by Dan Schiavetta, Jr., Esq.
Reading the New York Law Journal, as lawyers are supposed to do every day, is usually a humdrum task (to put it kindly). But last week an article appeared on what happens when a party to a lawsuit passes away (and everything is put on hold until an estate is appointed). The article was by an attorney at one of the “big firms” and mentioned,
casually, that there is a lot of “do-over” litigation because a lawyer can sometimes find out his client has been dead for several years, and there is a body of case law dealing with that situation.
When I read that I said — What?
What kind of lawyer goes years without keeping in contact with his client? Who suddenly (sometimes on the eve of trial) finds out that the person has been dead for five years? Or, if the client is a business, that it has changed ownership, merged, or is now defunct?
In some of our cases I’ve seen this happen with other firms. The fact that there is a whole body of case law on it, as if it’s to be expected that lawyers don’t keep in touch with their clients, is depressing. It’s another example of how lawyers create strict rules for others but set a low bar for themselves. It’s also unfortunately the normal course of business when the lawyer is reporting to a liability insurer (which is paying his bills) while his client is supposed to be the insured. It also happens when the lawyer is defending a “big” client, such as a corporation, but also is responsible for the defense of a “little” client, such as the employee who is separately named.
It was also true of me, early in my career. But then in 2001, the new risk manager for the Diocese of Brooklyn (one of my firm’s big accounts in those days) asked us to write quarterly reports to our actual clients, i.e., the pastors of the individual parishes we were defending. This was a new idea at the time, and it turned out to be a good one. Now I make sure that every one of our firm’s clients, no matter how big or small, whether an individual or a business or a charitable organization, gets 90-day reports on every matter we represent them on, whether anything significant has been happening in the case or not.
This is, as I say, not the common practice. Lawyers are often required to send periodic reports to the carriers but not to their actual clients. Lack of contact with the insured has predictable consequences. Too often, the insured gets a letter at the beginning of the case, saying, “We have been assigned to defend you.” Then, nothing . . . until 18 months later: “By the way, your deposition is next Tuesday.” The result is resentment and a reluctance to cooperate. The lawyer’s own client considers him “the enemy”.
Close and immediate contact with the insured is vital to the defense. In one case I’m aware of, the lawyer touched base with the large client (a school) but not the small client (the separately named teacher). It turned out the case was defensible based on testimony from the teacher, but by the time the teacher was finally contacted and this was learned, the documentation that would have supported his account (a medical record) was no longer available. As a result a case which should have been dismissed on motion was settled for a large amount. That kind of thing does not happen at my firm.
To too many lawyers, being courteous to their actual clients and keeping them in the loop seems to be beneath their dignity. The reason is probably because as a matter of profit (as opposed to professionalism) it is not a priority. A few years ago I was speaking with an attorney who had a lucrative liability insurer account. I asked whether he wrote regular reports to the insureds. “No!” he bristled, offended that I would suggest such a thing. As one might expect, his cases tended to be less defensible because he had trouble getting cooperation from his witnesses.
Of course regular reports to clients should be brief; these are busy people and do not have the time or the inclination to read long disquisitions on the legal issues in their case. But keeping them in the loop is always greatly appreciated. Most of our clients, dealing with us for the first time, say they’re actually surprised at how attentive we are. This is a shame, because it is also good lawyering.