Senior Lawyers Division
AMERICAN BAR ASSOCIATION
SENIOR LAWYERS DIVISION
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
- RESOLVED, That the American Bar Association urges bar associations and
- courts to develop, adopt, promote and implement programs and procedures to
- encourage and enable lawyers to plan for law practice contingencies by
- designating in advance another lawyer who is willing and able to assume the
- lawyer’s practice or to assist in the transfer of client matters and files in the
- event that the lawyer has any physical or mental disability that significantly
- impairs the lawyer’s ability to practice law, or the lawyer has died,
- disappeared, been suspended or disbarred, or otherwise been restricted from
- the practice of law. The designee shall be in good standing in the jurisdiction
- where the lawyer is practicing law, and not disbarred, suspended from practice
- or otherwise restricted from practice in any jurisdiction.
REPORT
- OVERVIEW: What Happens When a Lawyer is Unable or Unavailable to Practice Law?
There are several different scenarios where a lawyer may become unavailable or unable to practice law, temporarily or permanently, voluntarily or involuntarily. For example, an unplanned absence from the practice of law can result from accident, illness, death, disappearance, disbarment, or abandonment of a law practice. In such circumstances, the clients’ interests must be protected and it is unlikely and unreasonable to expect that all lawyers will have made advance arrangements to address the needs of such situations. This may be especially true if the lawyer is a solo practitioner or is not formally in practice with other lawyers.
Multiple issues must be considered whenever any lawyer becomes absent or is unable to practice law. Problem areas which need to be addressed include: Conflicts of interest; confidentiality; malpractice and insurance; handling of escrow and trust accounts; file preservation, storage, disposition, transfer and destruction; provision for staffing and expenses; and arranging for compensation to resolve pending legal matters. Planning ahead to address such issues may be difficult and time consuming but not planning at all is not a satisfactory option. The legal profession needs to focus on identifying these issues and educating lawyers on ways in which to solve the problems and mitigate potential adverse consequences.
- AVAILABLE GUIDANCE AND INFORMATION
- MORE GUIDANCE AND ASSISTANCE IS NEEDED TO ENCOURAGE AND ENABLE MANY LAWYERS TO ESTABLISH VOLUNTARY ADVANCE PLANS
- ALTERNATIVES TO VOLUNTARY ADVANCE PLANNING INCLUDE FORMALIZED COURT-MANDATED PROCEDURES AND/OR RULES
- CONCLUSION
Current ABA Model Rules For Lawyer Disciplinary Enforcement provides
guidance in certain limited situations. For example, Model Rule 28 provides as follows:"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 the 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 any information contained in any files inventoried 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.
Commentary
In any situation in which the lawyer is not available to protect clients, the agency has an obligation to protect them. When such information comes to the attention of the agency, it need not await the determination that misconduct has occurred before acting.The cost of the inventory may be paid from the fees owing to the lawyer whose files are inventoried. The cost may also be paid by funds made available for that purpose by state and local bar associations. Often the lawyer appointed as trustee will waive all or part of his or her fee as a public service.
The trustee is appointed to inventory the files of the lawyer's clients, not to represent them. The trustee should review each file and recommend to the judge who appointed him or her a proposed disposition. The trustee may take only such action with respect to each client's file as is authorized by the judge who appointed him or her.The lawyer-client privilege must be extended so that review of the file by the trustee is not deemed to be disclosure to a third party, which would waive the privilege”.
On the national level, in 1996, Stephen N. Maskaleris, Esq. of the ABA Senior Lawyers Division sent surveys to 55 states and U.S. territories and 61 county and city bar associations on the question of “What happens when a lawyer dies”. Responses were received from 50 state bars (100%), from the District of Columbia, one territorial bar and from 30 local bars (49%) of those surveyed. The results of this survey, published in a Report prepared by Mr. Maskaleris entitled: “What Happens When a Lawyer Dies”, are of great interest. In summary, 29 state or territorial bar associations had plans in place to deal with the death of a member, and of that group 14 depended upon court rules which apply to abandonment, disbarment or death. Five states relied upon disciplinary rules for guidance. In addition, five states answered that they depended upon informal conservatorship or “buddy” relationships to solve the problem. Twenty-two states had no plans and nine offered little comment on what to do when a lawyer dies.
Several state bar associations have published materials which provide valuable information on the subject of this Report. For example, see: Guidebook entitled: “Planning Ahead-Establish an Advance Exit Plan to Protect Your Clients’ Interest in the Event of Your Disability, Retirement or Death”, prepared by the New York State Bar Association’s Committee on Law Practice Continuity, available as a free download at www.nysba.org. See also: “Planning Ahead: Protecting Your Client’s Interest in the Event of Your Disability or Death”, published by the Ethics Department of the Virginia State Bar, as well as: “Planning Ahead: A Guide to Protecting Your Clients’ Interest in the Event of Your Disability or Death”, by Barbara S. Fishleder, published by the Oregon State Bar Professional Liability Fund.
The Model Rule 28, referenced above, addresses the problem of an absent or disabled lawyer in a disciplinary context, but this provides little or no guidance in the non-disciplinary context.
While there may be no “cure-all” solution which could apply to every conceivable non-disciplinary situation, a voluntary advance exit plan which contemplates potential unplanned absences seems desirable and necessary. A Uniform Model rule could be useful, but the development and approval of such guidance is unlikely, at least in the short term. Until such time as there may be a Uniform Model rule, each jurisdiction can determine an approach to the problem which best suits the needs of their jurisdiction. Individual lawyers should know best their own professional situations and circumstances and should be in the best position to plan ahead for various possible contingencies. Bar associations and law firms can be of great assistance in the process of educating lawyers and should assist and encourage advance consideration of the potentially disastrous possibilities and possible ways in which to avoid them. Wise individual advance planning can lessen or avoid potentially serious adverse consequences which lawyers and their clients can face in the event of numerous “what if” scenarios.
Partnerships or professional entities with one, or more, lawyers, are often better prepared to protect the clients’ interests in continuing ongoing representation when an individual lawyer is unable to practice law. In such situations, even if the client chooses to select a new lawyer or law firm, the former firm can assist in the transition of the client and the transfer of files. In reality, many practitioners may not have adequate support staff or professional colleagues who would be available to assist in the transition of clients and their files if the lawyer’s practice was interrupted or terminated by the lawyer’s inability or disability to practice law.
Possible resources to assist lawyers and clients include state or local bar associations, the court system and related agencies, which might be able to create and/or support various mechanisms, for members and non-members, to provide law practice continuity benefits and services in the event of unforeseen professional absence or unavailability. For example, a state or local bar association might maintain a data base of lawyers who are ready, willing and able to assist other lawyers who find themselves unable to practice, temporarily or permanently. Bar associations and courts, or related agencies, might also receive and store a listing of lawyers who have been designated in advance by other lawyers, and who have agreed to facilitate orderly law practice transition, in the event a designating lawyer is unable or unavailable to practice law.
Court or appropriate agencies in each jurisdiction might also be in position to serve as a repository of listings for voluntary advance designations. Courts might also encourage advance exit planning by urging lawyers to establish advance voluntary arrangements and inviting lawyers to provide appropriate information on annual or periodic lawyer registration filings, stating the existence of an arrangement and identifying the name, address and telephone number of a designated lawyer who is willing and able to assume specified law practice transition responsibilities.
As an alternative to a voluntary advance designation approach, some jurisdictions have already established or are considering more structured and defined processes and procedures. Several jurisdictions already have some form of mandatory advance designation, caretaker or surrogate lawyer rules. See, for example, Rules in Florida, Michigan, Oregon, North Carolina, South Carolina, and Wisconsin. In Delaware, the Court has implemented a mandatory advance designation requirement by order.
Still other jurisdictions are considering rules for the appointment of “Caretaker” or “Surrogate” attorneys in situations where there has been no advance planning. For example, the New York State Bar Association recommended a Uniform Court Rule on the Appointment of Caretaker Attorneys to the Courts in the State of New York, which is currently under advisement by the four Appellate Divisions in New York which have the responsibility for regulating the legal profession in that state. The New York “Caretaker” Rule would require Caretaker Attorneys to have professional liability insurance, to further protect the clients’ interests.
In contrast to the New York proposal, requiring malpractice insurance, Indiana’s proposed amended rule, which would require solo practitioners to designate a Surrogate Attorney, would grant immunity, absent intentional wrongdoing, for all acts or omissions while acting as Surrogate Attorney.
This proposed Recommendation and Report takes no position on the so-called “mandated-approach” and does not recommend the use of any particular term or definition for a “Designated Attorney”.Appropriate terms for an advance designee, such as: “Substitute”, “Interim”, “Inventory” “Successor”, “Caretaker”, or “Surrogate” Attorney, or substitutes for any of these terms, may best be decided in the context of the particular practices, procedures and circumstances of each jurisdiction, as the responsible Court or related agency may determine.
For illustrative informative purposes only, information relating to the terms: “Inventory Attorney”, “Caretaker Attorney” and Attorney Surrogate”, used or proposed in the States of Florida, New York and Indiana, is described in the attached Appendix.
The Recommendation will produce multiple benefits to law clients, lawyers and the judicial system. First, the actions urged will help to educate lawyers as to the problems associated with a lawyer’s unplanned absence or inability to practice law and the benefits of voluntary advance planning by the designation of another lawyer to; protect the interests of the lawyer’s clients. Additionally, the Recommendation will further help to protect clients by encouraging courts and bar associations to develop, adopt, promote and implement meaningful programs and procedures to encourage and enable lawyers to designate, in advance, another lawyer who is willing and able to assume the lawyer’s practice or to assist in the transfer of client matters and files, in accordance with applicable rules, practices and procedures in the jurisdiction where the lawyer practices law, in the event the lawyer has a physical or mental disability resulting from accident, injury, disease, chemical dependency, or a physical or mental condition that significantly impairs the lawyer’s ability to practice law, or the lawyer has died, disappeared, been suspended or disbarred, or has been otherwise restricted from the practice of law.
Respectfully submitted,
Theodore A. Kolb, Chair
Senior Lawyers Division
August, 2007
APPENDIX
FLORIDA
Under Rule 1-3.8, adopted by the Florida Supreme Court, effective January 1, 2006, lawyers who practice in-state must designate an inventory attorney, who takes possession of the files of a member who dies, disappears, is disbarred or suspended, becomes delinquent, or suffers involuntary leave of absence due to military service, and no other responsible party capable of conducting the member’s affairs is known. The inventory attorney has the responsibility of notifying all clients that their lawyer is no longer able to represent them. The inventory attorney also may give the file to a client for finding substitute counsel; may make referrals to substitute counsel with the agreement of the client; or may accept representation of the client, but is not required to do so. For more information about the designation “Inventory” Attorney in Florida, see the Florida Bar web site at www.floridabar.org.
NEW YORK
In a proposed new NYCRR 1250.5, suggested by the New York State Bar Association’s Law Practice Continuity Committee, the Role, Duties and Authority of a “Caretaker Attorney” are defined as follows:
(a)The role of a caretaker attorney is to protect the clients of the respondent or assisted attorney and, to the extent possible and not inconsistent with the protection of such clients, to protect the interests of the attorney to whom this rule applies.(b) A caretaker attorney appointed by the court shall enter the offices of the respondent or assisted attorney and may, with the assistance of that attorney if possible, do the following, as authorized by the court:
(1)prepare an inventory of the matters being handled by the. attorney;
(2)protect the clients' rights, files and property;
(3)notify all clients represented in pending matters of the appointment of the caretaker attorney or attorneys as promptly as possible, personally or by mail, or both, and, unless the practice is likely to be sold or the assisted attorney is likely to resume practice, advise them to seek counsel of their choice;
(4)act as interim counsel upon the request of a client;
(5) deliver files and property to the clients upon their request, - subject to the respondent's or assisted attorney's right to retain copies of such files or assert a retaining or charging lien against such files or property if fees or disbursements for past services rendered are owed to the attorney by the client;
(6) collect outstanding attorney's fees, costs and expenses, and-make arrangements for the prompt resolution of any disputes concerning outstanding attorney's fees, costs and expenses;
(7) collect any moneys and safeguard any assets in the office of they respondent or assisted attorney and hold the moneys and assets in trust pending their disposition upon order of the court;
(8) request compensation for his or her professional services and reasonable and necessary expenses;
(9) to the extent possible, assist and cooperate with the respondent. or assisted attorney and his or her representative in the transition, sale or windup of his or her practice;
(10)act as signatory on trust, escrow, IOLA, special and operating. accounts, disburse funds to clients or other persons entitled thereto, and otherwise safeguard such funds.
(11) submit such accountings as the court may require.
(c) A caretaker attorney shall maintain or procure professional liability coverage with a carrier admitted to do insurance business in New York, which coverage shall insure his or her work as a caretaker attorney under these rules and, if requested, shall present proof of such coverage to the court appointing the caretaker attorney.
(d) A caretaker attorney shall not disclose any information pertaining to any matter so inventoried or handled without the consent of the client to whom such matter relates, except as necessary to carry out the order of the appointing court.
(e) In the event of the death, disappearance or incapacity of a sole practitioner, the caretaker attorney and his or her law firm:
(1)shall not, except upon approval of the court, serve in any other capacity as counsel for the respondent or assisted attorney, or as executor or administrator of, or counsel to, the respondent or assisted attorney's estate;
(2) may assist the respondent or assisted attorney's personal representative, guardian, conservator or other representative, or his or her estate, in the termination or sale of the law practice under DR 2-111 [22 NYCRR 1200.15-a]
(3) shall not withoutthe permission of the court represent a client, other than
to temporarily protect the interests of the client, except and until the caretaker attorney purchases the law practice as permitted under DR 2-111 [22 NYCRR 1200.15-a];
(4) may be eligible to purchase the law practice under DR 2-111 [22 NYCRR
1200.15-a], but only upon the court's approval of such sale.
(5) shall provide such accountings to the personal representative, respondent
or assisted attorney as the court may direct.
(f) A caretaker attorney is governed by the Code of Professional Responsibility and the same rules of professional conduct applicable to the respondent or assisted attorney with respect to client matters or files.
(g) The caretaker attorney shall be deemed to be a member of a Lawyer Assistance Committee under Judiciary law §499 and DR 1-103 [22 NYCRR 1200.4], except that the caretaker attorney shall be liable to the clients of the respondent or assisted attorney and third parties for acts and omissions outside the scope of these rules or the court order appointing the caretaker attorney.
INDIANA
Proposed Amended Rule 23 in the Indiana Rules for Admission to the Bar and the Discipline of Attorneys, defines the term “Attorney Surrogate” as a member of the bar of this State, in good standing, who has been designated by a lawyer under this section as an attorney surrogate or has been appointed by a court of competent jurisdiction to act as an attorney surrogate for a lawyer. The term “Disabled” means “that alawyer has a physical or mental condition resulting from an accident, injury, disease, chemical ; dependency, mental health problem or age that significant impairs his/her ability to practice law”. The term “Lawyer” means a member of the bar of this State who is engaged in the private practice of law in this State. For purposes of the attorney surrogate section of these rules, however, the term “lawyer” shall not include a lawyer (a) whose sole employment is by an organization that is not engaged in the private practice of law, or (b) who is engaged with one or more other lawyers in the private practice of law pursuant to (1) Ind. Admission and Disciplinary Rule 27 or (ii) articles of partnership filed with the office of the Indiana Secretary of State. The proposed Indiana Rule requires Indiana lawyers to designate on their annual registration forms, the name, office address and residence address of their attorney surrogate. Also, the proposed Indiana Rule requires that a lawyer designated as an attorney surrogate shall evidence acceptance of the designation by a writing, which shall confirm that satisfactory arrangements have been made for compensation for the performance of the attorney surrogate’s duties. The designation of an attorney surrogate shall remain in effect until revoked by either the attorney surrogate or the lawyer designating the attorney surrogate.
EXECUTIVE SUMMARY
- Summary of the Recommendation
- Summary of the Issue that the Resolution Addresses
- Please Explain How the Proposed Policy Position will Address the Issue
- Summary of Minority Views
That the American Bar Association urge bar associations and courts to develop, adopt, promote and implement programs and procedures to encourage and enable lawyers to plan for law practice contingencies by designating in advance another lawyer who is willing and able to assume the lawyer’s practice or to assist in the transfer of client matters and files, in the event that the lawyer has any physical or mental disability that significantly impairs the lawyer’s ability to practice law, or the lawyer has died, disappeared, been suspended or disbarred, or otherwise been restricted from the practice of law.
How can lawyers protect the interests of their clients and provide for law practice continuity, in the event any physical or mental disability significantly impairs the lawyer’s ability to practice law, or the lawyer has died, disappeared, been suspended or disbarred, or otherwise been restricted from the practice of law?
The proposed policy calls upon the American Bar Association to urge bar associations and courts in jurisdictions where the lawyer practices to develop, adopt, promote and implement programs and procedures to encourage and enable lawyers to provide for advance designation of another lawyer who is willing and able to assume the lawyer’s practice or to assist in the transfer of client matters and files in the event of absence or unavailability to practice law.
Unknown.
GENERAL INFORMATION FORM
Submitting Entity: Senior Lawyers Division
Submitted by: Theodore A. Kolb, Chair
1. Summary of Recommendation(s).
The Recommendation urges bar associations and courts to develop, adopt, promote and implement programs and procedures to encourage and enable lawyers to plan for law practice contingencies by designating in advance another lawyer who is willing and able to assume the lawyer’s practice or to assist in the transfer of client matters and files, in the event that the lawyer has any physical or mental disability that significantly impairs the lawyer’s ability to practice law, or the lawyer has died, disappeared, been suspended or disbarred, or otherwise been restricted from the practice of law. The designee shall be in good standing in the jurisdiction where the lawyer is practicing law, and not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction.
2. Approval by Submitting Entity.
The Senior Lawyers Division approved this resolution at a meeting of its Council on April 13, 2007.
3. Has this or a similar recommendation been submitted to the House or Board previously?
Unknown.
4.What existing Association policies are relevant to this recommendation and how would they be affected by its adoption?
The American Bar Association has numerous existing policies relating to professionalism, professional responsibility, client protection, disciplinary enforcement, and related matters, but none appear to address the specific subject matter described in this Recommendation.
5. What urgency exists which requires action at this meeting of the House?
The urgent need for client protection to avoid serious adverse consequences in situations where there is an absence of voluntary advance planning, in the event a lawyer has any
physical or mental disability that significantly impairs the lawyer’s ability to practice law,
or the lawyer has died, disappeared, been suspended or disbarred, or has been otherwise
restricted from the practice of law.
6. Status of Legislation?
No known legislation.
7. Cost to the Association?
No direct costs to the Association are anticipated since the recommended activities fall
within the scope of multiple existing Association entities.
8. Disclosure of Interest.
No known conflict of interests exists.
9. Referrals.
During the drafting process, information about the subject proposal was widely circulated to staff, members or officers of the following Association and other interested
entities:
Center for Professional Responsibility
General Practice, Solo and Small Firm Division
Standing Committee on Client Protection
Standing Committee on Professionalism
Standing Committee on Ethics and Professional Responsibility
Association of Professional Responsibility Lawyers
National Organization of Bar Counsel
Other:
In addition, the Recommendation and Report is being circulated to staff and Chairpersons or directors of the following:
All ABA Sections and Divisions,
Commission on Domestic Violence
Commission on Interest on Lawyer Trust Accounts
Commission on Law and Aging
Commission on Mental and Physical Disability Law
Commission on Lawyer Assistance Programs
Division for Legal Services
Standing Committee on Bar Activities and Services
Standing Committee on Delivery of Legal Services
Standing Committee on Lawyer Referral and Information Services
Standing Committee on Legal Aid and Indigent Defendants
Standing Committee on Legal Assistance for Military Personnel
Standing Committee on Membership
Standing Committee on Professional Discipline
Standing Committee on Public Education
Standing Committee on Substance Abuse
Standing Committee on Lawyers Professional Liability
Association of Professional Responsibility Lawyers
National Organization of Bar Counsel
State and Local Bar Associations Represented in the ABA House of Delegates
Affiliated Organizations Represented in the ABA House of Delegates
10. Contact Person. (Prior to the meeting.)
Anthony R. Palermo, Esq.
Woods Oviatt Gilman, LLP
700 Crossroads Building
2 State Street
Rochester, New York 14614
Phone: (585) 987-2882
Fax: (585) 454-3968
Email: apalermo@woodsoviatt.com
11. Contact Person. (Who will present the report to the House?)
Anthony R. Palermo, Esq.
Woods Oviatt Gilman, LLP
700 Crossroads Building
2 State Street
Rochester, New York 14614
Phone: (585) 987-2882
Fax: (585) 454-3968
Email: apalermo@woodsoviatt.com