Opinion #143. Disposition of Client Files on Death or Disability of Solo Practitioner

Issued by the Professional Ethics Commission

Date Issued: July 19, 1994

Question

The Commission has been asked for guidance by attorneys faced with the following problem. Within the State there still remains a significant number of solo practitioners. As the years pass, these attorneys discover they are custodians of an overwhelming number of client files. As long as the lawyers are working, the secure storage of this material is the only major concern. However a serious problem arises when a lawyer’s practice is unexpectedly terminated through death or disability. What arrangements should solo practitioners make in advance to insure all/ any obligations to their then former clients?

Opinion

It must be recognized that the Commission cannot establish an exhaustive set of specific procedures that all solo practitioners must follow to meet their obligations in this difficult situation. However, it can identify the concerns that must be addressed by these circumstances, and at least proffer some specific suggestions that would meet these concerns. See also ABA Formal Opinion 92‑369 for further discussion and suggestions.

I. The Bar Rules

First of all, the Bar Rules, while not directly addressing the problem, do articulate some requirements that relate to the question. Rule 3.6(e)(2) states:

A lawyer shall:

(i) Promptly notify a client of the receipt of the client’s funds, securities, or other properties;
(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe‑deposit box or other place of safekeeping as soon as practicable;
(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them; and
(iv) Promptly pay or deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

Rule 3.5(a)(2) states:

A lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the lawyer’s client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

Rule 3.6(a) states:

A lawyer must employ reasonable care and skill and apply the lawyer’s best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments.

Finally, Rule 3.6(h)(1) states that a lawyer shall not. . .knowingly reveal a confidence or secret of the client.

II. The Need for a Plan

From these Rules two obvious principles emerge. First, the files must be kept secure at all times. They cannot be abandoned or simply casually passed on to some accommodating custodian. See Opinion 74. Arrangements must be made not only to prevent destruction but to preserve the confidential information that is contained within the files. Furthermore, many documents (e.g. wills, contracts, and notes) may not only be confidential but irreplaceable.

Secondly, arrangements must be made to inform the client of the termination and protect the client from deadlines in pending proceedings that require replacement representation in a timely manner.

To carry out the above obligations it is obvious that the solo practitioner should adopt a plan in advance of his departure. It is obviously too late to wait until death or disability to let unprepared successors deal with an impossible situation. Spontaneous improvisation when the crisis occurs is unacceptable.

III. Suggestions as to Plan Provisions

The specific content of the plan is a matter for each practitioner to determine based on his or her practice. Due to the complexity of the problem and the variety of circumstances surrounding any given solo practice, it is impossible for the Commission to promulgate what must be in every plan. However, the Commission makes the following suggestions it hopes will assist the lawyer in designing a plan that will meet the clients’ legitimate needs and expectations.

First, a plan should include as one of its elements the engagement of an attorney to supervise the winding down of the practice.

Second, the plan ought to provide that clients be promptly notified of any termination. They should be advised of the name of the supervising attorney and key staff who might be employed to assist in the transition. They should be invited to retrieve the files and seek replacement counsel if further legal services are required to complete a task.

The above provisions are not unlike those that take place when a lawyer is disbarred or suspended. See Rules 7.3(i)(1)(B) and 7.3(i)(1)(c). The procedures in such instances also include prompt notification of opposing parties and courts in which the lawyer has any matters which might in any way be deemed ongoing.

Third, for those files that are not seasonably retrieved by clients, a determination should be made by a lawyer, presumably the supervising attorney described in the first suggestion, as to what to do next. Can the file be delivered even if the client makes no effort to retrieve it? Is destruction possible and permissible? See Opinion 74 for further discussion of this issue.

Fourth, what is to be done with those remaining files where destruction appears unreasonable at the time of transition and no client takes custody of the material? In those cases a suitable custodian ought to be engaged by the lawyer or the lawyer’s estate, who is willing to assume custody of the files.

Finally, the Commission suggests that the supervising attorney notify the Board of Overseers of the Bar of the location of the unclaimed files. This gives former clients who were unable to be contacted during the transition period a chance to locate the file at some later date.

While the suggestions in the previous paragraphs may satisfactorily discharge the departing lawyer’s duties, it will be argued that they are based on an unrealistic expectation that any lawyer can be found who would be willing to undertake the supervisory obligations described. While many lawyers extend the courtesy of “covering” for one another during a vacation or temporary disability,[1] it is unlikely in the extreme that any lawyer would have the time or desire to assume virtually a second practice—especially when there is no real possibility he will be compensated for it by clients. Furthermore, the lawyer contemplating his professional demise may be apprehensive about involving another attorney in such a position due to problems such as preserving confidences with respect to specific clients. However, the Commission believes that the Bar Rules require that the solo practitioner make suitable arrangements in advance to both oversee the notification process and take custody of the files.


Footnote

[1] [Malpractice insurance carriers for some time have required solo attorneys to have some other attorney be available to “back up” in cases of disability or vacations.]


Enduring Ethics Opinion

Enduring Ethics Opinion #143 [October 2011]