Dealing With the Death of A Solo

TEXAS LAWYERS' INSURANCE EXCHANGE

DEALING WITH THE DEATH OF A SOLO

By James E. Brill

This article is the outgrowth of a paper presented at the State Bar 2000 Advanced Estate Planning And Probate Course. Although it focuses on the unexpected and unplanned death of a solo practitioner, many of the same issues could apply to the solo attorney who is disabled, suspended, or disbarred. In fact, a number of the issues affect all practicing lawyers.

For years solos have been regarded as a dying breed, but if you have that impression, consider that in 1995, almost 47% of all practicing lawyers in America were solos and in Texas it was approximately 36% in 2000.

What is so special about the death of a solo compared to the death of a small firm lawyer, compared to the death of a megafirm lawyer? As will be seen, there are several discrepancies in the treatment of lawyers in various practice settings.

It is the nature of law practice to encounter conflicting rights, duties, and responsibilities. Virtually all difficult ethical problems arise from apparent conflicts between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interests. Rarely is the conflict more evident than at the death of a lawyer.

Some of the Texas Disciplinary Rules of Professional Conduct (“DR”), Rules of Disciplinary Procedure, Ethical Opinions, the Probate Code, and even the Penal Code tend to complicate matters involving clients and leave many open issues for the lawyer’s family. They also raise serious potential problems for attorneys who are involved in winding down the practice of a deceased solo practitioner.

The overriding consideration of all of these laws, rules, and procedures should be to protect the client’s best interests and to do so as promptly, efficiently, and inexpensively as reasonably possible. Unfortunately, that is not the case under current laws and rules. Part of the problem is the “one size fits all“ mentality leading to the drafting of single rules that apply equally to a lawyer’s retirement, death, disability, disbarment, and disappearance.

At first glance, it would appear that a probate court or a county court would have exclusive jurisdiction in winding up the practice of a deceased solo. However, when any attorney has died, Section 13.02 of the Rules of Disciplinary Procedure provides that any “interested person may petition a district court in the county of the attorney’s residence to assume jurisdiction over the attorney’s law practice.” (Emphasis added).

Under Section 13.03 of those Rules, once a petition is filed, the court sets a hearing and issues a show cause order directing the attorney, the attorney’s personal representative, or the person having custody of the attorney’s files, to demonstrate why the court should not assume jurisdiction of the attorney’s law practice. If the court finds that the attorney has died and that court supervision is required, the court shall assume jurisdiction. The court then appoints one or more attorneys to examine files, contact clients and others who are affected by the death of the attorney, apply for extensions of time, and deliver files and other property to clients. No bond is required of the appointed lawyers and they incur no liability except for intentional misconduct or gross negligence.

These Rules are seemingly in conflict with the Probate Code’s mandate that where there exists concurrent jurisdiction between a statutory probate court and a district court, any cause of action appertaining or incident to an estate shall be brought in a statutory probate court. Even assuming that a statutory probate court has jurisdiction, it is not clear that it can act on a petition that follows Section 13.02 of the Rules of Disciplinary Procedure and if so, whether the appointed attorneys can obtain that same degree of protection.

Estates of lawyers who had active trial, appellate, or criminal practices have special problems as to statutes of limitation and procedural deadlines. For an impending deadline, a lawyer ordinarily would apply to the probate court for appointment as a temporary administrator of the deceased lawyer’s estate, in order to take appropriate and timely action pending permanent appointment. It is not clear that this procedure is permitted in lieu of the procedure under Rules 13.02 and 13.03.

There is another Rule of Disciplinary Procedure that could bypass the jurisdictional tug of war between the courts. As an alternative to filing a petition in the district court, Rule 13.01 requires notices when an attorney dies and no other attorney has agreed (with client consent, of course) to assume responsibility. While the courts are not involved, the seemingly innocuous requirements are quite onerous. The rule requires that written notice of death (together with information identifying the matter) shall be mailed to all clients, former clients, opposing counsel, courts, agencies with which the attorney has matters pending, malpractice insurers, and any other person or entity having reason to be informed of the death of the attorney. (Emphasis added).

Imagine the impossibility of going into another lawyer's office (or even your own) and being able to construct a mailing list of all present and former clients and a listing of all the matters ever handled for them. To assemble such a list would take weeks or months, if it could be done at all. Here the interests of the clients would be served best by sending a short generic letter immediately to give notice of the lawyer’s death, the location of the files, and the person to contact.

There is one more problem with this Rule. It is professional misconduct under DR 8.04(a)(10) if a lawyer fails to comply with Section 13.01 of the Texas Rules of Disciplinary Procedure relating to notification of an attorney’s cessation of practice. Section 13.01 is a “one size fits all” rule that applies not just to a lawyer’s death, but also to a lawyer’s retirement, resignation, becoming inactive, disbarment, suspension, or mental or emotional disability.

If you are attempting to wind up the deceased lawyer’s practice and the family offers you the opportunity to “take over the practice,” watch out! If you solicit employment in person or over the telephone, you may have committed the criminal offense of barratry and thereby have engaged in conduct that violates the DR’s. That offense also is committed if a written communication concerning a lawsuit of any kind (including an action for divorce) is sent to a potential client or a dependent or a relative of that person, unless the lawsuit has been on file for more than 31 days before the date of mailing. Are criminal cases “lawsuits of any kind?” And what if the deceased lawyer was a litigator who had accepted a new case on which limitations would run in less than 31 days?

Even if your efforts to step into the shoes of the deceased lawyer do not rise to the level of barratry, you are not out of the woods. When your pecuniary gain is a significant motive for your in-person or telephone contacts with former clients of a deceased attorney, you are violating DR 7.03(a). If, instead of making personal contact you decide to write to these clients, you might be in violation of DR 7.05(a), and it is almost certain that your mailing will be a “solicitation” requiring compliance with DR 7.04(a)-(c) relating to advertising.

Surprisingly, the correspondence required by Disciplinary Procedure 13.01 seems to be subject to the rules relating to written solicitations, contingent fees, and advertising. Under DR 7.05(b)(2), your “solicitation” must be marked “ADVERTISEMENT” plainly on the first page and on the envelope. Copies of this written solicitation and of the envelope must be filed with and a fee paid to the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas.

Here is the perfect Catch 22. Imagine being willing to help and that you have gone to the trouble of locating the names and addresses of all present and former clients and a listing of all of their related matters. At present, you cannot call or go to their homes or offices because that might be felony barratry prohibited under the Penal Code and the Disciplinary Rules. You can not write too soon or you will have committed misdemeanor barratry, but if you do not comply with Disciplinary Procedure 13.01, you will be guilty of professional misconduct. If you are not able to thread the needle by complying with all of the rules but you accept employment, you will have violated DR 7.06 and will be subject to disciplinary action.

How can all of this possibly protect the interests of the clients? How can a lawyer take control of the practice of a deceased lawyer without risking disciplinary action or a violation of criminal laws? I do not claim to have the answers -- but it is time some acceptable ones were developed.

TLIE deeply appreciates Mr. Brill's contribution of this article, an abridged version of a paper recently granted the award for excellence by the College of the State Bar of Texas. A solo attorney in Houston practicing primarily in estate, probate, and trust law, Mr. Brill has served as a Director of TLIE since 1999.