Trials & Litigation

2nd Circuit scolds lawyers for apparent 'lack of candor' after client died

  • Print.

Image from

The New York-based 2nd U.S. Circuit Court of Appeals had little patience for two Rochester lawyers who filed a notice of appeal without informing the court that their client had died.

In a Feb. 4 order, the court tossed the appeal and referred Trevett Cristo partner Michael Thomas Harren and associate Kevin Connell to the court’s grievance panel.

“We feel obliged to note our concern at what appears to be a lack of candor” by the lawyers, the 2nd Circuit said.

The lawyers failed to notify the court of their client’s death for more than 11 months, even though the defendants repeatedly raised the issue, the 2nd Circuit said. That failure “is inexcusable, as is their failure to timely move for substitution of a qualified representative,” the appeals court said.

Harren and Connell represented Mark Marentette, who was fired from his job as the fire chief of Canandaigua, New York, following a disciplinary hearing. Marentette had claimed his firing was based on the wrong evidentiary standard, but lost his cases in state and federal court.

Marentette died on Jan. 9, 2019, the same day of the federal court judgment that was appealed to the 2nd Circuit. When the appeal was filed, there was no mention of Marentette’s death and no motion to substitute counsel, the 2nd Circuit said.

The 2nd Circuit learned of the death the next month, when the defendants filed notice with the court.

“Inexplicably, although defendants noticed Marentette’s death on the record months before any briefing was due, Marentette’s counsel still made no motion for substitution, nor did they mention the death in the opening brief,” the 2nd Circuit said.

“Even after defendants raised the issue again in the response brief and asked this court to dismiss the appeal on that basis, Marentette’s counsel refused to acknowledge the problem in the reply brief. It was not until Dec. 17, 2019—over eleven months after their client had died, two months after briefing was completed, and less than one month from the date scheduled for oral argument—that counsel first acknowledged Marentette’s death and moved for substitution of his ex-wife” based on the expectation she would be appointed as administratrix.

Harren told the ABA Journal that he and Connell had reasons to act as they did, “But I don’t want to argue the issue with the court.”

“I am embarrassed and certainly did not mean to be disrespectful to the court,” Harren said.

Harren said he hoped that, during the grievance process, “we will be able to adequately explain our actions and show that we certainly meant no disrespect.”

In an affirmation filed with the court on Jan. 31, Harren said he reasonably believed the court was apprised of his client’s death because the defendant had filed notice with the court last February.

The affirmation also told of an unrelated estate lawyer’s difficulty finding an administratix for the estate over the past year.

Marentette was survived by no close relatives after his death besides his two minor children and ex-wife, Harren wrote. Marentette left no will, was arrears in paying child support, and his only asset was the interest in the lawsuit, according to a separate affirmation filed by the lawyer for the estate.

The estate’s lawyer had no affiliation with Harren’s firm, and any control over appointment of the administratrix rested with the estate’s lawyer, Harren said in the affirmation.

The estate’s lawyer at first indicated to Harren that the ex-wife would be willing to serve as an administratrix, but later he said she was having second thoughts.

In early December, however, the estate lawyer said the ex-wife had agreed to serve, and he would shortly forward an order appointing her.

Harren called the estate lawyer when he didn’t hear from him for several weeks. At that time, the estate lawyer said the ex-wife was uncooperative but that Marentette’s oldest daughter had since turned 18 and would be eligible to serve.

An associate then contacted the court clerk’s office to ask how to proceed before oral argument. The clerk directed the associate to draft a letter explaining the situation and to include a copy of the petition for the daughter’s appointment. The associate submitted those documents on Jan. 7, 2020.

Harren wrote that he filed notice of appeal and his main brief to meet court deadlines. The filing was made based on the estate lawyer’s assurances that he was making diligent efforts to appoint the ex-wife as administratrix, Harren wrote.

“Any control relating to the appointment of an administratrix to the estate rested not with me,” but with the estate lawyer, Harren wrote. “Despite my diligent efforts, I was at the full mercy of [the estate lawyer’s] ability and willingness, or lack thereof, to convince an uncooperative [ex-wife] to consent to her appointment.”

Harren said in the court filing that he felt an obligation to pursue a claim that would provide a recovery for the children.

Hat tip to Law360, which covered the opinion.

Give us feedback, share a story tip or update, or report an error.