Suppose you have a legal claim against your employer? You hire an attorney and initiate litigation. And then, unexpected, you die before the litigation has run its course. What happens then?

A recent article in the ABA Journal, “2nd Circuit scolds lawyers for apparent ‘lack of candor’ after client died” by Debra Cassens Weiss addresses an aspect of this issue. The article discusses a case in which a law firm represented Mark Marentette in his efforts to seek redress through litigation for an alleged wrongful termination of his employment. Mr. Marentette had “lost his cases in state and federal court,” and his attorneys appealed the decision to the 2nd Circuit. Unfortunately, Mr. Marentette died the same day that the appeal was filed. The law firm representing Mr. Marentette simply continued the litigation without informing the court, despite objections from the defense. This clearly was not a winning strategy because “the court tossed the appeal and referred [the attorneys] to the court’s grievance panel.”

Litigation, just like most other legal matters, continually presents a myriad of choices. Should we pursue this argument, or that one? Should we seek these sorts of damages? Should we depose this witness? Attorneys need to make these choices in consultation with their client. Attorneys must explain the various options to their clients, enabling the clients to make informed choices on how to proceed. Attorneys can not simply say, “Oops, my client died. I think I’ll go ahead and do it this way without asking anyone.” To do so is to usurp their authority, and is also potentially a violation of the Rules of Professional Conduct.

So then, what happens if you die during litigation? It’s not fair if the litigation is simply dismissed, because then your estate loses out on a potential financial asset that could benefit your beneficiaries. As described in the article, what the attorneys should have done is, rather than cover up the death and hope no one would notice, instead they should have “move[d] for substitution of a qualified representative.” Once a Personal Representative of the deceased litigant’s estate has been appointed by the court, generally speaking, that Personal Representative has the authority to step into the deceased person’s shoes and participate in the decision making related to litigation. The Personal Representative, representing the deceased litigant’s estate, is substituted as the party in litigation.

This principle also applies in reverse. If you are being sued and you die in the middle of the litigation, sadly, that usually doesn’t mean that the litigation simply goes away. The litigation will likely instead proceed forward against your estate. And, in that instance, your Personal Representative will guide defense counsel in terms of how to proceed.

If you are involved in litigation, you should take care that the person you’ve nominated as your Personal Representative is up to the challenge, if need be, of stepping into your shoes. If you have questions, we’d be happy to help.

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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