iv. succession planning practice management forms · 2018-12-18 · closing down my georgia law...

IV. Succession Planning Practice Management Forms

153

Closing Down My Georgia Law Practice Checklist

There are many different reasons why a law practice closes, some are planned, e.g., retirement, merging firms, or entering public office, and others can be unplanned, e.g. disability or death. The ethical duties of the lawyer in each of these situations, however, are similar - to protect the clients’ interests. There are no specific rules covering what lawyers must do in winding down a law practice.

This publication focuses on the basic ethical obligations when closing a law practice. The forms and suggested procedures provided here are meant to assist lawyers in accomplishing a smooth and efficient transition that meets a lawyer’s ethical obligations. Lawyers with questions are encouraged to call the State Bar of Georgia’s Ethics Hotline at 404-527-8741 or 800-334-6865.

□ Plan/Set Target Dates

Develop a realistic timeline and establish a firm end date. Closing a law practice requires preparation, organization and time. Once the decision to close a practice has been made, set a target date for completing the many tasks in closing the practice, particularly when to notify clients. Planning is essential and you should probably allow at least six months to one year to complete the many tasks necessary to close a practice. Consult with your tax advisor to discuss your plans and develop a strategy which will minimize your taxes in the event that you transfer assets to another lawyer or firm.

□ Staff/Office

Once you have formed your plan and know your timeline, discuss your plans with your staff so that they will know what to expect. The more you can tell them about how much longer you will need their services and whether you can offer them a severance package and otherwise assist them in finding other jobs, the more likely they will be able to stick with you to the end if you need them.

154

Organize a staff meeting to notify staff first of your decision and end date. Maintain a simple message on your business voicemail regarding the closing of your

law practice and how emergency services can be obtained if necessary. If your practice has an e-mail address for clients to contact, have a response informing

them of the closing of the practice and how emergency services can be obtained. Set a new date when new referrals will not be accepted.

□ Prepare an Inventory of Client Files and Records

First, inventory all client matters to determine which matters are active and which are closed.

Open Client Matters

For open client matters, the inventory should include the following information:

name and last known address of the client; telephone numbers both for work and home of the client; nature of the client’s legal matter the current status of the representation and what remains to be done for completion

of the representation; any time limitations and/or deadlines; title and case number of any proceeding, if applicable; whether any funds or property is being held in trust; and the location of the file and whether the file contains any original documents, such as a

deed, contract, or will.

Closed Client Matters For closed client matters, the inventory should include the following information:

name and last known address of the client; telephone numbers both for work and home of the client; nature of the client’s legal matter date when the representation was concluded; title and case number of any proceeding, if applicable; whether any funds or property that were held in trust have been disbursed; and the location of the file and whether the file contains any original documents, such as a

deed, contract, or will.

Office Records For key practice management records, the inventory should include the following information:

155

• Business and Trust Accounts:o Institution names and locationso Account numberso Signatory name(s)

• Safety Deposit Box and/or Storage Facilities:o Locationo Access information

• Computer and Voicemail:o Access codes/passwords

• Important Business Documents:o Leaseso Maintenance contractso Business credit cardso Client ledgerso Other books and records relating to business and trust accounts

• Computer Data and/or Hardcopy Backups of:o Conflictso Calendaring backupo Time billing recordso Accounts receivable/payableo Active client file inventoryo Closed file storage location and inventory

□ Client Notification

Write to clients with active file, advising them that you are unable to continue representing them and that they need to retain new counsel. Your letter should inform them about the time limitations and time frames important to their case. The letter should explain how and where they can pick up copies of their files and should give a time deadline for doing this and should be sent certified mail, return receipt requested, so that a record is created of who was contacted and who received a notice. If possible, refer to the client to another attorney who may be able to handle the client’s matter.

Open Client Matters If the legal matter is still open, the letter should advise the client of the following:

156

□ the anticipated termination of representation and the closure of the law office timeframe;

□ the need to retain new counsel and, if desired, will refer them to three (3) qualifiedattorneys and to the local bar association’s lawyer referral service;

□ the status of their matter and any time limitations and time frames important to theircases;

□ an accounting of all trust property being held by the lawyer and the lawyer’sdisbursement of same;

□ the current status of fees earned and amounts owed and request for payment on allopen invoices;

□ directions from the client regarding their authority to transfer their case to another attorney consent to withdraw and submit a motion for an order to withdraw as attorney

of record picking up their original file materials, evidence paying outstanding bills disbursement of trust monies, etc.

□ explain how and where they can pick up copies of their files and should give a timedeadline for doing this, e.g., asking them to pick up their files within 30 days (beyondwhich they will be destroyed, unless otherwise required by your engagement agreementor applicable law).

Closed Client Matters If the legal matter is closed, the letter should advise the client of the following:

□ the closure of the law office time frame;□ the law firm’s file destruction policy; and□ explain how and where they can pick up copies of their files and should give a time

deadline for doing this.

Sale of a Law Practice

If the practice is closing due to sale, Bar Rule 1.17(c), requires additional notices to clients, as follows:

Actual written notice is given to each of the seller's clients regarding: (1) the proposed sale;(2) the terms of any proposed change in the fee arrangement authorized by paragraph

(d); The fees charged clients shall not be increased by reason of the sale. Thepurchaser may, however, refuse to undertake the representation unless the clientconsents to pay the purchaser fees at a rate not exceeding the fees charged by the

157

https://www.gabar.org/handbook/#handbook/rule49

purchaser for rendering substantially similar services prior to the initiation of the purchase negotiations.

(3) the client's right to retain other counsel or to take possession of the file; and(4) the fact that the client's consent to the sale will be presumed if the client does not

take any action or does not otherwise object within ninety (90) days of receipt ofthe 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. Bar Rule 1.17(c). 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. Bar Rule 1.17 (c), cmt. [8].

Lawyers participating in the sale of a law practice 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 Rule 1.1: Competence); the obligation to avoid disqualifying conflicts, and to secure client consent after consultation for those conflicts which can be agreed to (see Rule 1.7: Conflict of Interest); and the obligation to protect information relating to the representation (see Rules 1.6 and 1.9). Bar Rule 1.17, cmt. [11].

Receivership Notice

Absent Lawyer: A member of the State Bar of Georgia (or a Domestic or Foreign lawyer authorized to practice law in Georgia) who has disappeared, died, been disbarred, disciplined or incarcerated, become so impaired as to be unable to properly represent clients, or who poses such a substantial threat of harm to clients or the public that it is necessary for the Supreme Court of Georgia to appoint a receiver. Bar Rule 4-228 (a).

Appointment of Receiver. (1) Upon a final determination by the Supreme Court of Georgia, on a petition filed by

the State Bar of Georgia, that a lawyer has become an absent lawyer, and that nopartner, associate, or other appropriate representative is available to notify his clientsof this fact, the Supreme Court of Georgia may order that a member or members ofthe State Bar of Georgia be appointed as receiver to take charge of the absent lawyer’sfiles and records. Such receiver shall review the files, notify the absent lawyer’s clientsand take such steps as seem indicated to protect the interests of the clients and thepublic. A motion for reconsideration may be taken from the issuance or denial of suchprotective order by the respondent, his partners, associates, or legal representatives orby the State Bar of Georgia.

158








(2) If the receiver should encounter, or anticipate, situations or issues not covered by theorder of appointment, including but not limited to, those concerning proper procedureand scope of authority, the receiver may petition the Supreme Court of Georgia forsuch further order or orders as may be necessary or appropriate to address the situationor issue so encountered or anticipated.

(3) The receiver shall be entitled to release to each client the papers, money, or otherproperty to which the client is entitled. Before releasing the property, the receiver mayrequire a receipt from the client for the property. Bar Rule 4-228(b).

□ Notify Tribunals, Opposing Parties/Counsel and Others

In all pending matters, Bar Rule 1.16(d) requires:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

For cases that have pending court dates, depositions, or hearings, discuss with the clients how to proceed. Where appropriate, request extensions, continuances, and resetting of hearing dates. Send written confirmations of these extensions, continuances, and resets to opposing counsel and to your client. For cases pending before tribunals file the appropriate motion and obtain the consent of the tribunal to withdraw. In cases where the client has chosen a new attorney, be certain that a substitution of counsel is filed. Pick an appropriate date and check to see if all cases have a motion and order allowing your withdrawal as counsel. The tribunal has discretion as to whether to allow the withdrawal. It is possible the lawyer will be required to postpone retirement, delay a new job opportunity, or put the sale of the practice on hold until the pending matter has been concluded. Bar Rule 1.16 (c); see also Bar Rule 1.17 cmt. [12].

Registration Information

All member of the State Bar of Georgia shall keep the membership department of the State Bar of Georgia informed of their current name, official address and telephone number. The Court and the State Bar of Georgia may rely on the official address given to the membership department and failure on the part of a member to notify the membership department may have adverse consequences to a member. The choice of a member to use only a post office box address on the Bar membership records shall constitute an election to waive personal service in any proceedings between the Bar and member. Notification given to any department of the Bar other than the Membership Department shall not satisfy this requirement. Bar Rule 1-207.

159






https://www.gabar.org/Handbook/index.cfm#handbook/rule18


□ Delivering Files to Clients

A record needs to be made of whose files are returned and the dates of return. It helps if you explain to clients in the initial notification letter how their file will be returned and of the need for security measures. Makes copies of files for clients and retain your original files. All clients should either pick up their files (and sign a receipt acknowledging that they received them) or sign an authorization for you to release the files to their new attorneys. If a client is picking up a file, original documents should be returned to the client and copies should be kept in your file. If the client directs you to release the file to someone other than the client, such as his new counsel, get that direction in writing or have the client sign something that indicates that the file is sent according to the client’s instruction.

Files can be picked up in person or mailed to the client. Files sent by mail should be done by certified mail. The proof of delivery receipt provides sufficient proof of the return. The transfer of the file should be made in such a way as to preserve the confidences and secrets of the client, Bar Rule 1.6, such as by hand delivery. Mailing files can also be expensive. Therefore, you may want to encourage clients to pick up their files in person whenever possible.

□ Recommending Prompt Substitution of Counsel

It is understandable that clients may ask you to recommend successor counsel. You can make such recommendations so long as it is clear that the selection of new counsel is up to the client. If you will be receiving a fee for the referral then under Bar Rule 1.5(e). you must: (1) agree to assume joint financial responsibility for the representation; (2) the client must be informed of the amount each lawyer will receive and agree to it in writing; and (3) that the total fee is reasonable. No client file should be sent to a successor lawyer without the client’s prior approval, which should be obtained in writing.

□ Billing and Fees

A lawyer is entitled to be compensated for work performed prior to closing the practice and the client is entitled to an accounting and statement of any amounts owed. Steps should be taken so that the settlement of client accounts is done promptly even if fees for some pending cases might not be resolved or collected until the representation matter is resolved (e.g. contingent fee payable on "recovery"). In the case of a lawyer’s death, in Bar Rule 5.4 allows for the payment of money over a reasonable period of time after a lawyer’s death to the lawyer’s estate or other specified persons.

□ Dealing with Office and Trust Accounts

160




You first need to make an inventory of all funds and property held in trust. Review the law firm’s trust account ledgers and reconcile them with the monthly bank statements and identify all funds to which clients or third persons are entitled to receive. 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, promptly render a full accounting regarding such property. In the event funds are transferred to another lawyer chosen by the client, the check should be made payable jointly to your client and the lawyer when disbursed from your trust account.

Checklist

Determine closure dates for firm accounts and notify the financial institution(s) to find out

closing process; allow some time lapse between the actual closing of the practice and the

closing of the accounts in order to allow final checks to clear; cancel firm credit cards;

Prepare final reconciliation of firm trust account(s) and determine any client funds that

need to be disbursed;

Make sure all trust funds are properly disbursed: client’s funds returned to client;

attorney’s earned fees and administrative moneys (to cover necessary bank charges) are

paid to lawyer; and third party bills (experts, doctors) are paid off;

Escheat to the state any funds the firm is unable to ascertain the owner or is unable to

return to the client after reasonable attempts have been made; and

Determine if other client property (non-cash) being held in trust needs to be returned

(obtain receipts).

If one or more person (one of whom may be the lawyer) claims an interest to what is being held in trust, the funds shall kept separate by the lawyer until the dispute is resolved as provided in Bar Rule 1.15(d).

If you have any unclaimed funds in your trust account, you’ll need to take all steps reasonable under the circumstances to resolve the situation. If a person entitled to funds has disappeared without a forwarding address or a trust account check was issued but not cashed, you should at a minimum

(1) determine whether the person left a forwarding address with the U.S. PostalService; and

(2) send a letter to the client’s last known address by regular mail and by certifiedreturn receipt advising that person that if, for example, the trust account check hasnot been cashed, unless that person advises the lawyer to issue a replacement

161


check, the funds will be presumed unclaimed in accordance with the Uniform Disposition of Unclaimed Property Act and the funds will be remitted to the Georgia Unclaimed Property Division.

For instances where the funds that cannot be traced to its rightful owner (a client, a third person, or the lawyer or law firm), a lawyer who discovers unidentified funds in the IOLTA account must follow the mechanism set forth in in Formal Advisory Opinion No. 98-2 which relies on Standards of Conduct 61, 62, 63, and 65 that bear upon matters directly addressed by Bar Rule 1.15(i).

QUESTION PRESENTED:

When a lawyer holding client funds and/or other funds in a fiduciary capacity is unable to locate the rightful recipient of such funds after exhausting all reasonable efforts, may that lawyer remove the unclaimed funds from the lawyer's escrow trust account and deliver the funds to the custody of the State of Georgia in accordance with the Disposition of Unclaimed Property Act?

SUMMARY ANSWER: A lawyer holding client funds and/or other funds in a fiduciary capacity may remove unclaimed funds from the lawyer's escrow trust account and deliver the funds to the custody of the State of Georgia in accordance with the Disposition of Unclaimed Property Act only if the lawyer, prior to delivery, has exhausted all reasonable efforts to locate the rightful recipient.

OPINION:

Many members of the Bar have contacted the State Bar of Georgia for guidance on how to manage client funds and/or other funds held in a fiduciary capacity in the lawyer's escrow trust account when the lawyer is unable to locate the rightful recipient of the funds and the rightful recipient fails to claim the funds. More specifically, the lawyers have asked whether they could ethically remove the unclaimed funds from the lawyer's escrow trust account and disburse the funds in accordance with O.C.G.A. §§ 44-12-190 et seq., the Disposition of Unclaimed Property Act.

In those cases where a lawyer is holding client funds and/or other funds in a fiduciary capacity, the lawyer must do so in compliance with Standards 61, 62, 63 and 65. When the funds become payable or distributable, Standard 61 speaks to the lawyer's duty to deliver funds: "A lawyer shall promptly notify a client of the receipt of his funds, securities or other properties and shall promptly deliver such funds, securities or other properties to the client." Implicit both in this Standard, and the lawyer's responsibility to zealously represent the client, is the lawyer's duty to exhaust all reasonable efforts to locate the rightful recipient in order to ensure delivery.

When a lawyer holding funds attempts to deliver those funds in compliance with Standard 61 but is unable to locate the rightful recipient, the lawyer has a duty to exhaust all reasonable efforts to locate the rightful recipient. After exhausting all reasonable efforts and the expiration of the five year period discussed in the Act, if the lawyer is still unable to locate the rightful

162

http://www.uniformlaws.org/ActSummary.aspx?title=Unclaimed%20Property%20Act

http://www.uniformlaws.org/ActSummary.aspx?title=Unclaimed%20Property%20Act

https://dor.georgia.gov/georgia-unclaimed-property



recipient and the rightful recipient fails to claim the funds, the funds are no longer considered client funds or funds held in a fiduciary capacity, but rather, the funds are presumed to be abandoned as a matter of law, except as otherwise provided by the Act, and the lawyer may then deliver the unclaimed funds to the State of Georgia in accordance with O.C.G.A. §§ 44-12-190 et seq., the Disposition of Unclaimed Property Act. A lawyer who disburses theunclaimed funds as discussed above shall not be in violation of the Standards.

□ ADVERTISING AND SOLICITATION

Bar Rule 7.1 prohibits any communications about a lawyer's services which are false or misleading. Advertising contracts or other listings which would give the appearance that the lawyer is in business, when that is not in fact the case, need to be cancelled. Signs should be removed, letterhead and business cards collected and destroyed, and firm names changed.

Bar Rule 7.5(e) allows lawyers in private practice to use trade names so long as they are not misleading. Trade names typically are considered to be misleading if they misrepresent either the nature of the underlying entity or the relationship of the lawyers to that entity. The circumstances under which a law firm may ethically retain in its name the name of a lawyer no longer associated with the firm generally depends on whether the name partner died, retired, moved to another firm or went into another business. For partners who have died, Comment [2] to Rule 7.5 states that a firm may use a trade name that includes the names of deceasedmembers where there has been a continuing succession in the firm’s identity.

When a living partner leaves a firm, the circumstances of the departure determine whether the firm may continue to use the partner’s name. Generally, if a lawyer, who is a name partner in a law firm, is retiring or who has become “of counsel,” the lawyer’s name may be retained in the firm’s name provided that the firm takes reasonable steps to show the partner’s status such as indicating on the firm stationery the years during which he or she practiced., see ABA Formal Op. 90-357 (1990), but using the name of a partner who has left to join another firm or for other reasons is considered misleading. See Bar Rule 7.5, cmt. [1] (“Therefore, lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, "Smith and Jones," for that title suggests partnership in the practice of law.”).

The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. Bar Rule 7.5(c).

□ STORAGE AND DESTRUCTION OF FILES

An important consideration in the closing of a law practice is the retention and destruction of client files. Long before the decision is made to close the practice, the firm should have in

163



https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_90_357.authcheckdam.pdf

https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_90_357.authcheckdam.pdf



place an established record retention and destruction policy. While much has been written on the subject, the Rules of Professional Conduct do not set forth particular rules or guidelines on how long a lawyer must retain client files or how a lawyer can properly destroy client files.

Before Closing a File:

Determine if all work is done Review file and discard duplicate copies Return all original documents furnished by client Give file a file closing date and keep it somewhere separate from active files Determine need for electronic backup of firm’s computer data Arrange for secure storage location and retention period

Upon closing the file, remove any unnecessary documents such as copies of documents that are available from another sources such as the court or government office unless there is any legal or other reason for retaining the document or multiple copies of the same document.

What Records to Retain:

A lawyer shall hold funds or other property of clients or third persons that are in a lawyer's possession in connection with a representation separate from the lawyer's own funds or other property. Funds shall be kept in one or more separate accounts maintained in an approved institution as defined by Rule 1.15 (III)(c)(1). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of the representation. (Rule 1.15(I)(a)). There are no rules that specifically cover how long a lawyer must keep records contained in a client’s file. Upon termination of the representation, the lawyer is required to return all papers and property received from the client (Bar Rule 1.16(d)). For other records, the lawyer should exercise prudent judgment in determining how long to retain the client file, taking into consideration such things as when the statute of limitations for legal malpractice has expired, any particular difficulties in the relationship with the client or the representation, if the client was a minor or incompetent that might extend the period of limitations, whether the file contains any original documents that the client might want back, and whether any documents if destroyed would be difficult to reconstruct from other sources. See State Bar of Georgia Office of General Counsel’s, File Retention: What’s the Ethical Thing to Do? The ethics rules don't require a lawyer to keep closed files for any particular length of time. The exception is trust account records. Bar Rule 1.15(I) does require that a lawyer keep trust account records for at least six years after the case is over. There is a four-year statute of limitations for disciplinary investigations; Bar Rule 4-222 provides that the statute

164





may be tolled up to two years in certain situations. You should also take into account potential malpractice claims and other law when making a decision to destroy a file.

If document exist in electronic form only they should be either printed and placed in the client’s file or moved to an electronic file and maintained for the retention time period determined for that client’s file. The electronic version can then be permanently purged or moved to a storage media. The retention of electronic date should be consistent with the retention policy for paper files.

Establish a Records Retention Policy:

A good file retention and destruction plan usually involves a two-step process:

1) At the beginning of the representation - Nothing in the ethics rules prohibits lawyers from havingclients stipulate in advance, typically at the beginning of the representation, contained in theengagement agreement how items in their files will be handled [returned, destroyed or saved]after a specified period of time after the representation concludes.

2) At the end of the representation - When the file is closed, each file should have given adestruction date and that date needs to be calendared. If the client was not advised in theengagement agreement of how the client’s file will be handled by the lawyer after therepresentation is concluded, the lawyer can address this in an end-of-the-engagement letter tothe client.

Below is a sample record retention provision that may be included in the retainer agreement (Sample #1) and a sample end-of-the-engagement letter to the client at the conclusion of the representation (Sample #2) taken from NY.com on Professional and Judicial Ethics Formal Op. 2010-01 (2010).

Sample #1

[Lawyer] will maintain [Client’s] file for ____ years after this matter is concluded. [Client] may request the file at any time during, upon conclusion of, or after conclusion of, this matter. ____ years after the conclusion of this matter, the file may be destroyed without further notice to [Client].

Sample #2

Once our engagement in this matter ends, we will send you a written notice advising you that this engagement has concluded. You may thereafter direct us

165

to return, retain or discard some or all of the documents pertaining to the engagement. If you do not respond to the notice within _____ [e.g., 60] days, you agree and understand that any materials left with us after the engagement ends may be retained or destroyed at our discretion.

Notwithstanding the foregoing, and unless you instruct us otherwise, we will return and/or preserve any original wills, deeds, contracts, promissory notes or other similar documents, and any documents we know or believe you will need to retain to enforce your rights or to bring or defend claims. You should understand that “materials” include paper files as well as information in other mediums of storage including voicemail, email, printer files, copier files, facsimiles, dictation recordings, video files, and other formats. We reserve the right to make, at our expense, certain copies of all documents generated or received by us in the course of our representation. When you request copies of documents from us, copies that we generate will be made at your expense. We will maintain the confidentiality of all documents throughout this process.

Our own files pertaining to the matter will be retained by the firm (as opposed to being sent to you) or destroyed. These firm files include, for example, firm administrative records, time and expense reports, personnel and staffing materials, and credit and account records. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to destroy or otherwise dispose of any documents or other materials retained by us within a reasonable time after the termination of the engagement.

Destruction of Files:

Destroy files in a manner that does not compromise client confidences – shredding or incineration (don’t just put in garbage can). Determine disposal options for computer equipment. Scrub computers of software, firm and client information.

Organize closed files into a way that makes it easier for you to know which files to review for destruction. One suggestion would be to separate closed client matters into groups according to the year the work was completed each year and place those files into one of three groups: files that are 7 years and older; files that are less than 7 years old; and files that need to be kept longer than 7 years. Label files with special retention issues e.g. “REVIEW BEFORE DESTROYING” so that you can easily identify files that should not be destroyed with first reviewing the file.

Keep a permanent inventory of destroyed files and the destruction dates.

Review a file before it is destroyed.

166

See Olson, Terri, Developing a File Retention Policy for Your Firm on the related issue of establishing a file retention policy for your law practice which can be obtained from the Law Practice Management Program at 404-527-8772 for assistance.

□ DESIGNATE A SUCCESSOR ATTORNEY

Lawyers need to put in place a contingency plan that protects both the clients and the lawyer. A prudent lawyer should consider succession planning and spell out how the practice should be maintained in the event there is an interruption in the practice.

Currently if a lawyer dies or becomes incapacitated without having made any arrangements about the future of his or her practice, the State Bar of Georgia seeks a court order to take over the practice, referred to as a receivership. As a receiver the State Bar of Georgia collects the lawyer’s files and attempts to return those files to the clients.

167

What If? Answers to Frequently Asked Questions About Closing a Law Practice on a Temporary or Permanent Basis

If you are planning to close your office or if you are considering helping a friend or colleague close his or her practice, there are numerous issues to resolve. How you structure your agreement will determine what the Assisting Attorney must do if the Assisting Attorney finds (1) errors in the files, such as missed time limitations; (2) errors in the Planning Attorney’strust account; or (3) defalcations of client funds.

Discussing these issues at the beginning of the relationship with your friend or colleague will help to avoid misunderstandings later when the Assisting Attorney interacts with the Planning Attorney’s former clients. If these issues are not discussed, the Planning Attorney and the Assisting Attorney may be surprised to find that the Assisting Attorney (1) has an obligation to inform the Planning Attorney’s clients about a potential malpractice claim or (2) that the Assisting Attorney may be required to report the Planning Attorney to the Disciplinary Committee (GRPC 8.3. )

The best way to avoid these problems is for the Planning Attorney and the Assisting Attorney to have a written agreement, and, when applicable, for the Assisting Attorney to have a written agreement with the Planning Attorney’s former clients. If there is no written agreement clarifying the obligations and relationships or plainly limiting the scope of the Assisting Attorney’s role, an Assisting Attorney may find that the Planning Attorney believes that the Assisting Attorney is representing the Planning Attorney’s interests. At the same time, the former clients of the Planning Attorney may also believe that the Assisting Attorney is representing their interests. It is important to keep in mind that an attorney-client relationship can sometimes be established by the reasonable belief of a would-be client. (GRPC 1.7, 1.8, and 1.9).

This section reviews some of these issues and the various arrangements that the Planning Attorney and the Assisting Attorney can make. All of these frequently asked questions, except #9, are presented as if the Assisting Attorney is posing the questions.

1. Must I notify the former clients of the Planning Attorney if I discover a potentialmalpractice claim against the Planning Attorney?

The answer is largely determined by the agreement that you have with the Planning Attorney and the Planning Attorney’s former clients. If you do not have an attorney-client relationship with the Planning Attorney, and you are the new lawyer for the Planning Attorney’s former clients, you must inform your client (the Planning Attorney’s former client) of the error, and advise the client of the option of submitting a claim to the professional malpractice insurance carrier of the Planning Attorney, unless the scope of your representation of the client excludes actions against the Planning Attorney. If you want to

168





limit the scope of your representation, do so in writing and advise your clients to get independent advice on the issues.

If you are the Planning Attorney’s lawyer, and not the lawyer for his or her former clients, you should discuss the error with the Planning Attorney and advise the Planning Attorney of the obligation to inform the client of the error. (GRPC 1.4(a)). If you are the attorney for the Planning Attorney, you would not be obligated to inform the Planning Attorney’s client of the error. You would, however, want to be careful not to make any mis- representations. (GRPC 4.1, 8.4(c)). For example, if the Planning Attorney had previously told the client a complaint had been filed, and the complaint had not been filed, you should not reaffirm the misrepresentation and you might well have a duty to correct it under some circumstances. In any case, you or the Planning Attorney should notify the Planning Attorney’s malpractice insurance carrier as soon as you become aware of any circumstance, error or omission that may be a potential malpractice claim in order to prevent denial of coverage under the policy due to the “late notice” provision.

If you are the Planning Attorney’s lawyer, an alternative arrangement that you can make with the Planning Attorney is to agree that you may inform the Planning Attorney’s former clients of any malpractice errors. This would not be permission to represent the former clients on malpractice actions against the Planning Attorney. It would authorize you to inform the Planning Attorney’s former clients that a potential error exists and that they should seek independent counsel.

2. I know sensitive information about the Planning Attorney. The PlanningAttorney’s former client is asking questions. What information can I give thePlanning Attorney’s former client?

Again, the answer is based on your relationship with the Planning Attorney and the Planning Attorney’s clients. If you are the Planning Attorney’s lawyer, you would be limited to disclosing any information that the Planning Attorney wished you to disclose. You would, however, want to make clear to the Planning Attorney’s clients that you do not represent them and that they should seek independent counsel, as well as that you are not able or permitted to answer all of their questions. If the Planning Attorney suffered from a condition of a sensitive nature and did not want you to disclose this information to the client, you could not do so.

3. Since the Planning Attorney is no longer practicing law, does the PlanningAttorney have malpractice coverage?

This depends on the type of coverage the Planning Attorney had. Lawyer professional liability policies are “claims made” policies. As a result, as a general rule, if the policy period has terminated, there is no coverage. However, most malpractice policies include a short automatic extended reporting period of usually 60 days after the termination date of the policy. This provides the opportunity to report known or potential malpractice claims when a policy ends and will not be

169

http://www.nycourts.gov/rules/jointappellate/ny-rules-prof-conduct-1200.pdf#page%3D10



renewed. In addition, most malpractice policies provide options to purchase an extended reporting period endorsement for longer periods of time. These extended reporting period endorsements do not provide ongoing coverage for new errors, but they do provide the opportunity to lock in coverage under the expiring policy for errors that surface after the end of the policy, but within the extended reporting endorsement time frame.

4. What protection will I have under the Planning Attorney’s malpractice insurancecoverage, if I participate in the closing or sale of the office?

You must check the definition of “Insured” in the malpractice policy form. Most policies define “Insured” as both the firm and the individual lawyers employed by or affiliated with the firm. This typically is broadened to include past employees and “of counsel” attorneys. In addition, most lawyers’ professional liability policies specifically provide coverage for the “estate, heirs, executors, trustees in bankruptcy and legal representatives” of the Insured, as additional insureds under the policy.

5. In addition to transferring files and helping to close the PlanningAttorney’s practice, I want to represent the Planning Attorney’s formerclients. Am I permitted to do so?

Whether you are permitted to represent the former clients of the Planning Attorney depends on (1) if the clients want you to represent them and (2) whom else you represent.

If you are representing the Planning Attorney, you are unable to represent the Planning Attorney’s former clients on any matter against the Planning Attorney. This would include representing the Planning Attorney’s former client on a malpractice claim, ethics complaint, or fee claim against the Planning Attorney. If you do not represent the Planning Attorney, you are limited by conflicts arising from your other cases and clients. You must check your client list for possible client conflicts before undergoing representation or reviewing confidential information of a former client of the Planning Attorney. (GRPC 1.7, 1.8 and 1.9).

Even if a conflict check reveals that you are permitted to represent the client, you may prefer to refer the case. A referral is advisable if the matter is outside your area of expertise, or if you do not have adequate time or staff to handle the case. If you intend to participate in a referral fee, the requirements of GRPC 1.5(e) must be met. In addition, if the Planning Attorney is a friend, bringing a legal malpractice claim or fee claim against him or her may make you vulnerable to the allegation that you didn’t zealously advocate on behalf of your new client. To avoid this potential exposure, you should provide the client with names of other attorneys, or refer the client to the State Bar of Georgia’s Lawyer Referral Service at 404-527-8700 or other appropriate lawyer referral service.

6. What procedures should I follow for distributing the funds that are in thePlanning Attorney’s escrow account?

170





http://www.nysba.org/lawyerreferral/

If your review of the Planning Attorney’s escrow account indicates that there may be conflicting claims to the funds in the account, you should initiate a procedure for distributing the existing funds, such as a court- directed interpleader.

7. If there was a serious ethical violation, must I tell the Planning Attorney’s formerclients?

The answer depends on the relationships. The answer is (A) no, if you are the Planning Attorney’s lawyer; (B) maybe, if you are not representing the Planning Attorney or the Planning Attorney’s former clients; and (C) maybe, if you are the attorney for the Planning Attorney’s former clients.

(A) If you are the Planning Attorney’s lawyer, you are not obligated to inform thePlanning Attorney’s former clients of any ethical violations or report any of thePlanning Attorney’s ethical violations to the disciplinary committee if yourknowledge of the misconduct is a confidence or secret of your client, the PlanningAttorney. (GRPC 8.3, GRPC 1.6). Although you may have no duty to report, youmay have other responsibilities. For example, if you discover that some of the clientfunds are not in the Planning Attorney’s escrow account as they should be, you, asthe attorney for the Planning Attorney, should discuss this matter with the PlanningAttorney, and encourage the Planning Attorney to correct the shortfall.

If you are the attorney for the Planning Attorney, and the Planning Attorney isdeceased, you should contact the personal representative of the estate. Rememberthat your confidentiality obligations continue even though your client is deceased. Ifthe Planning Attorney is alive but unable to function, you may notify the PlanningAttorney’s clients of the Planning Attorney’s situation and suggest that they seekindependent legal advice.

If you are the Planning Attorney’s lawyer, you should make certain that clients of thePlanning Attorney do not perceive you as their attorney. This should includeinforming them in writing that you do not represent them.

(B) If you are not the attorney for the Planning Attorney, and you are not representingany of the former clients of the Planning Attorney, you may still have a fiduciaryobligation (as an authorized signer on the escrow account) to notify the clients ofthe shortfall, and you may have an obligation under GRPC 8.3 to report the PlanningAttorney to the Disciplinary Committee. You should also report any notice of apotential claim to the Planning Attorney’s malpractice insurance carrier in order topreserve coverage under the Planning Attorney’s malpractice insurance policy.

If you are the attorney for a former client of the Planning Attorney, you have anobligation to inform the client about the shortfall and advise the client of available

171





remedies such as pursuing the Planning Attorney for the shortfall and filing claims or complaints with the Georgia Bar Foundation, 104 Marietta Street, NW, Suite 610 Atlanta, GA 30303 (telephone number 404-588-2240); the malpractice insurance carrier; and the Disciplinary or Grievance Committee. If you are a friend of the Planning Attorney, this is a particularly important issue. You should determine ahead of time whether you are prepared to assume the obligation to inform the Planning Attorney’s former clients of the Planning Attorney’s ethical violations. If you do not want to inform your clients about possible ethics violations, you must explain to your clients (the former clients of Planning Attorney) that you are not providing the clients with any advice about ethics violations of the Planning Attorney. You should advise the clients in writing to seek independent representation on these issues. Limiting the scope of your representation, however, does not eliminate your duty to report pursuant to Rule 8.3.

As a general rule, whether you have an obligation to disclose a mistake to a client will depend on the nature of the Planning Attorney’s possible error or omission, whether it is possible to correct it in the pending proceeding, the extent of the harm from the possible error or omission, and the likelihood that the Planning Attorney’s conduct would be deemed so deficient as to give rise to a malpractice claim. Ordinarily, since lawyers have an obligation to keep their clients informed and to provide information that their clients need to make decisions relating to the representation, you would have an obligation to disclose to the client the possibility that the Planning Attorney has made a significant error or omission.

8. If the Planning Attorney stole client funds, do I have exposure to an ethicscomplaint against me?

You do not have exposure to an ethics complaint for stealing the money, unless in some way you aided or abetted the Planning Attorney in the unethical conduct. Whether you have an obligation to inform the Planning Attorney’s former clients of the defalcation depends on your relationship with the Planning Attorney and with the Planning Attorney’s former clients. (See #7 above.)

9. What are the pros and cons of allowing someone to have access to myescrow account? How do I make arrangements to give my AssistingAttorney access?

The most important “pro” of authorizing someone to sign on your trust account is the convenience it provides for your clients. If you suddenly become unavailable or unable to continue your practice, an Assisting Attorney is able to transfer money from your trust account to pay appropriate fees, disbursements and costs, to provide your clients with settlement checks, and to refund unearned fees. If these arrangements are not made, the clients’ money must remain in the trust account, until a court allows access. This delay may

172


leave your clients at a disadvantage, since settlement funds, or unearned fees held in trust, may be needed by them to hire a new lawyer.

On the other hand, the most important “con” of authorizing access is your inability to control the person who has been granted access. Since serving as an authorized signer gives the Assisting Attorney the ability to write trust account checks, withdraw funds, or close the account, he or she can do so at any time, even if you are not disabled, incapacitated, or for some other reason unable to conduct your business affairs, or dead. It is very important to carefully choose the person you authorize as a signer, and when possible, to continue monitoring your accounts.

If you decide to allow your Assisting Attorney to be an authorized signer, you must decide if you want to give the Assisting Attorney (1) access only during a specific event (e.g., incapacity) or (2) access all the time.

10. The Planning Attorney wants to authorize me as an escrow account signer. Am Ipermitted also to be the attorney for the Planning Attorney?

Not if there is a conflict of interest. As an authorized signer on the Planning Attorney’s escrow account, you would have a duty to properly account for the funds belonging to the former clients of the Planning Attorney. This duty could conflict with your duty to the Planning Attorney if (1) you were hired to represent him or her on issues related to the closure of his or her law practice and (2) there were defalcations in the escrow account. Because of this potential conflict, it is probably best to choose to be an authorized signer OR to represent the Planning Attorney on issues related to the closure of his or her practice, but not both. (See #4 above.)

173

Timeline for Closing Your Law Practice

There are two sides to winding down a law practice. The first is the ethics side and

your lawyerly responsibilities to your clients. The second is the business side and your

responsibilities as the owner of a professional services firm.

The following two-part checklist should be helpful in building a useful timeline for

closing your practice and tracking the tasks to be completed in this complex process.

Checklist for the Ethics Side of the Practice

Date to Be Completed

Person Responsible

Date Completed

Description of Action to Be Completed

Continue obligation to ensure clients’ interests and

confidences are protected. Fulfill attorney's fiduciary

obligations regarding safekeeping client property.

Review and satisfy attorney's recordkeeping

obligations.

Create an organizational system to keep track of all

client notification letters and responses.

Implement file retention policy.

Assist clients in obtaining new legal representation.

Offer the names of three competent attorneys, as

well as the name of bar association’s lawyer referral

service.

Make reasonable efforts to have up-to-date contact

Excerpted from the book 'Selling Your Law Practice: The Profitable Exit Strategy' by Edward Poll - Copyright 2005

174


Person Responsible

Date Completed


information for all current and former clients.

Notify current clients that the practice will be closing.

Send via certified mail (return-receipt requested) to

last known address. Send out:

(1) Letter of instruction, to be completed and signed

by client and returned to attorney, that explains how

client wants to dispose of files.

(2) Receipt of file(s) to be signed by client.

(3) Letter of referral to three attorneys and the local

bar association’s lawyer referral service.

Keep records of what was sent to whom.

Send notice letter to clients who have not yet

contacted your office. Letter informs them that you

have a file representing work done for them in the

past. Request that they pick up the file within 30

days or they can expect the file to be destroyed in

accordance with the rules and regulations of your

jurisdiction.

Return all client property or obtain successor escrow

holder.

Complete all your billings, making sure you are

current, and determine how to handle unearned fees

that remain.

Close out client trust accounts.

Review and prioritize all open files with emphasis on

time-sensitive issues such as statutes of limitations,


175


Person Responsible

Date Completed


trial dates, filing deadlines, etc. Also confirm that

open client files can withstand the scrutiny of public

or outside review.

Review closed files and seek to have clients retrieve

them.

File appropriate pleadings, including substitution of

attorneys, motion to withdraw, motion for

continuance and the like, as may be appropriate for

all litigated matters.

For all files not retrieved by clients or their

representatives, retain the files for at least two

years—or longer if required by your jurisdiction--and

then dispose of them in accordance with your file-

retention plan. If your engagement letter does not

have a provision about file retention, and if your

office otherwise lacks such a policy, create the

needed policy immediately.

Talk to insurance carrier about an E&O "tail" policy or

discuss continued coverage on an annual basis.

When leaving law practice entirely, consider filing for

"inactive" status with state bar association.


176


Person Responsible

Date Completed


Develop action plan and timetable for how to

manage the practice’s closing.

Inventory all assets and liabilities, including work-

in-progress and possible contingent liabilities.

Focus special attention on collecting accounts

receivable (A/R) and preparing and sending bills

for all work performed to date.

For outstanding accounts receivable from solvent

clients, consider engaging a collection agency and

filing a collection lawsuit.

Take control of all operating and client trust

accounts, business assets, equipment, client

directories, and premises used in the practice.

Determine any bank obligations and deal with them

by either honoring them or obtaining extensions

until a plan for winding down your practice is fully

developed.

Pay or negotiate reduction of outstanding debt with

all creditors. Terminate, arrange for reduced

payment, or arrange for ongoing payment with

creditors as may be appropriate.

Discuss the expiration of office lease with the

landlord. Arrange to have office space and storage

space leases terminated on the necessary date.

Review all insurance policies, including

Checklist for the Business Side of the Practice


177


Person Responsible

Date Completed


malpractice, general liability, disability, and life

policies. Contact the insurance broker if a claim is

to be made.

Determine appropriateness of maintaining

business entity for liability or tax filing purposes.

Determine tax filing requirements for both federal

and state tax returns.

If the practice is a corporation, and if dissolution is

selected, complete all state and tax (federal and

state) filing requirements.

Determine where state statutes require public

notice of intent to wind down business. Determine

state statutory requirements for dissolution of

entity, such as specific filings with the secretary of

state’s office.

Notify utilities, phone companies, and Internet

service providers of the practice’s closing, and

specify dates services should be disconnected (or

transferred).

Notify vendors and suppliers, such as West,

LexisNexis, and others, of intent to terminate

ongoing relationship.

File mail-forwarding instructions with the post

office.

Sell, donate, or plan to move personal property


178


Person Responsible

Date Completed


such as furniture, library materials, etc.

For all property to be moved, solicit bids and

negotiate pricing and specifics with moving

company.

Complete move out from the office and clean up

the space.

Inspect old space with the landlord, and obtain

formal, written release from the space.


179

LETTER ADVISING THAT LAWYER IS CLOSING HIS/HER PRACTICE

Re: [Name of File, Case or Matter]

Dear [Client Name]:

Due to ____________________________________________ (provide reason for inability to practice, such as health, disability, retirement, death, discipline, or other ), [Affected Attorney] is no longer able to continue 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 encourage you to do so immediately to protect your legal interests and avoid adverse conse-quences or action against you. I will assist [Affected Attorney] in closing [his/her] practice.

You will need [a copy/copies] of your file(s). Accordingly, enclosed please find a proposed written authoriza-tion for your file(s) to be released directly to your new attorney. When you or your new attorney returns this signed authorization, I (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 retrieve [it/them] so that you may deliver [it/them] to your new attorney. In either case, it is imperative that you act promptly, and in no event later than [provide date] so that 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 fol-lowing 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 legal fees you currently 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 contact me at the address and phone number indicated in this letter.

Thank you.

Sincerely, [Assisting Attorney] [Firm]

180

[CAPTION]

MOTION TO WITHDRAW AS COUNSEL

Comes now ____________________________, attorney of record for ______________________ in this matter, and respectfully requests leave to withdraw under the provisions of Rule 4.3 of the Uniform Superior Court Rules of Georgia.

The undersigned has given (his) (her) client due written notice of this intention to withdraw prior to submitting this request to the Court, as shown by the attached notification certificate.

In accordance therewith, the undersigned certifies (Plaintiffs) (Defendants) _____________________ are further informed under the above Rule

a. The_________________ Court retains jurisdiction of this matter;

b. (Plaintiffs) (Defendants) have the burden of keeping the Court informed of their currentaddressfor the service of notices, pleadings, or other papers;

c. (Plaintiffs) (Defendants) have the obligation to prepare to go forward with their case or to hireother counsel to handle their case;

d. If (Plaintiffs) (Defendants) fail or refuse to meet these obligations, they may suffer adverseconsequences including the entry of judgment against them.

e. (Plaintiffs) (Defendants) must file any objections to this Motion to Withdraw with this Court nolater than ten days from the date of filing of this motion, _________________.

Wherefore, the undersigned ____________________________ respectfully requests that an Order be entered permitting (him) (her) to withdraw as attorney of record for ____________________.

This _____ day of _________, 20__.

________________________________ (Name of Attorney)

Georgia Bar No. __________________ Attorney for (Defendants) (Plaintiffs)

(Address)

181

[CAPTION]

ORDER PERMITTING WITHDRAWL OF ATTORNEY

Counsel for the (Plaintiffs) (Defendants) having submitted its Motion to Withdraw as attorney of record for _____________________________________, and it appearing that all requirements of Rule 4.3 of the Uniform Superior Court Rules of Georgia have been satisfied, the Motion is hereby granted.

So ORDERED this ______ day of _______________________, 20______.

__________________________________________

Judge, ______________________Court of _____________________ County, Georgia

Prepared by:

________________________________ (Name of Attorney)

Georgia Bar No. _________________ (Address)

182

[CAPTION]

NOTIFICATION CERTIFICATE

The undersigned _____________________________________ hereby certifies as follows:

1. The undersigned intends to withdraw as attorney of record for ____________________.

2. The undersigned has complied with notification requirements of Rule 4.3 of the UniformSuperior Court Rules of Georgia by U.S. Mail to the client’s last known address:

(Name and address of client)

The last know telephone number of the client is ________________________________.

SO CERTIFIED this _______ day of ____________________, 20________.

________________________________ (Name of Attorney) Attorney for (Defendant) (Plaintiff) Georgia Bar No. _________________ (Address)

183

AUTHORIZATION FOR TRANSFER OF CLIENT FILE

I hereby authorize the law office of [Firm/Attorney’s Name] to deliver a [copy/copies] of my file(s) to my new attorney(s) at the following address:

_____________________________________________

_____________________________________________

_____________________________________________

________________________________________ ______________________[Client] [Date]

REQUEST FOR FILE

I hereby request that [Firm/Attorney’s Name] provide me with [a copy/copies] of my file(s). Please send the file(s) to the following address:

_____________________________________________

_____________________________________________

_____________________________________________

________________________________________ ______________________[Client] [Date]

ACKNOWLEDGEMENT OF RECEIPT OF FILE

I hereby acknowledge that I have received [a copy/copies] of my file(s) from the law office of [name].

________________________________________ ______________________[Client] [Date]

58

184

Sample Client Contact Letter: Authorization to Return/Destroy Files

Dear [client name]:

Under the firm’s document retention policy, we normally destroy files [X] years after a matter is closed, unless other arrangements are requested by, and arranged with, you. Our records indicate that the files for the matters previously handled for you and closed on [month, day, year] are now subject to destruction unless you wish to make other arrangements.

You are entitled, upon written request, to any files in the firm’s possession relating to legal services performed by us for you, excluding any documents not reasonably necessary to your representation. Please contact me if you wish to inspect any files before making the decision whether to have them transferred to you or destroyed. Our off-site storage facility will charge for removing files from storage for inspection at the rate of [$X] per box, which you would be expected to pay.

If you elect to inspect boxes and/or to have these boxes transferred to you, you acknowledge your obligation to pay the costs of removal from storage and transportation by signing a copy of this letter.

Sincerely,

______________________

[name of firm]

By: [name of lawyer]

______________________

[name of client]

Date: _________________

185

LAW FIRM MASTER LIST OF CONTACTS AND IMPORTANT INFORMATION

Important note: In order to ensure access to a list in case of an emergency, a current copy of this list should be kept off-site, e.g., in case the copy at the law firm is destroyed, and should probably be provided to the attorney’s spouse or other appropriate person(s). It may be preferable to keep all of this information in electronic format.

ATTORNEY NAME: Social Security #:

FIRM NAME:OCA Registration #: Federal Employer ID #: CAF #:Date of Birth:Office Address:Office Phone:Office Box:Home Address:Home Phone:Cell Phone: Password: ___________________E-mail Address: Password: ___________________URL:Internet Service Provider:

SPOUSE:Name:Work Phone:Cell Phone:Employer:

FORMER EMPLOYER WITHIN PREVIOUS FIVE YEARS:Name:Office Address:Office Phone:

OFFICE MANAGER:Name:Home Address:Home Phone:Cell Phone:

COMPUTER AND TELEPHONE PASSWORDS:(Name of person who knows passwords or location where passwords are stored)Name:Home Address:Home Phone:Work Phone:

186

Cell Phone:SECRETARY/ADMINISTRATIVE ASSISTANT:Name:Home Address:Home Phone:Cell Phone:

BOOKKEEPER:Name:Home Address:Home Phone:Cell Phone:

LEGAL ASSISTANT:Name:Home Address:Home Phone:Cell Phone:

LANDLORD:Name:Address:Phone:

LOCATION OF OFFICE LEASE:

DATE LEASE EXPIRES:

NAMED EXECUTOR:Name:Address:Phone:

ATTORNEY FOR SPECIAL MATTERS:Name:Office Address:Office Phone:

ACCOUNTANT:Name:Office Address:Office Phone:

ATTORNEY ENGAGED TO CLOSE PRACTICE:Name:Office Address:

187

Office Phone:

LOCATION OF AGREEMENT ENGAGING ATTORNEY TO CLOSE PRACTICE:ATTORNEYS TO ASSIST WITH PRACTICE CLOSURE (if none appointed):First Choice:Office Address:Office Phone:Alternate Choice:Office Address:Office Phone:

LOCATION OF WILL AND/OR TRUST:Access Will and/or Trust by Contacting:Address:Phone:

PROCESS SERVICE COMPANY:Name: Address:Phone:Email/fax:Contact:

OFFICE-SHARER OR “OF COUNSEL”: Name:Address:Office Phone:

OFFICE PROPERTY/LIABILITY COVERAGE:Insurer:Address:Phone:Email/fax:Policy No.:Broker or other contact person:

LEGAL MALPRACTICE COVERAGE:Insurer:Address:Phone:Email/fax:Policy No.:Broker or other contact person:

HEALTH INSURANCE:Insurer Name:Address:

188

Phone:Email/fax:Policy No.:Persons Covered:Contact Person:DISABILITY INSURANCE:Insurer Name: Address:Phone:Email/fax:Policy No.:Broker or other contact person:

LIFE INSURANCE:Insurer Name: Address:Phone:Email/fax:Policy No.: Broker or other contact person:

WORKERS’ COMPENSATION INSURANCE:Insurer Name:Address:Phone:Email/fax:Policy No.:Contact Person:

PENSION:Administrator:Address:Phone:Institution:Address:Phone:Account #:

STORAGE LOCATION: Storage Company for Location: Locker or Room #:Address: Phone:Obtain Key From:Address:Phone:Items Stored:

189

SAFE DEPOSIT BOXES (BUSINESS):Institution:Address:Phone:Obtain Key From:Address:Contact Person:SAFE DEPOSIT BOXES (PERSONAL): Institution:Box No.:Address:Phone:Obtain Key From:Address:Contact Person:

LEASES:Item Leased:Lessor:Address:Phone:Expiration Date: Item Leased:Lessor:Address:Phone:Expiration Date:Item Leased:

LAWYER TRUST ACCOUNT:IOLA:Institution:Address:Phone:Account Number:Other Signatory:Address:Phone:Password:

OTHER CLIENT ACCOUNTS:Name of Client: Institution:Address:Phone:Account Number:Other Signatory:Address:

190

Phone:Password:

GENERAL OPERATING ACCOUNT: Institution:Address:Phone:Account Number:Password:OTHER ATTORNEY ACCOUNTS: Institution:Address:Phone:Account Number:Other Signatory:Address:Phone:Password:

BUSINESS CREDIT CARDS:Institution:Address:Phone:Account Number:Other Signatory:Address:Phone:Password:

Institution:Address:Phone:Account Number:Other Signatory:Address:Phone:Password:

MAINTENANCE CONTRACTS: Item Covered: Vendor Name:Address:Phone:Expiration:

Item Covered:Vendor Name:

191

Address:Phone:Expiration:

Item Covered:Vendor Name:Address:Phone:Expiration:

OTHER IMPORTANT CONTACTS:Name:Address:Phone:Reason for Contact:

Name:Address:Phone:Reason for Contact:

Name:Address:Phone:Reason for Contact:

PROFESSIONAL MEMBERSHIP ORGANIZATIONS: Name:Address:ID #:

ALSO ADMITTED TO PRACTICE IN THE FOLLOWING STATES, JURISDICTIONS, AND BEFORE THE FOLLOWING COURTS: State of:Bar Address: Phone:Bar ID #:

State of:Bar Address:Phone:Bar ID #:

192

AGREEMENT — FULL FORM

The sample Agreement--Full Form provided on the next page gives the Successor Lawyer the power to determine if you are disabled, impaired, or incapacitated and provides the Successor Lawyer with authority under the designated circumstances to sign on your bank accounts (including your trust account) and to close your law practice. The agreement also enumerates powers such as termination, payment for services, and resolution of disputes.

If you do not want the Successor Lawyer to be the person who determines if you are disabled, incapacitated, or impaired, you will need to modify this agreement. For a discussion of alternatives, see the sections in this handbook The Duty to Plan Ahead and Access To The Trust Account.

193

AGREEMENT TO CLOSE LAW PRACTICE

Between: , hereinafter referred to as “Planning Lawyer,” And: , hereinafter referred to as “Successor Lawyer.”

1. Purpose.The purpose of this agreement is to protect the legal interests of the clients of PlanningLawyer and the Planning Lawyer’s survivors or dependents in the event Planning Lawyer isunable to continue Planning Lawyer’s law practice due to death, disability, impairment, orincapacity.

2. Parties.The term Successor Lawyer refers to the lawyer designated in the caption above or the SuccessorLawyer’s alternate. The term Planning Lawyer refers to the lawyer designated in the captionabove and the Planning Lawyer’s representatives, heirs, or assigns.

Upon the request of Planning Lawyer or a member of Planning Lawyer’s immediate family, or upon receipt of information from other sources who do reasonably lead Successor Lawyer to believe invocation of this provision of the Agreement may be appropriate, Successor Lawyer shall undertake an investigation of all relevant facts and circumstances and shall determine whether Planning Lawyer is dead, disabled, impaired or otherwise unable to carry on the practice of law. In the event Successor Lawyer determines to invoke the provisions of the Agreement, he shall so indicate by written notice to Planning Lawyer or Planning Lawyer’s immediate family as appropriate. Successor Lawyer’s determination shall include a determination as to whether any disability is temporary or permanent.

3. Establishing Death, Disability, Impairment, or Incapacity.In determining whether Planning Lawyer is unable to practice due to death, disability,impairment, or incapacity, Successor Lawyer may act upon such evidence as Successor Lawyershall deem reasonably reliable, including, but not limited to, communications with PlanningLawyer’s family members, representative, or a written opinion of one or more physicians dulylicensed to practice medicine. Similar evidence or medical opinions may be relied upon toestablish that Planning Lawyer’s disability, impairment, or incapacity has terminated. SuccessorLawyer is relieved from any responsibility and liability for acting in good faith upon suchevidence in carrying out the provisions of this Agreement.

4. Consent to Close Practice.Planning Lawyer hereby gives consent to Successor Lawyer to take all actions necessary toclose Planning Lawyer’s legal practice in the event that Planning Lawyer is unable to continuein the private practice of law and Planning Lawyer is unable to close Planning Lawyer’s ownpractice due to permanent disability, impairment, or incapacity. Planning Lawyer herebyappoints Successor Lawyer as attorney-in-fact, with full power to do and accomplish all ofthe actions contemplated by this Agreement as fully and as completely as Planning Lawyercould do personally if Planning Lawyer were able. It is Planning Lawyer’s specific intent thatthis appointment of Successor Lawyer as attorney-in-fact shall become effective only uponPlanning Lawyer’s disability, impairment, or incapacity. The appointment of Successor

194

Lawyer shall not be invalidated because of Planning Lawyer’s disability, impairment, or incapacity, but instead the appointment shall fully survive such disability, impairment, or incapacity and shall be in full force and effect so long as it is necessary or convenient to carry out the terms of this Agreement.

Planning Lawyer hereby expresses the intent and request that, in the event of Planning Lawyer’s death, the person responsible for Planning Lawyer’s estate arrange for Successor Lawyer to take the actions contemplated under this agreement. In the event of Planning Lawyer’s disability, impairment, or incapacity, Planning Lawyer designates Successor Lawyer as signatory, or in substitution of Planning Lawyer’s signature, on all of Planning Lawyer’s law office accounts with any bank or financial institution, including, but not limited to, checking accounts, savings accounts, and trust accounts. Planning Lawyer’s consent includes but is not limited to:

• Entering Planning Lawyer’s office and using the Planning Lawyer’s equipment andsupplies as needed to close Planning Lawyer’s practice;

• Opening Planning Lawyer’s mail and processing it;

• Taking possession and control of all property comprising Planning Lawyer’s lawoffice, including client files and records;

• Examining files and records of Planning Lawyer’s law practice and obtaininginformation as to any pending matters that may require attention;

• Notifying clients, potential clients, and others who appear to be clients, thatPlanning Lawyer has given this authorization and that it is in their best interest toobtain other legal counsel;

• Copying Planning Lawyer’s files;

• Obtaining client consent to transfer files and client property to new lawyers;

• Transferring client files and property to clients or their new lawyers;

• Obtaining client consent to obtain extensions of time and contacting opposing counsel and

• courts/administrative agencies to obtain extensions of time;

• Applying for extensions of time pending employment of other counsel by the clients;

• Filing notices, motions, and pleadings on behalf of clients where the clients’interests must be immediately protected and other legal counsel has not yet beenretained;

195

• Contacting all appropriate persons and entities who may be affected and informing them that Planning Lawyer has given this authorization;

• Arranging for transfer and storage of closed files;

• Winding down the financial affairs of Planning Lawyer’s practice, including providing Planning Lawyer’s clients with a final accounting and statement for services rendered by Successor Lawyer, return of client funds, collection of fees on Planning Lawyer’s behalf or on behalf of Planning Lawyer’s estate, payment of business expenses, and closure of business accounts when appropriate;

• Advertising Planning Lawyer’s law practice or any of its assets to find a buyer for the

practice; and

• Arranging for an appraisal or valuation of Planning Lawyer’s practice for the purpose of selling

• Planning Lawyer’s practice. Planning Lawyer’s bank or financial institution may rely on the

authorizations in the Agreement unless such bank or financial institution has actual knowledge that this Agreement has been terminated or is no longer in effect.

5. Payment For Services.

Planning Lawyer agrees to pay Successor Lawyer a reasonable sum for services rendered by Successor Lawyer while closing the law practice of Planning Lawyer. Successor Lawyer agrees to keep accurate time records for the purpose of determining amounts due for services rendered. Successor Lawyer agrees to provide the services specified herein as an independent contractor. 6. Preserving Lawyer-Client Privilege.

Successor Lawyer agrees to preserve confidences and secrets of Planning Lawyer’s clients and their attorney-client privilege and shall only make disclosures of information reasonably necessary to carry out the purpose of this Agreement. 7. Successor Lawyer is Lawyer for Planning Lawyer

(Delete one of the following paragraphs as appropriate). Successor Lawyer is the lawyer for Planning Lawyer. Successor Lawyer will protect the lawyer-client relationship and follow the Rules of Professional Con or Lawyer has permission to inform the Planning Lawyer’s professional liability carrier of errors or potential errors, and may inform the Planning Lawyer’s former clients of any errors or potential errors, and instruct them to obtain independent legal advice. Successor Lawyer also has permission to inform Planning Lawyer’s former clients of any ethics violations committed by Planning Lawyer.) OR: Successor Lawyer is Not Lawyer for Planning Lawyer Successor Lawyer is not the lawyer for Planning Lawyer. (Optional: Successor Lawyer has permission to inform the professional liability insurer of errors or potential errors of Planning Lawyer, and may inform Planning Lawyer’s former clients of any errors or potential errors, and 196

instruct them to obtain independent legal advice. Successor Lawyer also has permission to inform Planning Lawyer’s former clients of any ethics violations committed by Planning Lawyer.)

8. Providing Legal Services.Planning Lawyer authorizes Successor Lawyer to provide legal services to Planning Lawyer’sformer clients providing Successor Lawyer has no conflict of interest and obtains the consent ofPlanning Lawyer’s former clients to do so. Successor Lawyer has the right to enter into a lawyer-client relationship with Planning Lawyer’s former clients and to have clients pay Successor Lawyerfor his/her legal services. Successor Lawyer agrees to check for conflicts of interest, and whennecessary, to refer the clients to another lawyer.

9. Contacting Professional Liability Insurance And Other Insurance Providers.Planning Lawyer authorizes Successor Lawyer to contact the Planning Lawyer’s workerscompensation, liability and casualty and professional liability insurance companies concerning anylegal malpractice claims or potential claims. (Note to Planning Lawyer: Successor Lawyer's role incontacting the professional liability insurer will be determined by Successor Lawyer’s arrangementwith Planning Lawyer.) (See Section 7 of this Agreement.)

10. Providing Clients With Accounting.Successor Lawyer agrees to provide Planning Lawyer’s former clients with a final accounting andstatement for legal services of Planning Lawyer based on the Planning Lawyer’s records. Lawyeragrees to return client funds to Planning Lawyer’s former clients and to submit funds collected onbehalf of Planning Lawyer to Planning Lawyer or Planning Lawyer’s estate.

11. Successor Lawyer Alternate (delete one of the following paragraphs as appropriate).If Successor Lawyer is unable or unwilling to act on behalf of Planning Lawyer, Planning Lawyerappoints as Successor Lawyer’s Alternate, hereinafter known as Successor Lawyer’s Alternate.Successor Lawyer’s Alternate is authorized to act on behalf of Planning Lawyer pursuant to thisAgreement. Successor Lawyer’s Alternate shall comply with the terms of this Agreement. SuccessorLawyer’s Alternate consents to this appointment, as shown by the signature of the SuccessorLawyer’s Alternate on this Agreement.

OR:

If Successor Lawyer is unable or unwilling to act on behalf of Planning Lawyer, Successor Lawyer may appoint an alternate. Successor Lawyer shall enter into an agreement with any such Successor Lawyer’s Alternate under which Successor Lawyer’s Alternate consents to the terms and provisions of this Agreement.

12. Indemnification.

Planning Lawyer agrees to indemnify Successor Lawyer against any claims, loss, or damage arising out of any act or omission by Successor Lawyer under this agreement, provided the actions or omissions of Successor Lawyer were made in good faith, were made in a manner reasonably believed to be in Planning Lawyer’s best interest, and occurred while Successor Lawyer was assisting Planning Lawyer with the closure of Planning Lawyer’s office. This indemnification

197

agreement does not extend to any acts, errors, or omissions of Successor Lawyer while rendering or failing to render professional services in Successor Lawyer’s capacity as the lawyer for the former clients of Planning Lawyer. Successor Lawyer shall be responsible for all acts and omissions of gross negligence and willful misconduct.

13. Option to Purchase Practice. Successor Lawyer shall have the first option to purchase the practice of Planning Lawyer under the terms and conditions specified by Planning Lawyer or Planning Lawyer’s representative in accordance with Georgia Supreme Court Rule . 14. Arranging to Sell Practice. If Successor Lawyer opts not to purchase Planning Lawyer’s practice, Successor Lawyer will make all reasonable efforts to sell Planning Lawyer’s practice and will pay Planning Lawyer or Planning Lawyer’s estate all monies received. 15. Fee Disputes Arbitrated. (optional) Planning Lawyer and Successor Lawyer agree that all fee disputes between them will be resolved by arbitration. THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES. 16. Termination. This Agreement shall terminate upon: (1) delivery of written notice of termination by Planning Lawyer to Successor Lawyer during any time that Planning Lawyer is not unable to practice due to disability, impairment, or incapacity as established under Section 3 of this Agreement; (2) delivery of written notice of termination by Planning Lawyer’s representative upon a showing of good cause; or (3) delivery of a written notice of termination given by Successor Lawyer to Planning Lawyer, subject to any ethical obligation to continue or complete any matter undertaken by Successor Lawyer pursuant to this Agreement. If Successor Lawyer or Successor Lawyer’s Alternate for any reason terminates this agreement or is terminated, Successor Lawyer or Successor Lawyer's Alternate acting on his or her behalf shall (1) provide a full and accurate accounting of financial activities undertaken on Planning Lawyer’s behalf within 30 days of termination or resignation and (2) provide Planning Lawyer with Planning Lawyer’s files, records, and funds. 198

[Planning Lawyer] [Date] STATE OF GEORGIA ) ) ss. County of ) This instrument was acknowledged before me on (date) by (name(s) of person(s)). NOTARY PUBLIC My commission expires: [Successor Lawyer] [Date]

STATE OF GEORGIA ) ) ss. County of ) This instrument was acknowledged before me on (date) by (name(s) of person(s)). NOTARY PUBLIC My commission expires: [Successor Lawyer’s Alternate] [Date] STATE OF GEORGIA ) ) ss.

County of ) This instrument was acknowledged before me on (date) by (name(s) of person(s)). NOTARY PUBLIC My commission expires:

199

AGREEMENT — SHORT FORM

The sample Agreement--Short Form provided on the next page includes authorization to sign on your bank accounts (trust and general) and to close your law practice. It does not include a provision for payment to the Successor Lawyer, a description of termination powers, consent to represent the Planning Lawyer’s clients, or other provisions included in the sample Agreement--Full Form. 200

CONSENT TO CLOSE OFFICE

This consent is enter d into between , hereinafter referred to as “Planning Lawyer,” and , hereinafter referred to as “Successor Lawyer.” I, authorize, , Successor Lawyer, and any lawyer or agent acting on my behalf, to take all actions necessary to close my l gal practice upon my death, disability, impairment, or incapacity. These actions include but are not limited to: • Notifying clients, potential clients, and others who appear to be clients that I have given this

authorization and that it is in their best interest to obtain other legal counsel; • Copying my files;

• Obtaining client consent to transfer files and client property to new lawyers;

• Transferring client files and property to clients or their new lawyers;

• Obtaining client consent to obtain extensions of time and contacting opposing

counsel and courts/administrative agencies to obtain extensions of time; • Applying for extensions of time pending employment of other counsel by my clients;

• Filing notices, motions, and pleadings on behalf of my clients where their interests must be

immediately protected and other legal counsel has not yet been retained; • Contacting all appropriate persons and entities who may be affected and informing them that

I have given this authorization; • Signing checks on my trust account and providing an accounting to my clients of funds in trust;

• Contacting the Planning Lawyer’s professional liability insurer concerning claims and potential

claims. • The Planning Lawyer's bank or financial institution may rely on the authorizations in

this Agreement unless such bank or financial institution has actual knowledge that this Agreement has been terminated or is no longer in effect.

For the purpose of this consent, death, disability, impairment, or incapacity shall be determined by evidence the Successor Lawyer deems reasonably reliable, including but not limited to communications with my representative or a written opinion of one or more medical doctors duly licensed to practice medicine. Upon such evidence, the Successor Lawyer is relieved from any responsibility or liability for acting in good faith in carrying out the provisions of this consent. 201

The Successor Lawyer agrees to preserve client confidences and secrets and the attorney-client privilege of my clients and to make disclosure only to the extent reasonably necessary to carry out the purpose of this consent. The Successor Lawyer is appointed as my agent for purposes of preserving my clients' confidences and secrets, the attorney-client privilege, and the work product privilege. This authorization does not waive any attorney-client privilege. (Delete one of the following paragraphs as appropriate): The Successor Lawyer represents me and acts as my lawyer in closing my law practice. (Optional: The Successor Lawyer has permission to inform the professional liability insurer of errors or potential errors of the Planning Lawyer, and may inform the Planning Lawyer's former clients of any errors or potential errors, and instruct them to obtain independent legal advice. The Successor Lawyer also has permission to inform the Planning Lawyer's former clients of any ethics violations committed by the Planning Lawyer.) OR: The Successor Lawyer does not represent me and is not acting as my lawyer in closing my law practice. (Optional: The Successor Lawyer has permission to inform the professional liability insurer of errors or potential errors of the Planning Lawyer, and may inform Planning Lawyer's former clients of any errors or potential errors, and instruct them to obtain independent legal advice. The Successor Lawyer also has permission to inform the Planning Lawyer's former clients of any ethics violations committed by the Planning Lawyer.) I appoint the Successor Lawyer as signatory, or in substitution of my signature, on my lawyer trust account(s) upon my death, disability, impairment, or incapacity. I understand that the Successor Lawyer will not process, pay, or in any other way be responsible for payment of my personal or business bills. I agree to indemnify the Successor Lawyer against any claims, loss, or damage arising out of any act or omission by Successor Lawyer under this Agreement, provided the actions or omissions of the Successor Lawyer were in good faith and in a manner reasonably believed to be in my best interest. The Successor Lawyer shall be responsible for all acts and omissions of gross negligence and willful misconduct. The Successor Lawyer may revoke this acceptance at any time and has the power to appoint a new Successor Lawyer in the Successor Lawyer's place. My authorization and consent to allow the Successor Lawyer to perform these and other services necessary for the closure of my law office does not require Successor Lawyer to perform these services. If the Successor Lawyer revokes this acceptance, the Successor Lawyer must promptly notify me. [Planning Lawyer] [Date] STATE OF GEORGIA ) ) ss. County of ) This instrument was acknowledged before me on (date) by (name(s) of person(s)). 202

NOTARY PUBLIC My commission expires: [Successor Lawyer] [Date] STATE OF GEORGIA ) ) ss. County of )

This instrument was acknowledged before me on (date) by (name(s) of person(s)).

NOTARY PUBLIC My commission expires:

203

POWER OF ATTORNEY — LIMITED I, , do hereby appoint , as my agent and attorney-in-fact for the limited purpose of conducting all transactions and taking any actions that I might do with respect to my bank account(s) and safe deposit box(es). I do further authorize my banking institutions to transact my account(s) as directed by my attorney-in-fact and to afford the attorney-in-fact all rights and privileges that I would otherwise have with respect to my account(s) and safe deposit box(es). Specifically, I am authorizing my attorney-in-fact to sign my name on checks, notes, drafts, orders, or instruments for deposit, withdraw, or transfer money to or from my account(s), make electronic funds transactions, receive statements and notices on the account(s), and do anything with respect to the account that I would be able to do. I am also authorizing my named attorney-in-fact to enter and open my safe deposit box(es), place property in the box(es), remove property from the box(es), and otherwise do anything with the box(es) that I would be able to do, even if my attorney-in-fact has no legal interest in the property in the box. This Power of Attorney will continue until the banking institution receives my written revocation of this Power of Attorney or written instructions from my attorney-in-fact to stop honoring the signature of my attorney-in-fact. This Power of Attorney shall not be affected by my subsequent disability or incapacity. [Accountholder] [Date] STATE OF GEORGIA ) )ss. County of ) This instrument was acknowledged before me on (date) by (name(s) of person(s)). NOTARY PUBLIC My commission expires:

204

SPECIMEN SIGNATURE OF ATTORNEY-IN-FACT The attorney-in-fact acknowledges that the foregoing is his/her signature. [Attorney-in-Fact] [Date] STATE OF GEORGIA ) ) ss. County of ) [Insert name of Attorney-in-Fact] personally appeared before me who, being duly sworn, did say and acknowledge that the foregoing was his/her signature. SUBSCRIBED AND SWORN to before me this day of ,20___. NOTARY PUBLIC My commission expires:

205

LETTER OF UNDERSTANDING

TO: I am enclosing a Power of Attorney in which I have named as my attorney-in-fact. You and I have agreed that you will do the following:

1. Upon my written request, you will deliver the Power of Attorney to me or to any personthat I designate.

2. You will deliver the Power of Attorney to the person named as my attorney-in-fact (if morethan one person is named, you may deliver it to either of them) if you determine, using yourbest judgment, that I am unable to conduct my business affairs due to disability, impairment,incapacity, illness, or absence. In determining whether to deliver the Power of Attorney, youmay use any reasonable means you deem adequate, including consultation with myphysician(s) and family members. If you act in good faith, you will not be liable for any actsor omissions on your part in reliance upon your belief.

3. If you incur expenses in assessing whether you should deliver this Power of Attorney, Iwill compensate you for the expenses incurred.

4. You do not have any duty to check with me from time to time to determine if I am able toconduct my business affairs. I expect that if this occurs, you will be notified by a familymember, friend, or colleague of mine.

[Trusted Family Member or Friend/Attorney-in-Fact] [Date]

[Planning Lawyer] [Date]

206

NOTICE OF DESIGNATED SUCCESSOR LAWYER

I, ________________________________________, have authorized the following lawyer(s) to assist with the closure of my practice:

Name of Authorized Successor Lawyer: Address: Phone Number:

Name of Successor Lawyer's Alternate: Address: Phone Number:

[Planning Lawyer] [Date]

MAIL THIS FORM TO PLANNING LAWYER’S PROFESSIONAL LIABILITY INSURER.

207

WILL PROVISIONS

With respect to my law practice, my personal representative is expressly authorized and directed to carry out the terms of the Agreement to Close Law Practice I have made with Successor Lawyer on ; if that Agreement is not in effect, my personal representative is authorized to enter into a similar agreement or agreements with other lawyers as my personal representative, in his/her sole discretion, may determine to be necessary or desirable to protect the interests of my clients and dispose of my practice.

OR

My personal representative is expressly authorized and directed to take such steps as s/he deems necessary or desirable, in my personal representative's sole discretion, to protect the interests of the clients of my law practice and to wind down or dispose of that practice, including but not limited to: sale of the practice, collection of accounts receivable, payment of expenses relating to the practice, and employing a lawyer or lawyers to review my files, complete unfinished work, notify my clients of my death and assist them in finding other lawyers, and provide long-term storage of and access to my closed files.

208

what

’s ne

xt?

209

Succession Planning What happens to your clients if you suddenly become an “absent attorney,”* one who leaves the practice of law with little to no advance warning, whether due to death, disability or otherwise?

The State Bar of Georgia is implementing a voluntary program where you can notify the State Bar that you have selected someone who can help return your files and other property to your clients in the event that you become an absent attorney.

Beginning this year, your annual State Bar dues notice contains the following language:

NOTICE OF DESIGNATED ATTORNEYI hereby nominate the following State Bar of Georgia member(s) to assist with coordinating the return of client files and property in the event I become an “absent attorney” as defined under Rule 4-228(a) of the Georgia Rules of Professional Conduct. I have discussed this with the person(s) named below, and they are willing to be considered to serve in this capacity.

NAME STATE BAR NUMBER

NAME STATE BAR NUMBER

We encourage all lawyers to participate in this voluntary program. All you have to do is speak with another lawyer and obtain his or her willingness to work with the State Bar to return your files and other property to your clients in the event you become an absent attorney through death, disability or otherwise.

Other states that have implemented this program have seen substantial success in timely transitioning client files to other lawyers. Reciprocal agreements between lawyers to help return client files and property in such events are strongly encouraged.

Remember that the State Bar of Georgia stands ready to assist volunteers. People willing to serve in this capacity are not expected or required to handle any cases, but merely to assist in returning client files and property.

If you have questions, please contact Natalie Kelly, Director of the Law Practice Management Department of the State Bar, at 404-527-8770.

* Absent Attorney – a member of the State Bar of Georgia (or a foreign or domestic lawyer authorized to practice law in Georgia) who shall have disappeared, died, become disbarred, disciplined or incarcerated, or become so impaired as to be unable to properly represent his or her clients or as to pose a substantial threat of harm to his or her clients or the public as to justify appointment of a Receiver hereunder by the Supreme Court of Georgia. Rule 4-228(a).

210

Closing Down Another Attorney’s Practice Checklist

This is a checklist for an attorney who is closing another attorney’s practice. The reason that the attorney is closing his or her practice will affect how you proceed. For example, if the attorney is disabled or deceased, you may need to make decisions without the attorney’s assistance. To the extent that the attorney and his or her staff are available, you should make every effort to seek their assistance. If you are closing an attorney’s practice and selling it to another attorney, refer to Checklist of Concerns When Assuming the Responsibility for Another Attorney's Practice (Purchase or Acquisition).

Costs involved in closing for another attorney’s practice can be significant. Be prepared and be careful about who is responsible for these expenses.

The term “Affected Attorney” refers to the attorney whose office is being closed and whose practice is being terminated. “Closing Attorney” refers to the attorney who is closing the Affected Attorney’s practice.

1. Check the calendar and active files to determine which items are urgent. If possible,discuss with the Affected Attorney the status of open files. If the attorney has diedor is otherwise unavailable, contact the secretary, paralegal or other assistants whoworked with the Affected Attorney. Staff members often have relationships withthe clients and a great deal of helpful information. If possible, retain andcompensate the staff while you are closing the Affected Attorney’s practice.

2. On cases in suit, expect a full and active litigation calendar awaiting compliance.Immediately review upcoming trial dates and note of issue filing deadlines,scheduled court dates, appearances, depositions, motion return dates and filingdates for briefs, pleadings and discovery responses. Obtain a run of the calendarfor the next six months. Expect that some active and upcoming dates may not bedocketed on the calendar. Discover these by reviewing each case file, andcommunicating with opposing counsel or the court. In civil litigation, many casesare governed by a judicial preliminary conference order which directs that eachphase of a case occur by a certain date. Check the preliminary conference order inevery case. If extensions are needed on the preliminary conference schedulingorder, seek extensions in writing well before close of the discovery period.Determine what can be adjourned and what needs to be dealt with. Courts andopposing counsel are generally cooperative about adjourning matters whendisability strikes, but need as much advance notice as possible.

3. Contact clients for matters that are urgent or immediately scheduled for hearing orcourt appearances, or discovery. Obtain permission to postpone or reschedule.Talk to clients about retaining new counsel to take over responsibility for theirmatters.

211

4. Contact courts and opposing counsel about files that require immediate discovery

or court appearances. Reschedule hearings or obtain extensions where necessary. Confirm extensions and adjournments in writing.

5. For transactional matters, check the underlying contract for deadlines in which to send notices, to take actions or to close the transaction and identify funds that are held in escrow. Confirm material terms with clients and, if prudence requires, with the counter-party’s attorney.

6. Immediately determine who is responsible for the IOLTA and attorney escrow

accounts. If there is another signatory on the account, contact that attorney immediately. Obtain written instructions from clients and third parties concerning funds in the IOLTA and trust accounts. If the escrow accounts do not appear to be in order, you may need to arrange for an audit of the accounts to determine whether there are adequate funds to meet escrow obligations before disbursing the funds on deposit in the accounts.

7. Promptly address open litigation matters. Check the applicable statutes of

limitations and procedural deadlines in each file. Statutes of limitations range from ninety-day notice of claim periods to six or nine months to three years for tort actions, and beyond. There are mandatory deadlines for perfecting appeals, filing tax forms, commencing Article 78 proceedings, seeking review of property tax assessments and nearly every judicial or administrative challenge. With respect to matters not within your areas of expertise, consult with other lawyers to determine the timeliness of issues referred to in the Affected Attorney’s files.

8. Open and review all unopened mail. Review all mail that is not filed and match it to

the appropriate file.

9. Contact clients with active files and explain that the Affected Attorney’s law office is being closed and that you are handling the closing. Confirm this in writing. (See sample letters – Letter Advising That Lawyer Is Closing His/Her Office). Advise the clients to promptly retain new counsel and make arrangements to have their files returned to them or transferred to new counsel. Provide clients with a date by which they should pick up their files or send instructions to deliver the file to another attorney and describe the consequences of their failure to do so. You may recommend successor counsel to the client, including yourself. Transfers of files and changes of counsel often raise issues of fees owed to the Affected Attorney and must be dealt with at the time of transfer. For example, if a matter was being handled on a contingency fee basis, attempt to negotiate the Affected Attorney’s share of such fee with the attorney who is taking over the representation, before the file is transferred or the new attorney substituted as

212

counsel. Similarly, if a matter was being handled on an hourly basis and there are outstanding fees owed to the Affected Attorney, payment should be obtained or secured, if possible, before the file is delivered to the client or transferred to new counsel. If satisfactory arrangements or agreement is not possible, you may need to file an application with a court. Charging and retaining liens may be asserted in appropriate cases, with some limitations.

10. For each case pending in court or before an administrative body, make sure that a

Substitution of Counsel is served on the parties and filed with the court. If there is no Substitution of Counsel, you may have to make a motion to have the Affected Attorney relieved of representation of the client. Review GRPC 1.16. Notify the Affected Attorney’s accountant of your involvement in closing the Affected Attorney’s practice and seek assistance in reviewing financial records, including IOLTA and escrow accounts. If the Affected Attorney acted as his or her own accountant and tax preparer, the Closing Attorney should retain an accountant to determine the financial status and tax liabilities of the Affected Attorney. The Closing Attorney should decide how financial accounting will be carried out during the period in which the Affected Attorney’s practice is being closed.

11. The general rule is that files belong to clients, not their attorneys. The exceptions to that rule are that lawyers’ notes are generally not the property of the client and a client whose bill is unpaid does not necessarily have a right to the file. If a client wants an original file, you should prepare and obtain a signed receipt for it. Review the content of each file before returning it to the client who has requested it. Decide whether you need to retain a copy of all or some portion of the file. Consider retaining documents for the benefit of the Affected Attorney so that the attorney or the estate can defend claims if necessary. Return all closed files to clients. Closed files that cannot be returned may be destroyed (i.e., shredded) if there are no original client documents or property contained in such files and efforts to reach the clients are unsuccessful and if the rules requiring retention of such files are complied with. Files that must be maintained because they cannot be returned or destroyed should be preserved and an authorized custodian should assume responsibility for such files. Original wills and other original documents must be returned to clients and may not be destroyed or otherwise disposed of. In the case of original wills, if you are unable to locate the clients after a diligent search, you may file such wills with the Surrogate’s Court (be aware of filing fees) or deposit them with an appropriate depository (e.g., the appropriate county bar association) and notify the clients in writing, addressed to their last known address. Do NOT destroy them. When returning files, make sure that you are returning them to the proper client. If a husband and wife executed wills years ago and the wife responds to your client inquiry letter by asking for the file, do not send back the husband’s will 213

without his written authorization. The same rule applies to corporations, shareholders, business partners, etc. Seek court or ethics committee guidance where appropriate.

12. To locate clients for whom there are no current addresses, contact the postal service and other sources of information. If necessary, consider publication to advertise that the firm has closed. Be careful not to disclose confidential client information, including the existence of the attorney/client relationship, to third parties.

13. If the Affected Attorney whose practice is being closed was a sole practitioner, arrange for calls to his or her phone number to be forwarded to a new number. This eliminates the problem created when clients call the Affected Attorney’s phone number, get a recording stating that the number is disconnected and do not know where to turn for information. Even if the Closing Attorney has not agreed to take on this responsibility, there is often no other alternative available.

14. Prepare a final billing statement showing any outstanding fees due. Remit money

received from clients for services rendered by the Affected Attorney to his or her estate or as directed by the Affected Attorney or personal representative. Review applicable retainer agreements and engagement letters. If there are fee disputes with clients, you may have to negotiate and settle outstanding fees owed to the Affected Attorney. Notify the Affected Attorney’s accountant to obtain a full understanding of the Affected Attorney’s accounting procedures.

214

CHECKLIST OF CONCERNS WHEN ASSUMINGTEMPORARY RESPONSIBILITY FOR ANOTHERATTORNEY’S PRACTICE (DISABILITY OR SUSPENSION)

The term “Responsible Attorney” refers to the attorney who is assuming temporary responsibility for another attorney’s practice. The term “Affected Attorney” refers to the attorney who is disabled, temporarily or permanently, or who has been suspended, resigned or disbarred. If you are purchasing the Affected Attorney’s practice, please refer to Checklist of Concerns When Assuming the Responsibility for Another Attorney's Practice (Purchase or Acquisition) and GRPC 1.17. The “Responsible Attorney” and the “Affected Attorney” should determine, in advance, whether the Affected Attorney’s law practice can or should be sold, either to the Responsible Attorney or to another attorney or law firm, and on what terms. While many law practices do not have a realizable value, some do and the Affected Attorney may be entitled to realize that value.

1. If possible, discuss with the Affected Attorney the status of open files—what hasbeen completed, what has not, what has been billed, etc. The Affected Attorneymay or may not be available to discuss individual matters. Often the AffectedAttorney will know what matters require the most immediate attention, and willbe able to prioritize his or her caseload to assist you in your caretakerresponsibilities.

2. Consider who will be responsible for the overhead costs involved in managingthe practice for the interim period. Address compensation of the ResponsibleAttorney.

3. Where the Responsible Attorney does not have the expertise in one or more ofthe areas in which the Affected Attorney practiced, the Responsible Attorneyshould enlist the assistance of other practitioners. The Responsible Attorney mayseek such assistance through the court (if court-appointed) or through the barassociation referral service.

4. Immediately determine who is responsible for and who is a signatory on theAffected Attorney’s IOLTA and attorney escrow accounts. If there is a secondsignatory on the account, contact that attorney immediately. If there is no secondsignatory, you may assume responsibility for the accounts if they are in order. Ifthe recordkeeping for the IOLTA or escrow account is not adequate to determinewho is entitled to the funds on deposit in such accounts or whether the accountsare fully funded, you may need to arrange for an audit of the accounts to determinewhether there are adequate funds in the accounts for the clients and third partiesentitled to receive such funds. You may consider alternatives to becoming asignatory on an account that is not fully reconciled and adequately funded. Seekethics advice if necessary.

5. In assuming temporary responsibility for the Affected Attorney’s practice,consider and recognize the Affected Attorney’s “practice habits.” For example,if the attorney met with clients in their homes or places of business, or if thestaff was actively involved in the attorney’s client relations, consider continuingin this same manner or 215


advising the clients of your practices. Clearly advise clients of their right to seek new counsel of their own choosing. Give as much information as possible to clients as to the expected return of the Affected Attorney to active practice, if that is likely. Take great care to properly.

6. Consider whether to maintain the same fee arrangements if the ResponsibleAttorney is to render legal services to the Affected Attorney’s clients. If possible,determine in advance whether hourly rates or flat or staged fees will be used, andat what amounts. You may need new retainer agreements confirming the newarrangements, even if temporary. Disclosure of fee arrangements is required underthe Rules of Professional Conduct (GRPC 1.5) and perhaps advisable under thespirit of GRPC 1.17, governing the sale of a law practice, although there is littledirection in the Rules as to how fees are to be handled in these circumstances. Iftime and the Affected Attorney’s condition allow, the attorney should introducethe Responsible Attorney to non-lawyer staff members, referral sources such asinsurance agents, bankers, realtors, and accountants with whom the attorneyworked. If the Affected Attorney is not available to assist in this capacity, theResponsible Attorney may contact these people, not only for purposes of preserving client relations, but also to determine the location of any missing clientsand, if needed, to facilitate the temporary operation of the Affected Attorney’spractice. Many clients work with a team of advisors and, with the client’s consent,the Responsible Attorney may have discussions with these other professionals.

7. Notify the Affected Attorney’s accountant. If the Affected Attorney did his or herown accounting and tax preparation, the Responsible Attorney’s accountant, withauthorization, may assist in determining the tax and financial liabilities of theAffected Attorney. The Responsible Attorney should decide how financial recordswill be maintained during this temporary management of the practice of theAffected Attorney.

8. Review “vendor” relationships with the Affected Attorney’s vendors. Determinewhether prepayments have been made for services and products that will not beused, and whether bills for storage of files, stationery, supplies, etc. must be paid.

9. Immediately address open litigation matters. Check the statute of limitations oneach file. There are numerous litigation-related statutes of limitations, rangingfrom a ninety-day notice of claim to perfecting an appeal in six or nine months,to three years in filing various tort actions. In other practice areas, tax forms,Article 78 proceedings, administrative appeals, construction liens, and grievancesto real property tax assessments, all must be filed or served by specific dates.Recognize, understand and comply with time limitations on each file.

On cases in suit, expect a full and active litigation calendar awaiting compliance.Immediately review upcoming trial dates, expert disclosure and note of issue filing

216


deadlines, court dates, appearances, depositions, motion return dates, and brief, pleading, and discovery document filing dates. Ask for a run of the calendar for the next six months. Also, expect that some active and upcoming dates may not be docketed on the calendar. Discover these by reviewing each case file, and communicating with opposing counsel or the court. In civil litigation, many cases are run by judicial preliminary conference scheduling order, which directs that each phase of the case occur by a certain date. Check these immediately in every case. If extensions are needed on the preliminary conference scheduling order, issue letters to this effect well before the close of the discovery period. Determine what can be adjourned, and what needs to be dealt with. Courts and opposing counsel are generally cooperative about adjourning matters when disability strikes, but need as much advance notice as possible.

10. Reassure the existing clients that their cases are being handled properly, and thatthe Affected Attorney will return to the practice soon, if that is the case. Considermeeting the clients personally to reassure them and answer their questions. Aftertaking care of the immediate concerns, review each file in detail. If the AffectedAttorney will be out for a significant length of time but will return at some point,and the clients have not engaged other counsel, as the Responsible Attorney oneof your concerns will be to maintain the revenue stream to keep the practicefinancially healthy. Consider drafting an internal case management plan for eachfile. This should move the files ahead in an orderly and sequenced fashion and flagrelevant compliance dates.

217

C. Checklist for Lawyers Planning to Protect Clients’ Interests in theEvent of the Lawyer’s Disability, Impairment, Incapacity or Death

1. Consider using retainer agreements with your clients that state that you havearranged for an Assisting Attorney to manage or close your practice in theevent of your death, your temporary or permanent disability, impairment orincapacity, and identifying such attorney. Be sure to keep his/her identitycurrent with your clients.

2. Have a thorough and up-to-date office procedure manual that includesinformation on:a. How to check for conflicts of interest;b. How to use the calendaring system;c. How to generate and maintain a current list of active client files, including

client names, addresses, and phone numbers and email addresses;d. Where client ledgers are kept and if locked how to obtain access to them;e. How the open/active files are organized;f. How the closed files are organized and their assigned numbers;g. Where the closed files are kept and how to access them;h. The office policy on keeping original documents of clients and how to

access them;i. Where original client documents are kept and how to access them;j. Where the safe deposit box is located, its number, and how to access it;k. The bank name, address, account signers, and account numbers for all law

office bank accounts;l. The location of all law office bank account records (trust and general);m. Where to find, or who knows about, the computer passwords;n. How to access your voice mail (or answering machine) and the access code

numbers;o. Business and personal insurance policies with contact information for

brokers and insurance companies;p. How to access all current and past employee service personnel, provider

and facility and equipment records.

3. Make sure all your file deadlines (including follow-up deadlines) are on yourcalendaring system.

4. Document your files. (Keep a master list of files, past and present. Filedocuments in appropriate files.)

5. Keep your time and billing records up to date.

218

E. LETTER ADVISING THAT LAWYER IS UNABLE TOCONTINUE IN PRACTICE

Re: [Name of Case]

Dear [Name]:

Due to ill health, [Planning Lawyer] is no longer able to continue to practice law. You will need to retain the services of another lawyer to represent you in your legal matters. I will be assisting [Planning Lawyer] in closing [his/her] practice. We recommend that you retain the services of another lawyer immediately so that all of your legal rights can be preserved.

You will need a copy of your legal file for use by you and your new lawyer. I am enclosing a written authorization for your file to be released directly to your new lawyer. You or your new lawyer can forward this authorization to us and we will release the file as instructed. If you prefer, you can come to [address of office or location for file pick-up] and pick up a copy of your file so that you can deliver it to your new lawyer yourself. Please make arrangements to pick up your file, or have your file transferred to your new lawyer, by [date]. It is imperative that you act promptly so that all of your legal rights will be preserved.

Your closed files will be stored in [location]. If you need a closed file, you can contact me at the following address and phone number until [date]:

[Name] [Address] [Phone]

After that time, you can contact [Planning Lawyer] for your closed files at the following address and phone number:

[Name] [Address] [Phone]

You will receive a final accounting from [Planning Lawyer] in a few weeks. This will include any outstanding balances that you owe to [Planning Lawyer], and an accounting of any funds in your client trust account. On behalf of [Planning Lawyer], I would like to thank you for giving [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,

Successor Lawyer] [Firm]

219

F. LETTER ADVISING THAT LAWYER IS CLOSING HIS/HERPRACTICE

Re: [Name of File, Case or Matter]

Dear [Client Name]:

Due to (provide reason for inability to practice, such as health, disability, retirement, death, discipline, or other), [Affected Attorney] is no longer able to continue 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 encourage you to do so immediately to protect your legal interests and avoid adverse consequences or action against you. I will assist [Affected Attorney] in closing [his/her] practice.

You will need [a copy/copies] of your file(s). Accordingly, enclosed please find a proposed written authorization for your file(s) to be released directly to your new attorney. When you or your new attorney returns this signed authorization, I (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 retrieve [it/them] so that you may deliver [it/them] to your new attorney. In either case, it is imperative that you act promptly, and in no event later than [provide date] so that 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 legal fees you currently 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 contact me at the address and phone number indicated in this letter.

Thank you.

Sincerely,

[Assisting Attorney] [Firm]

220

G. LETTER FROM FIRM OFFERING TO CONTINUE REPRESENTATION

Re: [Name of Case]

Dear [Name]:

Due to ill health, [Planning Lawyer] is no longer able to continue representing you on your case(s). A member of this firm, [name], is available to continue handling your case if you wish [him/her] to do so. You have the right to select the lawyer of your choice to represent you in this matter.

If you wish our firm to continue handling your case, please sign the authorization at the end of this letter and return it to this office.

If you wish to retain another lawyer, please give us written authority to release your file directly to your new lawyer. If you prefer, you may come to our office and pick up a copy of your file and deliver it to your new lawyer yourself. We have enclosed these authorizations for your convenience.

Since time deadlines may be involved in your case, it is imperative that you act immediately. Please provide authorization for us to represent you or written authority to transfer your file by [date].

I want to make this transition as simple and easy as possible. Please feel free to contact me with your questions.

Sincerely,

[Successor Lawyer] Enclosures

I want a member of the firm of [insert law firm's name] to handle my case in place of [insert Planning Lawyer's name].

[Client] [Date]

221

H. LAWYER-CLIENT FEE AGREEMENT FIRM NAME STREET CITY, STATE, ZIP PHONE DATE ("Lawyer"), will provide legal services to ("Client"), on the terms set forth below. 1. CONDITIONS. This Agreement will not take effect, and Lawyer will have no

obligation to provide legal services, until Client returns a signed copy of this Agreement and pays the initial deposit (advanced fee) called for under Paragraph 5.

2. SCOPE OF SERVICES. Client hires Lawyer to provide legal services in the

following matter: [describe matter]. Lawyer will provide those legal services reasonably required to represent Client. Lawyer will take reasonable steps to keep Client informed of progress and to respond to Client's inquiries. If a court action is filed, Lawyer will represent Client through trial and post-trial motions. This Agreement does not cover representation on appeal or in execution proceedings after judgment. Separate arrangements must be agreed to for those services. Services in any matter not described above will require a separate Agreement.

3. CLIENT. The lawyer is representing the Client (name) only in this matter. It is

understood by Client and any third party who may be assisting Client financially, emotionally or otherwise, in this matter, that lawyer’s duty is to act in the best interest of the Client and lawyer cannot share information about Client’s case with anyone other than Client without express permission .

4. RESPONSIBILITIES OF THE PARTIES. Client agrees to be truthful with Lawyer, to cooperate, to keep Lawyer informed of any information or developments which may come to Client’s attention, to abide by this agreement, and to pay Lawyer’s bills on time. Further, while it is impossible to predict the course of a representation, it may be important for Lawyer to contact Client immediately, or upon short notice, to confer with Client regarding the status of Client’s case. An inability to do so may result in Client’s case being prejudiced and detrimentally affect the outcome of the case. Accordingly, Client agrees to keep Lawyer informed of Client’s current address, telephone number and whereabouts. If Client leaves town, for example, to travel on business or vacation, Client agrees to notify Lawyer before leaving of the expected duration of the trip and how Client may be contacted in the meantime.

5. DEPOSIT (ADVANCED FEE). Client agrees to pay Lawyer an initial deposit (advanced fee) of $ by ________ The hourly charges will be credited against the deposit (advanced fee). The initial deposit (advanced fee), as well as any future

222

deposit (advanced fee), will be held in a trust account. Client authorizes Lawyer to use that fund to pay the fees and other charges as they are incurred. Billing statements detailing the charges credited against the deposit (advanced fee) will be sent periodically to the client. Withdrawal from the trust account will be made days after the date of this billing statement. Client acknowledges that the deposit (advanced fee) is not an estimate of total fees and costs, but merely an advance for security. Whenever the deposit (advanced fee) is exhausted, Lawyer reserves the right to demand further reasonable deposits (advanced fees). Once a trial or arbitration date is set, Client shall pay all sums then owing and pay the lawyers' fees estimated to be incurred in preparing for and completing the trial or arbitration, as well as the jury fees and court costs or arbitration fees, expert witness fees and other costs likely to be assessed. Client agrees to pay all deposits (advanced fees) after the initial deposit (advanced fee) within days of Lawyer's demand. Any unused deposit (advanced fee) at the conclusion of Lawyer's services will be refunded. Client understands that failure to deposit advanced fee) within days may result in lawyer asking for leave to withdraw.

6. LEGAL FEES AND BILLING PRACTICES. Client agrees to pay by the hour at Lawyer's prevailing rates for all time spent on Client's matter by Lawyer's legal personnel. Current hourly rates for legal personnel are as follows:

Time is charged in units of an hour. Telephone calls:

Senior partners /hour Partners /hour Associates /hour Letters: Paralegals /hour Other: Law clerks /hour Interest charges:

The time charged will/may include the time Lawyer spends on telephone calls relating to Client's matter, including calls with Client, witnesses, opposing counsel or court personnel. The legal personnel assigned to Client's matter will/may confer among themselves about the matter, as required and appropriate. When they do confer, each person will/may charge for the time expended, as long as the work done is reasonably necessary and not duplicative. Likewise, if more than one of the legal personnel attends a meeting, court hearing or other proceeding, each will/may charge for the time spent. Lawyer will/may charge for waiting time in court and elsewhere and for travel time, both local and out of town.

223

7. COSTS AND EXPENSES (a) In General. Lawyer will incur various costs and expenses in performing

legal services under this Agreement. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fees. The costs and expenses commonly include, service of process charges, filing fees, court and deposition reporters' fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants' fees, expert witness, professional, mediator, arbitrator and/or special master fees and other similar items. Except for the items listed below, all costs and expenses will be charged at Lawyer's cost.

In-office photocopying /page Facsimile charges /page Mileage /mile Other:

(b) Out of Town Travel. Client agrees to pay transportation, meals, lodging and all other costs of any necessary out-of-town travel by Lawyer's personnel. Client will also be charged the hourly rates for the time legal personnel spend traveling.

ALTERNATE ONE

(c) Experts, Consultants, and Investigators. To aid in the preparation or presentation of Client's case, it may become necessary to hire expert witnesses, consultants, or investigators. Client agrees to pay such fees and charges. Lawyer will consult with client on the selection of any expert witnesses, consultants, etc., to be hired and their charges.

Additionally, Client understands that if the matter proceeds to court action or arbitration, Client may be required to pay fees and/or costs to other parties in the action. Any such payment will be entirely the responsibility of Client.

ALTERNATE TWO (b) Experts, Consultants, and Investigators. To aid in the preparation or

presentation of Client's case, it may become necessary to hire expert witnesses, consultants, or investigators. Lawyer will select, in consultation with client, any expert witnesses, consultants or investigators to be hired and Client will be informed of persons chosen and their charges. 224

Client authorizes Lawyer to incur all reasonable costs and to hire any investigators, consultants, or expert witnesses reasonably necessary in Lawyer's judgment unless one or both of the clauses below are initialed by Lawyer.

Lawyer shall obtain Client's consent before incurring any costs in excess or $ . Lawyer shall obtain Client's consent before retaining outside investigators, consultants, or expert witnesses.

8. BILLING STATEMENTS. Lawyer will send Client periodic statements for fees and costs incurred, upon request by client. If Client so requests, Lawyer will provide one within 10 days. The statements shall include the amount, rate, basis of calculation or other method of determination of the fees and costs, which costs will be clearly identified by item and amount. If the Client objects to any charges to be credited against the deposit (advanced fee), Client may notify Lawyer within days. (Correlate with paragraph 5-Deposit – Advanced Fee) If any statement carries a balance due, it shall be paid in full within days after the date of such statement.

9. DISCHARGE AND WITHDRAWAL. Client may discharge Lawyer at any time.

Lawyer may withdraw with Client's consent or for good cause. Good cause includes Client's breach of this agreement, refusal to cooperate or to follow Lawyer's advice on a material matter or any fact or circumstance that would render Lawyer's continuing representation unlawful or unethical. When Lawyer's services conclude, all unpaid charges will immediately become due and payable. After services conclude, Lawyer will, upon Client's request, deliver Client's file, and property in Lawyer's possession whether or not Client has paid for all services. Client understands that to the limited extent lawyer has paid out of pocket expenses for items, which have not yet been reimbursed by client, but has not been reimbursed by client, lawyer may be reimbursed for that particular expense before releasing the item.

Lawyer will maintain Client’s file for years after this matter is concluded. Client may request the file at any time during, upon conclusion of, or after conclusion of, this matter. years after the conclusion of this matter, the file may be destroyed without further notice to Client.

10. DISCLAIMER OF GUARANTEE AND ESTIMATES. Nothing in this

agreement and nothing in Lawyer's statements to Client will be construed as a promise or guarantee about the outcome of the matter. Lawyer makes no such promises or guarantees. Lawyer's comments about the outcome of the matter are expressions of opinion only. Any estimate of fees given by Lawyer shall not be a guarantee. Actual fees may vary from estimates given.

11. ENTIRE AGREEMENT. This Agreement contains the entire Agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties.

225

12. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision

of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.

13. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement

may be modified by subsequent Agreement of the parties only by an instrument in writing signed by both of them or an oral agreement only to the extent that the parties carry it out.

14. EFFECTIVE DATE. This Agreement will govern all legal services performed

by Lawyer on behalf of Client commencing with the date Lawyer first performed services. The date at the beginning of this Agreement is for reference only. Even if this agreement does not take effect, Client will be obligated to pay Lawyer the reasonable value of any services Lawyer may have performed for Client.

15. Lawyer may appoint another lawyer to assist with the closure of Lawyer’s

office in the event of Lawyer’s death, disability, impairment, or incapacity. In such event, Client agrees that the Successor Lawyer can review Client’s file to protect Client’s rights and can assist with the closure of Lawyer’s law practice.

THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE LAWYER FIRST PROVIDED SERVICES. IF MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE, JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT. CLIENT SHALL RECEIVE A FULLY EXECUTED DUPLICATE OF THIS AGREEMENT. DATED : LAW FIRM Client Name Address Telephone: DATED : LAW FIRM By: (NAME), Partner

226

I. LAWYER-CLIENT FEE AGREEMENT FIRM NAME STREET CITY, STATE ZIP PHONE DATE ("Lawyer"), will provide legal services to ("Client"), on the terms set forth below.

1. CONDITIONS. This Agreement will not take effect, and Lawyer will have no obligation to provide legal services, until Client returns a signed copy of this Agreement and pays the initial deposit (advanced fee) called for under Paragraph 5.

2. SCOPE OF SERVICES. Client hires Lawyer to provide legal services in the

following matter: [describe matter]. Lawyer will provide those legal services reasonably required to represent Client. Lawyer will take reasonable steps to keep Client informed of progress and to respond to Client's inquiries. This Agreement does not cover litigation services of any kind, whether in court, arbitration, administrative hearings, or government agency hearings. Separate arrangements must be agreed to for those services. Services in any matter not described above will require a separate Agreement.

3. CLIENT. The lawyer is representing the Client (name) only in this matter. It is

understood by Client and any third party who may be assisting Client financially, emotionally or otherwise, in this matter, that lawyer’s duty is to act in the best interest of the Client and lawyer cannot share information about Client’s case with anyone other than Client without express permission.

4. CLIENT'S DUTIES. Client agrees to be truthful with Lawyer, to cooperate, to

keep Lawyer informed of any information or developments which may come to Client's attention, to abide by this agreement, to pay Lawyer's bills on time and to keep Lawyer advised of Client's address, telephone number and whereabouts. Client will assist Lawyer in providing information and documents necessary for the representation in the described matter.

5. DEPOSIT (ADVANCED FEE). Client agrees to pay Lawyer an initial deposit

(advanced fee) of $ by . The hourly charges will be credited against the deposit (advanced fee). The initial deposit (advanced fee), as well as any future deposit (advanced fee), will be held in a trust account. Client authorizes Lawyer to use that fund to pay the fees and other charges as they are incurred. Payments from the fund will be made upon remittance to client of a billing statement. Client acknowledges that the deposit (advanced fee) is not an estimate of total fees and costs, but merely an advance for security. Whenever the deposit (advanced fee) is exhausted, Lawyer reserves the right to demand further deposits (advanced fees), each up to a maximum of $ . Client agrees to

227

pay all deposits (advanced fees) after the initial deposit (advanced fee) within days of Lawyer's demand. Unless otherwise agreed in writing, any unused deposit (advanced fee) at the conclusion of Lawyer's services will be refunded.

6. LEGAL FEES AND BILLING PRACTICES. Client agrees to pay by the

hour at Lawyer's prevailing rates for all time spent on Client's matter by Lawyer's legal personnel. Current hourly rates for legal personnel are as follows:

Senior partners /hour Partners/hour Associates /hour Paralegals /hour Law clerks /hour

The rates on this schedule are subject to change on 30 day written notice to client. If Client declines to pay any increased rates, Lawyer will have the right to withdraw as Lawyer for Client. The time charged will include the time Lawyer spends on telephone calls relating to Client's matter, including calls with Client and other parties and lawyers. The legal personnel assigned to Client's matter may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary and not duplicative. Likewise, if more than one of the legal personnel attends a meeting or other proceeding, each will charge for the time spent. Lawyer will charge for waiting time and for travel time, both local and out of town. Time is charged in minimum units of one tenth (. 1) of an hour. The following have higher minimum charges:

Telephone calls: Letters: Other:

7. COSTS AND EXPENSES. (a) In General. Lawyer will incur various costs and expenses in performing legal

services under this Agreement. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fees. The costs and expenses commonly include fees fixed by law or assessed by public agencies, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses and consultants' fees and other similar items. Except for the items listed below, all costs and expenses will be charged at Lawyer's cost.

228

In-Office photocopying /page Facsimile charges /page Mileage / mile Other:

(b) Out of Town Travel. Client agrees to pay transportation, meals, lodging and all other costs of any necessary out-of-town travel by Lawyer’s personnel. Client will also be charged the hourly rates for the time legal personnel spend traveling.

ALTERNATE ONE

(c) Experts, Consultants, and Investigators. To aid in the preparation or presentation of Client's case, it may become necessary to hire expert witnesses, consultants, or investigators. Client agrees to pay such fees and charges. Lawyer will consult with client on the selection of any expert witnesses, consultants, etc., to be hired and their charges. Additionally, Client understands that if the matter proceeds to court action or arbitration, Client may be required to pay fees and/or costs to other parties in the action. Any such payment will be entirely the responsibility of Client.

ALTERNATE TWO

(c) Experts, Consultants, and Investigators. To aid in the preparation or presentation of Client's case, it may become necessary to hire expert witnesses, consultants, or investigators. Lawyer will select, in consultation with client, any expert witnesses, consultants or investigators to be hired and Client will be informed of persons chosen and their charges.


Lawyer shall obtain Client's consent before incurring any costs in excess or_____. Lawyer shall obtain Client's consent before retaining outside investigators, consultants, or expert witnesses.

8. BILLING STATEMENTS. Lawyer will send Client periodic statements for fees

and costs incurred. Each statement will be payable within days of its mailing date. Client may request a statement at intervals of no less than 30 days. If Client so requests, Lawyer will provide one within 10 days. The statements shall include the amount, rate, basis of calculation or other method of determination of the fees and costs, which costs will be clearly identified by item and amount.

229

11. DISCHARGE AND WITHDRAWAL. Client may discharge Lawyer at any time. Lawyer may withdraw with Clients consent or for good cause. Good cause includes Client's breach of this agreement, refusal to cooperate or to follow Lawyer's advice on a material matter or any fact or circumstance that would render Lawyer's continuing representation unlawful or unethical. When Lawyer's services conclude, all unpaid charges will immediately become due and payable. After services conclude, Lawyer will, upon Client's request, deliver Client's file, and property in Lawyer's possession, whether or not Client has paid for all services. Client understands that to the limited extent Lawyer has paid out of pocket expenses for items, which have not yet been reimbursed by client, Lawyer may be reimbursed for that particular expense before releasing the item.


12. DISCLAIMER OF GUARANTEE AND ESTIMATES. Nothing in this agreement and nothing in Lawyer's statements to Client will be construed as a promise or guarantee about the outcome of the matter. Lawyer makes no such promises or guarantees. Lawyer's comments about the outcome of the matter are expressions of opinion only. Any estimate of fees given by Lawyer shall not be a guarantee. Actual fees may vary from estimates given.

13. ENTIRE AGREEMENT. This Agreement contains the entire Agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties.

14. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.

15. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may be modified by subsequent Agreement of the parties only by an instrument in writing signed by both of them or an oral agreement only to the extent that the parties carry it out.

16. EFFECTIVE DATE. This Agreement will govern all legal services performed

by Lawyer on behalf of Client commencing with the date Lawyer first performed services. The date at the beginning of this Agreement is for reference only. Even if this agreement does not take effect, Client will be obligated to pay Lawyer the reasonable value of any services Lawyer may have performed for Client.

230

17. Lawyer may appoint another lawyer to assist with the closure of Lawyer’soffice in the event of Lawyer’s death, disability, impairment, or incapacity.In such event, Client agrees that the Successor Lawyer can review Client’sfile to protect Client’s rights and can assist with the closure of Lawyer’s lawpractice.

THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE LAWYER FIRST PROVIDED SERVICES. IF MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE, JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT. THE CLIENT SHALL RECEIVE A FULLY EXECUTED DUPLICATE OF THIS AGREEMENT.

DATED : Client Name Address Telephone:

DATED : LAW FIRM By: (NAME), Partner

231

J. LAWYER-CLIENT CONTINGENCY FEE AGREEMENT

FIRM NAME STREET CITY, STATE ZIP PHONE DATE

("Lawyer"), will provide legal services to ("Client"), on the terms set forth below. This agreement is required by Georgia Supreme Court Rule__________________.

1. CONDITIONS. This Agreement will not take effect, and Lawyer will have noobligation to provide legal services, until Client returns a signed copy of thisAgreement and pays the initial deposit (advanced fee), if any, called for underParagraph 5.

2. SCOPE OF SERVICES. Client is hiring Lawyer to represent Client in the matterof Client's claims against and possibly others as futureinvestigation may indicate, arising out of which occurred on or about

.

Lawyer will represent Client until a settlement or judgment is obtained by way of negotiations or arbitration or trial. Lawyer will oppose any motion for a new trial or any other post-trial motions filed by an opposing party, or will make any appropriate post-trial motions on Client's behalf. After judgment Lawyer will not represent Client on any appeal, or in any proceedings designed to execute on the judgment, without such additional compensation as may be agreed upon in a separate Agreement.

3. CLIENT. Lawyer is representing the Client (name) only in this matter. It isunderstood by Client and any third party who may be assisting Client financially,emotionally or otherwise, in this matter, that lawyer’s duty is to act in the bestinterest of the Client and Lawyer cannot share information about Client’s casewith anyone other than Client without express permission.

4. RESPONSIBILITIES OF THE PARTIES. Lawyer will provide those legalservices reasonably required to represent Client in prosecuting the claimsdescribed in paragraph 2. Client agrees to appear, at all legal proceedings (includingdepositions, hearings including but not limited to trial) when Lawyer deems itnecessary. Client further agrees to generally cooperate fully with Lawyer in allmatters related to the preparation and presentation of Client's claims (includingbut not limited to interrogation, written discovery, trial preparation, clientinterviews). Further, while it is impossible to predict the course of a representation,it may be important for Lawyer to contact Client immediately, or upon shortnotice, to confer with Client regarding the status of Client’s case. An inability to

232

do so may result in Client’s case being prejudiced and detrimentally affect the outcome of the case. Accordingly, Client agrees to keep Lawyer informed of Client’s current address, telephone number and whereabouts. If Client leaves town, for example, to travel on business or vacation, Client agrees notify Lawyer before leaving of the expected duration of the trip and how Client may be contacted in the meantime.

5. DEPOSIT (ADVANCED FEE). Client agrees to pay Lawyer an initial deposit(advanced fee) for costs of $ , to be returned with thissigned Agreement. Lawyer will hold this initial deposit (advanced fee) in a trustaccount. Client hereby authorizes Lawyer to use that deposit (advanced fee) topay the costs and other expenses incurred under this Agreement.

When Client's deposit (advanced fee) is exhausted, Lawyer reserves the right todemand further deposits (advanced fees). Once a trial or arbitration date is set,Lawyer will require Client to pay all sums then owing, and to deposit (advancedfee) the costs Lawyer estimates will be incurred in preparing for and completingthe trial or arbitration, as well as the jury fees court costs or arbitration fees likelyto be assessed. Those sums may exceed the deposit (advanced fee).

Client agrees to pay all deposits (advanced fees) required under this Agreementwithin days of Lawyer's demand. Any deposit (advanced fee) that is unused at theconclusion of Lawyer's services will be refunded.

6. LEGAL FEES AND BILLING PRACTICES. Lawyer will only becompensated for legal services rendered if a recovery is obtained for Client. If norecovery is obtained, Client will be obligated to pay only for costs and expenses,as described in Paragraph 7.

ALTERNATE ONE

The fee to be paid will be a percentage of the “gross recovery,” depending on the stages at which settlement or judgment is reached. The term “gross recovery” means the total of all amounts received by settlement, arbitration award or judgment, including any award of lawyer’s fees. The fee will be calculated before the deduction of any costs and expenses as set forth in Paragraph 7, and the costs and expenses will remain the responsibility of Client to be paid from the portion of any amounts received by Client after deduction of the fee.

Upon conclusion of the matter, Lawyer will provide Client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to Client and the method by which the remittance was calculated.

233

ALTERNATE TWO

The fee to be paid will be a percentage of the “net recovery,” depending on the stage at which settlement or judgment is reached. The term “net recovery” means: 1) the total of all amounts received by settlement, arbitration award or judgment, including any award of lawyer’s fees, 2) minus all costs and expenses as set forth in Paragraph 7.

Upon conclusion of the matter, Lawyer will provide Client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to Client and the method by which the remittance was calculated.

Lawyer's fee shall be calculated as follows:

(i) If the matter is resolved before filing a lawsuit or formal initiationof proceedings, then Lawyer's fee will be_______ percent of the netrecovery;

(ii) If the matter is resolved prior to days before the date initially set forthe trial or arbitration of the matter then Lawyer's fee will be percent( %) of the net recovery; and

(iii) If the matter is resolved after the times set forth in (i) and (ii), above,then Lawyer's fee will be percent ( %) of the netrecovery.

In the event of Lawyer's discharge or withdrawal for cause as provided in Paragraph 12, Client agrees that, upon payment of the settlement, arbitration award or judgment in Client's favor in this matter, Lawyer shall be entitled to be paid by Client a reasonable fee for the legal services provided the extent to which Lawyer’s services have contributed to result obtained. Such fee shall be determined by considering the following factors:

7. COSTS AND EXPENSES. Lawyer will incur various costs and expenses inperforming legal services under this Agreement. Client agrees to pay for all costsand expenses paid or owed by Client in connection with this matter, or whichhave been advanced by Lawyer on Client's behalf and which have not beenpreviously paid or reimbursed to Lawyer. Costs and expenses commonly includecourt fees, jury fees, service of process charges, court and deposition reporters'fees, photocopying and reproduction costs, notary fees, long distance telephonecharges, messenger and other delivery fees, postage, deposition costs, travel costsincluding parking, mileage, transportation, meals and hotel costs, investigationexpenses, consultant, expert witness, professional mediator, arbitrator and/orspecial master fees and other similar items. Except for the items listed below, costsand expenses will be charged at our cost.

234

In-Office photocopying /page

Facsimile charges /page Mileage / mile Other:

Client understands that, as set forth in Paragraph 5, a deposit (advanced fee) for costs may be required before the expenditure is made by Lawyer.

ALTERNATE ONE

Experts, Consultants, and Investigators. To aid in the preparation or presentation of Client's case, it may become necessary to hire expert witnesses, consultants, or investigators. Client agrees to pay such fees and charges. Lawyer will consult with client on the selection of any expert witnesses, consultants, etc., to be hired and their charges.

Additionally, Client understands that if the matter proceeds to court action or arbitration, Client may be required to pay fees and/or costs to other parties in the action. Any such payment will be entirely the responsibility of Client.

ALTERNATE TWO

Experts, Consultants, and Investigators. To aid in the preparation or presentation of Client's case, it may become necessary to hire expert witnesses, consultants, or investigators. Lawyer will select, in consultation with client, any expert witnesses, consultants or investigators to be hired and Client will be informed of persons chosen and their charges.


Lawyer shall obtain Client's consent before incurring any costs in excess or $ .

Lawyer shall obtain Client's consent before retaining outside investigators, consultants, or expert witnesses.

If an award of fees and/or costs is sought on Client's behalf in this action, Client understands that the amount which the court may order as fees and/or costs is the amount the court believes the party is entitled to recover, and does not determine what fees and/or costs Lawyer is entitled to charge its clients or that only the fees and/or costs which were allowed were reasonable. Client agrees that, whether or not lawyer’s fees or costs are awarded by the court in Client's case, Client will remain responsible for the payment, in full, of all lawyer's fees and costs in accordance with this Agreement.

Additionally, Client understands that if Client's case proceeds to court action or arbitration, Client may be required to pay fees and/or costs to other parties in the action. Any such award will be entirely the responsibility of Client.

235

8. BILLING STATEMENTS. Lawyer will send Client periodic billing statementsfor costs and expenses incurred in connection with this matter. Each statement isto be paid in full within days after the date of such statement.

9. DISCHARGE AND WITHDRAWAL. Client may discharge Lawyer at anytime, upon written notice to Lawyer. Lawyer may withdraw from representationof Client (a) with Client's consent (b) upon court approval, or (c) if no court actionhas been filed, for good cause and upon reasonable notice to Client. Good causeincludes Client's breach of this contract, Client's refusal to cooperate with Lawyeror to follow Lawyer's advice on a material matter or any other fact or circumstancethat would render Lawyer's continuing representation unlawful or unethical.

Notwithstanding Lawyer's withdrawal or Client's notice of discharge, and without regard to the reasons for the withdrawal or discharge, Client will remain obligated to pay Lawyer for all costs incurred prior to the termination. In the event that there is any recovery obtained by Client after conclusion of Lawyer's services, Client remains obligated to pay Lawyer for the reasonable value of all services rendered from the effective date of this Agreement to the date of discharge.


10. DISCLAIMER OF GUARANTEE AND ESTIMATES. Nothing in thisAgreement and nothing in Lawyer's statements to Client will be construed as apromise or guarantee about the outcome of this matter. Lawyer makes no suchpromises or guarantees. There can be no assurance that Client will recover anysum or sums in this matter. Lawyer's comments about the outcome of this matterare expressions of opinion only. Client acknowledges that Lawyer has made nopromise or guarantees about the outcome.

11. NEGOTIABILITY OF FEES. The rates set forth are not set by law, but arenegotiable between a lawyer and client.

12. APPROVAL NECESSARY FOR SETTLEMENT. Lawyer will not make anysettlement or compromise of any nature of any of Client's claims without Client'sprior approval. Client has the absolute right to accept or reject any settlement.Client agrees to seriously consider any settlement offer Lawyer recommendsbefore making a decision to accept or reject such offer. Client agrees not to makeany settlement or compromise of any nature of any of Client's claims without priornotice to Lawyer.

13. LIMITATION OF REPRESENTATION. Lawyer represents Client only onthe matter described in paragraph 2 – Scope of Services. Lawyer’s representationdoes not include independent or related matters that arise, including, among otherthings, claims for

236

property damage, workers’ compensation disputes with health care providers about the amount owed for services, or claims for reimbursement (subrogation) by any insurance company for benefits paid under an insurance policy.

In the event there is a dispute between Client and a third party regarding any amounts allegedly owed by Client to the third party and there is a colorable claim to a lien on any proceeds in Lawyer’s possession by the third party, Lawyer will interplead those proceeds to the court for resolution of the dispute, if Client and the third party are unable to resolve the dispute amicably after a reasonable period of time.

This agreement does not include defending Client against, or representing Client in any claims that may be asserted against Client as a cross-claim or counter-claim in Client’s case. This agreement does not apply to any other legal matters. If any such matters arise later, Lawyer and Client will either negotiate a separate Agreement if Client and Lawyer agree that Lawyer will perform such additional legal work or Client engage separate counsel with respect to cross-claims or counter-claims or additional legal work.

Client may have other possible causes of action arising from the facts and circumstances giving rise to this representation. As Lawyer does not represent Client on these other possible claims, Client should seek independent representation if Client wishes to pursue a remedy. Delay or failure to do so may result in Client being barred by a statute of limitations from being able to recover under these other causes of action.

14. CONCLUSION OF SERVICES. When Lawyer's services conclude, allpreviously approved cost and expenses will immediately become due and payable.Lawyer is authorized to use any funds held in Lawyer's trust account as a deposit(advanced fee) against costs to apply to such unpaid costs and expenses. AfterLawyer's services conclude, upon request, Client's file and property will bedelivered to Client; Client's Lawyer's whether or not Client has paid any feesand/or costs owed to Lawyer. Client understands that to the limited extent Lawyerhas paid out of pocket expenses for items, which have not yet been reimbursedby Client, Lawyer may be reimbursed for that particular expense before releasingthat item.

15. LIEN. Client hereby grants Lawyer a lien on any and all claims or causes of actionthat are the subject of representation under this Agreement. Lawyer's lien will befor any sums owing to Lawyer for any unpaid costs, or lawyers' fees, at Client mayobtain, whether by arbitration award, judgment, settlement or otherwise.

16. RECEIPT OF PROCEEDS. All proceeds of Client's case shall be depositedinto Lawyer's trust account for disbursement in accordance with the provisions

237

of this Agreement. No disbursement may be made until the settlement/or recovery check has cleared the bank.

17. ENTIRE AGREEMENT. This Agreement contains the entire agreement ofthe parties. No other agreement, statement or promise made on or before theeffective date of this Agreement will be binding on the parties.

18. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If anyprovision of this Agreement is held in whole or in part to be unenforceable forany reason, the remainder of that provision and of the entire Agreement will beseverable and remain in effect.

19. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreementmay be modified by subsequent agreement of the parties only by an instrument inwriting signed by both of them or an oral agreement only to the extent that theparties carry it out.

20. EFFECTIVE DATE. This Agreement will govern all legal services performedby Lawyer on behalf of Client commencing with the date Lawyer first performedservices. The date at the beginning of the Agreement is for reference only. Evenif this Agreement does not take effect, Client will be obligated to pay Lawyer thereasonable value of any services Lawyer may have performed for Client.

21. Lawyer may appoint another lawyer to assist with the closure of Lawyer’soffice in the event of Lawyer’s death, disability, impairment, or incapacity.In such event, Client agrees that the Successor Lawyer can review Client’sfile to protect Client’s rights and can assist with the closure of Lawyer’s lawpractice.

THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM, AS OF THE DATE LAWYER FIRST PROVIDED SERVICES. IF MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE JOINTLY AND SEVERALLY FOR ALL OBLIGATIONS UNDER THIS AGREEMENT. THE CLIENT SHALL RECEIVE A FULLY EXECUTED DUPLICATE OF THIS AGREEMENT.

DATED: Client Name Address Telephone:

DATED: LAW FIRM By: (NAME), Partner

238

K. ENGAGEMENT LETTER

Re: [Subject]

Dear [Name]:

The purpose of this letter is to confirm, based on our conversation of [date], that [firm name] will represent you in [describe matter]. We will provide the following services: [list services to be provided].

Attached for your use is information on our billing and reporting procedures. Our fee is [dollars per hour] for services performed by lawyers of this firm and [dollars per hour] for services performed by our non-lawyer staff. You will also be billed for expenses and costs incurred on your behalf.

Our expectations of you are: [list any expectations concerning payment of bills, responses to requests for information, etc.].

This firm has not been engaged to provide the following services: [list services that are outside the scope of the representation].

I estimate that fees and expenses in this case will be [provide a realistic, worst-case estimate of fees and expenses]. Please keep in mind that this is only an estimate and that, depending on the time required and the complexity of the action, actual fees and expenses may exceed this estimate. You will be billed for actual fees and expenses.

It is very difficult to accurately predict how long it will take to conclude your case. Generally these cases take [provide a realistic, worst case estimate of time to be spent on the case]. This is only an estimate, and the actual time required to conclude this matter may be greater than expected.

I have enclosed a copy of the initial interview form. If any of the information on this form is incorrect, please notify [primary contact] immediately. If you have any questions about this information, please call [primary contact].

My objectives are to provide you with excellent legal services and to protect your interests in the event of my unexpected death, disability, impairment, or incapacity. To accomplish this, I have arranged with another lawyer to assist with closing my practice in the event of my death, disability, impairment, or incapacity. In such event, my office staff or the Successor Lawyer will contact you and provide you with information about how to proceed.

I will send you pleadings, documents, correspondence, and other information throughout the case. These copies will be your file copies. I will also keep the information in a file in my office. The file in my office will be my file. Please bring your file to all of our meetings so that we both have all of the necessary information available to us. When I have completed all the legal work necessary for your case, I will close my file and return original documents to you. I will then store the file for approximately years. I will destroy the file after that period of time unless you instruct me in writing now to keep it longer.

239

If any of the information in this letter is not consistent with your understanding of our agreement, please contact me before signing this agreement. Otherwise, please sign the agreement and return it to me. On behalf of the firm, we appreciate the opportunity to represent you in this matter. If you have any questions, please feel free to call. Very truly yours, [Lawyer] [Firm] I have read this l sent to it. [Client] [Date] Enclosures [NOTE: This is a sample form only. Use of this letter will help to establish clear expectations and avoid misunderstandings between you and your client. It will not, however, provide absolute protection against a malpractice action.] Reprinted with permission from the ABA Desk Guide to Legal Malpractice, published by the American Bar Association Standing Committee on Lawyers' Professional Liability.

240

L. ENGAGEMENT LETTER AND FEE AGREEMENT FOLLOW-UP

LETTER TO INITIAL INTERVIEW Re: [Subject] Dear [Name]: We met to discuss your case on [date], and I have agreed to represent you in connection with [type of matter] and we agreed to [insert appropriate details]. Thank you for selecting our law firm to represent you in this matter. At this time I also wish to set forth our agreement regarding payment of our fees. Our fees for legal services are [amount per hour], plus any expenses such as filing fees, deposition charges, copying costs, postage, and related expenses. We will bill you approximately monthly, depending on the amount of work that was done on your file during that period of time. At this point, it is difficult to estimate the amount of time and expense that will be necessary to adequately represent you in this case. However, as we discussed, we estimate the fee will be approximately [dollar amount]. We will also advise you before we do any work that will substantially increase the amount of fees. You have deposited [dollar amount] with us for fees and costs. We will hold your funds in our Lawyer's Trust Account. We will provide you with a monthly statement of fees, costs, and expenses. After we mail you the monthly statement, we will apply the funds to fees earned, costs, and expenses incurred. You are also responsible for paying fees, costs, and expenses in excess of the funds that we hold. My goal is to provide you with excellent legal services. I also want to protect your interests in the event of my unexpected death, disability, impairment, or incapacity. In order to accomplish this, I have arranged with another lawyer to assist with closing my practice in the event of my death, disability, impairment, or incapacity. In such event, my office staff or the Successor Lawyer will contact you and provide you with information about how to proceed. I will send you pleadings, documents, correspondence, and other information throughout the case. These copies will be your file copies. I will also keep the information in a file in my office. Please bring your file to all of our meetings so that we both have all of the necessary information available to us. When I have completed all the legal work necessary for your case, I will close my file and return the original documents to you. I will then store the file for years. I will destroy the file after that period of time. I have included a copy of this letter for you to review, sign, and return to me. If any of the information in this letter is not consistent with your understanding of our agreement, please contact me before signing the letter. Otherwise, please sign the enclosed copy and return it to me. 241

On behalf of the firm, we appreciate the opportunity to represent you in this matter. If you have any questions, please feel free to call.

Very truly yours, [Lawyer] [Firm]

I have read this letter and consent to it. [Client] [Date]

Enclosure

[NOTE: This is a sample form only. Use of this letter will help to establish clear expectations and avoid misunderstandings between you and your client. It will not, however, provide absolute protection against a malpractice action.]

242

A. What to Do When Your Boss or Relative Is No Longer Able to Practice Law: A Checklist for Staff and Family Members

When an attorney is, with or without warning, unable to practice law and is a sole practitioner, what to do with the attorney’s law practice can be bewildering to the attorney’s staff, if there is any staff, and devastating to the family. This checklist is intended as a guideline to help the incapacitated or deceased attorney’s staff and/or family to close down the attorney’s practice.

1. First, remember that although it may seem an impossible task to close down anattorney’s office, it has been done by others, including those without any legalexperience, and it can be done by you.

2. For remaining staff, if there it is any way you can afford it, please consider stayingaround to help close down the practice. Some staff might agree to help close thepractice while looking for another job, helping out a few hours here and there. Thefamily will be very grateful.

3. For the family member left with the attorney’s practice, try to get the attorney’s staffto stay with you for at least a month to help close down the practice. This will probablywork fine if you can afford to pay the staff and are willing to provide a good reference.Make sure you are flexible about allowing the staff to interview for new jobs.

4. If an attorney friend offers to help, a family member or staff person should contact theclients and ask for the clients’ permission for the attorney friend to contact them. Withpermission to contact the clients, the attorney friend is not engaging in solicitation bycontacting the clients.

5. If no one has stepped forward to help, and you feel that you need help, considercontacting a law section or local bar association the incapacitated or deceased attorneywas associated with. In the past, law sections such as the local Family Law Section, orthe local bar association, has had members help close an attorney’s practice.

6. If it is left to you to close the practice, start by checking the attorney’s calendars to lookfor case deadlines.

7. Search the attorney’s office to look for documents that need to be filed.

8. Open and review all unopened mail, especially certified mail, and file it.

243

9. Review electronic sources to ensure that the client file is complete and up to date.Review the firm’s electronic records for client-related material, including such thingsas e-mail communications, instant messages, or other documents generated during thecourse of the case, especially those communications that indicate pending deadlines.

10. Look for an office procedure manual. Determine whether anyone has access to a listof clients with active files.

11. Review active client files to determine which cases need to be dealt with first.

12. Make sure that any case with a statute of limitations running, or that is set for hearingor trial, are handled immediately. Look for cases with discovery settings. It is importantto handle these cases immediately not only to protect the clients’ interests but toprevent malpractice lawsuits against the attorney’s estate.

13. Contact the client for matters that are urgent or set for the near future. Give the clientthe contact information for the court so that the client can reset any pending deadlinesas necessary.

14. Contact courts and opposing counsel immediately for files that require courtappearances or have discovery pending.

15. Send clients who have active files a letter explaining that the law office is being closedand instructing them to retain a new attorney. Inform the clients about time limitationsand time frames important to their cases.

16. If the client wishes for the file to be sent to new counsel, have the client sign anauthorization for the original file to be released to the new attorney.

17. If the client wants to pick up their file, inform the client of days and times when theycan pick up their original file.

18. The law firm may want to keep a copy of the file. If so, the file should be copied at thelaw firm’s expense.

19. Try to ensure that a phone number is available for the clients to either speak withsomeone about their file or so that they can leave a message.

20. Texas Disciplinary Rule of Professional Conduct 1.14(a) provides, in part, that “Otherclient property shall be identified as such and appropriately safeguarded. Completerecords of such account funds and other property shall be kept by the lawyer and shallbe preserved for a period of five years after termination of the representation.” Clientfiles are considered “other property.” Hebisen v. State, 615 S.W.2d 866 (Tex.Civ.App.– Houston 1981)

244

21. The office may want to make concerted efforts to contact closed file clients when thoseclosed cases: 1) involve a minor; 2) contained executed original wills; 3) involvecontracts or other agreements that are still being paid off at the end of five years; 4) inwhich a judgment should be renewed; 5) support and custody files in which the childrenare minors or the support obligation continues; 6) corporate books and records; 7)adoption files; 8) intellectual property files; and 9) any other file in which it appears theclient’s or attorney’s interest may be ongoing. If you have questions about what to dowith these files, ask an attorney.

22. If a client determines he/she does not want the closed file, obtain a signed releasegiving the client’s permission to destroy the file.

23. When it is determined that a client file can be destroyed, the file should be shredded orotherwise appropriately destroyed.

24. If you have authorization to handle the attorney’s financial matters, look around theoffice for checks or funds that have not been deposited. Determine whether fundsshould be deposited or returned to the clients, as some funds may not have beenearned.

25. Obtain instructions from clients concerning any funds in the attorney’s trust account.Unearned funds should be either returned to the clients or forwarded to their newattorneys.

26. Prepare a final billing statement showing any outstanding fees due.

27. Prepare an accounting for any client who has money being held in trust.

28. Obtain instructions from clients concerning any funds belonging to them that are beingheld in trust. Unearned trust account funds should be either returned to the clients orforwarded to their new attorneys.

29. If you are authorized to do so, handle financial matters, and pay business expenses.

Article written by the State Bar of Texas Law Practice Management Program, copyright 2018.

245

CHECKLIST FOR THE FIDUCIARY OF A SOLO PRACTITIONER

If you have been appointed as the Executor or Administrator of the estate of an attorney who is practicing as a solo practitioner at the time of his or her death, it is important to quickly address many issues that are unique to the deceased practitioner’s practice. This is especially true if the death of the solo practitioner was sudden and unexpected.

If a solo practitioner has died, his or her clients for whom services were being performed at the time of death must be advised immediately. In addition, steps must be taken to insure that those clients are properly advised as to the status of their matter and how they may retain substitute counsel. This must be done in a manner that will preserve the attorney-client privilege. This checklist is intended to address those matters that are unique to being the executor of an attorney’s estate. It is not, however, an exhaustive list of all matters that are to be handled by an executor of an estate. The estate’s legal counsel should be consulted to ensure that your duties are properly carried out during the administration of the estate.

As stated below, all of these issues should be addressed while the attorney is alive and well. Many matters involving an attorney’s practice are time sensitive and, if not handled properly in the event of death, the estate may find itself faced with unnecessary liability. Hopefully, this checklist can act as a planning tool as well as a tool to be used in a time of crisis upon an attorney’s death.

1. Retain legal counsel immediately. Legal counsel should be retained immediatelyto review the open matters that were being handled by the deceased attorney. Ifthe attorney has designated an attorney to handle the closing of his or her office thatattorney should be contacted immediately. The attorney’s will and other estateplanning documents including trusts or written instructions should be reviewed.A designated attorney can ensure that the attorney-client privilege is maintained forthe protection of the client. Hopefully, he or she has also had conversations with theplanning attorney so that new counsel is aware of what needs to be done with respectto closing or transferring the practice.

2. The Advisory Team. There will, of course, be many matters that must be handledduring the administration of an estate. The items listed above are only a few of themany matters that must be addressed. How- ever, a solo practitioner’s practice isunique in that it cannot continue to operate during the administration of an estatewithout a licensed and qualified attorney in place to take care of clients’ matters.Because it may not be possible for someone to immediately step in and take over apractice, it is extremely important that a team of qualified advisors be quicklyassembled to ensure that the practice and its clients are protected.

3. Work with staff. If the attorney had a secretary or assistants working with himor her at the time of death, contact them and determine what emergencies must beattended to and what needs to be done to begin the closing process.

246

If possible, retain and compensate staff during the closing phase of the practice. In many cases, staff members have a relationship with the clients of the practice and a great deal of knowledge that will be helpful to you as executor and to the advisors for the estate.

4. Preservation of the practice. It may be important to the attorney’s estate to ensurethat the value of the practice is maintained in order to allow the estate to sell thepractice to another attorney or law firm. If an Assisting Attorney has been designatedas described above, he or she may be the intended transferee. Consult with legalcounsel for the estate to be certain that the proper steps are being taken to maintainthe value of the practice within the estate.

5. Contact accountant. Contact the deceased attorney’s bookkeeper and accountantimmediately to ensure that work in process is properly billed, that receivables arecollected and that all financial matters involving the practice are properly taken careof as soon as possible. All trust accounts should be carefully reviewed by estatecounsel and the accountant for the firm to ensure that funds are properly handledduring the administration of the estate.

6. Office matters. Contact the landlord and, if necessary, desirable and appropriate,arrange for the assignment of the lease to the Assisting Attorney, the termination ofthe lease or the subletting of the lease to another party.

Contact all vendors and stop services as soon as possible. Cancel all subscriptionsand electronic or online legal research services.

Contact equipment leasing companies (including vehicle leasing companies) as soonas possible. In some cases, vehicle lease arrangements will provide for a terminationof the lease in the event of death. This should be investigated. If leases cannot beterminated without penalty, subleasing should be considered. Otherwise, it will benecessary to set aside enough funds in order to pay the leasing fees for the durationof the lease terms.

Notify utility companies of the change in the customer. During the administrationof the estate, it may be necessary to have the estate as the customer.

Contact all associations with which the attorney had memberships and terminate thememberships. This would include the Georgia, American and any local or specialtybar associations. Office staff should be helpful in determining what membershipsare in effect.Continue malpractice insurance if necessary. Most policies will provide that theinsured must be insured at the time a claim is made against the attorney. Therefore,obtain “Reporting Endorsement Coverage” that will provide protection to the

247

attorney’s estate until all applicable statutes of limitations expire. The carrier may provide such coverage at no cost in the event of death. This should be determined immediately.

7. Plan Ahead. A practice and its value can quickly disappear without properadministration at the time of death. In addition there can be significant liability forthe estate if the practice is not properly taken care of in such a time of crisis. If asolo practitioner has requested that you act as the executor or trustee for his or herestate, you should address all of these items with the attorney during the estateplanning stages. None of these matters should be left until the time of death toaddress.

248