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Rule 1.17 Sale of Law Practice

ABA RULE 1.17


Adopted, Effective Jan. 1, 2008

CLIENT-LAWYER RELATIONSHIP
Rule 1.17 Sale Of Law Practice

A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if each ofthe following conditions is satisfied:

    (a) The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, within the State of New Hampshire;

   
(b) The entire practice, or the entire area of practice (subject to the clients’ rights under Rule 1.17(c)(2)), is sold to one or more lawyers or law firms;

    (c) The seller gives written notice to each of the active and inactiveclients of the practice or practice area being sold regarding:

        (1) the proposed sale;

        (2) the client's right to retain other counsel or to take possession of the file; and

        (3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice. 

(d) The fees charged clients shall not be increased by reason of the sale;

(e) If a client cannot be given notice described in section (c), the representation of that client shall be transferred to the successor lawyer or law firm for the limited purpose of protecting the interests of that client as and to the same extent as the selling or prior lawyer was required to do by these Rules, and the successor lawyer or law firm shall have a continuing obligation to reasonably attempt to provide the client with such notice to the same extent as may be required by these Rules; and

(f) The successor lawyer or law firm shall take possession of all the inactive or archival files of the practice or practice area being sold, and shall store, handle, or destroy them in accordance with the normal operating procedures of the successor lawyer or law firm and these Rules.  Notice of the transfer of the inactive and archival files shall be published in an appropriate newspaper of local circulation and shall be provided to the New Hampshire Bar Association.

NEW HAMPSHIRE COMMENTS

    Subsection (a) of the Rule permits the sale of a private practice or an area of private practice only if the seller ceases to engage in practice or in an area of practice within the State.  Thus the requirements for sale are not met if the lawyer or law firm desires to relocate to another area of the State.  The individual clients’ files may be transferred to the successor lawyer or law firm as and when client consents are received.  After the expiration of the 90 day notice period, the files of all clients who have been given notice, and who have not opted either to retain other counsel or to take possession of their files, shall be transferred to the successor lawyer or law firm. 

    Subsection (e) departs from the ABA Model Rule by requiring the successor lawyer or law firmto take possession of the files of clients for whom consent could not be obtained, and by eliminating the need for prior court authorization.  Such files shall be transferred for the limited purposes of attempting to effect actual written notice and protecting the clients’ interests.  Such file transfers are considered to be in the clients’ best interests, and are not considered to violate Rule 1.6.

    New subsection (f) clarifies that the successor lawyer’s obligations with respect to inactive or archival files of the prior lawyer mirror the duties owed to the successor’s own clients and former clients.    


ABA RULE 1.17

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