A Guideline for Judges
What to Do When an Attorney has Abandoned His Practice, Is Incapacitated, or Deceased: Assumption of Jurisdiction, A Guideline for Judges or Other Interested Persons
Attorneys are aging. Because of a weak economy many attorneys are sole practitioners (while others never wanted anything other than to practice on their own) and are forced to work as long as they can. It is a combustible combination.
Unless an attorney practices in a smaller location or before the same judge or judges, it may take a while to learn that an attorney has become incapacitated or has died. A client may learn an attorney is no longer available when the attorney’s phones are disconnected and the office appears abandoned. A judge may learn the attorney is unavailable when a client contacts the court for information on what to do to continue with his or her case when the attorney has disappeared.
The Texas Rules of Disciplinary Procedure, Part XIII, provide for the cessation of practice as follows:
13.02 Assumption of Jurisdiction: A client of the attorney, Chief Disciplinary Counsel, or any other interested person may petition a district court in the county of the attorney’s residence to assume jurisdiction over the attorney’s law practice. If the attorney has died, such petition may be filed in a statutory probate court. The petition must be verified and must state the facts necessary to show cause to believe that notice of cessation is required under this part. It must state the following:
A. That an attorney licensed to practice law in Texas has died, disappeared, resigned, become inactive, been disbarred or suspended, or become physically, mentally or emotionally disabled and cannot provide legal services necessary to protect the interests of clients.
B. That cause exists to believe that court supervision is necessary because the attorney has left client matters for which no other attorney licensed to practice law in Texas has, with the consent of the client, agreed to assume responsibility.
C. That there is cause to believe that the interests of one or more clients of the attorney or one or more interested persons or entities will be prejudiced if these proceedings are not maintained.
13.03 Hearing and Order on Application to Assume Jurisdiction: The court shall set the petition for hearing and may issue an order to show cause, directing the attorney or his or her personal representative, or if none exists, the person having custody of the attorney’s files, to show cause why the court should not assume jurisdiction of the attorney’s law practice. If the court finds that one or more of the events stated in Rule 13.02 has occurred and that the supervision of the court is required, the court shall assume jurisdiction and appoint one or more attorneys licensed to practice law in Texas to take such action as set out in the written order of the court including, but not limited to, one or more of the following:
A. Examine the client matters, including files and records of the attorney’s practice, and obtain information about any matters that may require attention.
B. Notify persons and entities that appear to be clients of the attorney of the assumption of the law practice, and suggest that they obtain other legal counsel.
C. Apply for extension of time before any court or any administrative body pending the client’s employment of other legal counsel.
D. With the prior consent of the client, file such motions and pleadings on behalf of the client as are required to prevent prejudice to the client’s rights.
E. Give appropriate notice to persons or entities that may be affected other than the client.
F. Arrange for surrender or delivery to the client of the client’s papers, files, or other property.
The custodian shall observe the attorney-client relationship and privilege as if the custodians were the attorney of the client and may make only such disclosures as are necessary to carry out the purposes of this part. Except for intentional misconduct or gross negligence, no person acting under this part may incur any liability by reason of the institution or maintenance of a proceeding under this Part XIII. No bond or other security is required.
The following assumption forms are attached for your review and convenience:
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The information provided and the opinions expressed in this monograph are solely those of the author. Neither the State Bar of Texas nor the author are rendering legal, accounting or professional advice and assume no liability in connection with the suggestions, opinions, or products mentioned.