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As a Paralegal, sometimes it is left to us to figure out what to do when the attorney we work for is disabled or heaven forbid, dies while we are in their employ.  I don’t know if either of these has happened while you have been working for an attorney, but it has happened to me and it can be downright scary to figure out what to do.  Clients and heirs of California attorneys who die or become disabled can be left with the same sorts of issues faced by families of an individual who does not leave a will or living trust behind: what happens to client files and any funds that may be on deposit in a trust account? With the approval of a surrogacy agreement last month, the State Bar Board of Governors made it both easy and free to avoid such problems. The first to take advantage of the new “Agreement to Close Law Practice in the Future” was bar President Bill Hebert, who designated his law partner, James Quadra, to administer his practice in the event Hebert could not continue to work.

The sample agreement, available to all lawyers, spells out the responsibilities of the primary attorney and his or her successor.  Currently, if a lawyer dies or becomes incapacitated without having made any arrangements about the future of his or her practice, the State Bar seeks a superior court order to take over the practice.  It collects the attorney’s files and attempts to return those files to the client, although it does not try to find a new attorney to take over cases.

However, if a lawyer designates a successor using the new sample contract, the designated surrogate goes to court for appointment as the practice administrator who can take control and dispose of the practice. A lengthy list of duties is part of the contract and includes the ability to open mail, become a signatory on bank accounts, notify clients and transfer files, pay bills and handle funds, and accept the original attorney’s clients and cases. The practice administrator also will have the power to sell the practice.

The agreement includes a requirement that clients must be notified in engagement letters that a successor attorney has been designated.  Murray Greenberg, who for 15 years has handled State Bar takeovers of attorneys’ practices, whether for death, disability or discipline, said the numbers vary from year to year. He’s seen an uptick recently, probably due to the graying of the profession in general, he said.  He shares Oldman’s belief that many attorneys aren’t well-prepared for the unforeseen: “No one expects to become disabled.”

The California State Bar also has guidelines for closing or selling a law practice, which can be found here. As a paralegal, we have lots of responsibilities and while you may not think this should be one of them, I believe we should make sure that our attorney(s) know about this contract availability and that they make sure that their clients and yes, even their paralegals are assured of how things will be handled in the event of their death or disability.

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