Attorneys may be asked to assist with the wind-up and final disposition of a deceased or incapacitated sole practitioner’s law practice. This article provides guidelines for doing so in compliance with applicable Rules of Professional Conduct and Supreme Court Rules.
- Supreme Court Rule 37(17) provides for the appointment of counsel to take charge and dispose of a deceased or incapacitated sole practitioner’s practice.
- H. R. Prof. Conduct 1.17 permits sale of a law practice.
- H. R. Prof. Conduct 1.5(f) permits the division of fees between lawyers who are not in the same firm under certain conditions.
- Required task: secure the law office, client files, and client property.
- Required task: inventory the attorney’s clients and client files and run conflict of interest check on each identified client before reviewing any client’s file.
- Required task: prioritize contacting clients with active matters at the time of death or incapacity.
- Required task: notify current clients of their lawyer’s death or incapacity and that they need to take possession of their files and, if appropriate, retain new counsel (consider posting notice in local newspaper).
- Required task: reconcile IOLTA accounts to extent possible and report any discrepancies to Attorney Discipline Office.
- Required task: identify all client property held by practice and return property to clients or successor attorneys.
- Required task: determine status of fees and expenses owed by clients, invoice fees and disbursements as soon as possible, and manage collection as necessary.
- Required task: if appropriate, work with the personal representative of the deceased or incapacitated attorney to facilitate a sale of the practice under N.H. R. Prof. Conduct 1.17.
- Required task: evaluate closed files and practice’s financial records for attempted transfer to former clients, storage, or destruction per Supreme Court Rule 50(2).
- Required task: wind up practice’s remaining business affairs and close the practice.
By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its June 17, 2021