DeathPracticeofa

Estate Planning With theProfessionalWill

As citizens in a culture that worships youth, mostof us find it nearly impossible to admit our ownmortality. Even fewer of us make plans for thateventuality.

The same is true of attorneys. We spend muchof our time advocating for our clients. Often, weare so consumed with our work and our dailyactivities that we frequently fail to plan for vaca-tions, much less develop an estate plan, one thatprepares for incapacity and death. That is a crucialmistake. Fortunately, it is a reversible error.

BY TRACI M. SMITH

Traci M. Smith is an estate plan-ning attorney for the law firm ofMorris, Hall & Kinghorn, P.L.L.C. Shegraduated cum laude from Millsaps Collegeand earned her Juris Doctor from the Universityof Arizona. She is a member of the AmericanAcademy of Estate Planning Attorneys and a notedspeaker on the topics of estate planning and asset protec-tion. She can be reached at tsmith@morristrust.com.

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What’s The Harm?For the survivors of a deceased person, thehours and days following a loved one’sdeath is no time for important decisions.This phenomenon is not unique to attor-neys. In fact, the majority of Americanadults have no plan in place that protectsthem, or their businesses, in the event ofeither incapacity or death, and it is often thefamily that is left to sort out the details.1

Denial offers us and our clients no pro-tection from the inevitable. It is criticallyimportant that attorneys include specialprovisions for their law practice in an estateplan. We have far more to gain than to loseby sitting down in advance to plan for everycontingency life may throw at us. Moreover,our special relationship with our clientsrequires us to be much more aware of theconsequences to them if their attorneyshould become incapacitated or pass away.

In any law practice the incapacity ordeath of an attorney is problematic, but thisis a particularly precarious situation for thepersonal representative or power of attorneyagent for an attorney. The individual is notonly required to settle the normal affairs ofthe estate, but must also resolve any out-standing issues for the attorney’s practice.The interests of the clients must always beprotected, and a lawyer’s incapacity or deathdoes not relieve the attorney of responsibil-ity in this area.

The Attorney’s DutiesJust what, then, is expected of an attorney?

The State Bar Ethics Committee hasclearly recognized the need for a contin-gency plan to address problems encoun-tered by a disabled or deceased attorney.2

The State Bar currently regulates 19,528attorneys.3 Of those, 459 either went oninactive status or passed away in 2006.4 Thisnumber stands to increase in coming years,and the need for a contingency plan willbecome even more apparent.

The committee asserts that a prudentattorney should establish a contingency planor “professional will” to ensure that theclients and client trust accounts are safe-guarded. Such a will is an estate plan for anattorney that includes provisions for inca-pacity or death, including how clients’ inter-ests will be protected and how the law prac-tice will be maintained or dissolved. Thedevelopment of some type of contingencyplan is consistent with ER 1.1 and ER 1.3,which require an attorney to be both com-petent and diligent in representing clients.5

If a plan has not been established in thecase of incapacity or death, the State Bar ofArizona is available as a resource to attor-neys. In certain cases, the State Bar may benamed as a conservator under Rules 66through 69 of the Arizona Rules of theSupreme Court.

Under these provisions, however, thisrole is limited to notifying clients, returningfiles and taking possession of the client trustaccounts.6 There is no requirement forthem to direct clients to another attorney inthe case of ongoing representation. Thiscould gravely affect the incapacitated ordeceased practitioner’s clients, especially insuch important client matters as court dates,statutes of limitations or document filings.

To prevent neglect of client matters, theattorney’s duty of diligence may requirethat each attorney prepare a plan that desig-nates another competent lawyer to reviewthe files, notify the clients and determine ifthere is a need for immediate protectiveaction.7 Moreover, ER 1.15 requires attor-neys to safeguard property and promptlydeliver client funds. In that regard, theclient trust accounts present an enormousarea of concern. In fact, this rule holds eachpracticing attorney accountable for theclient trust accounts, and there have beennumerous ethics violations due to mishan-dling of these accounts.8

In the larger firms, there are other attor-neys who can represent the client, if theclient so chooses, and many of these prob-lems are easily addressed. In the small firmor solo practitioner setting, the resolution ofthe problem of incapacity or death requiresa more detailed professional will. When anattorney devises a professional will, aPandora’s box of ethical issues is opened,including problems with confidentiality,protection of the client trust account andpossible conflicts of interest.9 This article isdesigned to address those issues, to high-light the potential liability for any attorneywho fails to develop a proper estate plan,and to make recommendations as to what aprofessional will should contain.

Sanctions for Failing To PlanTo a client, an attorney is someone whodoes far more than simply “practice law.”She is a counselor or trusted advisor to theclient. Certainly, the attorney plays a criticalrole in the client’s life during ongoing rep-resentation. Imagine the devastation a clientwould feel in the event of that attorney’sincapacity or death. Given that relationship,

lawyers owe an affirmative duty to protecttheir clients’ interests.10

What should that plan include?The State Bar and the American Bar

Association suggest that, at minimum, sucha plan should, include the designation ofanother attorney (“Assisting Attorney”) tonotify clients, review client files, and protectclient funds.11 Other state bar associationshave taken a similar view.12

According to ER 1.1, competenceincludes “preparation reasonably necessaryfor the representation,” which, when read inconjunction with ER 1.3, would indicatethat each attorney should diligently preparefor each client’s representation. Althoughrepresentation would necessarily be termi-nated in the event of the attorney’s incapac-ity or death, the lawyer’s fiduciary obliga-tions of loyalty and confidentiality continuebeyond the termination of the agency rela-tionship.13 An attorney would then have aduty to ensure that his or her clients areinformed in the event of the law practice’sdissolution.14 An incapacitated or deceasedattorney is understandably powerless toinform clients of the change in circumstance.

LiabilityFailure to prepare a future plan to protectclient files and property in the event of thelawyer’s incapacity or death could bringabout those dreaded words that no attorneywants to hear—sanctions and malpractice.

Some jurisdictions have found lawyers tohave violated the duty to act competentlywhen the attorneys have neglected clientmatters by reason of ill health, retirement orpersonal problems.15 The same problems arepresented by the attorney’s incapacity ordeath. Thus, an attorney without a contin-gency plan for clients’ files might be guiltyof neglect.

Such a result is consistent with two ofthe three justifications for lawyer disci-pline16:• Sanctioning lawyers who inadequately

prepare to protect their clients’ interestsin the event of incapacity or deathwould dissuade other attorneys fromcommitting similar offenses and help torestore public confidence in the bar.

• Although there is no specifically applica-ble requirement under the Rules ofProfessional Responsibility, it is fairlyinferred from the aforementioned rulesthat attorneys should be proactive inmaking arrangements or their clients’files in the event of incapacity or death.

The only Ethics Opinion issued on thismatter in Arizona supports this asser-tion.17

• Moreover, malpractice insurance carriersoften require that attorneys have con-tingencies in place. For some time,those carriers have required that solopractitioners have some other attorneybe available in cases of disability or vaca-tion.Thus, implementing a plan is both good

business and ethically advisable.

Practice TypesThe specific content of the plan is a matterfor each practitioner to determine based onhis or her practice. However, to determinewhat type of estate plan or professional willis required, you must look to the nature ofthe law practice.

Historically, selection of a business struc-ture for a law firm waslimited to the profession-al corporation or associa-tion or the general part-nership. The businessorganization chosen andthe rules governing pro-fessional practices deter-mined the relationship ofthose practicing withinthe firm.

Recent times havebrought the development of new businessorganizations, such as the limited liabilitycompany (LLC) and the limited liabilitypartnership (LLP). Because the law, like anybusiness, tends to change, the manner ofmaking decisions with respect to changedcircumstances should be spelled out.

Firm SizeThere are differences in how the plan is exe-cuted, depending on the size and nature ofthe law practice. Though all lawyers need tobe concerned with notifying the client inthe event that an attorney becomes incapac-itated or deceased, the disposition of clientfiles and seeking new representation differsfrom large, corporate firms to the solo prac-titioner.

Large Firm ConcernsThe large corporate practices typically havemultiple owners (partners) who are assistedby associate attorneys. It is essential that thelarge firm have some sort of internal struc-ture designed to protect both the clients

and the other attorneys in the event of anattorney’s incapacity or death. This internalarrangement should be manifested in theform of a shareholder’s agreement in thecase of an owner (partner) or, in the case ofan associate attorney, in the form of a con-tract for employment.

Two fundamental aspects are addressedin these agreements. An agreement will pro-vide a well-defined set of rules governing therelationship of the business owners—in thiscase the partners of the law firm—and effec-tively manage the inevitable transfer of inter-ests in the business to the new owners, or toexisting owners, from a departing owner.Transfers under certain operating agree-ments may have specific issues to consider(see “Look to the Agreement” on p. 42).

The interests of the clients of these largefirms are generally protected because thefiles can be absorbed by the remaining

attorneys in the firm. However, this doesnot mean that attorneys practicing in largefirms are relieved of all duty to plan for inca-pacity or death. If an attorney is no longerable to continue representation, the ethicalrules require that the client be given writtennotice.18 Moreover, a law firm, regardless ofsize, should have some sort of office proce-dure that calls for extensive documentationof every client’s file. Any other attorney inthe firm, or even an attorney outside the lawfirm, should be able to understand quickly aclient’s file and be able to assist in any ongo-ing matter. If an attorney makes mentalnotes but fails to document a client’s file inwriting properly, then the incapacity ordeath of that attorney could cause irrepara-ble harm to the client.

The contingency plan should also con-template the deceased or incapacitatedattorney’s ownership interests in the lawpractice. A larger law firm may have a dis-ability or life insurance policy on a partner inthe firm so that the spouse or other heir ofthe partner would receive compensation of

the attorney’s interest. Business partnersgenerally do not want to be in business withanyone outside the business; in fact, whenthat business is a law practice, no one otherthan an attorney may be partner to it.19 If anattorney becomes disabled or dies, and thefamily becomes the owner of the law prac-tice, several steps must be taken to maintainor dissolve the law practice. In these cases,the law practice must be sold to licensedindividuals, and a plan for that sale shouldbe made prior to the incapacity of death ofthe practicing attorney.20

Small-Firm and Solo ConcernsThe issues and concerns of attorneys prac-ticing in smaller partnerships are similar tothose of larger law firms. Attorneys involvedin this type of law practice would stillrequire some sort of partnership agreementthat speaks to the incapacity or death of one

of the partners. Again,there would be theneed to have the prop-er infrastructure inplace so that documen-tation in each client’sfile is extensive. Any ofthe other partnersshould be able to read-ily access a list of theincapacitated ordeceased attorney’s

clients, so that they could each be notified.The documentation also ensures that theclient’s representation is not diminished inany way.

At this size of practice, however, there isa greater chance for error than in the largerpractice, because it is more likely that theincapacitated or deceased attorney was notworking with other attorneys in the firm onany given file. Moreover, there simply arenot as many attorneys on hand to easilyfacilitate the handling of the files.

Perhaps the most problematic situationis that of the solo practitioner, where thepotential harm to the client is the greatest.In the absence of a law partner, it is assumedthat the agent or personal representativewould step into the role of the incapacitatedor deceased attorney. If the personal repre-sentative is not an attorney, then he or shecannot practice law but is still responsiblefor winding up the affairs of the law prac-tice. This includes notifying clients andarranging for the disposition of files. This isa huge burden to bear, especially in light of

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Clearly, lawyers have a duty to safeguard client property. A lawyer is

also required to give notice to the client inthe event representation is terminated.

the fact that most people, lawyers included,name friends or family members as thepower of attorney agents or personal repre-sentatives of the estate.

ConservatorsSome states, including Arizona, allow a spe-cial commissioner to be appointed to pro-tect clients’ interests in limited circum-stances.21 If an attorney becomes incapaci-tated and has no contingency plan in placeto protect clients’ interests, a conservatormust be named. In limited circumstances,the State Bar of Arizona can petition for thisconservatorship and be named to act.However, as previously mentioned, giventhe costs of a conservatorship under Rule66, the State Bar is reluctant to assume theburdens and expenses associated withappointing a special commissioner if there issome other party who is available to closethe law practice.

Inasmuch as non-attorney family mem-bers are not licensed to practice law, andinasmuch as the State Bar may be reluctantto act, it is crucial that a solo practitionerdevise a professional will that includes a rela-tionship with another “assisting attorney.”

Written Instructions to theAssisting AttorneyIn a professional will, written instructionsshould be given to the assisting attorney,office staff and family members. Theinstructions should include information andguidance to minimize uncertainty, confu-sion and oversight.• The directives should detail where other

important client information is stored.• The arrangement with the assisting

attorney should incorporate a signedconsent form authorizing the assistingattorney to contact clients and othersabout the suspension or closure of thelaw practice.

• It should include provisions for the dis-position of closed files, the dispositionof office equipment, drawing checks onthe office and trust accounts, paymentof current office and client liabilities,billing for and collection of fees onopen files and accounts receivable, andaccess to password protected electronicfiles.

• Arrangements for payment by the solopractitioner or his/her estate to theassisting attorney for services renderedshould also be made.

lawyers, and any delay may put clients in dif-ficult positions. This is likely to annoy theclient and prompt ethics or malpracticecomplaints. Although arranging accessahead of time might seem like a good idea,careful consideration should be given as towhen an assisting attorney should be grant-ed access to the clients’ trust accounts. Asolo practitioner might be held responsibleif the assisting attorney misappropriatesmoney and the clients suffer damages.

The best practice in the case of incapaci-ty would be to execute a springing power ofattorney limited to access to the client trustaccount. This would limit the assistingattorney to having access to confidentialinformation and trust accounts only whenthe solo practitioner is incapacitated.Moreover, a solo practitioner might consid-er naming the State Bar of Arizona as anagent, of lowest priority, under the power ofattorney. Then, in the event that the assist-ing attorney was for any reason unable orunwilling to serve in that capacity, the StateBar would be granted immediate access tothe incapacitated attorney’s files and trustaccounts without the necessity of obtaininga judicial order. Because banks and otherfinancial institutions are not required toaccept powers of attorney, the attorney exe-cuting the power of attorney should checkwith the bank or financial institution regard-ing its policy on accepting them.

Assisting Attorneysand Solo PracticeThere are also special considerations uponthe death of a solo practitioner. If anotherattorney had been authorized to administerthe solo practitioner’s practice, that author-ity terminates upon death. In that event, thepersonal representative of the estate has thelegal authority to manage the practice. It isessential that the personal representative beaware of the arrangement with the assistingattorney. He or she alone can permit theassisting attorney to proceed. In order toprevent unnecessary delay, a solo practition-

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Duties of the Assisting AttorneyIn acting in this capacity, the assisting attor-ney is assuming some liability. Though theState Bar of Arizona has not spoken on thisissue, other state bars have addressed theduties of lawyers who are either executors ofdeceased lawyers’ estates or who are part-ners of deceased lawyers. The assistingattorney owes the client a level of care thatincludes giving notice to clients, reviewingand disposing of client files, and keepinginformation confidential.22

Due to this, it is crucial to establish thescope of the assisting attorney’s duty to thepractitioner and his or her clients at theonset of the relationship. It should be clearthat the assisting attorney does not repre-sent an incapacitated attorney or the estateof a deceased attorney. If the assisting attor-ney represents the practitioner, then he orshe may be prohibited from representingthe practitioner’s clients on some, or possi-ble all, matters. Under this arrangement,the assisting attorney would be prohibitedfrom informing the clients of any legal mal-practice or ethical violation. However, if theassisting attorney does not represent theincapacitated practitioner or the practition-er’s estate, then he or she may have an obli-gation to inform the client of any errors.

Regardless of whom the assisting attor-ney represents, he or she must be aware ofany potential conflicts of interest in provid-ing legal services to the clients of the practi-tioner or in reviewing confidential informa-tion in client files. A system for checkingconflicts should be developed prior to theassisting attorney stepping into the shoes ofan incapacitated or deceased attorney.

Trust AccountsThe assisting attorney will certainly need tobe granted access to the clients’ trustaccounts. If there is no arrangement inplace, the clients’ trust funds will remain inthe trust account until a court ordersaccess.23 In many cases, clients will needaccess to that money in order to hire new

What Should Be in Your Professional Will

Instructions about current office procedureand time/billing recordsProper documentation of filesClient notificationDisposition of clients’ files

Management of clients’ trust accountsWritten agreement with Assisting Attorney to close practicePlan for reimbursement of estate for attorney’s practice

Your professional will should address the following issues:

successor manager could be the assistingattorney, as mentioned previously.

Client FilesAnother issue of contention is the disposi-tion of client files. ER 1.15 and 1.16 speakto this issue.

Clearly, lawyers have a duty to safeguardclient property.27 A lawyer is also required togive notice to the client in the event repre-sentation is terminated. Upon termination,a lawyer must take the steps necessary toprotect client interests.28 This not onlyrequires client notification but also the sur-render of client papers and property.29

However, a lawyer does not have a gen-eral duty to preserve all files permanently.30

The cost of storage would be substantialand could affect the cost of future legal serv-ices. Certainly, the public interest is not bestserved by avoidable additions to the cost oflegal services. However, a lawyer has a dutyto preserve certain types of files indefinite-ly.31 Clients reasonably expect that thelawyer will preserve valuable and usefulinformation in the files and that it will notbe prematurely destroyed. How then is anassisting attorney to dispose of an incapaci-tated or deceased attorney’s files?

As previously mentioned, clients shouldbe notified in the event of an attorney’sincapacity or death and be given ampleopportunity to retrieve the files. Althoughsome files will be retrieved by clients, adetermination must be made by the assist-ing attorney as to how to dispose of anyremaining files. A lawyer has an ongoingobligation to minimize harm to his or herprior clients after withdrawal or terminationof the matter.32 Materials in a client’s file aregenerally owned by the client, but thelawyer is ethically required to use reasonableefforts to return all client property upon thetermination of representation.33

There is some question as to whetherfiles can be destroyed and, of course, thedestruction of certain files would be unrea-sonable and potentially prejudicial. Thesematerials cannot be destroyed until reason-able efforts have been made to return themto the client. Notice of the property’sdestruction must also be given.34 After rea-sonable notice has been given, materialsmust be safeguarded for a period of timeequal to that under Arizona law for theabandonment of personal property.35 Alawyer should establish and maintain a writ-ten client file retention and destruction pol-

er should execute an up-to-date will or rev-ocable living (inter vivos) trust. If there is noestate plan in place, family members maydispute who is named as personal represen-tative of the estate and cause unnecessarydelay in probate court.

In a solo practice, the law practice mayor may not be the only asset subject to pro-bate. Although probate may not be as cum-bersome as it once was, there are frequentlydelays associated with a typical probate pro-ceeding. One fact that may have a directimpact on a law practice is that a personalrepresentative cannot be appointed in aninformal probate proceeding until at least120 hours after the death of the decedent.24

Worse, if a formal probate proceeding isrequired, Arizona’s probate code requiresthat at least 14 days’ notice be given beforea hearing can be held.25

One solution might be to create an intervivos trust, which, if done properly, wouldallow the estate to pass outside of the pro-bate process and avoid any unnecessarydelays associated with it.

Insurance Policies and Solo PracticeIn addition, it would be wise for solo prac-titioners who do not keep adequate fundsfor closing the law practice to maintain asmall insurance policy that would be payableto the (trust) estate for the purpose of clos-ing the practice. If assets are owned in jointtenancy, as is frequently done with a spouse,those assets would likely pass outside of theprobate process.

Of course, there is a problem if the jointtenants die simultaneously or if the solopractitioner is the last to die. In that case,there may not be sufficient liquidity to paythe assisting attorney or to pay the staff,rent or other expenses during the transitionperiod.

Experience teaches that it is prudent fora solo practitioner to operate within a limit-ed liability company.26 These statutes allowthe practicing attorney to transfer the busi-ness assets into an LLC in which the practi-tioner is the manager and retains control ofthe daily business of the law firm, but thepractitioner’s estate would have an owner-ship interest but no operational control. Inthe event of incapacity or death, the operat-ing agreement could dictate the manage-ment procedures and name a successormanager to operate the law practice. This

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There may be situations under which the shareholder’s agreement cannot or does not preventtransfers of interests in the entity. In these situations, the shareholder’s agreement may containterms that limit the rights acquired by the new owner. Frequently, the deceased attorney’s estate,represented by a court-appointed personal representative, would be the new owner of the businessinterest in the law firm. The personal representative is typically not a licensed attorney. A share-holder’s agreement may provide that the new owner can only have access to distributions ofincome that otherwise would have been made to the transferring owner, but has no right to partic-ipate in the management of the law firm. In the partnership context, that type of new partner istermed an “assignee” partner. The “assignee” may receive no voting rights or access to financialreports. If the law firm is set up as a professional corporation or professional limited liability com-pany, then Arizona statutes dictate that only individuals licensed to provide the professional serv-ice may be partners to the business.1

It is more difficult to limit the rights of corporate shareholders than it is for partnerships or lim-ited liability companies because the laws regarding partnerships and limited liability companiesreflect the more personal nature of a partnership. However, stock transfer agreements can be veryeffective. Once the owners have determined how an interest in the business is to be valued, theyneed to address the terms of payment for that value and the source of funds for the payment.

Unfortunately, there are a limited number of funding methods available. Some of the most fre-quently used are life insurance, installment sales under predetermined terms, cash, and methodsbased on the business cash flow. Each of these methods has its own benefits and costs:

Life insurance is sure to be there when an owner dies, but the premiums take capital from thebusiness.

Installment sales, cash, and methods based upon the business’s cash flow allow earnings to beinvested in the business rather than in a life insurance policy. But when it is time to pay the price,the departing owner may find that his or her future, or the future of his or her heirs, depends uponunsympathetic buyers. Regardless, there needs to be some provisions in the stock transfer agree-ment that compensate the deceased or incapacitated attorney’s estate for its interest in the law firm.

1. A.R.S. §§ 10-2220 & 29-844 (2006).

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Look to the Agreement

icy. The retention policy should take intoconsideration the client’s foreseeable inter-ests.

In some cases, the lawyer may fulfill hisor her ethical obligations by tendering theentire file to the client at the terminationof representation. Indefinite file retentionis appropriate for probate or estate matters,homicide cases, life sentence cases and life-time probation cases. For most other mat-ters, the Ethics Committee has stated thatfive years is appropriate.36

ConclusionSound practice management dictates thatevery lawyer should plan before incapacityor death by using an assisting attorney,whether it is a solo practitioner engaginganother attorney or another attorney with-in a partnership, to attend to client mattersand wind up the law practice. Althoughthe State Bar has some procedures in placefor this event, it is a serious problem that isbest left to the attorney and not the StateBar. Leaving the State Bar of Arizona incontrol is not only time consuming andexpensive for the Bar, but it does little toensure adequate representation for clients,to whom the highest duty is owed. Idealsare not enough; a guide to action is essen-tial if management is to be effective.

The Rules of ProfessionalResponsibility emphasize the fiduciarynature or the lawyer’s obligations of com-petence and diligence. The preparation ofa Professional Will is merely an extensionof these duties.

competent representation to a client.Competent representation requires thelegal knowledge, skill, thoroughness andpreparation reasonably necessary for therepresentation.

E.R. 1.3: Diligence: A lawyer shall act withreasonable diligence and promptness inrepresenting a client.

6. Rule 66-69, ARIZ.R.S.CT. (amended Jan. 1,2007).

7. Comment 5 to Rule 1.3 of ABA Rules ofProfessional Conduct (2004) states, “To pre-vent neglect of client matters in the event of asole practitioner’s death or disability, the dutyof diligence may require that each sole practi-tioner prepare a plan, in conformity withapplicable rules, that designates another com-petent lawyer to review client files, notify eachclient of the lawyer’s death or disability, anddetermine whether there is a need for imme-diate protective action.” Cf. Rule 28 of theAmerican Bar Association Model Rules forLawyer Disciplinary Enforcement (providingfor court appointment of a lawyer to invento-ry files and take other protective action inabsence of a plan providing for another lawyerto protect the interests of the clients of adeceased or disabled lawyer).

8. ER 1.17, ARIZ.R.S.CT. (Dec. 1, 2003) (ER1.15 provides, “A lawyer shall hold propertyof clients or third persons that is in a lawyer’spossession in connection with a representationseparate from the lawyer’s own property.Funds shall be kept in a separate accountmaintained in the state where the lawyer’soffice is situated, or elsewhere with the con-sent of the client or third person. Other prop-erty shall be identified as such and appropri-ately safeguarded. Complete records of suchaccount funds and other property shall bekept by the lawyer and shall be preserved for aperiod of five years after termination of therepresentation.”); Matter of Scanlan, 697 P.2d1084 (Ariz. 1985); In re Holt, 478 P.2d 510(Ariz. 1971).

9. Barbara S. Fishleder, Planning Ahead: AGuide to Protecting Your Clients’ Interests inthe Event of Your Disability or Death, OregonState Bar Professional Liability Fund.

10. ER 1.3, ARIZ.R.S.CT. (Dec. 1, 2003).11. Arizona Ethics Op. 04-05 (2005); ABA

Formal Op. 92-369 (Dec. 7, 1992).12. Fishleder, supra note 9. Handbook for a

Trustee of the Law Practice of a Missing,Incapacitated, Disabled, or Deceased(“MIDD”) Attorney, North Carolina State Bar(Revised March 2003); Handbook for aReceiver of the Law Practice of a Disabled orMissing or Deceased (“DMD”) MaineAttorney, Maine Board of Overseers of the Bar(August 2005).

13. Murphy v. Riggs, 213 N.W. 110 (Mich. 1927)(fiduciary obligations of loyalty and confiden-tiality continue after agency relationship con-cluded); Eoff v. Irvine, 18 S.W. 907 (Mo.1892); Matter of Estate of Shano, 869 P.2d1203 (Ariz. Ct. App. 1993); Nichols v. Elkins,408 P.2d 34 (Ariz. Ct. App. 1966).

14. See Vollgraff v. Block, 458 N.Y.S.2d 437 (Sup.Ct. 1982); Mageary v. Hoyt, 369 P.2d 662

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1. Lynn O’Shaughnessy, You Can’t Take It WithYou, But You Can Do a Better Job of LeavingYour Estate in Shape, available online atwww.aarp.org/bulletin/yourmoney/a2004-03-17-estate_planning.html (March 2004).

2. Arizona Ethics Op. 04-05 (2005).3. Statistics according to the State Bar of

Arizona.4. Id.5. ER 1.1-1.3, Rule 42, ARIZ.R.S.CT. (Dec. 1,

2003).E.R 1.1: Competence: A lawyer shall provide

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AZAT

(Ariz. 1962) (attorney owes duty of utmostgood faith to his client and must inform hisclient of matters that might adversely affectclient’s interests).

15. DR 6-101(A)(3) of the ABA Model Code ofEthics provides, “A lawyer shall not neglect alegal matter entrusted to him.” This canoncorrelates to the ABA Model Rule 1.1 forcompetence; In re Jamieson, 658 P.2d 1244(Wash. 1983) (neglect due to ill health andattempted retirement); In Re Whitlock, 441A.2d 989 (D.C. 1982) (neglect due to poorhealth, marital difficulties and heavy caseload);Committee on Legal Ethics of West VirginiaState Bar v. Smith, 194 S.E.2d 665 (W. Va.1973) (neglect due to illness and personalproblems).

16. In Re Moynihan, 643 P.2d 439 (Wash. 1982)(three objectives of lawyer disciplinary actionare to prevent recurrence, to discourage simi-lar conduct by other lawyers and to restorepublic confidence in the bar).

17. Arizona Ethics Op. 04-05 (2005).18. ABA Model Rule 1.17.19. ER 1.17, ARIZ.R.S.CT. (Dec. 1, 2003).20. Id.21. Kentucky Bar Association (June 1998) Ethics

Op.-KBA E-405-refers to SCR 3.395.22. Ohio State Bar Op. 00-02 (2000); New York

County Lawyers’ Ass’n Op. 709 (1996);Maryland Op. 89-58 (1989).

23. Rule 66-69, ARIZ.R.S.CT.24. A.R.S. § 14-3307 (2006).25. Id. § 14-3403.26. Id. §§ 29-601 to 29-857.27. ER 1.5, ARIZ.R.S.CT. (Dec. 1, 2003) (com-

plete records of account funds and otherproperty shall be preserved for a period of fiveyears after termination of representation).

28. ER 1.16(d), ARIZ.R.S.CT. (Dec. 1, 2003).29. Id.30. ABA Informal Ethics Op. 1384 (Mar. 14,

1997).31. Id.; Arizona Ethics Op. 98-07 (June 1998).32. Arizona Ethics Op. 98-07 (June 1998) (citing

Duties after Withdrawal, ABA/BNA LawyersManual on Professional Conduct, at 31:1201(1996)).

33. ER 1.16, ARIZ.R.S.CT. (Dec. 1, 2003) pro-vides “[u]pon termination of representation, alawyer shall take steps to the extent reasonablypracticable to protect a client’s interests, suchas giving reasonable notice to the client,allowing time for employment of other coun-sel, surrendering documents and property towhich the client is entitled and refunding anyadvance payment of a fee that has not beenearned. Upon the client’s request, the lawyershall provide the client with all of the client’sdocuments, and all documents reflecting workperformed for the client. The lawyer mayretain documents reflecting work performedfor the client to the extent permitted by otherlaw only if retaining them would not prejudicethe client’s rights.”

34. Arizona Ethics Op. 98-07 (June 1998).35. Arizona Ethics Op. 91-01 (Jan. 15, 1991)

(refers to the Uniformed Unclaimed PropertyAct, A.R.S. §§ 33-301 to 44-340).

36. Citing E.R. 1.16(d) and Rule 43, ARIZ.R.S.CT.

45J U N E 2 0 0 7 A R I Z O N A AT T O R N E Yw w w. m y a z b a r. o r g