Attorney Loses Contact With Client Who May (Not) Be Deceased

May Court Entertain Application to Withdraw As Counsel?

Chernyy Law Office, P.C.  submitted a proposed order to show cause to bring on a motion for leave to withdraw as attorney for plaintiff, Rose Edwards. The affirmation in support of Borislav Chernyy, Esq., alleged that the underlying action was for money damages to compensate Edwards and others for injuries sustained in a motor vehicle accident on February 23, 2018. He alleged further:

6. The last time your affiant had contact with the Plaintiff, ROSE EDWARDS, was by telephone on July 19, 2021. Since July 2021, your affiant underwent multiple attempts to contact the Plaintiff, ROSE EDWARDS, but your affiant’s office has not been able to reach the Plaintiff. Upon information and belief your affiant was informed that Plaintiff, ROSE EDWARDS, passed away. Your affiant does not have any knowledge regarding Plaintiff’s, ROSE EDWARDS, date of death and place of death because said information was obtained from his friends. Your affiant’s investigator conducted an investigation in order to obtain Plaintiff’s, ROSE EDWARDS, death certificate or Plaintiff’s, ROSE EDWARDS, location of death but he has not been able to locate a death certificate and the location of death for Plaintiff, ROSE EDWARDS, or verify that in fact Plaintiff, ROSE EDWARDS, passed away.

CPLR 321 permits the attorney of record for a party to withdraw upon a showing that good cause exists to end the relationship with the client. However, if Rose Edwards was indeed dead, the Court had no jurisdiction to grant the requested relief—because it is well settled that the death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made and any order rendered after the death of a party and before the substitution of a legal representative is void.

It stood to reason that any order relieving Edwards counsel before the substitution of a legal representative would be of no effect. In addition, the Court observed that, in any event, the movant no longer represented Edwards if she was deceased, as the death of a party terminated her attorney’s authority to act on behalf of the deceased party. If she was deceased, then the action must be stayed and counsel no longer represents Edwards by operation of law and a motion to be relived would not be necessary.

If indeed Rose Edwards was alive, then serving her with an order to show cause and supporting papers by overnight or other class of mail — as requested by moving counsel — would probably be for naught inasmuch as moving counsel clearly had no idea where she was as per his statement that contact with her has lapsed.

What was needed here was for a professional investigation to be undertaken as to whether Edwards was deceased. If so, the heirs would need to be noticed and an administrator of her estate appointed. If the administrator was so inclined, the action could be discontinued or litigation resumed. Alternatively, defendants in the case have the option of ascertaining the names and locations of the heirs if Edwards is deceased, for the purpose of either taking affirmative steps to effectuate substitution or providing notice of a motion to dismiss the complaint for failure to make a timely substitution.

In undertaking to represent Edwards, counsel committed to assiduously pursuing her interests in connection with the motor vehicle accident. The Rules of Professional Conduct require a lawyer to act with reasonable diligence and promptness in representing a client and not to neglect an entrusted legal matter. The bonds of representation cannot be so easily relinquished.

The Court declined to sign the proposed order to show cause. Under the circumstances described by moving counsel, an order relieving counsel could not be issued.

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