Small Law Firms

Dealing With The Death Of A Lawyer

Lawyers can do a few things to make the process easier on the lawyer who takes over a file after a death.

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I hate to break it to my readers, but everyone who is reading this article will eventually pass away. Even though death is a part of life, and each of us has had to deal with death in the past, people rarely consider death when ordering their worldly affairs. However, lawyers should consider planning for who will manage their clients and their practices if they pass away, especially if the lawyer is a solo practitioner or works at a small firm. The lack of a succession plan can make it extremely difficult for clients of the lawyer to have their interests protected.

Earlier in my career, I got a call from a client who had another lawyer handle a matter for the client in the past. This lawyer had not checked in with the client in a while, and the lawyer’s phone number had stopped working. The client wondered if I had access to information about the lawyer that might not be publicly available so we could see what the lawyer’s status was. I decided to check the attorney registry in the state in which the lawyer practiced, and sure enough, the lawyer had passed away over a year earlier. No one told the client that the lawyer died, and none of the other lawyers involved in the matter with the deceased lawyer did anything about the lawyer passing away.

I asked a few of my lawyer friends if they had ever encountered a situation in their own practice about lawyers passing away, expecting that someone would have experience with this situation. To my surprise, none of the people with whom I typically consult about practice advice had any experience with this situation. Of course, attorneys usually do not pass away while they are practicing law, but I figured that someone must have had experiences with this situation in their practices. I could also find very few resources online about how to handle the death of a lawyer and what clients could do to ensure that their interests were protected after a lawyer passed away.

Many states have rules that protect clients when their lawyer passes away. Generally, action usually cannot be taken against clients of lawyers who pass away until they have been notified of the passing and are able to obtain substitute counsel. This of course makes sense, since court do not want clients to be at an undue disadvantage if they are no longer represented by counsel due to death. However, these rules might not fully protect clients if the client does not even know that a lawyer passed away. Moreover, the delay associated with finding out that a lawyer passed away, and the time it takes to find substitute counsel, can have a significant impact on a client’s case.

Probably the last thing most lawyers think about when they contemplate their own demise is what would happen to their clients. Most lawyers have little reason to think about this scenario since individuals in their working years usually do not need to worry about passing away unexpectedly. I am reminded that malpractice insurance questionnaires do typically ask about succession plans in the event of death or disability of small firm lawyers, so most lawyers should have this possibility on their radar screens. In any event, lawyers should think more about this scenario, and succession planning more generally, especially if they work at a smaller law firm and it might be more difficult for new counsel to pick up the mantle from a lawyer who passed away.

Based on my experience taking over a matter from deceased counsel, lawyers can do a few things to make the process easier on the lawyer who takes over a file after a death. Perhaps most importantly, the lawyer can periodically prepare a narrative of the matter, including all of the prior major events that have occurred during a representation. It is not uncommon for lawyers departing a law firm to write a departure memo about all of the files they handle, and such a narrative can be helpful to counsel that might later parachute into a case.

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It might also make sense to back up case files to a place that is easily accessible to an executor of an estate or someone who might put pieces back together after an attorney passes away. Of course, it is easy enough for lawyers to access case materials that might be filed, but materials that were never filed might be harder to access. Recovering files is one of the best ways to be brought up to speed on a matter and can be important to motion practice and other procedural steps involved in a case.

In any case, most lawyers don’t want to think about their own demise, and the vast majority of lawyers will not pass away while serving clients. However, with a few simple steps, lawyers can protect their legacy and ensure that a succession plan is in place if they untimely pass away.

Rothman Larger HeadshotJordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.

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