Hello everyone and welcome to this Ethics Alert which will discuss the recent California Supreme Court Order which suspended a lawyer for failing to disclose the death of his client while continuing the litigation. The case is In the Matter of: Steven Pabros, Case No. 17-O-05369. The Stipulation Re Facts, Conclusions of Law and Disposition are here: https://members.calbar.ca.gov/courtDocs/17-O-5369.pdf and the May 2, 2019 California Supreme Court Order is here: https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2280292&doc_no=S254475&request_token=NiIwLSIkTkw6WyBdSCM9SE9IMEA0UDxTJiNeVz1SICAgCg%3D%3D
According to stipulated facts, the lawyer represented Alfeo and Leann Mattei, who were commercial landlords, as defendants, individually and as co-trustees of a trust in a civil suit that was brought by tenants whose antique shop was damaged by a fire in 2011. The fire started in the business of an adjacent tenant who sold the contents of storage units. The antique shop tenants claimed that the landlords knew the storage business was a fire hazard but did nothing about it. The landlords claimed in a countersuit that the contract required the tenants to indemnify them.
After a trial, the jury found the landlords liable based upon a theory of passive negligence; however, the trial judge found that the negligence was active and rendered a judgment notwithstanding the verdict. The lawyer appealed the judge’s findings. While the appeal was pending, one of the landlords (Alfeo) died. The lawyer ultimately prevailed on the appeal, and the case returned to the trial court.
According to the stipulated facts, “Respondent learned of Alfeo Mattei’s death in or about June 2016 after the Court of Appeal remanded the case but failed to inform the court or opposing counsel, as required by Sonoma County Superior Court Local Rule 4.1(A). Local Rule 4.1(A) states “When a party to a case dies, the attorney for that party shall promptly serve and file a notice with the court.”
The lawyer failed to inform the court (or opposing counsel) of the death of Alfeo, even though Alfeo was the only person who could testify about the landlord’s contractual intent since he other landlord (Leann) was not involved in the lease. The lawyer stated that he believed that he could establish intent by legal argument, by cross-examination or by use of an expert. He successfully opposed the tenants’ motion for summary judgment, and a trial was scheduled for April 2017.
On the first day of the trial, opposing counsel asked the lawyer why Alfeo was not on the witness list and the lawyer did not answer. The trial judge heard pretrial motions and opposing counsel commented on the fact that Alfeo had not been in court. Opposing counsel again asked whether Alfeo would testify, and the lawyer again did not answer.
Opposing counsel then conducted an internet search during a break in the proceedings, learned that Alfeo had died, and informed the judge. The judge asked the lawyer if that was true, and the lawyer responded: “He has passed, yes.”. The judge sanctioned the lawyer approximately $31,000.00 for continuing to litigate the case for more than a year without informing the court or the opposing counsel of the death and the judge also reported the order to the California State Bar.
The lawyer appealed the judge’s sanction, which is pending, and the judge also granted the tenants’ motion for summary judgment, finding that there was no triable issue of fact on intent behind the lease. That order is also on appeal.
The lawyer stipulated to a 30-day actual suspension, one-year stayed suspension, and a three-year probationary period with a condition that he attend Bar Ethics School and pay costs. The May 2, 2019 Supreme Court Order approved the discipline.
Bottom line: In this case, a defendant died during the pendency of litigation and the lawyer who represented him failed to advise the judge or opposing counsel (even after he was asked multiple times by opposing counsel) and he continued to litigate the case. This case is somewhat unusual since many of the reported cases involve lawyers who are representing plaintiffs who die during ongoing litigation and fail to advise the judge and opposing counsel.
This lawyer apparently concluded that he could defend the matter without the testimony of the client; however, he clearly should have informed the judge and opposing counsel that his client had died and that he was planning to proceed without the client’s testimony. The failure to disclose the death violated the local rule and the disciplinary rules, and the lawyer was suspended for 30 days with one year suspended.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33761
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