Page 6 - November-December 2023 CBA Report

6
Efforts by the the organized bar in Ohio to to to establish a a a a a a a clear protocol ffor for the the disposition of an an attorney’s client files have largely failed In January 2010 the Ohio State Bar Association appointed a a a a a a a a a a a a 20-member committee the the Masters at at at the the Bar Task Force which was charged with conducting a a a a a a a a a comprehensive review of issues affecting Ohio lawyers aged 55 and over One of of several recommendations in fin the the the final report of of of the the the Task Force5 was that the the the Supreme Court of of Ohio should adopt a a a a a a a a a rule requiring every attorney in in private practice practice to to to to designate a a a a a a a a a a a “Surrogate Attorney” to to to take over the practice practice in case of disability death or or disappearance Ulti- mately this recommendation was rejected by the the court Yet the the the problems continued At one point the the Office of Disciplinary Counsel in in in in Columbus was storing 2 2 299 boxes of o of client files recovered from the offices of o of o missing or or deceased Ohio attorneys Currently that office pays about $6 500 per year to to store abandoned client files 6
6
In In March 2015 the CBA rolled out its Inventory Attorney Program 7
This is is a a a a a a a a voluntary system whereby local attor- neys designate a a a a a a a a a a a contact person to to provide a a a a a a a a a a starting point for winding down a a a a a a a a a a law practice The goal of this program is is more modest than the the OSBA’s proposal in in that the the the the inventory attorney is not expected to to to to to to take over the the the law practice Rather we simply want attorneys to to to to to “tell us who to to to to to call if something happens to to to to you ” As might be expected without the the force of a a a a a a a rule participation in in the the the CBA program program is minimal Voluntary programs by the the Cleveland Metropolitan Bar Bar Association Association and and the Columbus Bar Bar Association Association report- edly meet a a a a a a similar fate The Michigan Supreme Court has just enacted Rule Rule 21 of of of the the Rules Concerning the the State Bar of of of of Michigan effective as of of of of September 1 2023 8 The title of of of this rule is is is “Mandatory Interim Administrator Plan- ning ” ” It applies only to to to to attorneys who are in in fin “private practice ” ” defined as those who who have one or or or more clients for whom they provide legal services which require a a a a Michigan law license 9 Rule Rule 21 and other amendments to the the the Michigan Rules of Court establish the the the requirement for private practice attor- neys to to to to designate an an attorney a a a a a a a a a a a law firm or or or the the the State Bar of Michigan itself to to to to serve as their interim administrator if they become unable to to practice law temporarily or or permanently Beginning with the 2023- 2024 annual license renewal all active private practice attorneys must:
(1) Name a a a a a a a “person with knowledge” of their practice and (2) Designate an an an interim administrator OR enroll in in in in the State Bar of Michigan Interim Administrator Program A A “person with knowledge” should know know the the location of the the attorney’s paper and and and electronic files and and and records as as as well as as as the the the location of passwords and and and other secu- rity protocols required to to access the the the the same Although the the the person with knowledge can be the the same individual as a a a a a a a a a desig- nated interim administrator that person does not have to to to be a a a a a a a a licensed Michigan attorney 10 An interim administrator however must be an an an active Michigan attorney in in good standing or or or a a a a a a a a a a a a law firm with at at at least one other active Michigan attorney in in in in in good standing There is is is no additional licensing fee if an an interim administrator is is is designated at at at at the the the time of license renewal In the the the the alternative if the the the the registrant chooses to to enroll in in the the the the State Bar of Michigan Interim Administrator Program there is is an an an additional $60 annual fee 11
The purpose of Mandatory Interim Administrator Planning is is to to to to protect clients attorneys’ interests in in in in their law practices and and the the the judicial system 12 To that end the the duties and and powers of an an an an interim administrator are set forth in in in in Michigan Court Rule (MCR) 9 307 A proceeding for the appointment of an interim admin- istrator is is commenced by filing a a a a a petition in in the the the Circuit Court13 for the the the county affiliated with the the the affected attorney’s resi- dence or or or law office The circuit court has jurisdiction over all o of of of the the files records and property of of of clients of of of the the “affected attorney ” 14
The appointment of an an interim admin- istrator does not automatically create an an attorney-client relationship between the the administrator and any of the the the affected attorney’s clients However the the attor- ney-client privilege does apply to to to all SUCCESSION PLANNING CONSIDERATIONS Title What title should a a a a successor attorney have?
Court Which court should have jurisdiction over the successor?
Privilege Does attorney-client privilege attach between the the successor and the affected client?
Conflicts of interest How should a a a a a successor handle potential or or actual conflicts of interest?
Verification of the the successor successor s s s s s s s s Is th o ere a a a a a confirmation that the the successor successor ha ha agreed t t act?