ETHICS OPINION 709-1995 PARTNERS AND LEGAL REPRESENTATIVES OF DECEASED ATTORNEY

NEW YORK COUNTY LAWYERS’ ASSOCIATION

Committee on Professional Ethics

 

QUESTION NO. 709

 

QUESTION:

 

1. When one of the partners in a law firm dies, does a remaining partner, who is also the deceased attorney’s legal representative, have a duty to notify former clients of the attorney’s death if the clients had named the deceased attorney as a fiduciary in their wills?

 

2. Does the partner/legal representative have a duty to notify clients for whom the deceased attorney was rendering legal services at the time of his death?

 

OPINION:

 

An attorney (“L”) is a partner in a law firm, one of whose partners recently died. The deceased partner was named as fiduciary in several wills prepared by the firm, and had responsibility for ongoing matters being handled by the firm at the time of his death. L, in addition to being the deceased law firm’s partner, is also the legal representative of the deceased lawyer.

 

L inquires about his “ethical and/or legal obligations”1 to give notice of the death of his partner (1) to former clients who named the deceased attorney as a fiduciary in their wills, and (2) to clients for whom the deceased partner was rendering legal services at the time of his death.

 

Nothing in the Code of Professional Responsibility creates an ethical duty on the part of a partner or a legal representative of a deceased attorney to notify persons who named the deceased attorney as a fiduciary in their wills of the death. In the facts posed, the testators are not ongoing firm clients; accordingly, there is no ongoing attorney-client relationship between the testator-former-clients and the law firm that might require the firm or its remaining members (including the legal representative) to notify the testator of the death.

 

In N.Y. State 341 (1974), the Committee on Professional Ethics of the New York State Bar Association was asked whether a law firm which holds original wills drawn by a lawyer both before and after the formation of the law partnership of which he is a member needs to notify such clients of the lawyer’s retirement. The State Bar Committee held that “(w)hen a client deals with a member of a law partnership, the obligations of each partner are also the legal and ethical responsibilities of the firm. . . . Therefore, unless the client otherwise directs, it can be assumed that the client is aware of and accepts the relationship between the lawyer and his partners.” The Committee further stated that it was not necessary for the law firm to notify a client of the retirement of a partner except in circumstances where it is apparent that the client did not know of the formation of the partnership. We do not believe that a law firm — or any member thereof — would have any greater responsibility to a client who named a partner as a fiduciary in a will.

 

The Committee is aware that some law firms do make periodic reviews of clients’ wills held for safekeeping and notify clients of relevant changes in the law. Presumably such clients also would be apprised of other changes in circumstances, such as the death of a nominated fiduciary, known to the law firm. However, the instant inquiry does not furnish any facts giving rise to a continuing attorney-client relationship with reference to the wills in question, and in the absence of such a continuing relationship between a law firm and a person for whom it holds a will for safekeeping, we do not find any basis to impose an ethical obligation on a law firm to make such notification.

 

With respect to ongoing matters for firm clients being handled at the time of the partner’s death, these are matters for which the firm has continuing responsibility. Because of the very personal nature of the attorney-client relationship, the firm (that is, its remaining members) should notify clients of the death of the member handling particular matters. See N.Y. County 576 (1969). This is the firm’s obligation and not that of the legal representative as such.

 

CONCLUSION:

 

A lawyer who is a partner as well as the legal representative of a deceased attorney has no ethical obligation to give notice of the attorney’s death to former clients who named the deceased attorney as a fiduciary in their wills. However, the lawyer does have a duty, as a partner of the deceased attorney but not as a legal representative as such, to give notice of the death to clients for whom the deceased attorney was handling ongoing matters.

 

May 23, 1995