Contact Us   |   Print Page   |   Sign In
Community Search
Assisting Attorney Frequently Asked Questions
Share |

The following questions serve as guidance for an Assisting Attorney during the course of closing another attorney’s office with preplanning in place.

  1. Must I notify the former clients of the Affected Attorney if I discover a potential malpractice claim against the Affected Attorney?

    This answer is largely determined by the agreement one has with the Affected Attorney and the Affected Attorney’s former clients. If there is no attorney-client relationship with the Affected Attorney, and you are the new lawyer for the Affected Attorney’s former clients, you must inform your client (Affected Attorney’s former client) of the error, and advise accordingly of the ability to submit a claim to the appropriate professional malpractice insurance carrier of the Affected Attorney, unless the scope of your representation of the client excludes actions against the Affected Attorney. If you desire to limit your scope of representation, you must do so in writing and advise your client to get independent legal advice on the issue. In general, it is always best to advise the Affected Attorney’s former clients of their right to seek a second opinion.

    If you are counsel for the Affected Attorney and not the lawyer for the former clients, you should discuss the error with the Affected Attorney, if possible, and review the obligation to inform the client and malpractice insurance carrier of the error. Given this situation, you would not be obligated to inform the Affected Attorney’s client of the error. However, you should be careful to avoid making any misrepresentations to the client. In any event, you should notify the Affected Attorney’s malpractice insurance carrier as soon as you become aware of any error or omission that may be a potential malpractice claim to prevent a denial of coverage under the policy due to any “late notice” provision.

    If you are counsel for the Affected Attorney, you can make an arrangement to inform any former clients of any malpractice errors. This would not be permission to represent the former clients on malpractice actions against the Affected Attorney. It would simply be authorization to inform the former clients that a potential error exists and each individual should seek independent counsel.

    Please also see SCR 3.130-8.3 and SCR 3.130-1.6.

  2. If the Affected Attorney’s clients ask questions about the nature of the attorney’s death/disability or abandonment, how much am I at liberty to disclose?

    This answer also depends on the relationship you have with the Affected Attorney and the clients. If you are counsel for the Affected Attorney, you would be limited to disclosure of any information that the Affected Attorney authorized you to disclose. You would certainly want to make clear to the Affected Attorney’s former clients that you do not represent them and they should seek independent counsel. You are not at liberty to disclose any information to the attorney’s former client regarding circumstances of the attorney’s absence from the practice of law beyond that information which is “public record.” This may include the information that has been published in the local newspaper, i.e., automobile accidents, funeral arrangements and obituary. For disabled or injured attorneys, you may not disclose the facility where the disabled attorney is receiving medical treatment, unless the disabled attorney’s next of kin/family consents. You may want to inquire of the family where cards, letters flowers and condolences and get well wishes should be sent. For the abandoning or suspended attorney, you may not disclose the reason for the attorney’s unavailability beyond that which is public record, or public reprimand. To do otherwise, could expose you to potential defamation charges or litigation for violating HIPAA or otherwise protected information. In addition, you risk coming across as “gossiping” about your colleague, which will place you in a bad light, and subject you to risk of potential litigation. Be careful not to “hint” at the nature of the disability, as this is dangerous in itself when dealing with the client with a “vivid imagination.”

  3. What protection do I have under the Affected Attorney’s malpractice insurance coverage if I assist in the closing of the practice or sale of any of the assets belonging to the Affected Attorney’s office?

    A thorough review of the malpractice policy must be undertaken to check the definition of “Insured.” Most policies define “Insured” as both the firm and the individual lawyers employed by or affiliated with the firm. It typically is broadened to include past employees and “of counsel” attorneys. Additionally, most professional liability policies specifically provide coverage for the “estate, heirs, executors, trustees in bankruptcy and legal representatives” of the Insured as additional parties covered under the policy. However, the best insurance is the Assisting Attorney’s own malpractice policy covering such a situation.

  4. What exposure do I have as an Assisting Attorney under my own malpractice coverage? What steps should I take if I undertake the role to assist in the closure of an office by death, abandonment or otherwise?

    An Assisting Attorney should immediately review his/her own policy and contact his/her carrier to establish the parameters of any exposure from the role as Assisting Attorney. Likewise, the Assisting Attorney should insure there is no exclusion under the individual policy or additional requirements necessary to invoke coverage under the policy.

  5. If asked by the Affected Attorney’s former clients while transferring their individual file, may I represent them in their individual cases?

    This is largely dependent on: (1) whether the former clients want you to represent them; and, (2) whom else you represent. If you are representing the Affected Attorney, you cannot represent the former clients on any matter against the Affected Attorney. This includes a malpractice claim, ethics complaint, or fee claim against the Affected Attorney. If you do not represent the Affected Attorney, you are simply limited by the conflicts arising from your other cases and clients. You must check your client list for possible client conflicts before undergoing representation or a review of confidential information of an Affected Attorney’s former client. However, even if a conflict check reveals you are permitted to represent the client, you still might be wise to refer the case. This is advisable if the matter is outside of your area of expertise, you do not have adequate time to handle the case, or you do not have adequate staff or financial resources to handle the case. Additionally, if the Affected Attorney is a friend, not bringing a legal malpractice claim or fee claim against the Affected Attorney could make you vulnerable to an allegation that you did not zealously advocate for your new client. In an attempt to avoid this potential exposure, it might be wise to provide the former client with names of other attorneys or refer the client to the appropriate lawyer referral service.

  6. What must I do during the process of reviewing the deceased/disabled/abandoning attorney’s files when I discover there is a conflict between myself or my firm and the deceased/disabled/abandoning attorney's client?

    One of the first steps you should take upon accepting the appointment as Assisting Attorney is to create a client list of the Affected Attorney’s clients and perform an initial conflicts check before delving in to the substance of the client’s file. Do this in much the same manner that you would perform such a conflicts check in your own firm. (Please also see SCR 3.130-1.7.) Make a list of those files where a conflict or potential conflict exists, do not review those files for content, and do not review billing to the client. For those clients, you may still contact the clients to inform of the death/disability or absence from the practice of law of their attorney, and offer to arrange for those clients to retrieve their file. When you are able to reach the clients and they want to retrieve their file, it may be prudent to have a staff member, or someone other than yourself meet the client for the purpose of delivering the client’s file to the client. In this way, there can be no question as to whether you have looked at their case file. You will want to inform those conflicted clients that you were unable to review their files for pending or missed deadlines and for unused fees or billing account balances.

  7. What should I do with the files that I have not been able to return to clients? Am I required to preserve or store them for a specified period of time?

    You are responsible for preserving those files for a period of time. Make a list of those you are unable to return to the client/former client. If you have space at your own storage facility, store the files there. Otherwise, rent storage space in which to store those files, even if you have to do so at your own expense. A good rule of thumb is to plan on retaining the files for at least 5 years. (Please also see Ethics Opinion KBA E-436.) There is one line of thought that delineates the length of time in which you are required to retain a file, depending on the kind of action or nature of the case. Since complex actions involve more than one cause action or could be classified from a number of perspectives, and because it is more difficult to manage preservation of files if you have a different rule for files of different types, determine the longest period of time you would be required to protect and preserve a file and then keep all files for that period of time. Inform the Kentucky Bar Association where the files will be stored and the name, address, and phone number of the contact person for retrieving those files by completing the KBA’s online form located at www.kybar.org/filestorage.

    For your own protection, prior to disposing of any files, seek guidance and assistance from the Office of Bar Counsel and/or the Affected Attorney’s malpractice carrier. Once you do, you must destroy each file in a responsible manner. Do not simply place the files in the trash or on the curb on trash day. Make arrangements to have the files burned or shredded by a responsible party.

  8. What procedures should I follow for distributing the funds that remain in the trust account of the Affected Attorney?

    If your review or an authorized signer’s review of the Affected Attorney’s trust account indicates there may be conflicting claims to funds in the account, you should initiate a procedure for distributing the existing funds, such as an interpleader action in the appropriate venue. If there is a clear shortfall in the available funds, it may be wise to contact the Kentucky Bar Association and instill their services.

  9. During the process of auditing the trust account and comparing it with the amount that should be in the clients' fee accounts, I have discovered the Affected Attorney potentially stole or misappropriated the client’s unused fees. Am I obligated to inform either the client/former client, the Court, or the Kentucky Bar Association?

    If you are also responsible for reviewing the Affected Attorney’s client files, do that first, before determining whether or not there are funds missing. It could be work was performed by the attorney for which time tickets still need to be posted to the client’s billing account. Conversely, the complete file review should also disclose whether the Affected Attorney had received a settlement or judgment that should have been deposited in the trust/escrow account and distributed to the client, but for whatever reason it was not. Once you have completely reviewed the trust/escrow account, client billing accounts and client files, you should make a complete accounting of the trust/escrow account(s) identifying discrepancies in client fee accounts on a client-by-client basis. Once completed and discrepancies exist, you should contact the Office of Bar Counsel with the Kentucky Bar Association for guidance on this issue. It may also be prudent to contact the Affected Attorney’s malpractice carrier to put it on notice of the potential issue.

  10. During the process of conducting an initial file review, I discover that a deadline is about to run. Am I required to take action to file the pleading on behalf of the client before the deadline runs?

    To the extent of filing a substantive pleading on the merits of the case, the answer is “no,” unless the Affected Attorney’s former client has retained you and your firm for representation in the matter. To do so otherwise would be tantamount to attempting to practice each of the Affected Attorney’s cases as if you were attorney of record, and could expose you to liability for which you may not otherwise be exposed. You should make every attempt to return the client’s file before the deadline runs and impress upon the client the deadline and significance of missing the deadline, encouraging the client to immediately retain counsel before the deadline has run. If there is insufficient time to return the file to the client before the expiration of a pending deadline, while you are not under an obligation to file substantive pleadings on behalf of the Affected Attorney’s client, you should enter your limited appearance as trustee for the Affected Attorney’s law practice for the purpose of seeking enlargement of time on behalf of the client if their deadline has not run, or in the alternative if the deadline has already run, leave of the Court to permit the client to file a belated pleading, once substitute counsel is retained. Further, you may want to contact the opposing party or their counsel and request a tolling agreement.

  11. If I become aware of an ethical violation must I inform the Affected Attorney’s clients or other entities?

    Again, this depends largely on the relationships established between all parties. The answer is (1) no, if you are the Affected Attorney’s lawyer, (2) maybe, if you are not representing the Affected Attorney or the former clients, and, (3) maybe, if you are the attorney for the Affected Attorney’s former clients.

    1. If you are the Affected Attorney’s lawyer, you are not obligated to inform the former clients of any conduct violations or report any ethical violations to the disciplinary committee if your knowledge of the misconduct is a confidence or secret of your client, the Affected Attorney. Although you have no duty to report, there may be other responsibilities. If you discover that some of the client funds are not in the Affected Attorney’s escrow account as they should be, you should discuss this matter with the Affected Attorney, if available, and encourage the correction of this shortfall. If the Affected Attorney is available and does not correct the shortfall, and you believe this conduct violates the disciplinary rules, you should take the necessary steps to resign. If you are the Affected Attorney’s lawyer, and the Affected Attorney is deceased, you should contact the personal representative of the estate. If the Affected Attorney is alive but otherwise unavailable, you (or the authorized signer) may have to disburse the amounts available and inform the former clients that they have the right to seek independent legal advice. If you are the Affected Attorney’s lawyer, you should make certain the former clients do not perceive you as their attorney. This should include a written letter signed by you informing them of this fact.

    2. If you are not the Affected Attorney’s lawyer, and you are not representing any of the former clients, you may still have a fiduciary obligation to notify the former clients of a shortfall in the escrow account. Additionally, you may have an obligation to report the Affected Attorney to the appropriate disciplinary arm of the Kentucky Bar Association. Likewise, you should report any notice of a potential claim to the Affected Attorney’s malpractice insurance carrier to preserve coverage under the malpractice insurance policy.

    3. If you are the attorney for a former client of the Affected Attorney, you have an obligation to inform the client about the ethical violations that are relevant to the client’s interests. You also should inform the client of all necessary and available remedies including but not limited to the filing of a claim with the Kentucky Bar Association and the appropriate malpractice insurance carrier. You should determine ahead of time whether you are prepared to assume the obligation to inform former clients of the Affected Attorney’s ethical errors, especially if you are a friend of the Affected Attorney.

      You may wish to limit in advance the scope of your representation by informing the former clients that you do not intend to provide them with advice on ethics violation of the Affected Attorney. You should advise the former clients in writing to seek independent representation on these issues. Any limitation of your representation should be reasonable under the circumstances, and the former clients must give informed consent. Nevertheless, there will be situations in which such a limitation will not be reasonable, and you will be obligated ethically and legally to inform the former clients of an Affected Attorney’s ethical violation.

      As a general rule, whether you have an obligation to disclose a mistake to a former client will depend on the nature of the Affected Attorney’s possible error or omission, whether it is possible to correct it in the pending proceeding, the extent of the harm from the possible error or omission, and the likelihood that the Affected Attorney’s conduct would be deemed unreasonable and give rise to a malpractice claim as a result. Ordinarily, lawyers are charged with an obligation to keep their clients informed and provide all information necessary to make decisions relating to the representation.
       
  12. Do I have authority to access/distribute/refund funds from the Affected Attorney’s trust/escrow account(s)?

    Assuming the agreement you have with the Affected Attorney gives you that authority, then yes, but only after a complete accounting has been performed, and all discrepancies and deficiencies rectified accordingly. It is not for you to reimburse the Affected Attorney’s clients upon demand by the client, or in a first-come/first-serve basis. You should perform a complete audit of the account, taking into consideration settlements and judgments, as well as work which had been performed by the Affected Attorney but which had not been posted against the client’s fee account. Only after obtaining a detailed accounting, on a client-by-client basis, and rectifying discrepancies should you make any disbursements from the client’s trust/escrow account. Further, when there are insufficient funds available, you should seek guidance from the Office of Bar Counsel.

  13. If I become aware that the Affected Attorney stole client funds, do I have exposure to professional discipline against me?

    You will not be disciplined for stealing any client funds, unless: (1) you aided or abetted the Affected Attorney in the unethical conduct, or (2) the Affected Attorney was your client and you counseled or assisted in such criminal or fraudulent conduct. Whether you have an obligation to inform the Affected Attorney’s former clients depends on your relationship with the Affected Attorney and the former clients. If you are the new attorney for the Affected Attorney’s former client, and you fail to advise the client of the Affected Attorney’s ethical violations, you may be exposed to the allegation that you have violated your ethical responsibilities to your new client.

  14. If I am authorized as a signer on the Affected Attorney’s accounts am I also permitted to be counsel for the Affected Attorney?

    Although this generally works out fine, the arrangement may result in a conflict of fiduciary interests. As an authorized signer on the Affected Attorney’s accounts, you would have a duty to properly account for the funds belonging to the former clients of the Affected Attorney. This duty could be in conflict with your duty to the Affected Attorney if (1) you were hired to represent the Affected Attorney on issues related to the closure of the law practice and (2) there were misappropriations in the accounts and the Affected Attorney did not want you to disclose them to the former clients. To avoid this potential conflict of fiduciary interests, the most conservative approach is to EITHER be an authorized signer OR to represent the Affected Attorney on issues related to the closure of the practice. However, it is possible to do both, but extreme care should be taken by the Assisting Attorney to insure that any and all ethical obligations and rules of professional conduct are followed to limit any possibility of liability as a result.

  15. What is the source of funds necessary to pay the rent, utilities, telephone and support staff for the time necessary to conduct an inventory, file review/return and to close out the Affected Attorney’s practice?

    This will be largely based upon the terms of the agreement entered into between the parties from the outset. However, it should definitely be appropriately discussed and a sufficient amount of funds set aside for the Assisting Attorney to fully and properly complete the duties assigned. The Affected Attorney should insure that the Assisting Attorney has knowledge of the source, location and availability of these funds.

  16. Naturally I will be required to sacrifice time away from my own practice during the time I spend closing out the deceased/disabled/abandoning attorney’s practice. Will I be compensated for my services, and if so, how much and from what source?

    Again, this is largely governed by the terms of the agreement between the parties. Both the Assisting Attorney and Affected Attorney should insure this issue is properly addressed in the body of the agreement to avoid any confusion later. Regardless, the Assisting Attorney should keep a detailed accounting of time and out of pocket expenses. This will insure that any questions regarding payment for services are easily justified.
Membership Software Powered by YourMembership  ::  Legal