ETH 2018-01
Ethics Advisory Panel Op. 2018-01
Rhode Island Ethics Opinions
Rhode Island Supreme Court
February 15, 2018
FINAL
FACTS
Two
inquiring attorneys serving as co-counsel in a matter seek
the Panel’s advice based on the following facts. In
2009, Husband retained the inquiring attorneys regarding the
failure of his primary care physician to diagnose a cancerous
tumor. The inquiring attorneys state that the delay in
diagnosis was significant. The tumor was surgically removed
and Husband appeared to be cancer free. The inquiring
attorneys and Husband decided not to proceed with a claim
against the primary care physician at that time. Husband
followed up with a different medical provider about every six
months after the surgery.
The
cancer returned slightly more than three years later. Husband
began treatment again and consulted with the inquiring
attorneys. The inquiring attorneys met with both Husband and
his wife, and both Husband and Wife retained the attorneys to
pursue a negligence claim against the primary care physician.
The inquiring attorneys state that both Husband and Wife
signed an engagement agreement which contains a cooperation
clause requiring them to assist counsel.
Husband
treated for his cancer over the course of several years. The
inquiring attorneys state that Husband clearly understood
that he was dying, and intended to do whatever he could to
preserve evidence for a lawsuit against the physician. In
2015, the inquiring attorneys filed a miscellaneous petition
in Superior Court to preserve Husband’s testimony.
Husband underwent a discovery deposition with counsel for the
primary care physician, and later a videotaped deposition to
preserve his testimony for use at a future trial. Husband
died in 2016.
Following
Husband’s death, the inquiring attorneys contacted Wife
to inquire about opening an estate and commencing a wrongful
death lawsuit. Wife objected to proceeding with a lawsuit.
She asserted that the inquiring attorneys failed to fully
explain that the claim could only be filed after her husband
passed away. She stated that a lawsuit was too stressful for
her at that time, and asked the inquiring attorneys to give
her several months to attend to personal affairs. She also
stated that she did not want the couple’s children to
know about the wrongful death claim. Wife’s resistance
to pursuing a wrongful death action has persisted over the
last sixteen months since Husband’s death. The
inquiring attorneys state that it is apparent that she will
never agree to proceed with litigation and is opposed to the
estate’s or...
