Opinion #178. Disbarred or Suspended Lawyer Selling Practice to Another Firm or Lawyer

Issued by the Professional Ethics Commission

Date Issued: March 8, 2002

Question

Bar counsel has forwarded the following question to the Commission. May a disbarred or suspended attorney sell her or his practice to another attorney?

Opinion

The Commission finds nothing in the Bar Rules that would prohibit a disbarred or suspended attorney from selling that attorney’s legal practice to an attorney licensed to practice in Maine. While there are a number of provisions of the Bar Rules that impose requirements with respect to the sale of a legal practice, as well as other provisions of the Rules that impose requirements with respect to actions taken by attorneys disbarred or suspended from practice, none of these Rules impose a prohibition on the sale of such a practice.

Bar Rule 3.14 provides in pertinent part as follows:

A lawyer or law firm may sell or purchase a law practice, including goodwill, if the selling attorney or each attorney in the selling firm has retired, become disabled or has died; or the selling attorney or each attorney in the selling firm has ceased to engage in the private practice of law in the State of Maine.

Drawing from the above language of Bar Rule 3.14, a disbarred or suspended attorney “has ceased to engage in the private practice of law.” Therefore, acting pursuant to this Rule, such an attorney may sell her or his practice to another licensed attorney, subject to other applicable Bar Rules.

The Commission makes note that Bar Rule 7.3 specifies actions that must be taken by a disbarred or suspended attorney to wind up the practice of law. Among the requirements of this Rule, such an attorney is required to notify each client of the disbarment or suspension and the attorney’s consequent inability to act as an attorney. Bar Rule 7.3(i)(1)(B)(i). In addition, such an attorney is required to advise each client promptly to substitute another attorney or attorneys or to seek legal advice elsewhere. Bar Rule 7.3(i)(1)(B)(iii). In complying with this Rule, a disbarred or suspended attorney, who is selling her or his practice, should take care to notify all clients of their right to appoint a new attorney of their own choosing.

While these provisions impose requirements pertinent to the question presented, the Rules do not create an outright prohibition of a proposed sale of a legal practice under these circumstances.


Enduring Ethics Opinion