April 2007

PRESIDENT’S COLUMN

PLANNING FOR THE FUTURE

BY REW GOODENOW

Time, like an ever-rolling stream,

Bears all its sons away;

They fly forgotten, as a dream

Dies at the opening day.[1]

When lawyers die, they leave not only a grieving family, but also clients.  In some cases our clients are fortunate enough to have someone else - a partner, an associate, or firm - that is prepared to fill in for the departed lawyer.  With increasing regularity, the State Bar of Nevada finds situations where a lawyer has died and has not provided for the transfer of client matters or files.

When an attorney has not “complied with Rule 115”, which requires a disbarred or suspended lawyer to notify clients, Supreme Court Rule 118 enables a court to appoint a lawyer to administer a deceased lawyer’s cases.  In past years, the state bar has used that rule to assist in instances where lawyers have died without a plan for their clients.  In some instances the state bar counsel’s office has accepted the deceased lawyer’s files, recruited lawyers to help and used the SCR 118 facilitate the appointment.  The rule also permits the court to award some compensation.

Rule 118.  Appointment of counsel to protect client’s interest.

1.  Judicial action; compensation; right of reimbursement.  Whenever an attorney has been transferred to disability inactive status or has disappeared or died, or has been suspended or disbarred, and there is evidence that the attorney has not complied with Rule 115, and a responsible person capable of conducting the attorney’s affairs cannot be found, the presiding judge in the judicial district(s) in which the attorney maintained his or her practice may appoint a disinterested attorney(s) to examine and inventory the attorney’s files and to take such action as is necessary to protect the interests of the attorney and the attorney’s clients. An appointed attorney may petition the district court for reasonable compensation, which, if approved, shall be submitted to the board of governors for payment in whole or in part. The board of governors may seek reimbursement from the attorney or out of the attorney’s property or from the attorney’s clients whose interests are served under this rule.

2.  Confidentiality.  An attorney appointed under this rule shall not disclose any information contained in the files examined or inventoried without the consent of the client for whom the file was maintained, except as necessary to carry out the order of the court which appointed the attorney.

This process has worked well.  Sometimes, the state bar’s staff has taken possession of files.  Then, the staff has transferred the files to a volunteer lawyer.

In some cases, there is no money available to pay a lawyer to evaluate and accept the open, let alone the closed, files.   Recently, a member of the State Bar of Nevada died leaving a very substantial deficit in client funds.  Protecting the client of the deceased lawyer in this type of case makes sense for our profession.  Efforts to provide counsel and to secure client files certainly help to enhance respect for lawyers.  Still, the cost of these efforts seems to be growing. 

Presently, there exists no uniform system for lawyers, particularly solo practitioners, to plan for the disposition of their practices and protection of client interests when the lawyer dies.  The state bar has been considering ways to address this growing and potentially very serious issue.  We welcome comments and thoughts from members of the bar concerning programs and approaches to helping lawyers plan for their clients’ needs and to protect clients’ interests when lawyers fail to plan ahead.

One possible solution for solo lawyers may be a “lawyer’s will.”  Examples will be posted on the State Bar of Nevada’s website at www.nvbar.org.  The basic idea is that a lawyer should designate a successor and obtain the successor and client’s advance consent and instructions.

Another possibility is that the state bar could develop a volunteer committee and devote a portion of the budget to the task of resolving problems that arise when a lawyer dies leaving client matters unattended.  While the state bar has no responsibility to take this sort of action at present, it could represent a public service opportunity for Nevada’s lawyers, particularly probate and transactional lawyers.  Many lawyers practicing in areas other than litigation and family law complain that they have difficulty fulfilling our pro bono publico aspirations. 

As always, the Board of Governors will be interested in considering comments from members of the State Bar of Nevada on this subject.