In an earlier post, we talked about some of the risks and issues that arise when an attorney is suddenly incapacitated or dies. On the other side of the coin are risks and challenges arising from the death or incapacity of a client.
Death of a client does not automatically, or even necessarily, end an attorney’s or firm’s ethical and professional obligations in a matter. Failure to meet those obligations may result in professional liability claims brought by the client’s estate against your firm.
When you learn of the death of a client, you should contact the estate’s personal representative as soon as possible to catch them up on the status of any pending legal matters you were handling for the client. Note that the representative may not have been aware that any such matters even existed, so it is incumbent upon you to initiate the contact.
Once in contact, explain the options available, which will vary depending upon the nature and status of the matter. In some instances, the matter might be able to continue on behalf of the estate and the representative could choose to have you continue the representation, or choose to transfer it to another attorney. Other matters might be specific to the deceased client and not susceptible to transfer to the estate or representative, which needs to be explained. If the personal representative was already involved in the matter or matters in question, it is important to remember that ethics rules regarding confidentiality and loyalty still govern: if the appointed representative is an opponent in the matter, for instance, or a potential beneficiary of a transaction, your obligations to the original client’s interests may prevent you from sharing information with the representative and you may need to have a separate, neutral, representative appointed for the purpose of handling decisions regarding that matter.
No matter the circumstances, it is essential that you take all action necessary to preserve your original client’s legal rights and interests during the period that all of these issues are being worked out, including seeking continuances in pending litigation, preserving records, meeting deadlines, and making required reports or filings with authorities. This is easiest to deal with in pending litigation; obtain written guidance from the judge whenever possible to demonstrate that you have acted to properly protect your client’s interests and preserve their rights. In transactions, get written acknowledgement from other parties recording the steps you take in protection of your original client’s interests. These documents may help ward off questions about your professionalism should the matter or transaction take a turn for the worse while the estate is being worked out.
