When a lawyer’s client dies, the lawyer’s professional responsibilities to the client may change, but they nevertheless continue.
Withdraw or Substitute Party
Lawyers are the agents of their clients and when the client dies, the lawyer-client relationship ends. As a matter of agency law, the lawyer’s authority to act for the client terminates at the client’s death. The rights of the deceased client relating to the lawyer’s representation may pass to other persons who can, if they wish, continue the representation.
If an action has already been filed on behalf of the deceased client, the lawyer should first determine whether there are plans to open an estate. If the decedent’s family is going to open an estate, the lawyer should attempt to communicate with the family (preferably next of kin) about continuing the representation until the estate is opened and a personal representative is appointed. If the family expresses a desire to continue the representation, the lawyer should then notify the court of the decedent’s death and seek the court’s guidance on proceeding with the litigation (e.g., whether the case should be continued until such time as the estate is opened). If the family does not consent to the lawyer’s continued representation, the lawyer should file a motion to withdraw.1
Once a personal representative has been appointed, the lawyer should ask the personal representative if he would like for the lawyer to continue as the lawyer for the estate in the pending litigation. If not, the lawyer must file a motion to withdraw. If the personal representative consents to the continued representation, the lawyer may need to substitute the estate as the party. Regardless of the decision of the personal representative, the lawyer for the deceased client must cooperate and seek to protect the deceased client’s property and other rights. Also, the lawyer cannot withdraw without the consent of the court and must continue to represent the interests of the client/estate until the lawyer is released by the court per Rules 1.16(c) and (d).
If there are no plans to open an estate and there is litigation pending, the lawyer may determine that it is necessary to have an estate opened and a public administrator appointed. After a public administrator is appointed, the lawyer would take his directions from the public administrator. Alternatively, the lawyer may file a motion to withdraw.
If there is no pending litigation and the family does not plan to open an estate, the lawyer’s authority to act on behalf of the decedent’s interest is circumscribed, and in most instances, the lawyer may not seek to have an estate opened. Thus, the lawyer’s representation will end.2
If a lawyer runs into any of these scenarios, he should contact his liability or malpractice insurance carrier for their additional risk management advice.
A related issue a lawyer may face after a client’s death is properly notifying relevant parties that the client has died. Rule 4.1 provides that, in the course of representing a client, “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” Comment 1 to Rule 4.1 explains that “[m]isrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.” Prior to the death, the lawyer acted on behalf of an identified client. When the client dies, the lawyer no longer represents that identified client (although lawyer may represent the decedent’s estate, as set out in the prior section). Therefore, any subsequent communication to an opposing counsel with respect to the matter would be the equivalent of a knowing misrepresentation if the lawyer fails to disclose the fact that he no longer represents the previously identified client. Consequently, the lawyer must disclose the client’s death to any opposing party.
This is true even if the client dies in the midst of settlement negotiations. Pursuant to RPC 182, a lawyer is required to disclose to an adverse party with whom the lawyer is negotiating a settlement that the lawyer’s client has died. The death of a client means that the lawyer, at least for the moment, no longer has a client and, if he does thereafter continue in the matter, it will be on behalf of a different client. To continue to negotiate without a client would be to communicate a false statement of fact in violation of Rule 4.1. Therefore, the lawyer must disclose the death of the client to the opposing party before continuing negotiations.
In addition, the death of a client is a material fact that must be disclosed to the court pursuant to RPC 182. Any appearance by the lawyer before the court without disclosing the client’s death would be tantamount to making a “false statement of material fact...to a tribunal” within the meaning of Rule 3.3.
Although the lawyer has the duty to disclose the death of his client to the opposing party and the court, the lawyer has a duty to keep other information related to the representation confidential. Often after a client dies a lawyer will receive requests for information relating to the representation. An executor, spouse, or other family members of the deceased client may ask the lawyer to hand over the client’s file or to disclose information the lawyer obtained in the relationship. However, there are limited circumstances under which the lawyer may comply with requests for information regarding the representation of a deceased client.
A lawyer is generally prohibited from revealing information relating to the representation of a client unless the client gives informed consent. Rule 1.6(a). The duty applies to all information gained in the professional relationship, whatever its source, and continues after the death of a client. See Rule 1.9(c)(2); see also Rule 1.6, cmt. .
If a lawyer receives a request for a deceased client’s information, and none of the exceptions set out in Rule 1.6(b) apply, the lawyer must determine whether he has the client’s “implied authorization” to disclose the information in order to carry out the goals of the representation. See Rule 1.6(a). Whether a lawyer has a deceased client’s implied consent to disclose information acquired during the representation depends on a variety of considerations, including the client’s prior statements as well as the context or goals of the representation.
For example, it is assumed that a client impliedly authorizes the release of (certain) confidential information to the person designated as the personal representative of his estate after his death in order that the estate might be properly administered. See RPC 206. Generally, the lawyer may reveal a client’s confidential information to the personal representative of the client’s estate, and he may also reveal the deceased client’s confidential information to third parties at the direction of the personal representative. Id. However, the lawyer may not disclose the information to the personal representative or third party if such disclosure would be clearly contrary to the goals of the original representation or contrary to express instructions given by the client before his death. If the lawyer is aware through his representation that the deceased client would not consent to the revelation, then the information should not be disclosed to anyone absent a court order.
As another example, it is possible that an attorney will become involved in a will caveat procedure after a client’s death. If the personal representative calls the lawyer who drafted the will as a witness, the lawyer may testify because the personal representative has consented to the disclosure. See 2002 FEO 7. Alternatively, the lawyer may receive a subpoena seeking production of the client’s file and the lawyer’s testimony as a witness. One of the exceptions to confidentiality under Rule 1.6(b) is to comply with “the law or court order.” Because compliance with a subpoena is required by law, a lawyer who is served with a subpoena may reveal confidential—but not privileged—information to the extent reasonably necessary to comply with the subpoena. It may be prudent for the lawyer to insist on a subpoena from any party other than the personal representative and then to file an objection or motion to quash the subpoena so the judge can decide what testimony the lawyer must give. See Journal article “You’ve Been Served.” (Journal 15,1 - March 2010). As noted in the article, if a lawyer does run into this scenario, the lawyer should contact his liability or malpractice insurance carrier for their additional risk management advice. Some liability carriers specifically provide subpoena assistance.
Disburse Funds in Trust
Another issue a lawyer may have to deal with is funds of the deceased client that are remaining in the lawyer’s trust account. The lawyer will need to determine who is legally entitled to the funds. In most instances, any remaining funds belong to the deceased client’s estate. If an estate is opened, the funds need to be turned over to the personal representative of the client’s estate. If no estate is opened, the lawyer should seek the advice of the clerk of court and, if possible, turn the funds over to the clerk or interplead the funds.
Retain Client File
Finally, the lawyer must consider his duties as to the client’s file. Pursuant to the Rules of Professional Conduct and relevant ethics opinions, a lawyer is required to keep a client’s file for six years unless there is a limitation period or other legal requirement obligating the lawyer to keep the file for a longer period of time. See RPC 209. In addition, the lawyer should check with his liability or malpractice carrier to see what they require. Originals of certain documents should never be destroyed, but instead should be returned to the rightful owner (likely the decedent’s estate). Documents should not be discarded if they have legal significance or inherent value as original records, such that an electronic reproduction would not constitute a duplicate record (for example, stock certificates, wills, deeds, titles). These documents must be kept indefinitely, delivered back to the client, or deposited with the court.
The death of a client is a challenging experience for a host of reasons, and it is imperative for a lawyer facing this difficult moment to stay professionally and respectfully focused on serving the best interest of his client. However, the lawyer should also pay attention to his own state of mind. The Lawyer Assistance Program can assist lawyers struggling with their own bereavement issues. See nclap.org/grief-loss. Reach out to LAP if you need help navigating grief and loss issues. As always, lawyers are encouraged to contact the State Bar’s ethics staff for guidance if needed. Inquiries requesting ethics advice can be sent via email (email@example.com) or through the State Bar’s new membership portal.
1. Hawkins, Jonathan, What Do You Do If Your Client Dies During Representation?, Law Firm GC (yourlawfirmgc.com) (1991).