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As an older solo practitioner, try to plan a smooth transition with another lawyer now.

I am an older lawyer who is a solo practitioner. Is there anything I should be doing to protect my clients if I should pass away unexpectedly?

It's never pleasant to think of the death of a lawyer. Lawyers are usually so full of life and so involved in their practice and the community, it's usually a shock to hear someone is no longer around. But, in terms of responsibilities, the Rules of Professional Conduct don't have any mandatory requirement for lawyers in terms of planning what happens to their practice. There is a comment to Rule 1.3 of the Rules of Professional Conduct that has suggestions, but is not mandatory. Rule 1.3 is the diligence rule. It requires a lawyer to act with reasonable diligence and promptness in representing a client. Under Comment 5 to the rule, the following is said: “To prevent neglect of client matters in the event of a solo practitioner's death or disability, the duty of diligence may require that each solo practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action.”

The only other rule of significance in terms of disabled or involving the death of a lawyer, what happens to their clients is Pennsylvania Rules of Disciplinary Enforcement, Rule 321. That rule is titled, “Appointment of a Conservator to Protect Interest of Clients of Absent Attorney.” That rule allows the Office of Disciplinary Counsel or other interested person to petition the president judge of the Court of Common Pleas to appoint one or more people to act as conservators of the lawyer's affairs and to review the status of clients, etc. Rule 322 talks about the duties of a conservator. One of the problems under the rule is the compensation for the conservator. Rule 328 allows an agreement between the Disciplinary Board chairman and the conservator at a reasonable hourly rate. That hourly rate is identical to those of court-appointed counsel. In Philadelphia, that's about $50 an hour. In other counties it may be less.

What should lawyers do? The best practice—if one can find someone who is willing to do it—is to have a colleague agree to look after one's practice if the lawyer becomes disabled or passes away unexpectedly. Perhaps the lawyer can work out a referral arrangement with that lawyer. The problem with doing that is that most people are busy and it's difficult to find someone who is willing to take on that kind of responsibility.

Other things a lawyer might do if they are a solo practitioner is to perhaps keep a list of all active files with the status and make sure one's ledger sheets and trust and operating account are up-to-date. Over time, getting rid of older files is also a good practice. Files are usually held for about five or six years, but after that the files can be shredded, although the best practice is to give notice to clients. One thing might be to in the fee letter for a lawyer to have a provision if something should happen to the lawyer and who the client is to contact or who the back-up lawyer is.

It wouldn't be a bad idea to develop some sort of summary of the lawyer's practice and how things are done, so if someone has to come in and try to organize the practice there will be a written reported summary.

Perhaps someday there will be more stringent requirements. Obviously, as lawyers get older, one never knows if and when their number is up. But, lawyers do have a responsibility to their clients to at least attempt to have something organized and in place if the lawyer becomes completely disabled and no longer able to assist in the practice or passes away. If a lawyer is with a firm, of course, it's a different story and then the firm can take over the cases. But, as a solo practitioner, one must really start to plan for what happens to protect the client.

But, to answer the question, there is no fixed rule or requirement. The best practice is to think of one's clients and see if one can put in place a plan with a lawyer to assist in a plan to ensure a smooth transition if something happens to the original lawyer.

Lawyers have a duty to maintain high standards and ensure that testimony is accurate.

If I represent a client before a legislative body, do the Rules of Professional Conduct in terms of correcting false testimony apply?

The question is an interesting one, but the answer appears to be yes, there is a duty pursuant to the Rules of Professional Conduct. The appropriate Rule is Rule 3.9 of the Rules of Professional Conduct. That rule reads as follows: “A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c) and 3.4(a) through (c) and Rule 3.5.”

Rule 3.3 is candor toward the tribunal. The rules preclude false statements before a tribunal and requires remedial measures to correct the false statements. Rule 3.4 among other provisions precludes obstruction of evidence or falsifying evidence and limits what one can pay witnesses and precludes personal opinions. Rule 3.5 is the impartiality and decorum rule. That precludes seeking to improperly influence a judge or in a case members of the legislative forum, precludes ex parte communications and precludes engaging in conduct that would disrupt the tribunal. In other words, if one is representing people before a legislative body, one has to notify the body of their representation, prevent false testimony, act appropriately, not obstruct evidence, etc.

Essentially, if one is a lawyer, they are a lawyer even in matters that are not quite as traditional as walking into a courtroom. Appearing before a legislative body in a nonadjudicative case is a very serious matter and lawyers have a duty to maintain high standards and ensure that testimony is accurate and their conduct does not obstruct the proceedings in any way.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.