resources-for-attorneys-unable-to-practice-law-updated-jan-2022.pdf (2022)
Note: This document was published in 2022. Information in older documents may not reflect current board procedures or policies.
Need help? Please use the Assistance Request Form below.
Original PDF Document
Download Official Record (resources-for-attorneys-unable-to-practice-law-updated-jan-2022.pdf)
Alternative Accessible HTML
Accessible Alternative: This HTML version is an automatically processed accessible alternative. While it provides a searchable format, the text extraction may contain formatting or character errors. The original PDF remains the authoritative official record.
Need a different format? Use the Request Assistance Form.
Resources for When an Attorney Becomes
Unable to Continue the Practice of Law
Attorneys and their families may be faced with closing law offices due to the attorneyâs
inability to continue practicing law due to illness, disability, suspension, disbarment,
disappearance, or death. Resources attached include excerpts from Supreme Court Rules 8 and 9,
ethics opinions, checklists and forms for bar associations, attorneys, family members and
interested persons faced with closing a law practice. Rules of Professional Conduct must be
followed when applicable.
Forms and Checklists
•
•
•
•
•
•
•
Complaint for Appointment of Receiver Attorney 1
Order Granting Complaint for Appointment of Receiver Attorney1
Things to do to prepare for Disaster, Disability and Death 2
Checklist for lawyers planning to protect clientsâ interests in the event of the lawyerâs
disability, impairment, incapacity or death 3
Checklist for closing your own office3
Checklist for closing another attorneyâs office3
Letter from closing or receiver attorney advising that lawyer is unable to continue in
practice3
Rules
•
•
•
•
Tenn. Sup. Ct. R. 8 RPC 1.15 (Safekeeping Property and Funds)
Tenn. Sup. Ct. R. 8 RPC 1.16 (Declining or Terminating Representation)
Tenn. Sup. Ct. R. 8 RPC 1.17 (Sale of Law Practice)
Tenn. Sup. Ct. R. 9 § 29 (Appointment of a Receiver when an Attorney Becomes Unable
to Continue the Practice of Law)
This Complaint and Order were created with the assistance and cooperation of attorney Lucien Pera for the
Memphis Bar Association.
1
Excerpts from âThings to Do to Prepare for Disaster, Disability and Death,â are reprinted with permission of the
Harry Phillips American Inn of Court team members Anne Russell, Bill Harbison, John Kitch, Bill Farmer, Chris
Coleman, Randy Kennedy, Michael Hoskins, Jerry Martin, Amy Farrar, Bill Penny, Rachel Odom and Nina Kumar.
2
Excerpts from âPlanning Ahead: Establish an Advance Exit Plan to Protect Your Clientâs Interests in the Event of
Your Disability, Retirement or Deathâ are reprinted with permission of the New York State Bar Association.
3
1
CIRCUIT/CHANCERY/PROBATE COURT OF _______________ COUNTY, TENNESSEE
)
IN RE
)
)
________________________,
)
No. _________________
)
Respondent.
)
)
COMPLAINT FOR APPOINTMENT OF RECEIVER ATTORNEY
Pursuant to Tenn. Sup. Ct. R. 9 § 29.3(a), ______________ petitions for the appointment
of one or more receiver attorneys to review and take custody of the files of
____________________, an attorney who has [resigned; been suspended; disbarred; disappeared;
abandoned the practice; become disabled or transferred to disability inactive status] from the
practice of law in Tennessee, and to take such action as seems necessary to protect the interests of
attorney ________________ and his/her clients as follows:
1.
The Tennessee Supreme Court [suspended; disbarred, placed on disability inactive
status; temporarily suspended]
__________ from the practice of law in Tennessee on
_______________. (A copy of the Supreme Courtâs Order is attached as Exhibit A.)
2.
Tenn. Sup. Ct. R. 9 § 29.2(b) provides as follows:
If an affected attorney has: (1) resigned or been suspended or disbarred
from the practice of law; (2) disappeared or abandoned the practice of law; (3)
become disabled or incapacitated or otherwise become unable to continue the
practice of law or has been transferred to disability inactive status pursuant to
Section 27 of this Rule; or (4) died, the Board of Professional Responsibility, the
Tennessee Bar Association or any local bar association, any attorney licensed to
practice law in this state, or any other interested person may commence a
proceeding in the chancery, circuit, or probate court for the county in which the
affected attorney maintained an office for the practice of law for the appointment
2
of an attorney who is licensed to practice law in this state and in good standing with
the Board of Professional Responsibility to serve as a receiver attorney to winddown the law practice of the affected attorney.
3.
Based upon the above facts and supported by the attached affidavit/declaration,
____________________ respectfully requests that this Court appoint one or more receiver
attorneys currently licensed to practice law in Tennessee to take custody of client files, records,
bank records and other property; review the files; notify all clients, Courts and counsel; deliver the
files, money and other property belonging to the clients pursuant to the clientâs direction; take such
steps as indicated if possible to protect the interests of the clients and public, and the affected
attorney, to the extent possible, and to submit interim and final accountings to this Court as deemed
appropriate.
4.
______________________ respectfully requests this Court authorize the receiver
attorney to take custody of files, records and property of clients of the affected attorney and act as
a signatory on any bank or investment accounts; safe deposit boxes or other depositories
maintained by the affected attorney in connection with the affected attorneyâs practice, including
trust accounts, escrow accounts, payroll accounts, IOLTA accounts, operating accounts, special
accounts and to disburse funds to clients and others entitled thereto and take all appropriate actions
with respect to such files, records, property and accounts.
Respectfully submitted,
__________________________________
[Name]
[Address]
[Telephone Number]
3
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing has been served
upon __________________ on _________________, 2014 by regular U.S. Mail at his/her last
known office address of ____________________________________________ and at his/her last
known home address of ________________________________________.
_____________________________________
[Name]
4
CIRCUIT/CHANCERY/PROBATE COURT OF _______________ COUNTY, TENNESSEE
IN RE
________________________,
Respondent.
)
)
)
)
)
)
)
No. _________________
ORDER GRANTING
COMPLAINT FOR APPOINTMENT OF RECEIVER ATTORNEY
Based upon ______________âs Petition for Appointment of Receiver Attorney and
accompanying affidavit or declaration and the entire record in this cause, it appears that the
complaint should be granted.
IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED THAT:
1.
Pursuant to Tenn. Sup. Ct. R. 9 § 29.3(a), __________________________, a
receiver attorney licensed to practice and practicing in Tennessee, is appointed and directed to:
a.
take custody of the files, records, bank accounts, and other property of
attorney _______________ law practice;
b.
review the files and other papers to identify any pending matters;
c.
notify all clients represented by attorney ____________ in pending matters
of the appointment of the receiver attorney and suggest that it may be in their best interest
to obtain replacement counsel;
d.
notify all courts and counsel involved in any pending matters, to the extent
they can be reasonably identified, of the appointment of a receiver attorney for affected
attorney ____________________;
5
e.
deliver the files, money, and other property belonging to the clients of
attorney ____________________ pursuant to the clientâs directions, subject to the right to
retain copies of such files or assert a retaining or charging lien against such files, money,
or other property if fees or disbursements for past services rendered are owed by the client;
f.
take such steps as seem indicated to protect the interests of the clients, the
public, and, to the extent possible and not inconsistent with the protection of the attorneyâs
clients, to protect the interests of the affected attorney; and
2.
Pursuant to Tenn. Sup. Ct. R. 9 § 29(b), _____________________, a receiver
attorney licensed to practice and practicing in Tennessee, is authorized to:
a.
take custody of and act as signatory on any bank or investment accounts,
safe deposit boxes and other depositories maintained by the affected attorney in connection
with the affected attorneyâs law practice, including trust accounts, escrow accounts, payroll
accounts, IOLTA accounts, operating accounts and special accounts and to disburse funds
to clients or others and take all appropriate actions with respect to such accounts.
3.
To the extent possible, ___________________, the affected attorney, shall assist
and cooperate fully with the receiver attorney in the transition, sale or winding down of the affected
attorneyâs law practice.
4.
Pursuant to Tenn. Sup. Ct. R. 9 § 29(e), _____________________, a receiver
attorney shall prepare and submit to this Court interim and final accountings as deemed
appropriate.
5.
Pursuant to Tenn. Sup. Ct. R. 9 § 29.4, the appointment of the receiver attorney
shall not be deemed to create an attorney/client relationship between the receiver attorney and any
client of the affected attorney; however, the attorney-client privilege shall apply to all
communications by or between the receiver attorney and the clients of the affected attorney.
6
6.
This Court shall have jurisdiction over all the files, records and property of the
affected attorney and may make any orders necessary or appropriate to protect the interests of the
clients of the affected attorney and to the extent possible, the interests of the affected attorney.
7.
The receiver attorney shall be entitled to reasonable fees as determined by this
Court pursuant to Tenn. Sup. Ct. R. 9 § 29.6.
8.
The receiver attorney shall be immune from suit for any conduct undertaken in
good faith in the course of the official duties of the receiver attorney.
9.
Pursuant to Tenn. Sup. Ct. R. 9 § 29.10, upon entry of this Order, any applicable
statute of limitations, deadline, time limit or return date for filing as it relates to the clients of the
affected attorney shall be tolled during the period from the date of the filing of the complaint for
the appointment of a receiver attorney until the first regular business day that is not less than 60
days after the date of the entry of the Order appointing the receiver attorney, if it would otherwise
expire before the extended date.
_____________________________________
_______________________, Chancellor/Judge
DATE: _______________________________
7
THINGS TO DO TO PREPARE FOR DISASTER, DISABILITY AND DEATH
1.
Last Will and Testament
2.
Advance care directive/health care power of attorney
3.
General durable power of attorney – immediate or springing
4.
Personal – list of people and organizations to be notified in case of death, disability or
disaster with their contact information
a.
Personal friends and family
b.
Fraternal organizations, boards on which you sit, etc.
5.
Professional – list of people and organizations to be notified in case of death, disability or
disaster with their contact information
a.
Clients
b.
Presiding judges
c.
Bar associations
6.
List of all assets and documents including location and contact information
a.
Will, POA, Advance Care Directive
b.
Lockboxes or safe deposit boxes
c.
Insurance policies
d.
Securities, investments and all bank accounts
e.
Loan or notes owed to you or by you
f.
Special asset/collection information and locations
7.
Back-up lawyer or lawyers – with knowledge of and ability in the relevant areas of the
law and even some knowledge of the particular matter
a.
Clause in contract authorizing use of back-up lawyer if necessary, with
consent to disclosure of confidential information
b.
Power of attorney for back-up lawyer to sign trust checks
8.
Life insurance, health insurance, business interruption insurance, malpractice insurance,
and disability insurance
9.
Instructions to relevant parties on funeral arrangements
10.
Person with knowledge on passwords for accessing the lawyerâs computer, passwordprotected client information, bank accounts, etc.
8
THINGS TO DO TO PREPARE FOR DISASTER, DISABILITY AND DEATH (continued)
11.
Instructions for spouse/personal representative
a.
Names of relevant professionals – lawyer to handle estate, CPA, HIPAA
release, medical information
b.
Names of suggested lawyers for particular clients; matters
c.
Fees due/account receivables
d.
Debt information
e.
Location of all relevant documents
9
CHECKLIST FOR LAWYERS PLANNING TO PROTECT CLIENTSâ INTERESTS IN
THE EVENT OF THE LAWYERâS DISABILITY, IMPAIRMENT, INCAPACITY OR
DEATH
1.
Consider using retainer agreements with your clients that state that you have arranged for
a Receiver Attorney 4 to manage or close your practice in the event of your death,
disability, impairment or incapacity, and identifying such attorney.
2.
Have a thorough and up-to-date office procedure manual that includes information on:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
How to check for conflicts of interest;
How to use the calendaring system;
How to generate a list of active client files, including client names, addresses, and
phone numbers;
Where client ledgers are kept;
How the open/active files are organized;
How the closed files are organized and assigned numbers;
Where the closed files are kept and how to access them;
The office policy on keeping original documents of clients;
Where original client documents are kept;
Where the safe deposit box is located and how to access it;
The bank name, address, account signers, and account numbers for all law office
bank accounts;
The location of all law office bank account records (trust and general);
Where to find, or who knows about, the computer passwords;
How to access your voice mail (or answering machine) and the access code
numbers; and
Business and personal insurance policies with contact information for brokers and
insurance companies.
3.
Make sure all of your file deadlines (including follow-up deadlines) are on your
calendaring system.
4.
Document your files.
5.
Keep your time and billing records up-to-date.
6.
Have a written agreement and/or power of attorney with an attorney who will manage or
close your practice (the âReceiver Attorneyâ) that outlines the responsibilities delegated to
the Receiver Attorney who will be managing or closing your practice. Include a procedure
4
âAssisting Attorneyâ has been changed to âReceiver Attorneyâ consistent with Tenn. Sup. Ct. R. 9 § 29.
10
to enable your Receiver Attorney to determine whether your incapacity renders you unable
to practice law, and complete in advance, a medical release and authorization form as
required by HIPAA permitting disclosure of medical information to assist in this
determination. Determine whether the Receiver Attorney also will be your personal
attorney. Choose a Receiver Attorney who is sensitive to conflict of interest issues.
7.
If your written agreement authorizes the Receiver Attorney to sign trust or general account
checks, follow the procedures required by your local bank. Decide whether you want to
authorize access at all times, at specific times, or only upon the happening of a specific
event. In some instances, you and the Receiver Attorney will be required to sign bank
forms authorizing the Receiver Attorney to have access to your trust or general account.
Choose your Receiver Attorney wisely for he or she may have access to your clientsâ funds.
8.
Familiarize your Receiver Attorney with your office systems and keep him or her
apprised of office changes.
9.
Introduce your Receiver Attorney to your office staff. Make certain your staff knows
where you keep the written agreement with your Receiver Attorney and how to contact the
Receiver attorney if an emergency occurs before or after office hours. If you practice
without a regular staff, make sure your Receiver Attorney knows whom to contact (the
landlord, for example) to gain access to your office.
10.
Inform your spouse or closest living relative and your named executor of the existence of
this agreement and how to contact the Receiver Attorney.
11.
Renew your written agreement with your Receiver Attorney each year. If you include the
name of your Receiver Attorney in your retainer agreement, make sure the information
concerning that attorney is current.
11
CHECKLIST FOR CLOSING YOUR OWN OFFICE
1.
Finalize as many active files as possible.
2.
Write to clients with active files, advising them that you are unable to continue representing
them and that they need to retain new counsel. Your letter should inform them about time
limitations and time frames important to their matters. The letter should explain how and
where they can pick up copies of their files and should give a deadline for doing so.
3.
For cases that have pending court dates, depositions or hearings, discuss with affected
clients how to proceed. Where appropriate, request extensions, continuances and the
rescheduling of hearing dates. Send written confirmations of these extensions,
continuances and rescheduled dates to opposing counsel and to your client.
4.
For cases before administrative bodies and courts, obtain clientsâ permission to submit
motions and orders to withdraw as counsel of record.
5.
In cases where the client is obtaining a new attorney, be certain that a Substitution of
Attorney is filed.
6.
Select an appropriate date and check to see if all matters have a motion and order
allowing your withdrawal as counsel of record or a Substitution of Attorney filed with the
court.
7.
Make copies of files for clients. Retain your files (except, in the case of original documents
such as deeds, retain a copy and provide the client with the original). All clients should
either pick up copies of their files (and sign a receipt acknowledging that they have received
them) or sign an authorization for you to release copies of their files to their new attorneys.
8.
Write to all clients for whom you have retained original wills, advising them that you are
closing your office and request that they pick up their original will. Ask them to sign a
receipt and maintain a record of all wills that are retrieved.
9.
[If files are to be stored,] Tell all clients where their closed files will be stored and whom
they should contact in order to retrieve them. [Preferably] Obtain all clientsâ permission
to destroy their files.
10.
If you have sold your practice, tell your clients the name, address and phone number of the
purchasing attorney.
12
11.
If you are a sole practitioner, arrange to have your calls forwarded to you or another person
who can assist your clients. This eliminates the problem created when clients call your
phone number, get a recording stating that the number is disconnected, and do not know
where else to turn for information.
13
CHECKLIST FOR CLOSING ANOTHER ATTORNEYâS OFFICE
If you are handling the closing or sale of another attorneyâs practice, [which is governed by Tenn.
Sup. Ct. R. 8, RPC 1.17,] the following checklist will be of assistance to you and your staff. The
reason that the attorney is closing his or her practice will also affect how you make these decisions
without the attorneyâs assistance. To the extent that the terminating attorney or his or her staff is
available, you should make every effort to use that assistance.
Costs involved in taking over the responsibility for another attorneyâs practice can be substantial.
Be prepared and be careful about who is responsible for these expenses.
The term âAffected Attorneyâ refers to the attorney whose office is being closed or sold.
âClosing Attorneyâ refers to the Attorney who is handling the closing or sale of another attorneyâs
practice. âAcquiring Attorneyâ refers to one who is purchasing another attorneyâs practice.
1.
Check the calendar and active files to determine which items are urgent and/or scheduled
for hearings, trials, depositions, court appearances, etc.
If possible, discuss with the attorney the status of open files – what has been completed,
what has not, what has been billed, etc.
If a sale of the practice is being contemplated or pursued, whether by the Affected Attorney
or the estate, review and understand [Tenn. Sup. Ct. R. 8 RPC 1.17 and Tenn. Sup. Ct. R.
9 § 29] which has critical notice and time requirements.
2.
Contact clients for matters that are urgent or immediately scheduled for hearing, court
appearances, or discovery. Obtain permission to postpone or reschedule. (If making these
arrangements constitutes a conflict of interest with your own clients, retain another attorney
to take responsibility for obtaining extensions of time and other immediate needs.)
Consider consulting other lawyers if you do not have the expertise in one or more of the
areas in which the Affected Attorney practiced.
Consider the overhead costs involved in purchasing a practice or closing a practice.
3.
Contact courts and opposing counsel about files that require immediate discovery or court
appearances. Reschedule hearings or obtain extensions where necessary. Confirm
extensions and rescheduling in writing.
4.
Open and review all unopened mail. Review all mail that is not filed and match it to
the appropriate files.
14
5.
Look for an office procedures manual. Determine if there is a way to get a list of clients
with active files.
6.
In cases where the client is obtaining a new attorney, be certain that a Substitution of
Counsel is filed.
7.
For cases before administrative bodies and courts, obtain permission from the clients to
submit a Motion and Order to withdraw the Affected Attorney as attorney of record.
8.
Send clients who have active files a letter explaining that the law office is closed.
•
Instructing them to retain a new attorney and/or to pick up the open file. Provide
clients with a date by which they should pick up copies of their files. Inform clients
that new counsel should be chosen immediately.
If the Affected Attorney is available and willing, he or she should introduce you to nonlawyer staff members, and referral sources such as insurance agents, bankers, realtors, and
accountants with whom the Affected Attorney worked. If the Affected Attorney is not
available or willing to assist in this capacity, you should make these contacts immediately,
not only for purposes of preserving client relations, but also to determine the location of
clients, history of clients, etc. Many clients work with a team of advisors and, with the
clientâs consent, you should have discussions with each of these other professionals.
Clients may be looking to these other advisors for recommendations for new counsel.
9.
Make sure that all court cases have a motion and order allowing withdrawal of the Affected
Attorney or a Substitution of Attorney filed with the court.
10.
Make copies of files for clients. Retain the Affected Attorneyâs file. All clients should
either pick up a copy of their file (and sign a receipt acknowledging that they received it)
or sign an authorization for you to release a copy to a new attorney. If the client is picking
up a copy of the file and there are original documents in it that the client needs (such as a
title abstract to property), return the original documents to the client and keep copies for
the Affected Attorneyâs file. Determine who or what entity is responsible for storing the
Affected Attorneyâs files and records. Return original wills to clients.
Make contact with firms or practices with which the Affected Attorney was associated to
determine what, if any, files remain with those practices. This will save the acquiring
attorney a significant amount of time âsearchingâ for files demanded by clients for past
representation by the Affected Attorney. Also, determine who will bear the cost and the
responsibility for acquiring or copying those files: Is it the closing attorney, the Affected
15
Attorney or the court or other agency that has taken over the primary responsibility for the
Affected Attorneyâs practice?
Consider file storage: The older the practice, the more time and expense will be involved
in file review and management.
Determine whether âclosedâ files contain valuable documents such as wills, agreements,
etc. Practices differ: one attorneyâs âclosedâ files may be considered another attorneyâs
âopen and continuingâ files. For example, an attorney may habitually notify clients
following every service that the representation has ceased, and that the file is closed.
Others may never take this step and always assume that the client may be coming back for
further representation.
When returning files, make sure that you are returning files to the proper âclient.â If a
husband and wife have a will file from years ago, and the wife responds to your client
inquiry letter by asking for the file, do you send back both wills? We advise not. What if
there has been a divorce, or there is presently a dispute between the husband and wife?
The same rule applies with corporations, shareholders, partners, etc. Obtain consent from
all that are involved. Look for court or disciplinary committee guidance where appropriate.
Review the content of files before returning them to clients who have requested them;
decide whether you need to retain a copy of all or some portion of the file, in relation to
any potential liability you might face for having been responsible at some point for the file.
Consider retaining documents for the benefit of the Affected Attorney so that her or his
estate could defend any claims against them. Proceed with caution.
11.
Advise all clients where their closed files will be stored, and who they should contact in
order to retrieve a closed file. Again, carefully address the issue of file storage costs with
all parties.
12.
To locate clients for whom there is no current address, contact the postal service, referral
sources of the Affected Attorney, and clients in the same geographic area. Consider
publication to advertise that the firm has closed – be careful about any specific comments
concerning Affected Attorneyâs actions that led closing of the office.
13.
If the attorney whose practice is being closed was a sole practitioner, try to arrange for his
or her phone number to have a forwarding number. This eliminates the problem created
when clients call the Affected Attorneyâs phone number, get a recording stating that the
number is disconnected, and do not know where else to turn for information.
16
14.
Make arrangements through the executor or through the Affected Attorney to obtain
reporting endorsement coverage on professional liability insurance for continuing
malpractice insurance.
15.
Obtain written instructions from clients concerning any funds in their trust accounts.
Contact other signatories on the IOLA account.
Determine responsibility for attorney escrow accounts immediately. Your rights and
obligations as the Acquiring Attorney must be known – potential liability is significant.
16.
Prepare a final billing statement showing any outstanding fees due, and/or any money in
trust. Remit money received from clients for services rendered by the Affected Attorney
to the Affected Attorney or his/her estate. Remember, in many cases, the client has an
entirely different understanding of what the billing arrangement is than the Affected
Attorney. Be prepared for the time and expense of discussing and negotiating fee
arrangements with clients. Immediately notify, and schedule a meeting with the Affected
Attorneyâs accountant to obtain a full understanding of the financial reporting policy of the
Affected Attorney. If the Affected Attorney did his or her own accounting and tax
preparation, the Closing Attorneyâs accountant should be given immediate access to books
and records to determine tax financial liabilities of the Affected Attorney.
17.
If authorized, pay business expenses and liquidate or sell the practice. If the Affected
Attorney is deceased, work with his/her executor in taking care of these matters.
18.
Review and analyze technology systems for compatibility with Acquiring Attorneyâs
systems. Because of the constant change in technology, the Affected Attorney or his/her
staff should participate in transferring over not only currently technology in use but also
provide access to systems that have historically been used by the attorney but which are
not current. A significant amount of client information exists in the old files and systems.
Obtain passwords. Review âvendorâ relationships with the Affected Attorneyâs vendors.
Were prepayments made for services, products that are not going to be used? Are there
outstanding bills for storage of files, stationery, supplies, etc. that must be paid, and if so,
who is responsible?
19.
Review Business insurance policies. When are renewal policies due? Which policies can
be renewed and which can be cancelled, and by what date? Some policies may be cancelled
mid-term and a pro-rata premium refund may be available, depending on the type of
coverage. Also, if a Business Overhead Expenses (BOE) policy is in place, and if the
Affected Attorney suffered a period of covered disability prior to the office closing,
benefits may be available for some office expense.
17
LETTER FROM CLOSING OR RECEIVER 5 ATTORNEY ADVISING
THAT LAWYER IS UNABLE TO CONTINUE IN PRACTICE
Re:
[Name of Case]
Dear [Name]:
Due to __________________________________________ (reason for ill health), [Affected Attorney] is no
longer able to continue in the practice of law. You will need, therefore, to retain the services of another
attorney to represent you in your legal matter(s), and I recommend you do so immediately so that your legal
interests may be protected. I will assist [Affected Attorney] in closing [his/her] practice.
You will need [a copy/copies] of your file(s). Accordingly, I enclose a written authorization for your file(s)
to be released directly to your new attorney. You or your new attorney may forward this authorization to
us and we will release your file(s) as instructed. If you prefer, you may come to [address of office or
location for file pick-up] and pick [it/them] up so that you may deliver [it/them] to your new attorney. In
either case it is imperative that you act promptly, and in no case later than [provide date] so that all of your
legal rights may be preserved.
Your closed file(s) if any, will be stored at [location]. If you need a closed file, you may contact me at the
following address and phone number until [date]:
_________________________________________________________________
[Name] [Address]
[Phone]
After that time, you may contact [Attorney in charge of closed files] for your closed file(s) at the following
address and phone number:
_________________________________________________________________
[Name] [Address]
[Phone]
You will shortly receive a final accounting from [Affected Attorney], which will include any outstanding
balance(s) you owe [him/her], and an accounting of any funds in your client trust account.
On behalf of [Affected Attorney], I would like to thank you for affording [him/her] the opportunity to
provide you with legal services. If you have any additional concerns or questions, please feel free to contact
me.
Sincerely,
[Receiver Attorney]
5
[Firm]
âAssisting Attorneyâ has been changed to âReceiver Attorneyâ consistent with Tenn. Sup. Ct. R. 9 § 29.
18
TENNESSEE SUPREME COURT RULE 8
RULES OF PROFESSIONAL CONDUCT
RPC 1.15: SAFEKEEPING PROPERTY AND FUNDS
(a) A lawyer shall hold property and funds of clients or third persons that are in a lawyer's
possession in connection with a representation separate from the lawyer's own property and funds.
(b) Funds belonging to clients or third persons shall be deposited in a separate account maintained
in an FDIC member depository institution having a deposit-accepting office located in the state
where the lawyer's office is situated (or elsewhere with the consent of the client or third person)
and which participates in the required overdraft notification program as required by Supreme Court
Rule 9, Section 29.1. A lawyer may deposit the lawyer's own funds in such an account for the sole
purpose of paying financial institution service charges or fees on that account, but only in an
amount reasonably necessary for that purpose. Other property shall be identified as such and
appropriately safeguarded. Complete records of such funds and other property shall be kept by the
lawyer and shall be preserved for a period of five years after termination of the representation.
(1) Except as provided by subparagraph (b)(2), interest earned on accounts in which the funds of
clients or third persons are deposited, less any deduction for financial institution service charges
or fees (other than overdraft charges) and intangible taxes collected with respect to the deposited
funds, shall belong to the clients or third persons whose funds are deposited, and the lawyer shall
have no right or claim to such interest. Overdraft charges shall not be deducted from accrued
interest and shall be the responsibility of the lawyer.
(2) A lawyer shall deposit all funds of clients and third persons that are nominal in amount or
expected to be held for a short period of time such that the funds cannot earn income for the benefit
of the client or third persons in excess of the costs incurred to secure such income in one or more
pooled accounts known as an "Interest on Lawyers' Trust Account" ("IOLTA"), in accordance with
the requirements of Supreme Court Rule 43. A lawyer shall not deposit funds in any account for
the purpose of complying with this sub-section unless the account participates in the IOLTA
program under Rule 43.
(3) The determination of whether funds are required to be deposited in an IOLTA account pursuant
to subparagraph (b)(2) rests in the sound discretion of the lawyer. No charge of ethical impropriety
or other breach of professional conduct shall attend a lawyer's exercise of good faith judgment in
making such a determination.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in
advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
19
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer
shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted
by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person
any funds or other property that the client or third person is entitled to receive and, upon request
by the client or third person, shall promptly render a full accounting regarding such funds or other
property.
(e) When in the course of representation a lawyer is in possession of property or funds in which
two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept
separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property or funds as to which the interests are not in dispute.
(f) A lawyer who learns of unidentified funds in an IOLTA account must make periodic
efforts to identify and return the funds to the rightful owner. If after 12 months of the discovery of
the unidentified funds the lawyer determines that ascertaining the ownership or securing the return
of the funds will not succeed, the lawyer must remit the funds to the Tennessee Lawyersâ Fund for
Client Protection (TLFCP). No charge of ethical impropriety or other breach of professional
conduct shall attend to a lawyerâs exercise of reasonable judgment under this paragraph (f).
A lawyer who either remits funds in error or later ascertains the ownership of remitted funds may
make a claim to TLFCP, which after verification of the claim will return the funds to the lawyer.
Comment
[1] A lawyer should hold property of others with the care required of a professional fiduciary.
Securities should be kept in a safe deposit box, except when some other form of safekeeping is
warranted by special circumstances. All property of clients or third persons, including prospective
clients, must be kept separate from the lawyer's business and personal property and, if monies, in
one or more trust accounts. Separate trust accounts may be warranted when administering estate
monies or acting in similar fiduciary capacities. A lawyer should maintain on a current basis books
and records in accordance with generally accepted and reasonable internal control procedures and
comply with any recordkeeping rules established by law or court order. See, e.g., Tenn. Sup. Ct.
R. 9.
[2] Paragraph (b) of this Rule contains the fundamental requirement that a lawyer maintain funds
of clients and third parties in a separate trust account. All such accounts, including IOLTA
accounts, must be part of the overdraft notification program established under Supreme Court Rule
9, Section 29.1.
[3] Under Supreme Court Rule 43, Tennessee lawyers are required to report their compliance with
their obligations concerning their IOLTA accounts and the handling of client funds and to comply
20
with the technical requirements for establishing and operating such accounts. This RPC requires
Tennessee lawyers to establish IOLTA accounts only at eligible financial institutions. Tennessee
lawyers may rely upon the list of eligible financial institutions maintained pursuant to Rule 43 in
establishing an IOLTA account to comply with subparagraph (b)(2).
[4] A lawyer is also responsible for assuring the payment of any financial institution service
charges or fees on such trust accounts. Subparagraph (b)(1) of this Rule makes clear that any
interest earned on non-IOLTA trust accounts belongs to the client or third party whose funds
generate the interest, and that the interest earned on them may be used by a lawyer to pay bank
charges or fees. A detailed accounting of such interest and fees may be necessary to avoid the
payment of any client- or matter-specific financial institution service charges or fees (for example,
charges for a certified check obtained solely for the benefit of one client) by a client other than the
one on whose behalf the charge or fee was incurred.
[5] In determining whether client or third-person funds should be deposited in an IOLTA account
or non-IOLTA trust account, a lawyer should take into consideration a number of factors, including
the amount of funds to be deposited; the expected duration of the deposit; the rate of interest or
yield available from the financial institution where the funds are to be deposited; the service
charges, fees, and other costs that are reasonably expected to be associated with the deposit of
funds; the cost of establishing and administering a non-IOLTA trust account for the benefit of the
client or third person, including the cost of the lawyer's services and the cost of preparing any tax
reports required for interest accruing to the benefit of a client or third person; the capability of
financial institutions or lawyers or law firms to calculate and pay interest to individual clients or
third persons; and any other circumstances that are reasonably likely to affect the ability of the
client or third person to earn income, in excess of any service charges, fees, or other costs incurred
to secure such income from the funds.
[6] Subparagraph (b)(3) expressly recognizes that a lawyer's decision concerning whether funds
are required to be deposited in an IOLTA account pursuant to subparagraph (b)(2) is a
discretionary one, and provides that a lawyer who makes such a determination in good faith shall
not be subject to any disciplinary sanction for this decision. A lawyer or law firm should review
the account at reasonable intervals to determine if the amount of the funds or expected duration
changes the type of account in which funds should be deposited.
[7] In no event may overdraft charges imposed upon a trust account be paid from interest on a trust
account.
[8] In order to allow a lawyer to pay appropriate financial institution service charges or fees on a
trust account, paragraph (b) of the Rule expressly relaxes the prohibition on commingling lawyer
and client funds in a trust account to permit a lawyer to deposit the lawyer's own funds in the trust
account for the sole purpose of paying financial institution service charges or fees, but only in an
21
amount reasonably necessary for that very limited purpose. Lawyers should exercise great care in
using this limited permission to deposit funds in a trust account, given the cardinal importance of
the principle otherwise banning commingling of funds.
[9] Lawyers often receive funds from third parties from which the lawyer's fee will be paid. If there
is risk that the client may divert the funds without paying the fee, the lawyer is not required to
remit to the client funds that the lawyer reasonably believes represent fees owed. However, a
lawyer may not hold funds to coerce a client into accepting the lawyer's position. The disputed
portion of the funds must be kept in trust, and the lawyer should suggest means for prompt
resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly
distributed.
[10] Whether a fee that is prepaid by a client should be placed in the client trust account depends
on when the fee is earned by the lawyer. An advance payment of funds upon which the lawyer
may draw for payment of the lawyer's fee when it is earned or for reimbursement of the lawyer for
expenses when they are incurred must be placed in the client trust account. When the lawyer earns
the fee, the funds shall be promptly withdrawn from the client trust account, and timely notice of
the withdrawal of funds should be provided to the client. RPC 1.16(d) requires the refund to the
client of any part of a fee that is not earned by the lawyer at the time that the representation is
terminated. See RPC 1.5, Comment [4] for a discussion of two situations in which an advance
payment from a client is properly treated as an earned fee and therefore cannot be placed in the
lawyer's client trust account.
[11] Third parties, such as a client's creditors, may have just claims against funds or other property
in a lawyer's custody. A lawyer may have a duty under applicable law to protect such third-party
claims against wrongful interference by the client and accordingly may refuse to surrender the
funds or other property to the client. However, a lawyer should not unilaterally assume to resolve
a dispute between the client and the third party.
[12] When two or more persons (one of whom may be the lawyer) have substantial grounds for
dispute as to the person entitled to the funds or other property held by the lawyer, the lawyer, with
due regard to his or her confidentiality obligations under RPC 1.6, may file an action to have a
court resolve the dispute, including an interpleader action.
[13] The obligations of a lawyer under this Rule are independent of those arising from activity
other than rendering legal services. For example, a lawyer who serves only as an escrow agent is
governed by the applicable law relating to fiduciaries even though the lawyer does not render legal
services in the transaction.
[14] In certain circumstances, Tennessee law governing abandoned property may apply to monies
in lawyer trust accounts or other property left in the hands of lawyers and may govern its
22
disposition. See Tenn. Code Ann. §§ 66-29-101 to 66-29-204 (Uniform Disposition of Unclaimed
Property Act).
[15] Paragraph (a) of this Rule requires a lawyer to hold property and funds of clients or third
persons separate from the lawyer's own property and funds. In addition, paragraph (b) provides
that a lawyer may deposit the lawyer's own funds in a separate trust account "for the sole purpose
of paying financial institution service charges and fees. . ., but only in an amount reasonably
necessary for that purpose." Taken together, those provisions require a lawyer to promptly
withdraw from the lawyer's trust account any legal fees earned by the lawyer. Additionally, the
lawyer may not pay his or her own personal or professional expenses directly from the trust
account, even if the trust account temporarily contains legal fees earned by the lawyer; instead, the
lawyer must withdraw earned legal fees from the trust account and deposit those funds into the
lawyer's own account, from which the lawyer will pay his or her expenses. See, e.g., Bd. of Prof'l
Responsibility v. Allison, 284 S.W.3d 316, 324-25 (Tenn. 2009).
DEFINITIONAL CROSS-REFERENCES
"Reasonably" See RPC 1.0(h)
23
TENNESSEE SUPREME COURT RULE 8
RULES OF PROFESSIONAL CONDUCT
RPC 1.16: DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation
has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in a violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent
the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or imprudent;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services
and has been given reasonable warning that the lawyer will withdraw unless the obligation is
fulfilled;
(6) the representation will result in an unanticipated and substantial financial burden on the lawyer
or has been rendered unreasonably difficult by the client;
(7) other good cause for withdrawal exists; or
(8) the client gives informed consent confirmed in writing to the withdrawal of the lawyer.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when
terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
24
(d) A lawyer who is discharged by a client, or withdraws from representation of a client, shall, to
the extent reasonably practicable, take steps to protect the client's interests. Depending on the
circumstances, protecting the client's interests may include: (1) giving reasonable notice to the
client; (2) allowing time for the employment of other counsel; (3) cooperating with any successor
counsel engaged by the client; (4) promptly surrendering papers and property to which the client
is entitled and any work product prepared by the lawyer for the client and for which the lawyer has
been compensated; (5) promptly surrendering any other work product prepared by the lawyer for
the client, provided, however, that the lawyer may retain such work product to the extent permitted
by other law but only if the retention of the work product will not have a materially adverse effect
on the client with respect to the subject matter of the representation; and (6) promptly refunding
any advance payment of fees that have not been earned or expenses that have not been incurred.
Comment
[1] A lawyer should not accept representation in a matter unless it can be performed competently,
promptly, without improper conflict of interest, and to completion. Ordinarily, a representation in
a matter is completed when the agreed-upon assistance has been concluded. See RPCs 1.2(c) and
6.5; see also RPC 1.3, Comment [4].
Mandatory Withdrawal
[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that
the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other
law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a
course of conduct; a client may make such a suggestion in the hope that a lawyer will not be
constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires
approval of the appointing authority. See also RPC 6.2; Tenn. Sup. Ct. R. 14. Similarly, court
approval or notice to the court is often required by applicable law before a lawyer withdraws from
pending litigation. See, e.g., Tenn. Crim. Ct. App. R. 12. Difficulty may be encountered if
withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The
court may request an explanation for the withdrawal, while the lawyer may be bound to keep
confidential the facts that would constitute such an explanation. The lawyer's statement that
professional considerations require termination of the representation ordinarily should be accepted
as sufficient. Lawyers should be mindful of their obligations to both clients and the court under
RPCs 1.6 and 3.3.
25
Discharge
[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to liability
for payment for the lawyer's services. Where future dispute about the withdrawal may be
anticipated, it may be advisable for the lawyer to prepare a written statement reciting the
circumstances. In the special case of in-house counsel, the organizational employer may also be
liable for damages for retaliatory discharge in violation of public policy, but because of the client's
right to discharge the lawyer, reinstatement would not be an available remedy under such
circumstances.
[5] Whether a client can discharge appointed counsel may depend on other law. A client seeking
to do so should be given a full explanation of the consequences. These consequences may include
a decision by the appointing authority that appointment of successor counsel is unjustified, thus
requiring self-representation by the client.
[6] If the client has severely diminished capacity, the client may lack the legal capacity to discharge
the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The
lawyer should make special effort to help the client consider the consequences and may take
reasonably necessary protective action as provided in RPC 1.14.
Optional Withdrawal
[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option
to withdraw for any reason if it can be accomplished without material adverse effect on the client's
interests. Withdrawal is also justified if the client persists in a course of action that the lawyer
reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with
such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's
services were misused in the past even if that would materially prejudice the client. The lawyer
also may withdraw where the client insists on taking action that the lawyer considers repugnant or
imprudent. The lawyer may also withdraw without the need to provide any justification and even
if withdrawal would result in a material adverse effect on the client's interests if the client provides
informed consent, confirmed in writing, to the lawyer's withdrawal.
[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to
the representation, such as an agreement concerning fees or court costs or an agreement limiting
the objectives of the representation. The lawyer must, however, give the client reasonable notice
of the lawyer's intention to withdraw.
26
Assisting the Client Upon Withdrawal
[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable
steps to mitigate the consequences to the client. After discharge or withdrawal from representation
of the client, the lawyer may retain work product prepared by the lawyer for the client, but for
which the lawyer has not been compensated, as security for a fee only if doing so will not have a
materially adverse effect on the client with respect to the subject matter of the representation and
to the extent permitted by law. The lawyer may, at the lawyer's own expense, make a copy of client
file materials for retention by the lawyer prior to surrender.
[10] Whether or not a lawyer for an organization may under certain unusual circumstances have a
legal obligation to the organization after withdrawing or being discharged by the organization's
highest authority is beyond the scope of these Rules.
DEFINITIONAL CROSS-REFERENCES
"Confirmed in writing" See RPC 1.0(b)
"Fraud" and "fraudulent" See RPC 1.0(d)
"Informed consent" See RPC 1.0(e)
"Material" and "materially" See RPC 1.0(o)
"Reasonable" See RPC 1.0(h)
"Reasonably believes" See RPC 1.0(i)
"Substantial" and "substantially" See RPC 1.0(l)
"Tribunal" See RPC 1.0(m)
"Writing" See RPC 1.0(n)
27
TENNESSEE SUPREME COURT RULE 8
RULES OF PROFESSIONAL CONDUCT
RPC 1.17: SALE OF LAW PRACTICE
A lawyer or a law firm may sell or purchase a law practice, or a subject-area of law practice,
including goodwill, if the following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law, or in the subject-area of practice that
has been sold, in the geographic area in which the practice has been conducted;
(b) The entire practice, or the entire subject-area of practice, is sold to one or more lawyers or law
firms, and the seller provides the buyer with written notice of the fee agreement with each of the
seller's clients and any other agreements relating to each client's representation; and
(c) The seller gives written notice to each of the seller's clients regarding:
(1) the proposed sale, including the expected effective date of the proposed sale, the identity and
office address of the purchaser, a brief description of the size and nature of the purchaser's practice
and its capacity to assume the representation of the client in accordance with the Rules of
Professional Conduct;
(2) the client's right to retain other counsel or to take possession of the file and any other property
or funds in the possession of the selling lawyer to which the client is entitled;
(3) the duties of the purchasing lawyer under paragraph (d) and (e) of this Rule, and
(4) the fact that the client's informed consent to representation by the purchaser and the transfer of
the client's files will be presumed if the client does not take any action or does not otherwise object
within thirty (30) days of receipt of the notice. If a client cannot be given notice, the representation
of that client may be transferred to the purchaser only upon entry of an order so authorizing by a
court having jurisdiction or by the presiding judge in the judicial district in which the seller resides.
The seller may disclose to the court in camera information relating to the representation only to
the extent necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged each client shall not be increased by reason of the sale; and
(e) The purchasing lawyer shall abide by any other agreements between the selling lawyer and the
client with respect to the representation as are permitted by these Rules.
Comment
[1] The practice of law is a profession, not merely a business. Clients are not commodities that can
be purchased and sold at will. Pursuant to this Rule, when a lawyer or an entire firm ceases to
practice, or ceases to practice in a subject-area of law, and other lawyers or firms take over the
representation, the selling lawyer or firm may obtain compensation for the reasonable value of the
practice as may withdrawing partners of law firms. See RPCs 5.4 and 5.6.
28
Termination of Practice by the Seller
[2] The requirement that all of the private practice, or all of a subject-area of practice, be sold is
satisfied if the seller in good faith makes the entire practice, or the subject-area of practice,
available for sale to the purchasers. The fact that a number of the seller's clients decide not to be
represented by the purchasers but take their matters elsewhere, therefore, does not result in a
violation. Return to private practice as a result of an unanticipated change in circumstances does
not necessarily result in a violation. For example, a lawyer who has sold the practice to assume
judicial office does not violate the requirement that the sale be attendant to cessation of practice if
the lawyer later resumes private practice upon vacating the judicial office.
[3] The requirement that the seller cease to engage in the private practice of law does not prohibit
employment as a lawyer on the staff of a public agency or a legal services entity that provides legal
services to the poor, or as in-house counsel to an organization.
[4] The Rule permits a sale of an entire practice attendant upon retirement from the private practice
of law within the jurisdiction. Its provisions, therefore, accommodate the lawyer who sells the
practice on the occasion of moving to another state. Tennessee is sufficiently large that a move
from one locale therein to another may justify allowing the lawyer to sell his or her practice. Thus,
the Rule permits the sale of the practice when the lawyer leaves the geographic area in which he
or she is practicing.
[5] This Rule also permits a lawyer or law firm to sell a subject-area of practice. If an area of
practice is sold and the lawyer remains in the active practice of law, the lawyer must cease
accepting any matters in the area of practice that has been sold, either as counsel or co-counsel or
by assuming joint responsibility for a matter in connection with the division of a fee with another
lawyer as would otherwise be permitted by RPC 1.5(e). For example, a lawyer with a substantial
number of estate planning matters and a substantial number of probate administration cases may
sell the estate planning portion of the practice but remain in the practice of law by concentrating
on probate administration; however, that practitioner may not thereafter accept any estate planning
matters. Although a lawyer who leaves a jurisdiction or geographical area typically would sell the
entire practice, this Rule permits the lawyer to limit the sale to one or more areas of the practice,
thereby preserving the lawyer's right to continue practice in the areas of the practice that were not
sold.
Sale of Entire Practice or Entire Subject-Area of Practice
[6] The Rule requires that the seller's entire practice, or an entire subject-area of practice, be sold.
The prohibition against sale of less than an entire practice area protects those clients whose matters
are less lucrative and who might find it difficult to secure other counsel if a sale could be limited
to substantial fee-generating matters. The purchasers are required to undertake all client matters in
the practice or practice area, subject to client consent. This requirement is satisfied, however, even
if a purchaser is unable to undertake a particular client matter because of a conflict of interest.
29
Client Confidences, Consent and Notice
[7] Negotiations between seller and prospective purchaser prior to disclosure of information
relating to a specific representation of an identifiable client no more violate the confidentiality
provisions of RPC 1.6 than do preliminary discussions concerning the possible association of
another lawyer or mergers between firms, with respect to which client consent is not required.
Providing the purchaser access to client-specific information relating to the representation and to
the file, however, requires client consent. The Rule provides that before such information can be
disclosed by the seller to the purchaser the client must be given actual written notice of the
contemplated sale, including the information specified in paragraphs (c)(1)-(3), and must also be
informed in writing that the decision to consent or make other arrangements must be made within
thirty (30) days. If nothing is heard from the client within that time, consent to the sale is presumed.
[8] A lawyer or law firm ceasing to practice cannot be required to remain in practice because some
clients cannot be given actual notice of the proposed purchase. Since these clients cannot
themselves consent to the purchase or direct any other disposition of their files, the Rule requires
an order from a court having jurisdiction authorizing their transfer or other disposition. The court
can be expected to determine whether reasonable efforts to locate the client have been exhausted,
and whether the absent client's legitimate interests will be served by authorizing the transfer of the
file so that the purchaser may continue the representation. Preservation of client confidences
requires that the petition for a court order be considered in camera.
[9] All elements of client autonomy, including the client's absolute right to discharge a lawyer and
transfer the representation to another, survive the sale of the practice or area of practice.
Fee Arrangements Between Client and Purchaser
[10] The sale may not be financed by increases in fees charged the clients of the practice. Existing
agreements between the seller and the client as to fees and the scope of the work must be honored
by the purchaser.
Other Applicable Ethical Standards
[11] Lawyers participating in the sale of a law practice or a practice area are subject to the ethical
standards applicable to involving another lawyer in the representation of a client. These include,
for example, the seller's obligation to exercise competence in identifying a purchaser qualified to
assume the practice and the purchaser's obligation to undertake the representation competently
(see RPC 1.1); the obligation to avoid disqualifying conflicts, and to secure the client's informed
consent for those conflicts that can be agreed to (see RPC 1.7 regarding conflicts and RPC 1.0(e)
for the definition of informed consent); and the obligation to protect information relating to the
representation (see RPCs 1.6 and 1.9).
[12] If approval of the substitution of the purchasing lawyer for the selling lawyer is required by
the rules of any tribunal in which a matter is pending, such approval must be obtained before the
matter can be included in the sale. See RPC 1.16.
30
Applicability of the Rule
[13] This Rule applies to the sale of a law practice by representatives of a deceased, disabled or
disappeared lawyer. Thus, the seller may be represented by a non-lawyer representative not subject
to these Rules. Since, however, no lawyer may participate in a sale of a law practice which does
not conform to the requirements of this Rule, the representatives of the seller as well as the
purchasing lawyer can be expected to see to it that they are met.
[14] Admission to or retirement from a law partnership or professional association, retirement
plans and similar arrangements, and a sale of tangible assets of a law practice do not constitute a
sale or purchase governed by this Rule.
[15] This Rule does not apply to the transfers of legal representation between lawyers when such
transfers are unrelated to the sale of a practice or an area of practice. This Rule also does not apply
to mergers between firms.
DEFINITIONAL CROSS-REFERENCES
"Law Firm" See RPC 1.0(c)
"Informed consent" See RPC 1.0(e)
"Written" See RPC 1.0(n)
31
Tennessee Supreme Court Rule 9
Section 29. Appointment of a Receiver when an Attorney Becomes Unable
to Continue the Practice of Law
29.1. The purpose of this Section is to protect clients and, to the extent possible and not
inconsistent with the protection of clients, to protect the interests of the attorney to whom this rule
applies.
29.2. Appointment of a Receiver Attorney.
(a) For purposes of this Section, an âaffected attorneyâ is an attorney who is licensed and
engaged in the practice of law in this State and who has no partner, associate, executor, or other
appropriate successor or representative capable and available to continue or wind-down the
attorneyâs law practice.
(b) If an affected attorney has: (1) resigned or been suspended or disbarred from the
practice of law; (2) disappeared or abandoned the practice of law; (3) become disabled or
incapacitated or otherwise become unable to continue the practice of law or has been transferred
to disability inactive status pursuant to Section 27 of this Rule; or (4) died, the Board of
Professional Responsibility, the Tennessee Bar Association or any local bar association, any
attorney licensed to practice law in this state, or any other interested person may commence a
proceeding in the chancery, circuit, or probate court for the county in which the affected attorney
maintained an office for the practice of law for the appointment of an attorney who is licensed to
practice law in this state and in good standing with the Board of Professional Responsibility to
serve as a receiver attorney to wind-down the law practice of the affected attorney.
(c) The proceeding shall be commenced by the filing of a complaint setting forth the
pertinent facts, which shall be verified or accompanied by the affidavit or declaration under penalty
of perjury of a person having personal knowledge of the facts. To the extent practicable, the
complaint and any accompanying affidavit or declaration under penalty of perjury shall be served
upon the affected attorney or the guardian, conservator, or personal representative of the affected
attorney if one has been appointed and qualified.
(d) If the trial court determines upon a showing by a preponderance of the evidence that
the appointment of a receiver attorney is necessary to protect the interests of the affected attorneyâs
clients or the interests of the affected attorney, the trial court shall appoint one or more receiver
attorneys. The order of the trial court may be appealed to the Court by the affected attorney or by
the guardian or personal representative of the affected attorney, or by the complainant.
29.3. Duties and Authority of a Receiver Attorney.
(a) The receiver attorney shall: (1) take custody of the files, records, bank accounts, and
other property of the affected attorneyâs law practice; (2) review the files and other papers to
identify any pending matters; (3) notify all clients represented by the affected attorney in pending
matters of the appointment of the receiver attorney and suggest that it may be in their best interest
to obtain replacement counsel; (4) notify all courts and counsel involved in any pending matters,
32
to the extent they can be reasonably identified, of the appointment of a receiver attorney for the
affected attorney; (5) deliver the files, money, and other property belonging to the clients of the
affected attorney pursuant to the clientâs directions, subject to the right to retain copies of such
files or assert a retaining or charging lien against such files, money, or other property if fees or
disbursements for past services rendered are owed to the affected attorney by the client; and (6)
take such steps as seem indicated to protect the interests of the clients, the public, and, to the extent
possible and not inconsistent with the protection of the affected attorneyâs clients, to protect the
interests of the affected attorney. If the receiver attorney determines that conflicts of interest exist
between the receiver attorney and a client of the affected attorney, the receiver attorney shall notify
the court of the existence of the conflict of interest with regard to the particular matters and the
receiver attorney shall take no action with regard to those cases or files.
(b) The order appointing the receiver attorney shall specifically authorize the receiver
attorney to take custody of and act as signatory on any bank or investment accounts, safe deposit
boxes, and other depositories maintained by the affected attorney in connection with the affected
attorneyâs law practice, including trust accounts, escrow accounts, payroll accounts, IOLTA
accounts, operating accounts, and special accounts, and to disburse funds to clients of the affected
attorney or others entitled thereto, and take all appropriate actions with respect to such accounts.
(c) The receiver attorney shall take reasonable efforts to safeguard all property in the offices
of the affected attorney and to collect any outstanding attorneyâs fees, costs, and expenses to which
the affected attorney is entitled and shall make appropriate arrangements for the prompt resolution
of any disputes concerning outstanding attorneyâs fees, costs, and expenses.
(d) To the extent possible, the receiver attorney shall assist and cooperate with the affected
attorney and the guardian or personal representative of the affected attorney in the transition, sale,
or winding-down of the affected attorneyâs law practice. The receiver attorney may purchase the
law practice of the affected attorney only upon the trial courtâs approval of such sale.
(e) The trial court may order the receiver attorney to submit interim and final accountings,
as it deems appropriate. The trial court may allow or direct portions of any accounting relating to
the funds and confidential information of the clients of the affected attorney to be filed under seal.
29.4. Protection of Client Information and Privilege. The appointment of the receiver
attorney shall not be deemed in any manner to create the relationship of attorney and client between
the receiver attorney and any client of the affected attorney. However, the attorney-client privilege
shall apply to all communications by or between the receiver attorney and the clients of the affected
attorney to the same extent as it would have applied to any communications by or to the affected
attorney, and the receiver attorney shall be governed by Rule 1.6 of the Tennessee Rules of
Professional Conduct with respect to all information contained in the files of the affected attorneyâs
clients and any information relating to the matters in which the clients were being represented by
the affected attorney.
29.5. Protection of Client Files and Property. The trial court shall have jurisdiction over
all of the files, records, and property of clients of the affected attorney and may make any orders
33
necessary or appropriate to protect the interests of the clients of the affected attorney and, to the
extent possible and not inconsistent with the protection of clients, the interests of the affected
attorney, including, but not limited to, orders relating to the delivery, storage, or destruction of the
client files of the affected attorney.
29.6. Fees and Expenses of the Receiver Attorney.
(a) The receiver attorney shall be entitled to reasonable fees in compensation for
performance of the receiver attorney's duties and reimbursement for actual and reasonable costs
incurred by the receiver attorney in connection with the performance of the receiver attorneyâs
duties. Reimbursable expenses shall include, but not be limited to, the actual and reasonable costs
incurred in connection with maintaining the staff, offices, and operation of the affected attorneyâs
law practice and the employment of attorneys, accountants, and others retained by the receiver
attorney in connection with carrying out the receiver attorneyâs duties.
(b) The receiver attorney shall file an application for fees and expenses with the trial court,
which shall determine the amount of such fees and reimbursement. The application shall be
accompanied by an accounting in a form and substance acceptable to the trial court of all funds
and property coming into the custody of the receiver attorney.
(c) Any fees and expenses awarded by the trial court to the receiver attorney shall be paid
by the affected attorney or the estate of the affected attorney or from such other available sources
as the court may direct. The order of the trial court awarding the fees and expenses shall be a
judgment against the affected attorney or the estate of the affected attorney. The judgment shall
be a lien upon all property of the affected attorney or the estate of the affected attorney retroactive
to the date of filing of the complaint for the appointment of a receiver attorney under this Rule.
The judgment lien is subordinate to possessory liens and to non-possessory liens and security
interests created prior to its taking effect and may be foreclosed upon in the manner prescribed by
law.
29.7. Limitation of Liability. Any person serving as a receiver attorney under this Rule
shall be immune from suit for any conduct undertaken in good faith in the course of the official
duties of the receiver attorney.
29.8. Employment of the Receiver as Attorney for a Client. A receiver attorney shall
not, without the informed written consent of the client and the permission of the trial court,
represent a client in a pending matter in which the client was represented by the affected attorney,
other than to temporarily protect the interests of the client, or unless and until the receiver attorney
has concluded the purchase of the law practice of the affected attorney. Any written consent by
the client shall include an acknowledgment that the client is not obligated to use the receiver
attorney.
29.9. Advance Designation of a Receiver or Successor Attorney. An attorney may
designate in advance another attorney by contract, appointment, or other arrangement to handle or
34
assist in the continued operation, sale, or closing of the attorneyâs law practice in the event of such
attorneyâs death, incapacity or unavailability. In the event an attorney to whom this rule applies
has made adequate provision for the protection of his or her clients, such provision shall govern to
the extent consistent with this Rule unless the trial court or the Court determines, upon a showing
of good cause, that the provisions for the appointment of a receiver attorney under this Rule should
be invoked. After a complaint for the appointment of a receiver attorney has been filed, the
affected attorney or the guardian, conservator, or personal representative of the affected attorney
may designate a successor attorney and the trial court shall respect such designation unless the trial
court determines, upon a showing of good cause, that such designation should be set aside.
29.10. Effect on Pending Cases. Upon entry of the order appointing a receiver attorney,
any applicable statute of limitations, deadline, time limit, or return date for a filing as it relates to
the clients of the affected attorney shall be tolled during the period from the date of the filing of
the complaint for the appointment of a receiver attorney until the first regular business day that is
not less than sixty (60) days after the date of the entry of the order appointing the receiver attorney,
if it would otherwise expire before the extended date.
35
Document Meta Data
| Key | Value |
|---|---|
| Author | jturner |
| Creator | jturner |
| Description | empty |
| Keywords | empty |
| ModifyDate | Wednesday, January 05, 2022 1:00 PM -06:00 |
| PageCount | 35 |
| PDFVersion | 1.6 |
| Subject | empty |
| Title | empty |
| Key | Value |
|---|---|
| Comments | empty |
| Company | BPR |
| CreateDate | Wednesday, January 05, 2022 1:00 PM -06:00 |
| CreatorTool | Acrobat PDFMaker 21 for Word |
| DocumentID | uuid:55ed2228-bc59-482c-a5b9-aac93cc56008 |
| FileName | resources-for-attorneys-unable-to-practice-law-updated-jan-2022.pdf |
| FileSize | 298 kB |
| FileType | |
| FileTypeExtension | |
| Format | application/pdf |
| InstanceID | uuid:e4e87e12-64f3-4b8f-a502-7dec7375b189 |
| Language | EN-US |
| Linearized | Yes |
| MetadataDate | Wednesday, January 05, 2022 1:00 PM -06:00 |
| MIMEType | application/pdf |
| PageLayout | OneColumn |
| Producer | Adobe PDF Library 21.7.131 |
| SourceFile | resources-for-attorneys-unable-to-practice-law-updated-jan-2022.pdf |
| SourceModified | Wednesday, January 05, 2022 7:00 PM +00:00 |
| TaggedPDF | Yes |
| XMPToolkit | Adobe XMP Core 7.0-c000 79.1357c9e, 2021/07/14-00:39:56 |