Opposing Legal Representative is Deceased

A situation may arise where you learn that the opposing legal representative in an ongoing matter has died. Prior to communicating directly with the opposing party, you should first contact the deceased lawyer's or paralegal's office to determine if he or she had contingency plans in place for a replacement lawyer or paralegal to take over active client matters in the event of death or disability. If you are unable to confirm this with the lawyer's or paralegal's office, you should contact the Law Society to determine if it has been advised of the involvement of a replacement lawyer or paralegal. Such inquiries should be directed to the Resource Centre at 416-947-3315 or 1-800-668-7380 extension 3315.

If provided the name of a replacement lawyer or paralegal, you should communicate with him or her to ascertain whether he or she is acting for the opposing party in the ongoing matter. You should consider confirming this in writing. If there is no replacement lawyer or paralegal, or you cannot determine if any such arrangements have been made, you may initially contact the opposing party directly to confirm whether they have retained another representative, intend to do so, or whether they intend to continue unrepresented in the matter. You should also consider confirming this in writing.

Where the replacement lawyer or paralegal confirms they will be acting for the opposing party in the matter, or where the opposing party provides you with the name of the new legal representative they have retained, you must comply with the lawyers' Rules of Professional Conduct (lawyers’ Rules) or the Paralegal Rules of Conduct (Paralegal Rules) as they relate to communications with a represented party. Per rule 7.2-6 of the lawyers' Rules and subrule 7.02(1) of the Paralegal Rules, you are further prohibited from communicating directly with that opposing party unless his or her new legal representative consents to the communication.

If the client of the deceased suspended lawyer or paralegal does not retain a new legal representative, the lawyer or paralegal must comply with rule 7.2-9 of the lawyers’ Rules or rule 4.05 of the Paralegal Rules respectively in dealing directly with the opposing party (the client of the deceased lawyer or paralegal) as an unrepresented party. Specifically, the lawyer or paralegal must take care to see that the unrepresented person is not proceeding under the impression that their interests will be protected by the lawyer or paralegal and take care to see that the unrepresented person understands that the lawyer or paralegal is acting exclusively in the interests of their own client and that, as a result, their comments may be partisan. The lawyer or paralegal should also consider confirming this information in a letter to the opposing party.