When The Court Reaches Out to The Grave

Published on: 
07/05/2012
I recently received a call from the son of a woman lawyer who had just died unexpectedly. The son wanted to sell his mother's practice; but he knew virtually nothing about the practice itself or its clients, including whether his mother had any referral arrangement with another lawyer to take care of clients. He had even less of an idea about who to turn to for help in making the sale, and had not even begun to take his mother's estate, including the practice, through probate.

This is a tragic situation and hardly a unique one. The lawyer who has not taken the possibility of his or her untimely death or disability into account for planning a practice's future is playing with fire. Failure to plan for how clients will be taken care of in the event of death can be construed as reckless disregard for client welfare – a true ethical violation.

In Maine, a number of years ago, a lawyer died, was buried and his estate was probated. The estate was sued for malpractice when the plaintiff-former client, injured before the lawyer's death, had her claim dismissed because of the passage of a statutory time limit. Since her lawyer died, there was no one to alert the client to seek other counsel or take other action to protect her interests. The court ruled that the lawyer's estate was liable.

The lawyer should have known that death was possible and taken steps to protect his clients for such time when this event would occur. He failed to have an estate plan for his law practice, his client was injured as a result and his estate was therefore liable for damages for his negligence…almost per se negligence.

Perhaps this is one reason why the Maine Board of Overseers of the Bar has prepared a special handbook for receivers of the practice of a disabled, missing or deceased attorney. The handbook quotes Maine Professional Ethics Commission Opinion No. 143 to this effect: “It is obvious that the solo practitioner should adopt a plan in advance…. It is obviously too late to wait until death or disability to let unprepared successors deal with an impossible situation. Spontaneous improvisation when the crisis occurs is unacceptable.”

It's not only clients who suffer in such situations.

Lawyers who do not plan for what happens to their practices if they die suddenly and unexpectedly deprive their families of an opportunity to grieve for them. Instead, the families are faced with what to do about the practice. In effect, such lawyers are throwing away the value of their practices, cheating their heirs and making an unrecognized gift to strangers (existing clients have to go somewhere and the lawyers who pick them up will be the strangers and beneficiaries of the deceased lawyer's lack of foresight).

As a first step, I advised the bereaved son who called me to go to the website of his late mother's state bar association and search for the phrase “death of a lawyer.” As in Maine, many state bars have provisions for appointment of a personal representative or conservator, or will actually assume responsibility for action and seek both reimbursement and compensation from the lawyer's estate or assets. This is undesirable, but likely inevitable.

If you won't protect your clients and your heirs, the Bar will step in.

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