2012 Annual Convention Transition to Retirement …downloads.ohiobar.org/conventions/convention2012/705_Transitionto...2012 Annual Convention Transition to Retirement for ... Cincinnati

2012 Annual Convention

Transition to Retirement for Lawyers

Senior Lawyers Section

3.0 General CLE Hours

May 2-4, 2012 ♦ Cincinnati

CONTRIBUTORS

James L. Budros, CFP Budros Ruhlin & Roe Columbus, Ohio Mr. Budros received his BA from Hanover College, his MBA from Texas Christian University, and his MS from The American College. He is a graduate of the Manufacturers Hanover Trust School in New York and the National Graduate Trust School at Northwestern University. Mr. Budros’s professional memberships include the Financial Planning Association, National Association of Personal Financial Advisors, and The Alpha Group. He is a Principal of his firm, and his professional accomplishments and 30 years of experience in the financial planning, investment, and trust industries have solidified his reputation as one of America’s leading financial advisors. Mr. Budros is a Certified Financial Planner and a Chartered Financial Consultant. He was elected the first Chair of the Certified Financial Planner Board of Practice Standards and served as a member of the Certified Financial Planner Board of Governors for six years. For additional information, please visit www.b-r-r.com.

Reginald S. Jackson, Jr. Connelly Jackson & Collier LLP Toledo, Ohio Mr. Jackson received his BA from The Ohio State University and his JD from The Ohio State University Michael E. Moritz College of Law. His professional memberships include Toledo Bar Foundation (Fellow), Ohio State Bar Foundation (Fellow), American Bar Foundation (Fellow), American Judicature Society, American Board of Trial Advocates, Toledo Bar Association, Ohio State Bar Association, American Bar Association, Association of Trial Lawyers of America, and Ohio Academy of Trial Lawyers. Mr. Jackson focuses his practice in the area of complex business litigation, including civil prosecution of major fraud cases, breach of contract, and minority shareholder claims. He has tried cases in both state and federal court on behalf of Owens-Illinois, Owens Corning, KeyBank, PNC, the Texas Department of Insurance, and the Ohio Department of Administrative Services. Mr. Jackson’s practice also includes the areas of federal white collar criminal defense and professional liability. He is a board certified Civil Trial Advocate by the National Board of Trial Advocacy and is also a frequent lecturer at seminars hosted by the Ohio State and Toledo Bar Associations. Mr. Jackson was awarded the Ohio Bar Medal by the Ohio State Bar Association 2010 for his unusually meritorious service to the legal profession, to the community and to humanity. He was also a recipient of the Toledo Bar Association’s Order of the Heel in 2010, which is given to a senior member of the Bar who has given most unselfishly of his or her time, talents, and energies to assist young lawyers. For additional information, please visit www.cjc-law.com.

Daniel J. Hoffheimer Taft Stettinius & Hollister, LLP Cincinnati, Ohio Mr. Hoffheimer received his BA from Harvard College and his JD from University of Virginia Law School. His professional memberships include American Bar Association, American College of Trust and Estate Counsel, Cincinnati Academy of Leadership for Lawyers, Cincinnati Bar Association, Cincinnati Bar Foundation, Cincinnati Estate Planning Council, Federal Bar Association (Board Member, Cincinnati Chapter), American Bar Foundation (Fellow), Greater Cincinnati Planned Giving Council, Institute on the Future of the Legal Profession, Leadership Cincinnati, Ohio State Bar Association (Section Counsel, Estate Planning, Trust and Probate Law Section), and Ohio State Bar Foundation (Fellow). Mr. Hoffheimer is a partner with his firm and concentrates his practice in the areas of estate and succession planning, trust and probate law, nonprofit and charitable organizations, family businesses, elder law and guardianships, estate and gift taxation, charitable giving, and probate court litigation. He is an Ohio State Bar Association Board Certified Specialist in estate planning trust and probate law. Mr. Hoffheimer serves on the Editorial Advisory

Board of the Probate Law Journal of Ohio and is the author or coauthor of many articles and several books on legal and other topics. He also serves as legal counsel to the Greater Cincinnati Foundation and serves on a number of nonprofit boards and committees of various bar associations. Mr. Hoffheimer was the recipient of the Distinguished Alumni Award from Leadership Cincinnati, Cincinnati USA Regional Chamber of Commerce. For additional information, please visit www.taftlaw.com.

Stephanie S. Krznarich, MSW, LISW-S, LCDC-III, ICADC Clinical Director, Ohio Lawyers Assistance Program, Inc. Columbus, Ohio Ms. Krznarich received both her BS and MS from The Ohio State University. She is a Licensed Independent Social Worker-Supervisor (LISW-S), Ohio and Licensed Chemical Dependency Counselor (LCDC-III), Ohio. In addition, Ms. Krznarich is an Internationally Certified Alcohol and Drug Counselor. Her professional experience includes research in both the College of Social Work and the College of Psychiatric Nursing; Clinical Social Worker/Mental Health Therapist at Harding Hospital and The Ohio State University Hospitals East (older adult psychiatric units); Chemical Dependency Counselor, Talbot Hall, at The Ohio State University Hospitals East and Parkside Behavioral Healthcare Center (detox, inpatient and outpatient levels of care); Chemical Dependency Counselor and Driver Intervention Facilitator at The Wellness Center; Clinical Counselor at multiple Nursing Homes in Columbus, Ohio and the surrounding area; Mental Health Therapist/Drug and Alcohol Counselor at three Community Mental Health Centers in Columbus, Ohio; and private practice. Ms. Krznarich can be contacted by phone at 800-348-4343 or 614-586-0621; by fax at 614-586-0633; or by e-mail at [email protected].

Richard F. Meyer OSBA Certified Specialist in Estate Planning, Trust, and Probate Law Browning Meyer & Ball Co. LPA Worthington, Ohio Mr. Meyer received his BA from Marietta College and his JD from Capital University Law School. His professional memberships include the National Academy of Elder Law Attorneys, Ohio State Bar Association (Elder and Special Needs Law Section; Estate Planning, Trust, and Probate Law Section), Columbus Bar Association (Probate Committee), Ohio State Bar Foundation, American Bar Association (General Counsel, Knights of Columbus State Council), Knights of Columbus Charity Foundation (General Counsel), and National Alliance on Mental Illness. Mr. Meyer is a founding partner of his firm and focuses his practice in the areas of elder law, probate, and customized estate planning, including special needs trusts and asset protection planning. He is an OSBA Certified Specialist in Estate Planning, Trust, and Probate Law. Mr. Meyer is a frequent speaker on issues relating to elder law, estate planning, and probate law for various professional organizations. For additional information, please visit www.elderlaw.us.

John D. Schuman, CPA, CFP Budros Ruhlin & Roe Columbus, Ohio Mr. Schuman received his BS from The Ohio State University and his JD from Capital University Law School. His professional memberships include the Financial Planning Association, National Association of Personal Financial Advisors, Columbus Bar Association, Ohio State Bar Association, and Society of Financial Service Professionals. Mr. Schuman is a Principal of his firm. He is an attorney, a certified public accountant, and a certified financial planner. Mr. Schuman’s professional specialization is estate and wealth transfer planning. His expertise includes income tax planning, general business and succession planning, charitable planning, and retirement planning. For additional information, please visit www.b-r-r.com.

Transition to Retirement for Lawyers Session # 705

Chapter 1

Masters at the Bar Task Force Reginald S. Jackson Jr. Masters of the Bar Task Force Committee ....................................................................................... 1.2 Summary of Recommendations ......................................................................................................... 1.4 Final Report ........................................................................................................................................ 1.8 Appendix A—Proposed Amendments to Supreme Court of Ohio Rules for the Government

of the Bar of Ohio ................................................................................................................ 1.29 Appendix B—Rule II. Limited Practice of Law by a Legal Intern, an Emeritus Attorney ......... 1.36 Appendix C—Rule X. Continuing Legal Education ....................................................................... 1.43 Chapter 2

Retirement Planning from the Probate Lawyer’s Perspective Daniel J. Hoffheimer The Economic Impact of the Aging of the Legal Profession ............................................................ 2.1 Non-Tax Reasons for Using Trusts ................................................................................................. 2.11

Introduction ......................................................................................................................... 2.13 Control of Property.............................................................................................................. 2.13 Trust as a Private Guardianship Alternative ................................................................... 2.14 Trust for Minors and for Adults ......................................................................................... 2.14 Protection of Property from Creditors ............................................................................... 2.15 Protection of Property for Grandchildren .......................................................................... 2.15 Time of Trust Distribution ................................................................................................. 2.16 Summary of Trust Purposes ............................................................................................... 2.16 Funding Your Trusts ........................................................................................................... 2.18 Your Trustee ........................................................................................................................ 2.18 Conclusion ........................................................................................................................... 2.19

Checklist: Asset Protection .............................................................................................................. 2.21 What Attorneys Should Know About Estate and Trust Planning for Themselves and the

Future of Their Law Practices ............................................................................................ 2.23 Estate Planning—The Basics ............................................................................................. 2.23 Retirement Planning ........................................................................................................... 2.27 What Kind of Legacy Are You Leaving If You Do Not Plan for a Successful

Transition from Active Practice to Retirement? .................................................. 2.28 Attachments ........................................................................................................................ 2.29

Exhibit A—Will Provision for Sole Proprietorship .............................................. 2.31 Exhibit B—Power of Attorney Provision for Sole Proprietorship ....................... 2.33 Memorandum to Guide My Executors and Family in the Event of My

Death.......................................................................................................... 2.35 State of Ohio Living Will Declaration—Notice to Declarant .............................. 2.43 Donor Registry Enrollment Form (Optional) ....................................................... 2.49 State of Ohio Health Care Power of Attorney ...................................................... 2.51 Ohio Appointment of Representative for Disposition of Bodily Remains,

Funeral Arrangements, and Burial or Cremation Goods and Services ...................................................................................................... 2.63

Chapter 3

“What Happens When You Die?—Not Me, You!” Richard F. Meyer Introduction ........................................................................................................................................ 3.1 The Duty to Plan Ahead ..................................................................................................................... 3.8 Conclusion ......................................................................................................................................... 3.10 The Author’s Comment to the Comment in the Rules ................................................................... 3.11 Attachment ........................................................................................................................................ 3.15

Chart on State Regulations for Solo Practice .................................................................... 3.17 Chapter 4

Financial and Retirement Planning James L. Budros and John D. Schuman Financial and Retirement Planning—PowerPoint Presentation .................................................... 4.1 Chapter 5

Dealing with Aging Lawyers Stephanie S. Krznarich, MSW, LISW-S, LCDC-III, ICADC Medical Implications of Aging ........................................................................................................... 5.2 Cognitive Impairment ........................................................................................................................ 5.3 Dementia ............................................................................................................................................. 5.3 Alzheimer’s Disease ............................................................................................................................ 5.4 Delirium .............................................................................................................................................. 5.4 Mental Health Implications ............................................................................................................... 5.4 Relevant Supreme Court Rules ......................................................................................................... 5.5 Rule 8.3: Reporting Professional Misconduct ................................................................................... 5.7 Rule 2.14 Disability and Impairment ................................................................................................ 5.9

1 Masters at the Bar Task Force Reginald S. Jackson Jr. Connelly Jackson & Collier LLP Toledo, Ohio

Masters at the Bar Task Force • 1.1

1.2 • Transition to Retirement










































2 Retirement Planning from the Probate Lawyer’s Perspective Daniel J. Hoffheimer Taft Stettinius & Hollister LLP Cincinnati, Ohio

Retirement Planning • 2.1











Non-Tax Reasons for Using Trusts













What Attorneys Should Know About Estate and Trust Planning for Themselves and the Future of Their Law Practices

Prepared By: William J. McGraw Dungan & LeFevre Co. LPA Troy, Ohio

ESTATE PLANNING—THE BASICS

A. Will.

1. Do you have a will?

2. Does it deal with disposal of the following assets?

a. Tangible personal property (furniture and furnishings,

motor vehicles, watercraft, motors, ATVs, etc.).

Do you have specific wishes regarding disposal of your

tangible personal property?

b. Real estate.

Do you have real estate that requires special disposition

or handling? Do you want certain real estate to go to

certain people?

c. Timeshares and fractional ownership interest.

Do you have vacation properties in timeshare or fractional

ownership interest that require probate filings in other

states? Can you simplify this by establishing a trust, or if

the state honors transfer on death designations (TODs),

can you name beneficiaries and avoid probate?


3. Stocks, bonds, and bank accounts.

If you have specific instructions or beneficiaries you wish to name on these assets, have you listed them with specificity to identify them and named the beneficiary and any default beneficiaries if the primary beneficiary is deceased? Keep in mind the Ohio Antilapse Statute.

4. Charitable bequests.

Do you want to make any charitable bequests? Do you want to leave a specific dollar amount or a percentage of your estate?

5. Residuary clause.

Who will be the residuary beneficiaries for the rest of your estate not specifically disposed of? Have you named alternate beneficiaries if the primary beneficiaries are deceased?

6. Tax apportionment.

Have you provided how any estate taxes are to be paid and from what funds? If you have nonprobate assets (see below), have you provided from what funds the estate taxes on these assets are to be paid? If the estate tax is to be apportioned to probate and nonprobate assets, your will should provide specifically for this. If the probate estate is to pay all estate taxes, the will should so state.

7. Executors.

Have you named a primary and alternate executor?

B. Nonprobate assets.

Have you updated the beneficiaries on your nonprobate assets?

1. Life insurance.

2. IRAs/401(k)/profit sharing plans.

3. Bank accounts and certificates of deposit—POD beneficiaries.

4. Brokerage accounts.

5. TOD affidavits on real estate.

C. Specific provisions regarding law practice.

1. Solo practitioners.

a. Do you have a will that specifies what happens to your law practice if you are a solo practitioner? (See Exhibit A.)


b. Have you empowered the executor to wind up and sell your practice and closely held business interests (title company, real estate entity, etc.)? Have you also authorized the executor to sell any real estate used by your law practice or closely held business entity? Do you have special instructions for your executor regarding these matters? (See Exhibit A.)

2. Lawyers practicing with others in partnership or other form.

a. Have you entered into a written buy-sell agreement for your interest in the law firm?

b. To the extent that there are uncollected accounts receivable or work in process, do you and your partners have an agreement as to what happens to moneys that are later collected?

c. Have you provided that your family is able to keep your personal effects (pictures, plaques, mementos, etc.)?

D. Estate planning memorandum to executor/family/attorney surrogate.

1. It would extremely helpful to have a memorandum containing all relevant information concerning your financial affairs, law practice, and closely held business interests.

2. The memorandum should cover such things as:

a. All bank accounts;

b. All brokerage accounts;

c. Retirement assets;

d. Real estate;

e. Life insurance;

f. Safe deposit box;

g. Action list—whom to contact upon your passing;

h. Key contact people;

i. Major tangible assets. List your major possessions; are there any collectables? Are there any special assets that take special handling (firearms, family heirlooms, and family history documents)?


j. Funeral, burial, or cremation instructions;

k. Location of your will, trust, and other valuable estate planning documents;

l. What you want included in your obituary;

m. Location of valuable documents, including birth certificate and passport;

n. Location of safe deposit box;

o. Location and combination/access code to any safe;

p. Home alarm or office alarm information;

q. Storage unit information;

r. Post office box information and location of key; and

s. Computer programs/data files, program name, access code, program name, file location, user name, password, etc.

3. Attached is a sample memorandum including a number of the above items that can be adapted for your use.

E. General financial power of attorney.

1. Have you executed a power of attorney and included special provisions for dealing with your law practice and closely held business and real estate interests? (See Exhibit B.)

2. Have you named alternate agents in case your primary person designated is unable to serve?

3. Have you included special provisions to allow for charitable gifts or individual gifting?

4. Have you included a provision indicating that if you need the appointment of a guardian, your wishes will be honored?

5. Have you included language to the effect that the power of attorney is effective despite the passage of time?

6. Have you included language indicating that the power of attorney is effective despite your subsequent incapacity, incompetence, or disability?

F. Health care power of attorney and living will.

1. Have you provided for decision makers in the event of your inability to make medical decisions for yourself?


2. Have you indicated what your end-of-life wishes are to be? Do you wish organ donation? (See forms attached.)

3. Do you want to authorize the possible removal of artificially supplied nutrition and hydration if you are in a permanent unconscious state?

4. Have you named alternate agents in your health care power of attorney in the event that the primary agent is unavailable?

5. See forms attached.

G. Disposition of remains.

1. Have you provided for the disposition of your remains?

2. Ohio has a specific law and form. (See form attached.)

H. Revocable living trust.

1. Is a revocable living trust an appropriate part of your estate plan?

2. Whom would you name as trustee?

3. Have you provided your trustee with specific powers to deal with special assets (tangible, real estate interest, closely held business interest, etc.)?

I. What proportion of practicing attorneys (particularly sole practitioners) do not have adequate estate plans?

The cobbler’s children going without shoes?

RETIREMENT PLANNING

A. Have you planned your retirement rather than being forced to retire due to medical conditions or other disability?

B. Have you examined the resources that will be available to you?

1. IRAs and 401(k) plans.

2. Social Security.

3. Medicare.

4. Have you adequately dealt with debts, including credit card debt?


C. Have you named appropriate beneficiaries on your IRAs, 401(k), life insurance, annuities, etc?

D. Disciplinary Rule 2-111 Sale of Law Practice. See Richard F. Meyer’s “What Happens When You Die?—Not Me, You!” (Chapter 4).

WHAT KIND OF LEGACY ARE YOU LEAVING IF YOU DO NOT PLAN FOR A SUCCESSFUL TRANSITION FROM ACTIVE PRACTICE TO RETIREMENT?

A. Personality attributes of sole practitioner may inhibit or impair the accomplishment of a successful transition plan.

B. Should there be a requirement to file a succession plan with the OSBA or Supreme Court?

C. See draft surrogate attorney rule contained as a part of the Masters at the Bar Task Force Report.


Attachments



EXHIBIT A

WILL PROVISION FOR SOLE PROPRIETORSHIP

I direct that my law practice known as ____________________, which I own as a sole proprietor, be wound up and dissolved as expeditiously as possible after possible after my death. My Executor shall appoint ___________________, as Agent/Attorney Surrogate, or obtain the appointment of _____________________, by the Probate Court as Attorney Surrogate, for such purposes. I hereby grant my Executor/Agent/Attorney Surrogate, with all power to windup my law practice without the necessity of filing reports or special accounts with Probate Court in the administration of my estate, and without the necessity of obtaining any other authority to dissolve and windup my law practice, except as otherwise required by law.

SPECIFIC INSTRUCTIONS FOR ATTORNEY SURROGATE

A. In illustration, and not limitation, of the foregoing, I hereby direct my Surrogate to take such actions which may include the following:

1. Upon such appointment, my Attorney Surrogate shall take steps necessary to protect the interests of my clients, the public and myself, which may include the following:

a. take immediate possession of and arrange for maintaining my files, business records, trust accounts, business accounts and other accoutrements of my law practice, and examine them to obtain information as to any pending matters, which may require attention;

b. notify the Office of Disciplinary Counsel and all persons and entities who appear to be my clients that it may be in their best interest to obtain replacement counsel;

c. apply for extensions of time pending employment of replacement counsel by the client;

d. file notices, motions and pleadings on behalf of my client where jurisdictional time limits are involved and other legal counsel has not yet been obtained;

e. give notice to courts, opposing counsel and appropriate persons and entities that may be affected, other than clients, that my Attorney Surrogate has been appointed;

f. arrange for the surrender or delivery of my clients’ papers or property;

g. as approved by the Probate Court, take possession of all trust accounts subject to Ohio Rule of Professional Conduct 1.15 and take all appropriate actions with respect to such accounts to preserve and/or distribute trust funds;


h. deliver the files to my clients if so requested; make referrals to replacement counsel with the agreement of the client; or accept representation of the client with the agreement of the client and the Probate Court;

i. sell my law practice pursuant to Rule 1.17 Sale of Law Practice with the consent of the Probate Court and executor of my estate, and any guardian, administrator or executor of the Lawyer;

j. bill for and collect accrued fees owing to me and maintain all such funds received in trust for distribution as directed by the Probate Court, consistent with all applicable rules and laws;

k. make arrangements with the Office of Disciplinary Counsel for the permanent storage of my closed files or any other of my files or documents not forwarded to my clients;

l. employ, under the direction of the Probate Court, attorneys, paralegals, clerical assistants, investigators, accountants or other support personnel necessary to accomplish the purpose of the surrogateship;

m. do such other acts as the Probate Court may direct to carry out the purposes of these instructions and in accordance with all laws; and

n. attend continuing legal education courses or read literature regarding best practices for performing the role of Attorney Surrogate.

o. arrange for the payment of reasonable compensation to my Attorney Surrogate for performing such services.

p. remove and replace such Surrogate with the approval of Probate Court.

q. make reasonable efforts to collect all accounts receivable and deposit the proceeds thereof into the estate account.

r. subject to the requirements of applicable rules or laws of practice, my Surrogate shall file with the Probate Court a final report and accounting of all funds and property coming into his or her custody. The Attorney Surrogate may also file with the Court a petition for reasonable fees and expense and compensation for performance of the Attorney Surrogates duties. The amount of fees and expenses allowed shall constitute a judgment against my estate. The judgment shall be a lien against all assets of my law practice retroactive to my date of death.


EXHIBIT B

POWER OF ATTORNEY PROVISION FOR SOLE PROPRIETORSHIP

I direct that in the event I become temporarily disabled and unable to continue my law practice for a period of time, I direct that my law practice, known as ______________________, which I own as a sole proprietor, be continued. I direct that in the event that an Attorney Surrogate Law or Rule is in effect, that _____________________ be appointed as Attorney Surrogate, or Agent, for temporary continuation of my law practice. I hereby grant my Agent/Attorney Surrogate, with all power to continue my law practice consistent with all applicable rules and laws.

In the event that I become permanently disabled and unable to continue my law practice, I hereby appoint _________________________________ as Agent/Attorney Surrogate, or obtain the appointment of an Agent/Attorney Surrogate, consistent with all applicable rules and laws, for purposes of winding up and dissolving my law practice.

SPECIFIC INSTRUCTIONS FOR ATTORNEY SURROGATE

A. In illustration, and not limitation, of the foregoing, I hereby direct my Surrogate to take such actions which may include the following:

1. Upon such appointment, my Attorney Surrogate shall take steps necessary to protect the interests of my clients, the public and myself, which may include the following:

a. take immediate possession of and arrange for maintaining my files, business records, trust accounts, business accounts and other accoutrements of my law practice, and examine them to obtain information as to any pending matters, which may require attention;

b. notify the Office of Disciplinary Counsel and all persons and entities who appear to be my clients that it may be in their best interest to obtain replacement counsel;

c. apply for extensions of time pending employment of replacement counsel by the client;

d. file notices, motions and pleadings on behalf of my client where jurisdictional time limits are involved and other legal counsel has not yet been obtained;

e. give notice to courts, opposing counsel and appropriate persons and entities that may be affected, other than clients, that my Attorney Surrogate has been appointed;

f. arrange for the surrender or delivery of my clients’ papers or property;


g. take possession of all trust accounts subject to Ohio Rule of Professional Conduct 1.15 and take all appropriate actions with respect to such accounts to preserve and/or distribute trust funds;

h. deliver the files to my clients if so requested; make referrals to replacement counsel with the agreement of the client; or accept representation of the client with the agreement of the client;

i. if I am permanently disabled, sell my law practice pursuant to Rule 1.17 Sale of Law Practice, consistent with all applicable rules and laws;

j. bill for and collect accrued fees owing to me and maintain all such funds received in trust;

k. if I am permanently disabled, make arrangements with the Office of Disciplinary Counsel for the permanent storage of my closed files or any other of my files or documents not forwarded to my client;

l. employ attorneys, paralegals, clerical assistants, investigators, accountants or other support personnel necessary to accomplish the purposes of the surrogateship;

m. do such other acts to carry out the purposes of these instructions in accordance with all applicable rules and laws; and

n. attend continuing legal education courses or read literature regarding best practices for performing the role of Attorney Surrogate.

o. arrange for the payment of reasonable compensation to my Attorney Surrogate for performing such services.

p. make reasonable efforts to collect all accounts receivable and deposit the proceeds thereof into my law practice account.

q. subject to the requirements of applicable rules or laws of practice, my Surrogate shall file with the appropriate court or agency a final report and accounting of all funds and property coming into his or her custody. The Attorney Surrogate may also file with a petition for reasonable fees and expense and compensation for performance of the Attorney Surrogates duties. The amount of fees and expenses allowed shall constitute a judgment against me. The judgment shall be a lien against all assets of my law practice retroactive to the date of my temporary or permanent disability.






























OHIO APPOINTMENT OF REPRESENTATIVE FOR DISPOSITION OF BODILY REMAINS, FUNERAL ARRANGEMENTS, AND BURIAL OR

CREMATION GOODS AND SERVICES Authorized by House Bill 426, Effective October 12, 2006

I, (legal name and address) ________________________________________________, an adult being of sound mind, willfully and voluntarily appoint my representative, named below, to have the right of disposition, as defined in section 2108.70 of the Revised Code, for my body upon my death. All decisions made by my representative with respect to the right of disposition shall be binding. REPRESENTATIVE(S): (If the representative is a group of persons, indicate the name, last known address and phone number of each person in the group. Attach additional sheet if necessary.) Name: ______________________________________________________________________ Address:_____________________________________________________________________ Telephone Number: ___________________________________________________________ SUCCESSOR REPRESENTATIVE(S): If my representative is disqualified from serving as my representative as described in section 2108.75 of the Revised Code, then I hereby appoint the following person or group of persons to serve as my successor representative. (If the representative is a group of persons, indicate the name, last known address and phone number of each person in the group. Attach additional sheet if necessary.) Name: ______________________________________________________________________ Address:_____________________________________________________________________ Telephone Number: ___________________________________________________________ PREFERENCES REGARDING HOW THE RIGHT OF DISPOSITION SHOULD BE EXERCISED, INCLUDING ANY RELIGIOUS OBSERVANCES THE DECLARANT WISHES A REPRESENTATIVE OR A SUCCESSOR REPRESENTATIVE TO CONSIDER (attach additional sheets if necessary): ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________


ONE OR MORE SOURCES OF FUNDS THAT COULD BE USED TO PAY FOR GOODS AND SERVICES ASSOCIATED WITH AN EXERCISE OF THE RIGHT OF DISPOSITION: _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ DURATION: The appointment of my representative and, if applicable, successor representative, becomes effective upon my death. PRIOR APPOINTMENTS REVOKED: I hereby revoke any written declaration that I executed in accordance with section 2108.70 of the Ohio Revised Code prior to the date of execution of this written declaration indicated below. AUTHORIZATION TO ACT: I hereby agree that any of the following that receives a copy of this written declaration may act under it:

- Cemetery organization; - Crematory operator; - Business operating a columbarium; - Funeral director; - Embalmer; - Funeral home; - Any other person (such as the representative named herein) asked to assist with my funeral, burial, cremation, or other manner of final disposition.

MODIFICATION AND REVOCATION - WHEN EFFECTIVE: Any modification or revocation of this written declaration is not effective as to any party until that party receives actual notice of the modification or revocation. LIABILITY: No person who acts in accordance with a properly executed copy of this written declaration shall be liable for damages of any kind associated with the person’s reliance on this declaration. Signed this ______ day of _____________________, 2 ______ ________________________________________________________________________

(Signature of declarant) WITNESSES:


I attest that the declarant signed or acknowledged this assignment of the right of disposition under section 2108.70 of the Revised Code in my presence and that the declarant is at least eighteen years of age and appears to be of sound mind and not under or subject to duress, fraud, or undue influence. I further attest that I am not the declarant’s representative or successor representative, I am at least eighteen years of age, and I am not related to the declarant by blood, marriage, or adoption. First witness: Name (printed) _______________________________________________________________ Residing at:__________________________________________________________________ Signature:__________________________________________ Date:____________________ Second witness: Name (printed) _______________________________________________________________ Residing at:__________________________________________________________________ Signature:____________________________________________Date:___________________ ~OR~ NOTARY ACKNOWLEDGMENT:

State of Ohio, County of____________________________________________________ SS. On _____________________________________________ before me, the undersigned notary public, personally appeared ________________________________________ known to me or satisfactorily proven to be the person whose name is subscribed as the declarant, and who has acknowledged that he or she executed this written declaration under section 2108.70 of the Revised Code for the purposes expressed in that section. I attest that the declarant is at least eighteen years of age and appears to be of sound mind and not under or subject to duress, fraud, or undue influence. Signature of notary public: _________________________________________________ My commission expires on: _________________________________________________

For further reference, see Ohio Rev. Code § 2108.70 et seq. Consult your attorney for specific questions.

"What Happens When You Die?" • 3.1

3 “What Happens When You Die?— Not Me, You!” Richard F. Meyer Browning Meyer & Ball Co. LPA Columbus, Ohio

INTRODUCTION

After achieving the goal of 30 years in practice, I found myself reaching another threshold. Instead of my clients focusing exclusively on their deaths, they have now begun to ask about my death and the attendant impact upon their files, or as we call it—business succession planning. During the majority of my career, I have practiced in a small office environment (one to eight attorneys). Presently, I have two partners, William J. Browning, CELA and John R. Ball, Esq. We often travel to NAELA conferences together, so if the plane went down, the firm would be without an attorney owner. Although unlikely, it could happen. It is more likely that one or the other may have a sudden illness and/or death, and thereafter, the other could operate the practice. But the unlikely event of a common accident still presents the same issue that a solo practitioner faces presently—“what happens when you die?”

The Bar defines a solo practitioner as an attorney who does not have any associates, does not share office space with other attorneys, and does not have other attorneys he or she works closely with. The solo practitioner practices alone and/or with minimal office staff. I will address the attorney business succession planning for a solo when he or she becomes suddenly severely disabled or dies.

A recent survey conducted by the Ohio State Bar Association showed approximately 40 percent of the responding male attorneys and 35 percent of the responding female attorneys are solo practitioners.1 However, the OSBA survey was a relatively small sample of 1230 attorneys responding out of approximately 30,036 OSBA members.2 The Supreme Court of Ohio registered over 44,000 attorneys in 2009. Thus, OSBA membership represents roughly three-quarters of the number of attorneys practicing in Ohio. In a more recent statistic created by the OSBA and used by the Committee proposing modifications to the Ohio Code of Professional

1 Ohio State Bar Association—2010 Economics of Law Practice in Ohio Survey.

2 Id.


Responsibility to the Model Rules of Profession Conduct, one out of every three attorneys is classified as a solo practitioner.3 If this is a better indicator, it would mean that approximately 14,700 are solo attorneys.

If we add the number of attorneys in office sharing arrangements conducting solo practices, the number is staggering. Therefore, it is likely that the number stated above is greatly under-representative of the total number of solo attorneys in the State of Ohio.

Ohio is not alone in its lack of preparedness for succession planning. Less than 20 percent of the states have any rules, opinions, or statues for the death or disability of solo practitioners. For your convenience, I have placed a chart at the end of this chapter showing which states have in place rules, opinions, or statutes for solos.

Since the professional baby boomers are aging, we can expect a growth in the number of attorneys becoming disabled and/or dying.4 As a result, there will be a corresponding growth in the need for solo practitioners having a business succession plan.

To compare the lack of crisp rules when an attorney becomes severely disabled or dies, we should review the rules for withdrawal from the practice of law.

RULE 1.16: DECLINING OR TERMINATING REPRESENTATION

(a) Subject to divisions (c), (d), and (e) of this rule, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if any of the following applies:

(1) the representation will result in violation of the Ohio Rules of Professional Conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;

(3) the lawyer is discharged.

b) Subject to divisions (c), (d), and (e) of this rule, a lawyer may withdraw from the representation of a client if any of the following applies:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

3 Comment [5] to Rule 1.3 of the Ohio Rules of Professional Conduct.

4 The Supreme Court of Ohio recently changed from the Model Code of Professional Responsibility to the Model Rules of Professional Conduct. The current Model Rules became effective February 1, 2007. This chapter addresses these changes and the new Code.


(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is illegal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation, financial or otherwise, to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;

(7) the client gives informed consent to termination of the representation;

(8) the lawyer sells the law practice in accordance with Rule 1.17;

(9) other good cause for withdrawal exists.

(c) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(d) As part of the termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to protect a client’s interest. The steps include giving due notice to the client, allowing reasonable time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. Client papers and property shall be promptly delivered to the client. “Client papers and property” may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation.

(e) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned, except when withdrawal is pursuant to Rule 1.17.5

Rule 1.16 requires an attorney to withdraw when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”6 Although it would appear rather transparent, in a solo practitioner situation, who makes the determination? And, if it is apparent (i.e., stroke or heart attack), who takes over the employment?

5 Rule 1.16.

6 Id.


The client owns the file. If I leave my partnership, I am required to notify the client, who then decides whom to retain for future business. The client’s money follows the client file. Outstanding receivables are retained by the firm, unless otherwise agreed. Work in progress is billed to the file and paid when the fees are received by the retained lawyer. Although it is a laborious process, the process protects the client’s rights during a legal business termination by one or more lawyers.

In addition to the Rule 1.16, if I wish to retire, I can now sell my practice under Rule 1.17.

RULE 1.17: SALE OF LAW PRACTICE

(a) Subject to the provisions of this rule, a lawyer or law firm may sell or purchase a law practice, including the good will of the practice. The law practice shall be sold in its entirety, except where a conflict of interest is present that prevents the transfer of representation of a client or class of clients. This rule shall not permit the sale or purchase of a law practice where the purchasing lawyer is buying the practice for the sole or primary purpose of reselling the practice to another lawyer or law firm.

(b) As used in this rule:

(1) “Purchasing lawyer” means either an individual lawyer or a law firm;

(2) “Selling lawyer” means an individual lawyer, a law firm, the estate of a deceased lawyer, or the representatives of a disabled or disappeared lawyer.

(c) The selling lawyer and the prospective purchasing lawyer may engage in general discussions regarding the possible sale of a law practice. Before the selling lawyer may provide the prospective purchasing lawyer with information relative to client representation or confidential material contained in client files, the selling lawyer shall require the prospective purchasing lawyer to execute a confidentiality agreement. The confidentiality agreement shall bind the prospective purchasing lawyer to preserve information relating to the representation of the clients of the selling lawyer, consistent with Rule 1.6, as if those clients were clients of the prospective purchasing lawyer.

(d) The selling lawyer and the purchasing lawyer may negotiate the terms of the sale of a law practice, subject to all of the following:

(1) The sale agreement shall include a statement by selling lawyer and purchasing lawyer that the purchasing lawyer is purchasing the law practice in good faith and with the intention of delivering legal services to clients of the selling lawyer and others in need of legal services.


(2) The sale agreement shall provide that the purchasing lawyer will honor any fee agreements between the selling lawyer and the clients of the selling lawyer relative to legal representation that is ongoing at the time of the sale. The purchasing lawyer may negotiate fees with clients of the selling lawyer for legal representation that is commenced after the date of the sale.

(3) The sale agreement may include terms that reasonably limit the ability of the selling lawyer to reenter the practice of law, including, but not limited to, the ability of the selling lawyer to reenter the practice of law for a specific period of time or to practice in a specific geographic area. The sale agreement shall not include terms limiting the ability of the selling lawyer to practice law or reenter the practice of law if the selling lawyer is selling his or her law practice to enter academic, government, or public service or to serve as in-house counsel to a business.

(e) Prior to completing the sale, the selling lawyer and purchasing lawyer shall provide written notice of the sale to the clients of the selling lawyer. For purposes of this rule, clients of the selling lawyer include all current clients of the selling lawyer and any closed files that the selling lawyer and purchasing lawyer agree to make subject of the sale. The written notice shall include all of the following:

(1) The anticipated effective date of the proposed sale;

(2) A statement that the purchasing lawyer will honor all existing fee agreements for legal representation that is ongoing at the time of sale and that fees for legal representation commenced after the date of sale will be negotiated by the purchasing lawyer and client;

(3) The client’s right to retain other counsel or take possession of case files;

(4) The fact that the client’s consent to the sale will be presumed if the client does not take action or otherwise object within ninety days of the receipt of the notice;

(5) Biographical information relative to the professional qualifications of the purchasing lawyer, including but not limited to applicable information consistent with Rule 7.2, information regarding any disciplinary action taken against the purchasing lawyer, and information regarding the existence, nature, and status of any pending disciplinary complaint certified by a probable cause panel pursuant to Gov. Bar R. V, Section 6(D)(1).

(f) If the seller is the estate of a deceased lawyer or the representative of a disabled or disappeared lawyer, the purchasing lawyer shall provide the written notice required by division (e) of this rule, and the purchasing lawyer shall obtain written consent from each client to act on the client’s behalf. The client’s consent shall be presumed if no response is received from the client within ninety days of the date the notice was sent to the client at the client’s last known address as shown on the records of the seller or the client’s rights would be prejudiced by a failure to act during the ninety day period.


(g) If a client cannot be given the notice required by division (e) of this rule, the representation of that client may be transferred to the purchaser only after the selling lawyer and purchasing lawyer have caused notice of the sale to be made by at least one publication in a newspaper of general circulation in the county in which the sale will occur or in an adjoining county if no newspaper is published in the county in which the sale will occur. Upon completion of the publication, the client’s consent to the sale is presumed.

(h) The written notice to clients required by division (e) and (f) of this rule shall be provided by certified mail, return receipt requested. In lieu of providing notice by certified mail, either the selling lawyer or purchasing lawyer, or both, may personally deliver the notice to a client. In the case of personal delivery, the lawyer providing the notice shall obtain written acknowledgement of the delivery from the client.

(i) Neither the selling lawyer nor the purchasing lawyer shall attempt to exonerate the lawyer or law firm from or limit liability to the former or prospective client for any malpractice or other professional negligence. The provisions of Rule 1.8(h) shall be incorporated in all agreements for the sale or purchase of a law practice. The selling lawyer or the purchasing lawyer, or both, may agree to provide for the indemnification or other contribution arising from any claim or action in malpractice or other professional negligence.7

In addition to the subparagraphs in Rules 1.16 and 1.17, we can find further guidance under the Rules for the Government of the Bar Rule V Disciplinary Procedure, § 8(F), Appointed Attorney to Inventory and Protect Clients, which states:

Whenever an attorney is suspended for mental illness or pursuant to Section 5a of this rule, cannot be found in the jurisdiction for a period of sixty days or more or such shorter time as ordered by the Supreme Court, dies, refuses to meet or work with a significant number of clients for a period of sixty days or more, or fails to comply with division (E) of this section, and no partner, executor, or other responsible party capable of conducting the attorney’s affairs is available and willing to assume appropriate responsibility, the Disciplinary Counsel or chair of a Certified Grievance Committee may appoint an attorney or attorneys to inventory the files of the attorney and take action, including action set forth in division (E) of this section, as is necessary to protect the interest of clients of the attorney. Upon approval by the Secretary of the Board, reasonable fees may be paid to the appointed attorney or attorneys from the Attorney Registration Fund. Except as necessary to carry out the order of appointment by the Disciplinary Counsel or chair of a Certified Grievance Committee, the appointed attorney or attorneys shall not disclose any information contained in inventoried files without the written consent of the client to whom the files relate. An appointed attorney may not represent that client.8

7 Rule 1.17.

8 Gov.Bar R. V § 8(F).


Other than death being lumped together with suspension, mental illness, or disappearance, the Rule is not followed because it is virtually unknown to the bar. Solo practitioners do not have partners. Most executors are not attorneys. Other responsible party? We have six subchapters on the sale of a practice and three incomprehensible Rules for the transfer at severe disability or death.

So what are the clients of a solo practitioner to do if the attorney dies? The Rules for the Government of the Bar of Ohio contain a provision that permits the Supreme Court of Ohio’s Disciplinary Counsel and certain bar association committees to appoint attorneys to inventory the files of deceased lawyers, if there is no other capable party to conduct the lawyer’s affairs and to take necessary action short of representing the clients.9 This procedure is likely to be slow for clients who need immediate attention or access to information or property.10

According to the Board of Commissioners, the local bars handle all matters of the deceased attorney. They will pay the attorney a maximum rate of $125/hour to close the affected attorney’s law practice. The attorney is chosen from the local bar association’s membership. The most logical choice is selected, i.e., a probate attorney would close another probate attorney’s law practice. But remember, the Rule says an appointed attorney may not represent any of the deceased’s lawyer’s clients. Other than restrictions on fees and representation, the opinions add additional burdens to the local bar, which again are rarely followed.

According to the Board of Commissioners Opinion on closing a law practice, a client who cannot be found to return his or her files will have his or her files stored with the local bar association for a period of five years. After that, if the client has still not been found, the files may be destroyed. 11

If, after diligent effort, the appointed attorney is unable to locate a client for whom he has files, the appointed attorney should return the files to the appointing authority. The Disciplinary Counsel or the local bar association, which now has the files, may destroy them five years from the time the appointed attorney returned the files.12

This practice of destroying files after five years could have disastrous consequences on the estate of the deceased attorney and the client. This may allow for a malpractice claim to be brought more easily because the files, notes, and evidence contained in the files have been destroyed.

9 Id.

10 Mark H. Aultman, “What Happens When a Lawyer’s Practice Closes?” (visited July 27, 2010) www.ohiobar.org/Pages/LawYouCanUseDetail.aspx?itemID=179.

11 Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (OPINION 89-18 (June 1989), Issued June 16, 1989.

12 Id.


Imagine a case where the client is a 10-year-old child who has been injured in an accident. The statute of limitations may not begin to run until that child has reached the age of 18. For whatever reason, if the appointed attorney cannot find the child or guardian for the child, that file may be destroyed before the statute of limitation even begins to run.

Several decisions have held that malpractice claims against the attorney will survive the attorney’s death.

“A malpractice claim against the estate of a deceased attorney survives the attorney’s death pursuant to Ohio Rev. Code § 2305.21, inasmuch as it is a cause of action that survives at common law and it constitutes an injury to the plaintiff’s property interests.”13 The claim survives the death of the claimant as well. “[T]he statute [Ohio Rev. Code § 2305.21] applies equally to ‘the death of the person entitled or liable thereto.’… The Loveman holding applies to mandate the survival of a legal malpractice claim after the death of the party entitled to assert the claim.”14

Note that the appointed attorney cannot be retained by the client under any circumstances, even with the client’s consent. However, an attorney who buys a lawyer’s law practice may be retained by the client if the client consents.

So, the appointed attorney is at a disadvantage to the purchasing attorney. Who would want to be an appointed attorney?

THE DUTY TO PLAN AHEAD

Although not addressed in the Ohio Rules of Professional Conduct, the former Code of Professional Responsibility Ethical Consideration 6-4 (EC 6-4), states that an attorney “should use proper care to safeguard the interests of his clients.”15 In Ohio, there is no explicit duty to plan ahead for one’s impending disability or death. It is hard to think about events that could render you unable to continue practicing law. Unfortunately, freak accidents, unexpected illnesses, and untimely deaths do occur. And if they happen to you, your clients’ interests and your estate may be unprotected.16

For this reason, a lawyer’s duty of competent representation should include arranging to safeguard the clients’ interests in the event of the lawyer’s death, disability, impairment, or incapacity. Under Rule 1.3, which replaced

13 Loveman v. Hamilton, 66 Ohio St. 2d 183, 420 N.E.2d 1007 (1981).

14 Hosfelt v. Miller, No. 97-JE-50, 2000 WL 1741909, at ¶ 4 (Ohio App. Jefferson Nov. 22, 2000) (summary judgment for defendant law firm reversed; lack of privity argument irrelevant; suit brought, not by beneficiary, but by administrator of estate of decedent against whom malpractice allegedly practiced). See also Ohio Legal Ethics (visited on April 20, 2006) www.law.cornell.edu /ethics/oh/narr/OH_NARR_1_01.HTM.

15 Ohio’s Code of Professional Responsibility Ethical Consideration 6-4 (EC 6-4).

16 James Brill, “Dealing with the Death of a Solo Practitioner” (visited Apr. 20, 2006). Highly recommended read. www.texasbarcollege.com/Reports/Solo.PDF#search=‘brill percent20solo.


DR 6-101(A)(3), a lawyer shall act with reasonable diligence and promptness in representing a client. When you die or are significantly impaired, you can no longer act with the reasonable diligence and promptness to which the client is entitled.

The Rule on the sale of a law practice partially filled a treacherous gap in the Rules, but failed to recognized the need for a addressing sudden severe disability or death in a similarly orderly fashion.

You can take a number of steps while you are still practicing to make the process of closing your office smooth and inexpensive. These steps include: (1) making sure that the office procedures manual explains how to produce a list of client names and addresses for open cases; (2) keeping all deadlines and follow-up dates on your calendaring system; (3) thoroughly documenting client files; (4) keeping your time and billing records up-to-date; and (5) familiarizing your assisting attorney with your office systems and procedures.17 Such items may include passwords to operate your office, your office manual, and a demonstration on how to use your computer programs.18

Initially, you should enter into discussions with another attorney or firm to assume your practice in the event of your sudden disability or death. You should identify the firm in your planning documents and refer to your written agreement. It should follow a combination of good business practices and Supreme Court Bar Rules.

The term “planning attorney” refers to you.19

The term “assisting attorney,” as used in this chapter, refers to the lawyer you have made arrangements with to close your practice. 20

The term “assigned attorney” refers to the attorney that has been chosen by the Bar to close your practice if you have not made the choice.

Your law office will then be an asset that can be sold and the proceeds remitted to you or your estate. An organized law practice is a valuable asset. In contrast, a disorganized practice requires a large investment of time and money by third parties and is less marketable.

I encourage you to select an attorney to assist you, to follow the procedures outlined in this chapter, and to forward the name, address, and phone number of your assisting attorney to your malpractice carrier, spouse, children, local bar association, or anyone else you predict might be involved in closing or managing your practice in the event of your disability or death.

17 David Leffler, “Being Solo Incapacitated: What Happens to Your Solo Law Practice?” GPSOLO

MAG. (Oct./Nov. 2004). www.abanet.org/genpractice/magazine/octnov2004/beingsolo.html.

18 Id.

19 Brill, www.texasbarcollege.com/Reports/Solo.PDF#search=‘brill percent20solo.

20 Id.


Some of the items you may wish to discuss with your assisting attorney are his or her own malpractice coverage and his or her areas of specialty. Other items that should be discussed are the calendaring system, trust accounts, office accounts, client files, location of office, and key personnel that the backup attorney may need to contact. You should consult your own malpractice carrier to determine whether it requires that you make similar arrangements.

This is something you can do now at little or no expense to plan for your future and protect your assets. Don’t put it off—start the process today.

CONCLUSION

Under the current Supreme Court Rules for succession planning for solo practitioners, an executor, the local bar association, or the Supreme Court will close an attorney’s office and client files. When protecting the rights of the client, all three have obvious weaknesses.

To avoid these issues, I would recommend to the Bar that Rules of Professional Conduct be expanded to include the sale of a law practice at severe disability and/or death and that the provisions be removed from Rule V of the Ohio Rules of Court Rules for the Government of the Bar of Ohio.

For comparison purposes, I am setting forth the Ohio Rule in its entirety:

RULE 1.3: DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client.

Comment

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer. A lawyer also must act with commitment and dedication to the interests of the client.

[2] A lawyer must control the lawyer’s work load so that each matter can be handled competently.

[3] Delay and neglect are inconsistent with a lawyer’s duty of diligence, undermine public confidence, and may prejudice a client’s cause. Reasonable diligence and promptness are expected of a lawyer in handling all client matters and will be evaluated in light of all relevant circumstances. The lawyer disciplinary process is particularly concerned with lawyers who consistently fail to carry out obligations to clients or consciously disregard a duty owed to a client.

[4] A lawyer should carry through to conclusion all matters undertaken for a client, unless the client-lawyer relationship is terminated as provided in Rule 1.16. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer,


preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about post-trial alternatives including the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to pursue those alternatives or prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rules 1.2(c) and 1.5(b).

[5] To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action. Cf. Rule V, Section 8(F) of the Supreme Court Rules for the Government of the Bar of Ohio.21

THE AUTHOR’S COMMENT TO THE COMMENT IN THE RULES

Succession plans for sole practitioners.

According to the Ohio State Bar Association, approximately one out of every three Ohio lawyers identifies himself or herself as a sole practitioner. These lawyers provide a variety of essential and affordable legal services to individuals and organizations throughout Ohio. Yet, when a sole practitioner dies, becomes permanently or temporarily disabled, or abandons his or her practice, the lawyer’s clients can be left without representation, perhaps at a crucial point of litigation or negotiation.

Comment [5] to Rule 1.3 suggests that a sole practitioner can address the duty of diligence to client matters by designating a successor lawyer to take action when a sole practitioner is unable or unwilling to continue his or her practice. The task force recommends that the court take additional steps to encourage sole practitioners to develop a succession plan that could be invoked in the event of their death, disability, or disappearance. To that end, the biennial attorney registration form should be amended to ask each sole practitioner to identify his or her successor lawyer. This step will underscore the importance of developing a succession plan and enable the appropriate authorities to readily identify and contact a successor lawyer should it become necessary to do so. The Delaware Supreme Court has implemented a similar provision as part of the 2005 registration statement filed by each Delaware lawyer.22

21 Rule 1.3.

22 Comment [5] to Rule 1.3 from the Ohio Rules on Professional Conduct.


The Rule makes clear that solo attorneys must at least think about their succession plan. Even under these new Rules, there are still similar problems as with the old Rule. Who will want to serve as an assisting attorney when he or she will not be allowed to engage the clients or to purchase the practice?

Rather than the two-year delay in the required registration, a better approach to the proposed Rule would be to require an attorney to register with the Supreme Court of Ohio upon 30 days of becoming a solo attorney. Such registration will include areas of law that the attorney either practices or foresees practicing in the future. The solo attorney at that time may either select another attorney as the assisting attorney or the Supreme Court will select one for him or her based on the areas of law that are listed upon registration.

Michigan has adopted the ABA Model Rules, which state in part:

To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.23

If the Supreme Court selects a backup attorney, the backup attorney shall come from a list either from one of the five closest local bar associations or from the OSBA. An attorney who wishes to be on the backup list may register with his or her local bar association or the OSBA.

I would propose the following changes to Rule 1.3 comment:

Proposed Rule 1.3 (a)—An attorney who engages in any private practice of law shall have a written directive stating who will close the client files and office.

Revised Gov. Bar Rule V §5 (F) Appointed Attorney to Inventory and Protect Clients. Whenever an attorney is suspended for mental illness or pursuant to Section 5a of this rule, cannot be found in the jurisdiction for a period of sixty days or more or such shorter time as ordered by the Supreme Court, dies, refuses to meet or work with a significant number of clients for a period of sixty days or more, or fails to comply with division (E) of this section, and no partner, executor, or other responsible party capable of conducting the attorney’s affairs is available and willing to assume appropriate responsibility, the Disciplinary Counsel or chair of a Certified Grievance Committee may shall appoint an attorney or attorneys to inventory the files of the attorney and take action, including action set forth in division (E) of this section, as is necessary to protect the interest of clients of the attorney.

23 ABA Model Rule 1.3 of the Rules of Professional Conduct.


An attorney shall within thirty days of becoming a solo attorney register with the Supreme Court of Ohio the area(s) of practice and or the name, address and telephone number of an assisting attorney. The solo attorney and assisting attorney shall meet no less than once per calendar year to review office procedures of the solo attorney.

The assisting attorney or attorneys shall be appointed from the deceased attorney’s registration or if no registration has been filed shall be appointed from a list of attorneys held by the local bar association of deceased attorney’s county, if no local bar association in the deceased attorney’s county then from an adjacent county’s local bar association. Upon approval by the Secretary of the Board, reasonable fees may be paid to the appointed attorney or attorneys from the Attorney Registration Fund. Except as necessary to carry out the order of appointment by the Disciplinary Counsel or chair of a Certified Grievance Committee, the appointed attorney or attorneys shall not disclose any information contained in inventoried files without the written consent of the client to whom the files relate. An appointed attorney may not represent that client, if the client and appointed attorney consent.24

These changes are a clear and practical answer to the question, “what happens when you die?—Not me, you!”

24 Gov. Bar Rule V § 8(F).



Attachment



CHART ON STATE REGULATIONS FOR SOLO PRACTICE25

STATES Prof. Responsibility

Ethics Opinions State Statute/Bar Rule

Alabama no no no

Alaska no no no

Arizona26 no yes no

Arkansas no no no

California27 no no yes

Colorado no no no

Connecticut no no no

D.C. no no no

Delaware no no no

Florida no no no

Georgia no no no

Hawaii no no no

Idaho28 yes no yes

Illinois no no no

Indiana no no no

Iowa29 yes no no

25 LegalEthics.com. This website provides a link to all states’ legal opinions and professional responsibility sites (last visited on June 13, 2006). www.legalethics.com/ethics.law.

26 Arizona Bar Opinion 04-05: Deceased and Disabled Lawyers; Client Property; Trust Accounts (last visited on June 13, 2006). www.myazbar.org/Ethics/opinionview.cfm?id=514. This opinion gives tips and ideas for solo practitioner for succession planning.

27 Article 12—Incapacity to Attend to Law Practice (6190-6190.6) (last visited on June 12, 2006). www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10159&id=1279.

28 Idaho Rules of Professional Conduct (last visited on June 12, 2006). www2.state.id.us/isb/rules /IRPC.DOC.

29 Iowa Rules of Professional Conduct (last visited on June 13, 2006). www.judicial.state.ia.us /Professional_Regulation/Rules_of_Professional_Conduct/.


Kansas30 no no yes

Kentucky no no no

Louisiana no no no

Maine31 no yes no

Maryland no no no

Massachusetts32 no yes no

Michigan no no no

Minnesota no no no

Mississippi33 no no yes

Missouri no no no

Montana no no no

Nebraska no no no

Nevada no no no

New Hampshire no no no

New Jersey34 no yes yes

New Mexico no no no

New York no no no

30 Rule 220 Proceedings where an attorney is declared or alleged to be incapacitated (last visited on June 12, 2006). www.kscourts.org/ctruls/atrul220.htm#220.

31 Opinion #143 (last visited on June 12, 2006). www.maine.gov/tools/whatsnew/index.php?topic =mebar_overseers_ethics_opinions&id=89786&v=article.

32 Opinion No. 76-2 (last visited on June 12, 2006). www.massbar.org/publications/ethics_opinions /article.php?c_id=419&vt=2.

33 Rule 18. Personal Incapacity—Disability (last visited on June 12, 2006). www.mssc.state.ms.us/ rules/RuleText.asp?RuleTitle=RULE+18%2E+PERSONAL+INCAPACITY+%2D+DISABILITY +INACTIVE&IDNum=8.

34 OPINION 692 (Supplement) Retention of Closed Clients’ Files (Last visited on June 12, 2006). http://lawlibrary.rutgers.edu/ethicsdecisions/acpe/acp692_2.html.


North Carolina no no no

North Dakota no no no

Ohio no no no

Oklahoma35 no no yes

Oregon36 no yes no

Pennsylvania no no no

Rhode Island no no no

South Carolina37 yes no yes

South Dakota no no no

Tennessee no no no

Texas no no no

Utah38 no no yes

Vermont no no no

Virginia no no no

Washington no no no

West Virginia no no no

Wisconsin no no no

Wyoming no no no

35 Rule 10. Suspension for Personal Incapacity to Practice Law (last visited on June 12, 2006). www.oscn.net/applications/oscn/index.asp?ftdb=STOKST05&level=1.

36 346 Formal Opinion No. 2005-129 Competent Representation, Information Relating to the representation of a client. Responsibilities on death of a sole practitioner (last visited on June 12, 2006). www.osbar.org/_docs/ethics/2005-129.pdf.

37 South Carolina Rules of Conduct Rule 1.3 Diligence—Comment 5 (last visited on June 12, 2006). www.sccourts.org/courtReg/newrules/RULE407RULE1.3.htm. See also Cf. Rule 31.

38 Chapter 14 Rules of Lawyer Discipline and Disability (last visited on June 12, 2006). www.utcourts.gov/resources/rules/ucja/index.htm#Chapter%2014.

4 Financial and Retirement Planning James L. Budros John D. Schuman Budros Ruhlin & Roe Columbus, Ohio

Financial and Retirement Planning • 4.1











5 Dealing with Aging Lawyers Stephanie S. Krznarich, MSW, LISW-S, LCDC-III, ICADC Clinical Director, Ohio Lawyers Assistance Program, Inc. Columbus, Ohio

Dealing with Aging Lawyers • 5.1









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