What To Do When Your Boss or Relative Is No Longer Able to Practice Law
A Checklist for Staff and Family Members
When an attorney is, with or without warning, unable to practice law and is a sole practitioner, what to do with the attorney’s law practice can be bewildering to the attorney’s staff, if there is any staff, and devastating to the family. This checklist is intended as a guideline to help the incapacitated or deceased attorney’s staff and/or family to close down the attorney’s practice.
- First, remember that although it may seem an impossible task to close down an attorney’s office, it has been done by others, including those without any legal experience, and it can be done by you.
- For remaining staff, if there it is any way you can afford it, please consider staying around to help close down the practice. Some staff might agree to help close the practice while looking for another job, helping out a few hours here and there. The family will be very grateful.
- For the family member left with the attorney’s practice, try to get the attorney’s staff to stay with you for at least a month to help close down the practice. This will probably work fine if you can afford to pay the staff and are willing to provide a good reference. Make sure you are flexible about allowing the staff to interview for new jobs.
- If an attorney friend offers to help, a family member or staff person should contact the clients and ask for the clients’ permission for the attorney friend to contact them. With permission to contact the clients, the attorney friend is not engaging in solicitation by contacting the clients.
- If no one has stepped forward to help, and you feel that you need help, consider contacting a law section or local bar association the incapacitated or deceased attorney was associated with. In the past, law sections such as the local Family Law Section, or the local bar association, has had members help close an attorney’s practice.
- If it is left to you to close the practice, start by checking the attorney’s calendars to look for case deadlines.
- Search the attorney’s office to look for documents that need to be filed.
- Open and review all unopened mail, especially certified mail, and file it.
- Review electronic sources to ensure that the client file is complete and up to date. Review the firm’s electronic records for client-related material, including such things as e-mail communications, instant messages, or other documents generated during the course of the case, especially those communications that indicate pending deadlines.
- Look for an office procedure manual. Determine whether anyone has access to a list of clients with active files.
- Review active client files to determine which cases need to be dealt with first.
- Make sure that any case with a statute of limitations running, or that is set for hearing or trial, are handled immediately. Look for cases with discovery settings. It is important to handle these cases immediately not only to protect the clients’ interests but to prevent malpractice lawsuits against the attorney’s estate.
- Contact the client for matters that are urgent or set for the near future. Give the client the contact information for the court so that the client can reset any pending deadlines as necessary.
- Contact courts and opposing counsel immediately for files that require court appearances or have discovery pending.
- Send clients who have active files a letter explaining that the law office is being closed and instructing them to retain a new attorney. Inform the clients about time limitations and time frames important to their cases.
- If the client wishes for the file to be sent to new counsel, have the client sign an authorization for the original file to be released to the new attorney.
- If the client wants to pick up their file, inform the client of days and times when they can pick up their original file.
- The law firm may want to keep a copy of the file. If so, the file should be copied at the law firm’s expense.
- Try to ensure that a phone number is available for the clients to either speak with someone about their file or so that they can leave a message.
- Texas Disciplinary Rule of Professional Conduct 1.14(a) provides, in part, that “Other client property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.” Client files are considered “other property.” Hebisen v. State, 615 S.W.2d 866 (Tex.Civ.App. – Houston 1981)
- The office may want to make concerted efforts to contact closed file clients when those closed cases: 1) involve a minor; 2) contained executed original wills; 3) involve contracts or other agreements that are still being paid off at the end of five years; 4) in which a judgment should be renewed; 5) support and custody files in which the children are minors or the support obligation continues; 6) corporate books and records; 7) adoption files; 8) intellectual property files; and 9) any other file in which it appears the client’s or attorney’s interest may be ongoing. If you have questions about what to do with these files, ask an attorney.
- If a client determines he/she does not want the closed file, obtain a signed release giving the client’s permission to destroy the file.
- When it is determined that a client file can be destroyed, the file should be shredded or otherwise appropriately destroyed.
- If you have authorization to handle the attorney’s financial matters, look around the office for checks or funds that have not been deposited. Determine whether funds should be deposited or returned to the clients, as some funds may not have been earned.
- Obtain instructions from clients concerning any funds in the attorney’s trust account. Unearned funds should be either returned to the clients or forwarded to their new attorneys.
- Prepare a final billing statement showing any outstanding fees due.
- Prepare an accounting for any client who has money being held in trust.
- Obtain instructions from clients concerning any funds belonging to them that are being held in trust. Unearned trust account funds should be either returned to the clients or forwarded to their new attorneys.
- If you are authorized to do so, handle financial matters, and pay business expenses.
- Letter Advising that Lawyer Is No Longer Able to Practice Law: Closed File (refers to authorization for file to be destroyed)
- Letter Advising that Lawyer is No Longer Able to Practice Law: Active File (refers to authorization for file to be transferred)
- Request for File
- Authorization for Transfer of Client File
- Acknowledgment of Receipt of File
- Office Closure File Tracking Chart
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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.