Imagine this: You’ve been hired by a client to represent them, but during the representation, the client dies. Now what?
The attorney-client relationship is an agency relationship, in which the client is the principal and the attorney is the agent. Typically, the death of a client terminates the attorney-client agency relationship, and the attorney’s authority to act ends. Without authorization from the decedent’s representative, an attorney of a deceased client is without authority to act.
If litigation is pending, the lawyer should
- Determine whether there are plans to open an estate. If yes, obtain the consent of the family to continue the representation until the estate is opened and a personal representative is appointed. If no, the lawyer should file a motion to withdraw or notice of substitution with new lawyer.
- Once a personal representative is appointed, the lawyer should ask if he or she wants the lawyer to continue as the lawyer for the estate in the pending litigation. If not, the lawyer must file a motion to withdraw or notice of substitution with the new lawyer.
- If the personal representative consents to the continued representation, the lawyer may need to substitute the estate as the party.
If there are no plans to open an estate or if the lawyer cannot locate any family members of the decedent, then the lawyer:
- May, if necessary, seek to have an estate opened and a public administrator appointed, who would then direct the lawyer; or
- Should file a motion to withdraw.
No Litigation Pending
If there is no pending litigation and there are no plans to open an estate, a lawyer’s authority to act on behalf of the decedent’s interest is limited, and typically, a lawyer may not seek to have an estate opened. Thus, the lawyer’s representation will end.
Client Confidential Information and Client Files
What if an executor, spouse, or family member of deceased client asks lawyer to hand over the client’s file or to disclose information the lawyer obtained in the relationship?
A lawyer is generally prohibited from revealing information relating to the representation of a client unless the client gives informed consent. (e.g., Ga. 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. (North Carolina).
If an executor, spouse, or family member of deceased client is legally entitled to the same access that the decedent had when alive, then the lawyer can ordinarily provide access to all those files. (NY State Bar).
But if, on the other hand, their status does not confer on them the same legal right as the decedent possessed, then the contents of a deceased client’s file and information obtained in the course of the professional relationship may be disclosed only if:
- not confidential (e.g., D.C.; NY State Bar)
- impliedly authorized in furthering the interests or representation of former client (e.g., D.C.; North Carolina; NY State Bar; Georgia); or
- there’s a court order (e.g., D.C.)
Absent one of these, the client information should not be disclosed.
And if a 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.” (Philadelphia Bar Association). For example, if a client was exploring a divorce, then typically information learned during the representation should not be disclosed to the surviving spouse.