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By Whittney Dunn, Risk Manager, The Bar Plan

With 2019 just around the corner, all Missouri lawyers know that it is time to complete bar enrollment forms. Bar enrollment forms can also be a valuable tool to ensure clients’ matters are properly handled in the event of the death or incapacity of the lawyer. This is especially true for attorneys who are solo practitioners.

An attorney’s duties to ensure clients’ interests are not harmed by the attorney’s unexpected unavailability are set out in the Missouri Rules of Professional Conduct.  Specifically, Comment [5] to Rule 4-1.3 – Diligence states as follows:

“To prevent neglect of client matters in the event of a practitioner’s death or disability, the duty of diligence may require that each 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.”

The Comment also references Rule 5.26.

Thanks to changes to Rule 5.26 that went into effect last year, Missouri attorneys may now designate a Trustee Attorney (“TA”) on their bar enrollment form. The TA’s appointment ensures that any reasonably necessary action will be taken to protect the interests of the Designating Attorney’s (“DA”) clients in the unfortunate event of the DA’s death or incapacity.

By appointing a specific attorney as trustee, a DA is shielding her clients from neglect as well as protecting the positive reputation she has worked so hard to build for her own practice. While Rule 5.26 also permits the court to appoint a trustee at its own discretion after learning of an attorney’s unavailability, these responsive appointments can take much longer than the automatic appointment accomplished through a bar enrollment form. Additional appointment time could result in harm to clients due to missed court dates, significant case delays or even missed statute of limitation deadlines. Utilizing the TA appointment mechanism in Rule 5.26 is also preferable to other types of succession plans because TAs engaged in work under Rule 5.26 are immune from professional liability per the language of the rule.

To appoint a TA on the bar enrollment form, the DA must first obtain agreement to the appointment by the appointee. That agreement should be confirmed in a writing that is held by both the TA and the DA. By identifying an appointee on your bar enrollment form, you are certifying that these steps have been completed.

If you are approached by another attorney to serve as their TA, you should carefully review the requirements of such a trustee under Rule 5.26.  The TA’s duties upon the death or disability of the DA are set forth in Rule 5.26(d), and your agreement to serve as trustee is an agreement to competently discharge those duties.

From a risk management perspective there are a few practice tips to keep in mind for both the DA and the TA.

Designating Attorney Risk Management Considerations

  • Institute an office procedure whereby the court will be notified of your death or incapacity in a timely way. This will ensure the TA’s work can begin immediately to adequately protect clients’ interests.
  • Notify clients of the TA’s appointment during the engagement process so the client will be aware of what to expect in the event of your death or incapacity.
  • Evaluate your computer systems and other storage methods to determine what passwords, keys, or other access tools TA will need to begin her work and craft a plan to get those tools into TA’s hands as quickly as possible after your death or incapacity.
  • Your estate planning should take into consideration the respective roles of your Personal Representative and the TA so that they can appropriately coordinate their efforts to discharge their responsibilities.
  • Periodically review the appointment to ensure it is up-to-date (e.g., that the TA is still competent to perform the required duties under Rule 5.26).

Trustee Attorney Risk Management Considerations

  • In order to preserve the immunity set forth in Rule 5.26(g), do not take any action in the DA’s client matters beyond those set forth in Rule 5.26(d). The rule does permit you to accept employment by the DA’s clients, but doing so destroys 5.26(g) immunity. Therefore, you should be careful not to do anything which would appear to be crossing over into representation of the client. This includes providing legal advice to the DA’s clients, regardless of how insignificant the legal advice might seem.
  • To avoid any confusion by DA’s clients regarding your relationship to them, it might be beneficial to provide each client with a non-engagement letter which clearly explains your duties under Rule 5.26 and further states that there is not an attorney-client relationship between you and these individuals. To put these clients’ minds at ease, the letter could also explain that, despite the absence of any attorney-client relationship, you are still bound by the duty of confidentiality per the language of Rule 5.26(e).

If you do decide to undertake representation of the client, the representation should be confirmed with a new engagement letter and fee agreement just as with any other new representation. Do not rely on any agreements that may or may not have existed between the DA and the DA’s client at the time of the DA’s engagement in the matter.

If You Are Not a Missouri Attorney

While this article is specific to Missouri, but there are rules regarding trustee attorneys in other states as well.  The relevant rules for each state pertaining to trustee attorney issues in each of these states is as follows:

As always, if you have questions about your risks as a lawyer, The Bar Plan’s Risk Managers are resources available to both insureds and non-insureds at 1-800-843-2277 x103.