When a lawyer who practices in a firm dies or becomes disabled, other lawyers in the firm are available to take over. The unforeseen death or disability of a lawyer in solo practice, however, can present serious problems for the bar, particularly when the lawyer has not made any advance plans for such an eventuality. See J.R. Rabe, "The Best-Laid Plans: Lawyers' Duty Includes Preparing Their Practices For Incapacity," MBA Lawyers Journal, June 2000 (also available at the B.B.O. web site: www/state.ma.us/obcbbo). Someone - preferably a lawyer - needs to take charge of the deceased or disabled lawyer's practice. The primary obligation of that lawyer is protection of the clients and prevention of unnecessary disruption to legal proceedings. The new lawyer also should seek to protect the interest of the deceased or disabled lawyer in the property of the practice (including fees earned) and to preserve the value of the practice so that it may be continued or sold with no decrease in value. See Mass. R. Prof. C. 1.17
Normally, the person who takes charge of the practice of a deceased lawyer will be the decedent's personal representative or the lawyer employed by the estate. Similarly, a guardian or conservator or the fiduciary's lawyer may take charge of a disabled lawyer's practice. If no such fiduciary has been appointed and there is "no partner, executor, or other responsible party capable of conducting the lawyer's affairs," the Supreme Judicial Court may appoint a commissioner. S.J.C. Rule 4:01, § 14. Some type of court authorization will generally be needed to obtain access to the deceased lawyer's trust accounts.
The duties of a commissioner who takes charge of a deceased or disabled lawyer's practice are set out in summary fashion in S.J.C. Rule 4:01, § 14 and apply by analogy to any lawyer performing a similar function. That rule specifies three general tasks: (1) to make an inventory of the files, (2) to take appropriate action to protect the interests of clients, and (3) to take appropriate action to protect the interests of the lawyer. In addition, the rule directs the commissioner not to "disclose any information contained in any files … without the consent of the client, … except as necessary to carry out the order of this court."
The tasks facing a lawyer who takes charge of the practice of a deceased or disabled lawyer include the following:
Secure the office, the client files and other property, and all trust and business accounts. Ensure that no files are removed without permission, that all property of either clients or the deceased or disabled lawyer is secure; and that access to the premises is controlled.Identify all clients being represented at the time of the death or disability and provide those clients with notice of the death or disability. The lawyer who takes charge of the practice must take whatever steps are necessary to identify the clients. If no client list maintained by the deceased or disabled lawyer can be found, inquiry must be made of the deceased or disabled lawyer's employees. It may be necessary to obtain the clients' names by examining all files that can be found.Notice of the death or disability should be sent to the clients as quickly as possible. No particular form of notice is required, but the notice must include the client's right to retain other counsel or to take possession of the file. Cf. Mass. R. Prof. C. 1.17(c)(3). Although it would be desirable to provide each client with full particulars of his or her situation, the time necessary to obtain such information could be excessive. Notice of the death or disability should be sent at once. If necessary, a second notice can be sent containing particulars about the client's file.
Notice will normally be sent by mail. Publication is not sufficiently likely to reach all the clients. If cases of particular urgency are identified, notice by telephone or personal visit should be provided in addition to the mail notice.
Identify all potential conflicts of interest and take appropriate action. What action is appropriate will vary with the circumstances. If the lawyer who takes charge of the practice has a conflict with any client, it may be necessary to deliver the file to the client without examining it. Care should, however, be taken to protect the interests of the deceased or disabled lawyer by ensuring that a copy of the file is kept.
Conflicts, which may arise between the clients and the estate of the deceased or disabled lawyer, such as claims of malpractice and disputes over fees, are beyond the scope of this article.
Conflict also may arise between the lawyer who takes charge of the practice of a deceased or disabled lawyer and the estate of the deceased or disabled lawyer. For example, for the new lawyer to transfer files from the practice to himself or herself could conflict with the lawyer's duty to preserve the value of the practice for the estate of the deceased or disabled lawyer or, alternatively, with the deceased attorney's obligations to the clients. Whether the conflict can be waived will depend on the circumstances. See Mass. R. Prof. C. 1.7.
Inventory the files of the deceased or disabled lawyer. All files, open and closed, must be inventoried. As specified in Mass. R. Prof. C. 1.16(e), any client's file must, on request, be delivered to the client or to new counsel specified by the client. See Mass. R. Prof. C. 1.16(d). Ensuring that appropriate copies are retained should protect the estate of the deceased or disabled lawyer.Closed files are to be retained, returned to the client or discarded where and as permitted. See D.C. Crane, "Talking Trash - Recycled," MBA Lawyers Journal, Sept 2001 (also available at the BBO web site: www/state.ma.us/obcbbo).Identify and calendar all imminent deadlines, particularly court dates and statutes of limitation. The lawyer must examine all open files (except those that, because of conflict of interest, have been treated in a different matter) for imminent deadlines. The lawyer also must examine all mail that has been or is received for the same purpose. He or she must notify all clients of upcoming deadlines as soon as he or she learns of those deadlines. Generally, the lawyer should obtain and follow instructions from the clients. In some cases, it may be necessary to seek continuances to permit time for the client to act or obtain new counsel.Protect confidential information. The lawyer who takes charge of a deceased or disabled lawyer's practice has the same obligation to protect confidential information as any other lawyer. See Mass. R. Prof. C. 1.6
Client's Funds and Other Property. The lawyer must locate all client trust accounts, all non-fund client property and all trust account records. He or she must determine the proper owners of the funds and other property. He or she must locate or prepare accounts for the property. Property that any person is entitled to receive, including unearned fees, should be delivered to that person. Any shortages or other discrepancies must be reported. See Mass. R. Prof. C. 4.1(b) and Mass. R. Prof. C. 8.3(a).
A more extensive Practitioner's Checklist, designed "to maximize the value of a law practice following the death or disability of the practitioner, … facilitate the sale of the practice with no decrease in value, [and] avoid the take over of the law practice by the California State Bar," has been published by the California State Bar and may be found on the Internet at www.calbar.org/epsection/publications
Terence M. Troyer is assistant bar counsel at the Board of Bar Overseers.