General Practice, Solo & Small Firm DivisionBest of ABA Sections
SPRING 1998 - VOLUME 2, NUMBER 1
What Happens When a Lawyer Dies?
By Stephen N. Maskaleris and Vivienne K. Cooperman
Joan Rikli had to shoulder two burdens when her husband, Donald, died of a heart attack in January 1997. Not only did she have to come to terms with the shock and pain that came with the death of a person with whom she had shared forty-three years, but she also had to worry about what was going to happen to her husband’s law practice.
Luckily, her husband, a solo practitioner in Highland, Illinois, provided in his will for another lawyer to handle the closing of his office. But even with that help, the process was still a very difficult one, says Rikli, who worked as a secretary in her husband’s law firm for eight years. There were about 12,000 files that her husband had accumulated over forty-three years of legal practice.
The Legal Burden. When a solo or small practitioner dies suddenly without plans in place for the continuance, transfer or closure of his or her practice, chaos frequently results. Many lawyers do not have provisions to handle their practices in the event that they are disabled or die. Joan Rikli’s husband realized this first-hand when he had to settle another lawyer’s estate about fifteen years ago. There were no plans made to close the lawyer’s practice and Donald Rikli’s client didn’t even have a will.
Don Metzger, a solo practitioner in Edwardsville, Illinois, is the lawyer who handled the closing of Donald Rikli’s practice. He said that describing the experience as overwhelming was an understatement. Knowing how important this issue is, Metzger says he is surprised that malpractice insurance carriers don’t emphasize the problems of law office succession.
One of the biggest losers in cases where lawyers have not made provisions in case of their death are the clients, especially those depending on solo practitioners or small firms because many of them do not know any other lawyer but their own.
"We tried to get Don’s clients to new counsel as soon as possible," Metzger says. "All of them were shocked and confused. Some of them were even angry that their lawyer died, leaving them without representation."
Few Problems in Large Firms. In large law firms, this issue and others related to problems that arise when a lawyer dies are less problematic because there are many other lawyers who can take up the work. A spokesperson for a major Wall Street firm of about 340 lawyers says there are no procedures as to what to do when a lawyer dies, but it would not present a problem because most cases are handled by more than one lawyer.
"It would be handled on a situation-by-situation basis and wouldn’t really be that different from what happens when a lawyer leaves the firm for other reasons," the spokesperson says. "Because there is normally more than one lawyer working on a matter, it would be a very natural transition. In that situation, a lawyer in the practice group would be assigned to take things over so it wouldn’t be regarded as a major crisis."
A Nationwide Survey. Between August 1996 and January 1997, the authors surveyed all ABA-affiliated groups, including those in five U.S. territories, and sixtyone county and city bars on what happens when a lawyer dies. Responses were received from all fifty state bar associations, and from half of the local bar groups. Twenty-nine of the responding state and territorial bars answered that they have plans to deal with the death of a member through court rules, disciplinary rules, state bar programs and, occasionally, by informal conservatorships or through ad hoc "buddy" relationships. Their comments suggested difficulties resulting from state administration: little or no staffing; too long a time lag to respond; cost to the bar association; and cost to lawyers taking responsibility. Twenty-two states, however, have no plan at all.
Of the sixty-one local bar groups surveyed, nine responding county bars and eight city bar groups said they relied on existing state procedures, but even those states and localities with formal plans in place observed that requests for action are infrequent.
Among the many practice-closing problems noted in the survey were confidentiality, liability, immunity, conflicts of interests, malpractice considerations, and limitations of actions.
The ABA. Under the American Bar Association Code of Professional Responsibility, every lawyer has a professional responsibility to provide for a transition when a lawyer retires, dies, disappears, becomes disabled, or is disbarred. Although the association’s Model Code of Professional Conduct makes reference to ethical obligations touching upon the death of a lawyer, the ABA itself offers no comprehensive program of action.
According to Alan E. DeWoskin, a solo practitioner in St. Louis who was chair of the General Practice, Solo and Small Firm Division in 1986, the ABA addressed this issue at its annual meeting that year. But more than ten years later, the problem has not been resolved. DeWoskin, however, has made plans for his practice and has contacted various lawyers to monitor his practice if he were to become disabled or deceased. Moreover, under Missouri law his practice is considered to be a corporation and can be disposed of as any other corporation.
ABA Model Rule 1:17 dealing with the sale of law practices was the Rule most frequently cited by survey respondents but has been adopted by only fifteen states. William Weston, associate dean of Florida Coastal Law School in Jacksonville, Florida, says all states should adopt 1:17. "The tragedy of the whole thing is that this problem is easy to resolve, and in many respects, it could be a real public service," says Weston, a member of the ABA’s Standing Committee on Lawyers’ Responsibility for Client Protection. "In general, people can’t deal with it. They have real trouble dealing with death. But we preach to our clients about having living wills and then a lot of lawyers don’t take care of this themselves."
More important, ABA Disciplinary Rule 28 directs the actions to be taken when a lawyer dies. The Rule provides for appointment of counsel to protect clients’ interests when a lawyer dies, becomes disabled, disappears, is suspended, or disbarred. It also sets procedures for inventory of lawyers’ files, and for the confidentiality of records. When no partner, executor or other responsible and capable party exists to conclude the affairs of the deceased or disabled lawyer, this Rule directs a judge in the relevant judicial district to appoint a trustee lawyer to inventory the files and take necessary action to protect the interest and lawyer concerned, and his or her clients.
Future ABA Action. The authors recommend a global solution through the appointment of an ABA task force or commission to prepare a protocol for practice management following the death of a lawyer, comprising representatives from various segments of lawyer demographics so that the needs and problems highlighted in the survey are considered and acted upon in an organized way.
Steven N. Maskaleris is the principal of Maskaleris & Associates in Morristown, New Jersey. He is currently chair of the Senior Lawyers Division’s Planning for Retirement Committee. Vivienne K. Cooperman is an associate in the firm.
This article is an abridged and edited version of one that originally appeared on page 10 in Experience, Summer 1997 issue (7:4).