Washington Lawyer - January 2018 - 39

ASK THE ETHICS EXPERTS

Designated Survivor:

PREPARING
FOR THE WORST
By Saul Jay Singer

910 17th Street NW, Suite 800
Washington, DC 20006
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Fifteen years ago, John
Smith, a close friend from
law school, and I each
established solo practices.
We decided that it would
be financially advantageous for each of us to rent office space together
and to share office expenses, but we were always
meticulously careful to maintain our practices as
clearly separate entities.
Sadly, John unexpectedly passed away last week. I
know that he left behind a number of active cases,
but I know little more than that. May I, with the
assistance of his secretary, review his files, advise
his clients about John's passing, and urge them to
act expeditiously to secure new counsel? Some
clients may be seriously damaged if someone
doesn't take action to protect them - and if not
me, then who?

LAWYERS' CHOICE
SUITES

I am so sorry for your loss,
and I deeply respect your
urge to help, which is in the
noblest tradition of
members of the D.C. Bar.

Your question creates an
opportunity to remind sole practitioners about
Comment [5] to Rule 1.3:
To prevent neglect of client matters in the
event that a sole practitioner ceases to
practice law, each sole practitioner should
prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify
each client that the lawyer is no longer

engaged in the practice of law, and determine whether there is a need for immediate protective action. See D.C. App. R.
X1, §15(a) (appointment of counsel by
District of Columbia Court of Appeals, on
motion of Board on Professional
Responsibility [BPR], where an attorney
dies, disappears, or is suspended for incapacity or disability and no partner, associate or other responsible attorney is
capable of conducting the attorney's
affairs).

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Though establishing a transition plan is not mandatory under the rule, it is strongly advisable for a
sole practitioner to do so. Ideally, sole practitioners
should maintain and regularly update a single file
containing the name and contact information of
each client, a list of each active case, and the court
in which it is proceeding, and arrange for a designated "Rule 1.3 Agent" to have access to that file in
the event of a tragedy such as yours. Such foresight will facilitate the ability of the designated
Agent to quickly get his or her hands on the vital
information necessary to take action to protect
clients of the incapacitated lawyer.
You cannot unilaterally review John's files.
However, assuming that he did not designate an
Agent, your next step is to contact the BPR at 202638-4290 to seek the appointment of counsel to
take appropriate action. If you so desire, you may
indicate to the BPR you are willing to serve in such
a role, if appointed.

D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay
Singer, and Erika Stillabower are available for inquiries
at ethics@dcbar.org.

Alvin M. Guttman, Esq.
(202) 293-3595
www.lawofficespacedc.com

http://www.lawofficespacedc.com

Washington Lawyer - January 2018

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