David M. Schieck, Special Public Defender, and JoNell Thomas, Deputy Special Public Defender, Clark County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and David L. Stanton and Nancy A. Becker, Deputy District Attorneys, Clark County, for Respondent.
Before the Court En Banc.
Ronnie Brass was convicted of conspiracy to commit kidnapping and murder, first-degree kidnapping, and first-degree murder with the use of a deadly weapon. Brass timely appealed, but he died before his appeal
was decided. Brass's attorney filed a suggestion of death and a motion for abatement— arguing that this court should abate the conviction and remand the case to the district court with instructions to dismiss the charging document. However, no party has been properly substituted as Brass's personal representative.
We consider whether an attorney may file a substantive motion on a deceased client's behalf in a criminal case when a personal representative has not been substituted as a party to the appeal. We determine that an attorney lacks authority to act on the deceased client's behalf in those circumstances; thus, we deny counsel's motion for abatement. Further, we conclude that if a party dies pending a review of his appeal, the appeal will be dismissed unless the decedent's personal representative is substituted in as a party to the appeal within 90 days of the decedent's death.
Brass's counsel raises a novel issue regarding the appropriate remedy when a criminal defendant dies while his appeal from a judgment of conviction is pending. There are three possible approaches in that situation: (1) abatement of the judgment ab initio, (2) no abatement and the appeal may be prosecuted, and (3) no abatement and the appeal may not be prosecuted. Abatement of State Criminal Case by Accused's Death Pending Appeal of Conviction— Modern Cases, 80 A.L.R.4th 189 (1990). But we decline to consider the issue at this time based on our conclusion that the motion for abatement is not properly before this court.
Generally, counsel cannot act on a deceased client's behalf. See Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir.1985) (citing Restatement (Second) of Agency § 120(1) (1958)); United States v. Chin, 848 F.2d 55, 57 (4th Cir.1988). Rather, only a properly substituted personal representative of the deceased party may bring a motion on the decedent's behalf.NRAP 43(a)(1) governs the substitution of parties where a party has died while an appeal is pending:
If a party dies ... while [an appeal] is pending in the [Nevada] Supreme Court, the decedent's personal representative may be substituted as a party on motion filed by the representative or by any party.... A party's motion shall be served on the representative in accordance with Rule 25. If the decedent has no representative, any party may suggest the death on the record, and the court may then direct appropriate proceedings.
As this court observed in Walker v. Burkham, " [u]pon the death of a party ... the [action] cannot proceed until someone is substituted for the decedent ..." 68 Nev. 250, 253-54, 229 P.2d 158, 160 (1951) (interpreting former Supreme Court Rule 9, a precursor to NRAP 43).
It has been almost one year since counsel suggested Brass's death upon the record. NRCP 25(a)(1), like NRAP 43(a)(1), allows a personal representative to substitute for a deceased party; however, NRCP 25(a)(1) establishes a limitation on the time for filing a motion for substitution. Under NRCP 25(a)(1), a substitution motion must be filed within 90 days of the decedent's death being suggested upon the record, otherwise, " the action shall be dismissed as to the deceased party."  An unlimited time frame for substitution under NRAP 43 is inconsistent with Nevada's interest in the finality of judgments. Consistent with these interests, a motion under NRAP 43 must be filed within a reasonable time after the decedent's death has been suggested on the record. Given the ...