The death of a litigant is a material fact that must be disclosed to the court and opposing counsel without delay. This is not only a matter of procedural necessity but also an ethical requirement. When plaintiff's counsel continues litigation without disclosing their client's death, the integrity of the entire judicial process is compromised. For defense counsel, discovering that a party has been deceased for weeks or months without any notice raises serious questions of due process, fairness, and professional responsibility.
This article examines the ethical violations associated with failing to disclose a plaintiff's death, the legal consequences for plaintiff's counsel, and the steps defense attorneys should take in response.
The Attorney Client Relationship Upon the Death of a Client
The death of a client is a pivotal event that not only impacts the substantive claims in a case but also immediately affects the attorney's authority to act. As a matter of law and ethics, a lawyer's actual authority to represent a client generally terminates upon the client's death. This principle is well-established in the Restatement (Third) of the Law Governing Lawyers §31, cmt.e (2000), which provides that unless the representation is meant to survive death or the lawyer is authorized to act for the estate, the death ends the lawyer-client relationship.
In practical terms, once a client dies, the attorney is no longer authorized to file motions, respond to discovery, or otherwise act in litigation, unless and until they are retained by the decedent's successor, such as an estate representative or successor in interest. Any further action without such authority is not only unauthorized but may also mislead the court and opposing counsel as to a material fact. Namely, that the client is still alive, and the attorney continues to act with authority.
This forms the basis of the ethical concerns articulated in ABA Formal Opinion 95-397, which explains that the failure to disclose a client's death is tantamount to making a false statement of material fact under ABA Model Rule 4.1(a). That rule prohibits lawyers from knowingly making false statements or failing to disclose material facts when disclosure is necessary to avoid assisting in a fraudulent act. The implication is clear that continuing litigation without disclosing the death crosses the line from silence into misrepresentation.
Courts have reinforced this principle by holding that lawyers have an affirmative duty to inform both the court and opposing counsel of their client's death. In Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F.Supp. 507(E.D. Mich. 1983), the court vacated a settlement agreement after learning that plaintiff's counsel had knowingly failed to disclose his client's death prior to settlement. The court underscored that counsel's silence impaired the fairness of the proceedings and violated his duty of candor.
Ethical violations for this kind of concealment are not merely academic. Disciplinary actions have been imposed on attorneys who continued litigation without disclosing their client's death. The In re Rosen decision, resulted in the court finding the attorney's failure to disclose the death of his client to the court for several months warranted sanctions for his deceptive conduct. 198 P.3d 116 (Colo. 2008). Likewise, in Kentucky Bar Ass'n v. Geisler, 938 S.W.2d 578 (Ky. 1997), the Kentucky Supreme Court issued a public reprimand and suspension for an attorney who actively prosecuted a lawsuit for two years after the death of his client.
Taken together, these authorities form a consistent rule reflecting the fact that an attorney who fails to disclose the death of a client not only loses authority to act in the matter but also may be violating ethical rules and exposing themselves to both procedural sanctions and disciplinary consequences. Disclosure is not optional- it is a professional and ethical obligation central to the integrity of the judicial system.
Ethical and Legal Obligations of Plaintiff's Counsel in the Case of a Litigant's Demise
Attorneys have a duty to conduct themselves with candor, honesty and fairness in all dealings with the court and opposing parties. These duties are codified in both the American Bar Association Model Rules of Professional Conduct as well as the California Rules of Professional Conduct. Below is a list of the main ethical rules and statutory requirements that may apply when a lawyer fails to disclose that their client has died.
- Under ABA Model Rule 3.3(a)(1) and California Rule of Professional Conduct 3.3(a)(1), an attorney must not knowingly make a false statement of fact or law to a tribunal. Continuing litigation without disclosing a client's death constitutes a material omission that misleads the court. It is not only an ethical breach, but also potentially fraudulent.
- ABA Rule 4.1(a) states "In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person; or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client." Once the death of the client occurs, the lawyer ceases to represent the client. "Accordingly, any subsequent communication to opposing counsel with respect to the matter would be the equivalent of a knowing, affirmative misrepresentation should the lawyer fail to disclose the fact that she no longer represents the previously identified client." As stated above, any appearance by the lawyer before the court without disclosing the client's death would qualify as making a false statement of material fact to a tribunal under Rule 3.3.
- Further, ABA Model Rule 8.4(c) and California Rule 8.4(c) both identify it as professional misconduct for a lawyer to engage in dishonesty, fraud, deceit, or misrepresentation. These rules apply in civil proceedings where plaintiff's counsel, by continuing to act as if the plaintiff is alive, makes implicit representations that are knowingly false.
- In California, these obligations are reinforced by Business and Professions Code §6068, which requires attorneys to maintain respect for the court and uphold the truth in their professional dealings. Subsection (d) mandates that attorneys use only those means that are consistent with truth.
- ABA Rule 4.1 Truthfulness in Statements to Others, Comment (1) states as follows: "A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements."
Procedural Consequence of Non-Disclosure
Beyond the ethics of it all, a failure to disclose a plaintiff's death can disrupt the litigation process and violate the rules of civil procedure. Under Federal Rule of Civil Procedure 25(a)(1) and California Code of Civil Procedure §377.31, if a party dies, a motion to substitute the proper party must be made within 90 days after service of a statement noting the death. The lawsuit cannot continue until substitution is properly made. Continued prosecution of claims in the name of a deceased plaintiff renders pleading invalid and exposes plaintiff's counsel to dismissal, sanctions and even vacatur of judgment if one was obtained through nondisclosure.
In Mok v. 21 Mott Street Restaurant Corp., 201 F.3d 433 (2d Cir. 1999), the plaintiff's counsel continued litigation for over a year after the client's death, failing to notify the court or opposing counsel. The Second Circuit affirmed the trial court's dismissal, reinforcing that failure to timely substitute parties following a death- especially when compounded by deliberate concealment- is fatal to a claim. This case underscores that procedural rules governing substitution are not mere technicalities, but are also essential safeguards to ensure fairness and accountability. Counsel who disregard these requirements risk not only losing their case but undermining their own reputation as upstanding members of the legal profession.
Remedies and Repercussions
When defense counsel discovers that plaintiff's counsel failed to disclose a death there are several avenues of recourse:
1. Investigate and Confirm
Defense should first verify the plaintiff's death through reliable sources such as death certificates, probate filings, or public notices. This confirmation supports any subsequent filings and protects the attorney from making accusation without factual support.
2. File a Suggestion of Death
If no notice has been filed by plaintiff's counsel. Defense can file a Suggestion of Death under FRCP 25(a)(1) or CCP §377.31. This starts the 90-day clock for substitution of parties. Failure to substitute within that window is grounds for dismissal.
3. Move to Dismiss and/or File a Motion for Sanctions
Defense should move to dismiss under procedural rules if the case is being improperly prosecuted. Sanctions under FRCP Rule 11 or California Code of Civil Procedure §128.7 may also be appropriate. The court has discretion to dismiss with prejudice if it finds the concealment to be willful or prejudicial.
4. Motion to Vacate Judgment
If a judgement or settlement was secured after the plaintiff's death, defense may seek relief under FRCP 60(b)(3) or CCP §473(d) for fraud or misrepresentation.
5. Disciplinary Complaint
In particularly egregious cases, defense counsel may file a complaint with the California State Bar for violations of the Rules of Professional Conduct and Business and Professionals Code §6068.
Conclusion
The death of a litigant is not merely a procedural inconvenience to be sidestepped, but rather a legally significant event that alters the very foundation of a case. When counsel fails to disclose a client's death and continues to litigate as if nothing has occurred, the consequences may be severe. Pleadings may be rendered void, settlements vacated, cases dismissed, and attorneys sanctioned or disciplined. The ethical and procedural rules, both federal and in California, are clear in their mandate for honesty, transparency, and respect for the integrity of the judicial process. Counsel must remain alert to red flags, act swiftly to protect their client's interest, and insist on compliance with the law. In doing so, they not only safeguard their client's rights, but also uphold the core values of the legal profession.