You’re litigating a case and your client dies. What do you do? What are your ethical obligations?
One of the first questions you have to ask yourself when you client dies is, “who is my client now?” The answer is “nobody.” When your client dies, the attorney-client relationship generally terminates by operation of law. Pham v Wagner Litho Machinery Co. (1985) 172 CA3d 966, 972.
This means that even if you’re in the midst of heated litigation when your client dies, you generally can’t take any action on behalf of your deceased client without the approval of the decedent’s estate’s personal representative or the successor in interest.
But you nonetheless do have an ethical obligation to take whatever steps are necessary and prudent to protect the interests of the decedent’s estate.
Here are ways you can square your inability to take action with your ethical obligation:
- If trial is imminent, you can move for a continuance under Cal Rules of Ct 3.1332.
- If you’re in the discovery process, you can move for a protective order to temporarily stay discovery until a personal representative is substituted for the deceased litigant.
There’s also one important exception to your inability to act: you can file a notice of appeal after judgment is entered even if a personal representative or successor in interest has yet to be substituted in. CCP §903. The reason for this exception is that the time to file appeal is very short and is usually not subject to very easy extension.
Getting a personal representative or successor in interest aboard doesn’t necessarily mean smooth sailing for you handling the litigation, because he or she has no obligation to continue to litigate or to hire you to continue the litigation.
But if you enter into a new fee agreement with the personal representative or successor in interest, you can continue to litigate once you’ve gotten court approval. An attorney for the personal representative generally can’t be paid without prior court approval, and the court will scrutinize any fees generated in connection with litigation on behalf of a personal representative.
Keep in mind that even if the personal representative doesn’t retain you to continue with the litigation, you still have to disclose the file, including confidential information, to the representative. Cal Rules of prof cond 3-700D. This is true even if you’re owed fees—just deal with the payment of unpaid fees separately.
This practical advice comes from Mark Schmuck; get much more from him in CEB’s program Case Interrupted: What To Do When Your Client Dies, available On Demand. On the initial duties of a personal representative, turn to CEB’s California Decedent Estate Practice, chapter 10.
Other CEB blog posts you might find useful:
- Could Your LinkedIn Profile Lead to an Ethics Violation?
- Attorney Swap
- Suing Your Client to Get Paid
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