Ethics Article: Protecting the Client When a Lawyer Dies or Becomes Disabled

Focus on Professional Responsibility
MBJ October, 1999
Thomas K. Byerley

Protecting the Client When a Lawyer Dies or Becomes Disabled

    Protecting the public is one of the primary goals of the legal profession. When a lawyer dies or becomes disabled, the legal profession has a continuing obligation to ensure that the client's interests are protected, even if the lawyer can no longer represent that client.

    In larger firms, remaining lawyers in the firm can assume representation of the deceased or disabled lawyer's clients. However, if the deceased or disabled lawyer was a solo practitioner, it is often difficult to quickly address the needs of the client. Surviving spouses or other family members who are dealing with the death or major disability of a lawyer are thrust into the unfortunate situation of also trying to deal with the closure of a law office and making sure the clients have continued representation.

    The only formal guidance available on this issue is found in MCR 9.119(G). The relevant portion of that rule states:

      ". . . If an attorney is transferred to inactive status or is disbarred or suspended and fails to give notice under the rule, or disappears or dies, and there is no partner, executor or other responsible person capable of conducting the attorney's affairs, the [grievance] administrator may ask the chief judge in the judicial circuit in which the attorney maintained his or her practice to appoint a person to inventory the attorney's files and to take any action necessary to protect the interests of the attorney and the attorney's clients. The person appointed may not disclose any information contained in any inventoried file without the client's written consent. The person appointed is analogous to a receiver operating under the direction of the circuit court."

    Under this rule, the grievance administrator acquires "jurisdiction" to seek permission from the circuit court to appoint a receiver to wind up the practice of the deceased or disabled lawyer if there is no other responsible person capable of performing this duty. However, if another person can be found, no circuit court action is required.

    In most cases, local bar associations will step forward and devote considerable time and resources to winding up the practice when a solo practitioner dies or otherwise becomes disabled. Without publicity or fanfare, local bar associations and volunteer lawyers have donated countless hours and other resources in assisting clients to make the transition to new counsel. In those instances where no one is available to assist the closing of the practice, the grievance administrator and his staff have done an excellent job in fulfilling the duties of MCR 9.119 (G).

    Usually, the first task is to provide notice to the existing clients of the death or disability of the lawyer. See MRPC 1.16(d). Courts are also given notice and a formal substitution of counsel document is presented to the court when substitute counsel is found. MCR 2.117(B).

    Ethics opinion RI-100 provides some sound guidance to individuals whom are left with the task of closing a law practice. That opinion states outlines some of the basic issues facing the person charged with the responsibility of winding up a law practice. Suggestions include:

    • Assisting the client in obtaining new competent legal representation
    • Protecting confidences and secrets of clients
    • Fulfilling the lawyer's fiduciary duties regarding safekeeping client property, and
    • Satisfying the lawyer's record-keeping obligations.

    Individuals who are appointed as receivers must be careful to prioritize the open files of the deceased or disabled lawyer. Open litigation files may have court dates set and other open files may have time-sensitive issues, such as the statute of limitations. These matters should be immediately referred to new counsel for action.

    Receivers must also preserve the confidences and secrets of the clients of the deceased or disabled lawyer. This applies equally to the "closed" files in the possession of the lawyer. It is common for a receiver to "inherit" a large number of closed files and not know what to do with those files. If the deceased or disabled lawyer did not have a file retention plan (even though such a plan is required under ethics opinion R-005), the receiver may be faced with the prospect of establishing a file retention policy, reviewing all closed files and confidentially destroying old files after notice to the former client. Many times this process takes longer than all other duties of the receivership.

    Although no lawyer likes to actively plan for the day when he or she is unable to practice law, some advance planning by solo practitioners can prevent many of the "horrors" involved in picking up the pieces of an abandoned practice. Solo practitioners can help to minimize the work of a future receiver by:

    1. Adopting and enforcing a sound record retention policy;
    2. Developing a cordial relationship with another lawyer who could quickly come to the lawyer's aid, if needed; and
    3. Training the lawyer's staff on the proper procedures to wind up the law practice, if that becomes necessary.

    Without adequate planning by the solo practitioner, clients sometimes receive the stress of suddenly being without legal representation on top of the stress that took the client to the lawyer in the first place. With adequate planning, however, clients can continue to be protected even after the death or disability of the lawyer and court-appointed receivers for the practice may not be necessary.

Notice to Lawyers:
State Bar of Michigan ethics opinions are advisory and non-binding in nature. This index is a complete historical catalog. Some of the listed ethics opinions, though not expressly superseded in subsequent ethics opinions, may be nonetheless outmoded or no longer sound due to subsequent changes in case law, statutes, or court rules. Practitioners are urged to thoroughly research all sources to determine the current validity of any given ethics opinion.