeds would only be speculative.

ABOUT THE AUTHOR

SHELDON G. GILMAN recently retired from the active practice of law but remains involved in various law related matters.

Gilman received his undergraduate degree from Ohio University and his law degree from Case Western Reserve University. After graduation from law school Gilman served four years as a member of the U.S. Army’s Judge Advocate General’s Corps with duty assignments at The Office of the Judge Advocate General and The Office of the Secretary of Defense. With regards to lawyer professional responsibility matters, Gilman continues to serve as a member of the Ethics Committee and has been a member of the Ethics Hotline for 30 years and has written more than 800 Hotline Informal Opinions and answered more than 500 telephone inquiries. He served as a member of KBA Ethics 2000 Committee which recommended the current revised edition of our Rules in 2009.

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