What Happens if a Lawyer Dies in the Middle of a Case
Lawsuits oftentimes take months and even years to reach a resolution. During the course of this time, people’s lives can change, and lawyers may even pass away during the course of a representation. It can be difficult to pick up the pieces after a lawyer passes away, but there are a few things you should keep in mind when asking what happens if a lawyer dies in the middle of a project or lawsuit.
Protections for Clients
The first thing to know when asking what happens if a lawyer dies in the middle of a case is that there are protections in place for clients in such situations. After an attorney dies, it can take clients a decent amount of time to discover the news about their counsel. This is because clients are often not in regular communication with counsel and notice might not be immediately sent to clients about the death of a lawyer. Courts protect clients from being taken advantage of after a lawyer passes away. Indeed, other parties involved in a lawsuit usually cannot taken any action against a client whose lawyer has passed away until after they are served notice about the death of the attorney and the client is compelled to hire new counsel. This is because clients do not have the best counsel if they are without lawyers and they should be given a fair opportunity to engage new counsel after the death of an attorney. It should be noted that clients not involved in litigation might have less protections, but ethical guidelines might also provide a check on lawyers seeking to take advantage of a client after an attorney passed away.
Substitution of Counsel
Perhaps the most important question when asking what happens if a lawyer dies during the course of a case is how substitute counsel can come into a matter to continue the representation. Normally, counsel is changed during litigation through an agreement between the client, retiring counsel, and incoming counsel. However, when a lawyer passes away, that attorney cannot consent to change the representation for obvious reasons.
As a result, it is normally necessary to make a motion with the court to request that counsel be changed and that incoming counsel be substituted for the lawyer who passed away. The court will determine if the substitution will prejudice the client, the other parties involved in a matter, or other interests. It should be noted that clients usually do not need to receive any kind of permission in order to substitute counsel if the matter does not involve litigation, and incoming counsel in such circumstances is ordinarily free to join the case at will.
Collecting Documents
Another query when asking what happens if a lawyer dies is how that lawyer’s files will be handled. If the deceased lawyer worked at a firm with multiple lawyers, it is ordinarily fairly easy to collect the lawyer’s files. This is because other lawyers and staff members at the firm should be able to help clients and other interested parties to review the deceased lawyer’s files and come up to speed on a case.
However, sometimes deceased lawyers did not partner with other lawyers, and they were by themselves in practicing law. In such instances, it can be difficult to obtain the files of a deceased lawyer since individuals may not have safeguarded the files from the time the attorney died to the point where interested parties wish to review the materials. Ordinarily, it is best to contact the executor or other representative of the estate of the deceased lawyer in such circumstances. This representative might have the most information on which materials are still available and how they can be located. It is important that these files are secured so that new counsel has an easier time coming up to speed on a matter handled by a deceased lawyer.
Attorneys’ Liens
A further important question when asking what happens if a lawyer dies is handling the issue of attorneys’ liens. Lawyers typically have liens on the recovery of a matter they are handling on contingency which a subsequent lawyer need to resolve. This essentially requires clients and counsel to pay the former lawyer for all of the work they performed on a matter so everyone involved in the process is treated fairly. The estates of deceased lawyers typically have a right to attorneys’ liens on cases handled by the attorney so the heirs of the deceased attorney can enjoy the fruits of labor of the lawyer who passed away.
In order to deal with such liens, it is important that subsequent counsel and clients contact the estate of a deceased lawyer as soon as possible to sort out any attorneys’ liens. They can also negotiate a resolution to liens so that everyone feels that they received just compensation from a case. By resolving attorneys’ liens and related issues early, parties can avoid the headache of negotiating about attorneys’ liens at the end of a case when a recovery is at hand.
The Rothman Law Firm has experience handling matters after prior counsel passed away. If you are looking for an experienced New York and New Jersey attorney to handle your legal matter, please do not hesitate to contact The Rothman Law Firm to request a free consultation.