Question: Attorney has been contacted by the surviving spouse of another lawyer, a solo practitioner, who has recently passed away. The surviving spouse is seeking Attorney’s help in contacting the deceased lawyer’s clients and in winding up the practice. How should Attorney proceed?
Answer: The role Attorney can play in the winding up of decedent’s practice will depend on various factors, including whether the lawyer’s will contains provisions governing the handling of the law practice by the estate; the intent of the personal representative to sell, close, or liquidate the practice; whether the personal representative plans to hire counsel to assist in the handling of the law practice; and whether the deceased lawyer had designated another lawyer per Rule 5.26 for court appointment as trustee. Unless the deceased lawyer had obtained clients’ informed consent for another lawyer outside the firm to access confidential client information in the event of the lawyer’s death, only a trustee appointed pursuant to Rule 5.26 has the authority to handle client files, examine confidential information in trust account records, and dispose of client funds and assets. See Rule 4-1.6. Attorney may move for the appointment of a trustee per Rule 5.26 in the circuit court where the lawyer maintained an office, represent another lawyer in requesting appointment, or request the court to appoint Attorney as trustee. Rule 5.26 outlines the rights and duties of the trustee, including immunity from liability for conduct in performance of official duties. With the consent of any client, Attorney may, but need not, accept employment to complete a legal matter. Such employment is not subject to immunity under the Rule.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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