Author: David Lipman, Esq., Chief Legal Officer, Kanner & Pintaluga

Upon the passing of a client, the attorney of record is faced with a number of issues that require careful consideration. Attorney-client privilege, the attorney’s obligation to protect the client’s confidentiality, and certainly the Florida Rules of Civil Procedure are all instructive on how to proceed, but unfortunately there is no bright line rule that an attorney can simply rely on. Some of the initial questions that an attorney must ask themselves are a) what are my obligations to notify opposing counsel; b) what are my obligations to notify the court; and c) can I even proceed with the case in any significant way before doing so?

When your client passes away, the facts that give rise to the attorney-client relationship also terminate immediately. Thus, any acts taken on the deceased client’s behalf will be scrutinized on whether those actions required the client’s authority to act on their behalf. While the Florida Bar has not published an ethic’s opinion addressing this specific issue, there have been at least two unreported disciplinary proceedings that have addressed the attorneys’ actions once they were notified their client had died. However, in both of those disciplinary actions by The Florida Bar, the attorneys in each instance continued forward with the litigation without notifying opposing counsel or the court. In one case, the attorney proceeded to mediation and then ultimately amended the Complaint, which included the continued pursuit of future medical damages in a personal injury claim. In the other case, the attorney, again without notifying opposing counsel or the court, allowed opposing counsel to continue with discovery. The Florida Bar took issue with both attorneys conduct due to the fact their actions required their clients’ authority to proceed.

However, when your client dies you have to balance the necessity to inform opposing counsel and the court against the attorney’s obligation to maintain the attorney-client privilege, a privilege that survives the deceased client and ultimately is the deceased client’s to waive, as odd as that sounds. Further, the attorney has a duty to maintain the client’s confidentiality and there’s a colorable argument to be made that there is nothing more confidential than the passing of another person. Again, the Florida Bar and the Rules Regulating the Florida Bar are not helpful in helping Florida attorneys navigate this ethical dilemma. While it’s clear that an attorney should not continue to pursue a case without client authority, how does an attorney notify opposing counsel and the court without breaking privilege or confidentiality?

Florida Rule of Civil Procedure 1.260(a)(1) generally sets forth the requirements for an attorney to follow when a party dies during the course of litigation. In pertinent part, the Rule suggests that the attorney that has knowledge of the client’s death should file a Suggestion of Death with the court thus notifying both opposing counsel and the court of the client’s passing. Upon the Suggestion of Death, the litigation is abated and counsel then has 90 days to file a Motion to Substitute Party and the failure to do so may result in the action being dismissed as to the deceased party. Thus, with a potential 90 day clock ticking that could ultimately trigger the dismissal of the case, it’s important that the ethical and procedural analysis commence immediately.

The death of the client does not effectively extinguish the client’s claim per Florida’s survival statute, F.S. §46.201. The client’s claim, in most cases, can proceed despite the client’s death, but as already noted the attorney must have an actual client in order to proceed. Thus, the first course of action should be to work with a legal representative of the decedent to confirm that an Estate will be opened and have a Personal Representative appointed. Once the Estate has a Personal Representative, an attorney can Motion to Substitute the Personal Representative and proceed in good conscience with the decedent’s case. It’s important that an experienced probate attorney is involved in order to ensure that, not only is the Estate correctly opened and the right Personal Representative is appointed, but also to confirm that the creditors’ claims process governed by the Florida Probate Code is followed. This can be tricky when the decedent was a party to litigation and especially personal injury litigation.

As you can see, there are a number of potential landmines that must be considered when a client passes away. However, the attorney’s duty to maintain the deceased client’s claim, while also protecting attorney-client privilege and confidentiality, does not simply terminate. Keeping the claim alive requires proceeding cautiously along two separate procedural roads that will very quickly intersect and moving forward requires an understanding of the Florida Rules of Civil Procedure, the Florida Probate Code and the Rules Regulating the Florida Bar.

About Kanner & Pintaluga, P.A.

Founded in 2003, Kanner & Pintaluga is a NLJ500 and Mid-Market Pro 50 law firm that has recovered over $1 billion for property damage and personal injury clients nationwide. With nearly 100 lawyers and more than 30 offices throughout the Central and Southeastern United States, our primary goal is to achieve the most favorable outcome for our clients, who have the absolute right to receive the maximum compensation for their damages.