TEXAS LAWYERS' INSURANCE EXCHANGE
In a previous issue of the Advisory 1, we discussed an overview of some of the ethical, procedural, and potentially criminal aspects of handling the legal practice of a deceased lawyer. In this issue we will discuss good office procedures that provide increased protection for our clients and steps that we can take while we are alive.
As we accept new client matters, it is increasingly important that these matters be accepted pursuant to written employment or engagement agreements. A lawyer may limit the scope, objectives, and general methods of representation if the client consents after consultation (TDRPC 1.02(b)). A good example would arise in the context of a new divorce client. That client would ask about the charges for "a simple divorce." To this client, this matter would be defined as all services necessary to get divorced. The lawyer might be thinking about preparing a petition, a waiver, the various forms required by the governmental agencies, only one or two personal conferences, maybe an hour's worth of telephone conferences, and one brief court appearance on the non-contested docket.
As the "simple divorce" begins to unravel, the client's definition does not change, but the lawyer now considers additional compensation appropriate for the additional services. This scenario illustrates that it is at least as important to define the services to be performed as it is to describe the method of compensation for those services. In addition to describing the services and the compensation, there are a number of other items of administrative significance that would be invaluable to the person taking over the file upon the death of the lawyer. Here is some suggested language to include in that agreement.
Client understands that in order to protect Client's interests in the event of disability or death of Lawyer, it may be necessary or appropriate for a staff member, a personal representative (including someone acting under a power of attorney), or another lawyer who is retained by any such person or by Lawyer, to have access to Client's files and records in order to contact Client, to determine appropriate handling of Client's matters and of Client's files, and to make referrals with Client's subsequent approval to counsel for future handling; Client grants permission and waives all privileges to the extent necessary or appropriate for such purposes.
Furthermore, in the event of Lawyer's death or disability, if further services are required in connection with Client's representation and another lawyer is subsequently engaged by Client, Client expressly authorizes a division of fees between those lawyers based on the proportion of work done or the responsibilities assumed by each as they may agree. Such division specifically authorizes the payment of fees and expenses to Lawyer's estate, personal representatives, and heirs. No further disclosure to, consultation with, or consent by Client shall be necessary.
Lawyer shall return all documents provided by Client as well as all executed documents generated in connection with the representation. Lawyer may retain copies of all such documents as well as all other materials.
Lawyer may destroy any of Client's files at any time with Client's written consent and in any event, after five years from the conclusion of the representation. No further notice to client will be required prior to such destruction. During that five year period, Lawyer shall make such files available to Client for copying.
Here are a few more basic suggestions:
This is a good time to review the file to determine if there are any items that should be disposed of and to locate original documents and other materials to send to the client. Suggested language for your closure letter could include the following:
During our representation of you, we have created one or more files containing notes and documents relating to this matter. All original documents and other materials furnished by you have been returned to you previously, sent to other appropriate parties, or are enclosed with this letter.
It is our law firm policy to destroy files when we no longer need them. We invite you to examine your files during our normal office hours to determine if you would like copies of any of their contents. Please consider doing so as soon as possible while this is fresh in our minds. We remind you that it is our policy to destroy most files after five years following the conclusion of our services and that our initial agreement confirmed this procedure. No further notice will be given to you prior to such destruction.
The general rule is that ordinary malpractice claims must be brought not later than two years after the day the cause of action accrues, but note that Texas has adopted the rule that the limitations period commences upon the discovery of the attorney's actions or omissions. Willis v Maverick, 760 S.W.2d 642 (Tex. 1988). The four-year statute has been held to govern claims of intentional fraud. Estate of Degley v. Vega, 797 S.W.2d 299, 303 (Tex. App.--Corpus Christi 1990, no writ). However, when clients become involved in litigation allegedly resulting from an attorney's malpractice, the limitations period on the malpractice claim is tolled pending final disposition of the underlying case involving the client. Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex.1991). Other considerations may apply, such as required retention of trust account documents for five years (TDRPC 1.14), issues of minority disability, the impact of adverse possession doctrines concerning affected real estate matters, and federal tax guidelines as may apply to the particular matter. In considering appropriate periods for retention of copies of client files after return of original papers, the foregoing must be considered.
TLIE greatly appreciates the contribution by Mr. Brill of this additional article concerning this important subject. Mr. Brill maintains a solo practice in Houston, emphasizing estate, probate, and trust law, and mentoring solo attorneys. He has served as a Director on the board of Texas Lawyers' Insurance Exchange since 1999.
1Part One of this series was published in Issue No. 2, 2001, and may be reprinted from TLIE's website at www.tlie.org/advisory.htm. These articles have been abridged from a paper presented originally at the State Bar 2000 Advanced Estate Planning and Probate Course.
Home Return to Contents © Texas Lawyers' Insurance Exchange 2000. This page was last updated September 19, 2001.