Wednesday, December 17, 2014

How to Transition Cases upon the Death of Counsel

Once an attorney files a notice of appearance in an OJCC case, that attorney is "of record" in that case until the appropriate steps are taken to remove her or him from the OJCC database related to that particular case. 

The Rules provide that once an attorney has noticed an appearance in an OJCC case, that attorney remains of record until either a stipulation for substitution has been filed and served (Rule 60Q6.104(2)(a)) or a “motion for substitution or to withdraw” is granted (Rule 60Q6.104(2)(b)).  

Again, it is important to note that individual attorneys are listed as the attorney of record, not firms of record. See Who Represents this Party. Accordingly, if an attorney wishes to be removed from a case the document requesting withdrawal or substitution should indicate the name of the attorney who would like to be removed and not merely the firm that the attorney of record works with or for. If three attorneys from a firm each file a notice of appearance, each would be counsel of record. A motion or stipulation later filed should list those attorneys, not seek substitution or withdrawal for the firm. 

There are instances, tragically, in which attorneys unexpectedly pass-away or become otherwise incapacitated. Clearly deceased attorneys are not able to represent parties to a case. As clearly, the deceased attorney cannot withdraw. However, the death of an attorney does not somehow automatically remove that attorney from the OJCC case, or from cases in circuit court for that matter. There is no provision for the filing of a "suggestion of death" to remove that attorney from the case. 

The Rules provide a specific set of alternative processes for removal of an attorney from a case. In the event of death, the attorney must still be removed either with a stipulation for substitution or an order granting a substitution or withdrawal. 

But who would file these documents?

The Florida Bar has recognized the issues associated with attorney death or disability, and requires each attorney in Florida to “designate another member of The Florida Bar who has agreed to serve as inventory attorney,” Rule 1-3.8(e). If the attorney has not designated an “inventory attorney,” then Rule 1-3.8(a) provides that “the appropriate circuit court, upon proper proof of the fact (of death or disability), may appoint an attorney or attorneys” as “inventory" attorney. Thus in any case of death or disability, there is a procedure for some attorney to step-in.

This could occur when an attorney passes. It could occur when an attorney is suspended or disbarred without time to effectuate coverage of her or his cases. It could occur if some illness or accident renders the attorney unable to practice. 

The “inventory attorney” may “take such action as seems indicated to protect the interests of clients of the subject attorney.” Rule 1-3.8(a). Such an attorney may:

(1) File a notice of appearance on an existing OJCC case to monitor orders and notices and thus protect the lien of former counsel and/or the interests of the client.

(2) File a notice of appearance on an existing OJCC case to file a substitution of counsel signed on behalf of the deceased or disabled counsel, to shift responsibility for the matter to new counsel.

(3) File a notice of appearance on an existing OJCC case to move for the withdrawal of the deceased or disabled counsel.

(4) Create an OJCC case by filing a Petition to protect the interests of the client pending some other action by which the inventory attorney might later withdraw.

(5) Create an OJCC case by filing an RACN to protect the interests of the deceased or disabled attorney and monitor orders and notices and thus protect the lien of former counsel, pending some later withdrawal.

The responsibilities of the “inventory attorney” are significant. For an excellent discussion, see Big Shoes to Fill: The Job of the Inventory Attorney, Florida Bar Journal, Volume LXV, No. 1, January 1991.

When an attorney is hired by a client, the primary concern is representing the client. Therefore, the best first step is to file a notice of appearance immediately. This makes the new attorney a counsel "of record," and will put everyone else on notice of the new attorney's presence. 

The ancillary concerns are clarifications of the status of any former attorney. She or he may wish to remain associated with that case in order to protect a lien. See, Perfecting a Florida Workers' Compensation Lien. She or he may wish to be removed from the case entirely. After the primary concern of new counsel, noticing her or his appearance, then the secondary concern of disposition of the former counsel can be addressed. 

Rule 60Q6.104(2) provides
“During the pendency of any issues before the judge, an attorney of record remains the attorney of record until: (a) A stipulation for substitution has been filed with the judge and served on all other parties or, if represented, their attorneys of record; or (b) A motion to substitute or to withdraw, which reflects that it has been served on the client and all other parties or, if represented, their attorneys of record, is granted.”

So, the former attorney remains of record until appropriate steps are taken to remove her or him from the case in the OJCC database. The new attorney and former attorney may sign a stipulation for substitution and either may file it with the OJCC. This is the simple option. There are those unfortunate instances in which counsel do not cooperate in this manner. Examples may include the situations of death or disability. 

However, in those instances the inventory attorney may sign a stipulation for substitution or agree to the entry of a substitution order. In the absence of agreement by the former attorney or inventory attorney, the new attorney may simply file a motion to substitute and allow the assigned judge to sort out the situation by order.   


No one wants to contemplate her or his death. Unfortunately, or perhaps fortunately, we cannot always see our future. I am reminded of a friend of mine, a young attorney who perished in an automobile accident. It could happen to any of us. I encourage attorneys to make a plan for the transition of their responsibilities in the event of a tragedy. The Bar rules require it, but more importantly, it is good for your clients.

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