ETH 1211
Ethics Opinions 1211
New York Ethics Opinion
December 9, 2020
Topic:
Fees vs. disbursements, charges of contract lawyer or
co-counsel
Digest:
If a lawyer is handling a personal injury matter for a client
who dies during the case, the attorney-client relationship
automatically terminates, but the lawyer may enter into a new
attorneyclient relationship with the former client’s
putative personal representative. The new retainer agreement
may provide that the lawyer will retain a probate lawyer in a
different firm to file a probate matter and to obtain the
appointment of the personal representative to carry on the
personal injury case in place of the deceased client. The
retainer agreement with the personal representative may also
provide that the original lawyer will charge the probate
lawyer’s legal fees and expenses as a disbursement in
the personal injury action.
Rules:
1.1, 1.5(b), 1.5(c), 1.5(g)
FACTS
1. The
inquirer is a personal injury lawyer. On occasion, a client
dies in the course of a lawsuit. Because the inquirer does
not have the relevant expertise in probate matters, the
inquirer will typically engage a lawyer in another law firm
to open a probate matter and seek appointment of a personal
representative for the estate of the deceased client. The
inquirer then moves in the personal injury action to
substitute that personal representative as plaintiff under
CPLR § 1015(a). The inquirer advises that in most cases,
but for the personal injury litigation, no probate proceeding
would need to be filed and no personal representative would
need to be appointed, as the estate has no other assets
requiring probate.
QUESTIONS
2. Can
the legal fees and expenses charged by the probate counsel
and paid by inquirer be classified as a
“disbursement” and recouped prior to disbursing
any recovery obtained by way of settlement or judgment in the
personal injury action? 3. Must the treatment of the probate
lawyer’s fees and expenses as disbursements in the
personal injury action be addressed in an engagement letter
or retainer agreement with the decedent’s personal
representative?
OPINION
4. At
the outset, we note that the death of the client terminates
the attorney-client relationship. See, e.g., Pace v.
Raisman & Assoc., Esqs., LLP, 945 N.Y.S.2d 118, 121
(App. Div. 2d Dept. 2012); Davis v. Cohen & Gresser
LLP, 51 Misc. 3d 1203(A) (Sup.Ct. N.Y. Co. 2016). As a
consequence, “[t]he lawyer . . . may not take any
further steps in connection with the matter unless and until
she is authorized to do so by the deceased’s duly
qualified personal representative.” ABA 95-397. As...
