When a Lawyer Dies

A lawyer who has a large solo practice dies suddenly. The lawyer has hundreds of client files. Some of these files concern probate matters, others involve civil litigation and real estate transactions. Most of the files are inactive, but some involve ongoing matters. While the lawyer kept the active files at his office, he kept the inactive ones in storage at his home.
1) What steps should a lawyer take to ensure that his or her clients' matters will not be neglected in the event of the lawyer's death?
2) What obligations does a lawyer for the estate of a deceased lawyer have with regard to the deceased lawyers' client files?

In 1992, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 92-369 [PDF], Disposition of Deceased Sole Practitioners' Client Files and Property. This opinion addressed the need for a lawyer to have a plan in place that would provide for the protection of a client's interests in the event of the lawyer's death, and provided guidance for the lawyer who assumes responsibility for the deceased lawyer's files. The opinion states:

The death of a sole practitioner could have serious effects on the sole practitioner's clients.... Important client matters, such as court dates, statutes of limitations, or document filings, could be neglected until the clients discover that their lawyer has died. As a precaution to safeguard client interests, the sole practitioner should have a plan in place that will ensure insofar as is reasonably practicable that client matters will not be neglected in the event of the sole practitioner's death.

The Opinion drew support for its conclusions from ABA Model Rules of Professional Conduct 1.1 (Competence) and 1.3 (Diligence), and from lawyers' fiduciary duties to their clients:

According to Rule 1.1, competence includes "preparation necessary for the representation," which when read in conjunction with Rule 1.3 would indicate that a lawyer should diligently prepare for the client's representation. Although representation should terminate when the attorney is no longer able to adequately represent the client, the lawyer's fiduciary obligations of loyalty and confidentiality continue beyond the termination of the agency relationship. ABA Formal Opinion 92-369 (1992)

The Opinion notes that lawyers have been disciplined for the neglect of client matters due to the lawyer's ill health or personal problems. It further suggests that lawyers who have failed to make preparations to protect their clients' interests in the event of the lawyer's death should be sanctioned, both in the hope of encouraging other lawyers to make such preparations, and to restore confidence in the bar, though the sanctions would obviously have no deterrent effect on deceased lawyers.

See Also Recommendation 111 of the Senior Lawyers Division to the ABA House of Delegates that was approved at the 1997 ABA Annual Meeting. A copy of the recommendation and its accompanying report available here [PDF].

In 2002, pursuant to the ABA Ethics 2000 Commission's (E2K) recommendations, the ABA House of Delegates approved adding a paragraph to the Comment to Rule 1.3 that states as follows:

To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer).

For further information on the ABA E2K Report and the Official Reporter's explanation of changes memos, visit the ABA E2K Web site.

There are several state bar associations that have issued opinions on this general topic. Arizona State Bar Opinion 04-05 2005 addressed what should be included in a plan for the protection of clients' financial interests in the event of a sole practitioner's death. It also stated that such a plan should be a part of a larger plan to protect clients' interests in the event of the lawyer's death or disability. The opinion stated:

...strictly from the perspective of complying with a lawyer's ethical responsibilities, a prudent lawyer should take the following into consideration:

First , a lawyer should choose a means that is not only legally effective, but also fair to, and expeditious for, the clients who are entitled to the funds in the account. That favors identifying and reaching agreement with an identified person who is willing to assume the responsibilities of administering the trust account, and not leaving it to a court at a later date to find a suitable candidate. The lawyer also is ethically obligated to select someone whom the lawyer reasonably believes is competent to discharge those responsibilities. See Ariz. Sup. Ct. R. 43(d) ("Due professional care must be exercised in the performance of the lawyer's duties under this Rule."). Consistent with this requirement, the designee should be a lawyer because the distribution of funds in a client trust account necessarily requires an understanding of, and accountability under, ER 1.15.

Second, a lawyer should plan for both death and disability. Making a provision in a will for the handling of a trust account may satisfy a lawyer's ethical obligations if he or she dies, but such provisions are useless in planning for possible disability. Similarly, granting a power of attorney to another lawyer might be an effective way to anticipate the possibility of disability, but it is an ineffective tool in planning for a lawyer's death because such a power automatically terminates upon the grantor's death.

Third, a lawyer's plans for the disposition of his or her client trust account should be made in concert with a broader plan for the disposition of the lawyer's practice in the event of his or her death or disability. Prudence dictates that arrangements should be made with another lawyer to notify clients of the lawyer's disability or death, and to review the lawyer's files for the limited purpose of determining whether any immediate action needs to be taken to protect those clients' legal interests. See, e.g., ABA Formal Op. 92-369 at 4 (such arrangements do not violate ER 1.6 because they are impliedly authorized in order for the lawyer to carry out a representation).

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Florida Opinion 81-8M (1981) involved a situation where a lawyer was anticipating termination of his practice because of a terminal illness. A digest of the opinion reads as follows:

After a diligent attempt is made to contact all clients whose files he holds, a lawyer anticipating termination of his practice by death should dispose of all files according to his client's instructions. The files of those clients who do not respond should be individually reviewed by the lawyer and destroyed only if no important papers belonging to the clients are in the files. Important documents should be indexed and placed in storage or turned over to any lawyer who assumes control of his active files. 801 ABA/BNA Lawyers' Manual on Professional Conduct 2502

In 1986, the ABA General Practice Section, Sole Practitioners and Small Firms Committee, sponsored a program titled, "Preparing for and Dealing with the Consequences of the Death of a Sole Practitioner." One of the papers presented at this program, "A Sole Practitioner's Letters of Instruction Regarding Things to be Done Upon His or Her Death," listed the following as items the sole practitioner should mention in a letter to the personal representative of his estate:

• The need to engage a lawyer to wind up the law practice
• Notifying clients of the sole practitioner's death
• Transferring active files to the client or to the successor lawyer designated by the client
• Disposition of closed or inactive files
• Making arrangements to complete work on active files
• Securing agreements with the successor lawyers as to the handling of open files.

The second part of ABA Formal Opinion 92-369 discusses the obligations of a lawyer who assumes responsibility for a deceased sole practitioner's client files:

A lawyer who assumes ... responsibility (for the deceased sole practitioner's client files) must review the client files carefully to determine which files need immediate attention; failure to do so would leave the clients in the same position as if their attorney died without any plan to protect their interests. The lawyer should also contact all clients of the deceased lawyer to notify them of the death of their lawyer and to request instructions, in accordance with Rule 1.15.

Because the reviewing lawyer does not represent the clients, he or she should review only as much of the file as is needed to identify the client and to make a determination as to which files need immediate attention. ABA Formal Opinion 92-369 (1992).

Earlier ABA Opinions touch peripherally on the issues presented in the second question. Informal Opinion C475 (1961) discussed the appropriate form an announcement may take when sent by a lawyer who is temporarily acting as an associate counsel of an incapacitated lawyer to clients of the incapacitated lawyer. Informal Opinion 648 (1963) discusses the propriety of an agreement between a lawyer and his associate whereby the associate would agree to take over the lawyer's practice upon the lawyer's death.

For example, Ohio State Bar Association Opinion 00-02 (2000) states:

...What then, is required of the person who assumes responsibility for these files? First, the attorney should make, in light of the age of the files, a reasonable effort to locate the client for whom he or she has files. If the client can be located, then he or she should be notified and asked to pick up the material or authorize its disposal. If this effort is unsuccessful, and given the age of some of these files, it seems likely that it will be, then the question arises as to the proper disposition of the files.

If the effort to locate the clients of the deceased lawyer is unsuccessful, the attorney should nevertheless review the files and remove and retain "items that clearly or probably belong to the client." In particular, care should be taken to preserve original documents, other similar materials, in the client files, the return of which could reasonably be expected by the client.

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See Also New York County Lawyers' Association Opinion 709 (1996), (partner of deceased attorney must give notice of the death to clients for whom the deceased attorney was handling ongoing matters); Connecticut Bar Association Opinion 95-13 (1995), Nassau County Opinions 89-43, (1989), 92-27 (1992) (lawyer who received all active and closed files of deceased attorney has the same ethical obligations for the files as if they were his or her own files or if designated a "guardian" of the files by agreement with the deceased attorney or estate); and Mississippi Opinion 114 (1986).

A digest of Maryland Opinion 89-58 (1989) states:

A lawyer who shared office space with another lawyer and handled that lawyer's cases when he died ... has the following responsibilities ... (1) the lawyer must review every file in his possession and notify clients or third parties if the lawyer has property belonging to them; (2) the lawyer may dispose of files in cases he handled for the deceased lawyer as he would dispose of his own client files; (3) the lawyer must turn over all other client files to the representative of the deceased's estate and explain the legal significance of retaining those files; (4) the lawyer must keep information contained in all the files confidential regardless of whether or not he handled the cases. 901 ABA/BNA Lawyers' Manual on Professional Conduct 4327.

See Also, Kentucky Opinion E-405 (6/98)[PDF], Wisconsin Opinion E879 (1987).

Many of the state and local bar opinions cite to ABA Informal Opinion 1384 (1984) (Disposition of a Lawyer's Closed or Dormant Files Relating to Representation of or Services to Clients) for authority on the issue of retention and disposition of the deceased lawyer's client files.

These opinions stress that any lawyer reviewing client files must take steps to preserve client confidentiality and may not disclose client confidences without the client's consent. See, Maine Board of Bar Overseers Opinion 143 (1994) and Philadelphia Bar Association Opinion 97-4 (1997) .

Some states have statutory guidelines for the appointment of a receiver to manage a deceased lawyer's practice in the event that no partner, associate, executor or other responsible party capable of conducting the lawyer's affairs is known to exist.

Rule 28. Appointment Of Counsel To Protect Clients' Interests When Respondent Is Transferred To Disability Inactive Status, Suspended, Disbarred, Disappears, Or Dies.

A. Inventory of Lawyer Files. If a respondent has been transferred to disability inactive status, or has disappeared or died, or has been suspended or disbarred and there is evidence that he or she has not complied with Rule 27, and no partner, executor or other responsible party capable of conducting the respondent's affairs is known to exist, the presiding judge in the judicial district in which the respondent maintained a practice, upon proper proof of fact, shall appoint a lawyer or lawyers to inventory the files of the respondent, and to take such action as seems indicated to protect the interests of the respondent and his or her clients.

B. Protection for Records Subject to Inventory. Any lawyer so appointed shall not be permitted to disclose and information contained in any files inventories without the consent of the client to whom the file relates, except as necessary to carry out the order of the court which appointed the lawyer to make the inventory.

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Every lawyer should have a plan in place that will protect his or her clients' interests in the event of the lawyer's death. This is especially true for sole practitioners, who do not have partners or associates who can manage the practice in their absence. Lawyers who assume responsibility for a deceased lawyer's client files should review them carefully to determine which files need immediate attention. The lawyer should also make all reasonable efforts to contact the deceased lawyer's clients, notify them that their lawyer has died, and request instructions. Depending on the nature and contents of the client files, the lawyer may have an obligation to preserve them. As ABA Informal Opinion 1384 (1977) states, the obligation arises if there are items in the files that clearly belong to the client and contain information that "the lawyer knows or should know may still be useful in the assertion or defense of the client's position in a matter for which the applicable statutory limitations period has not expired."

Further information on this topic is available here.

ETHICSearch is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice. The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.

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