In Kentucky, what duties do salaried associate lawyers owe to clients and courts when the sole practitioner who employed them dies?

Plain-English summary

The Committee addressed what duties fall on salaried associate lawyers (who hold no proprietary interest in the firm, limited managerial authority, and limited rights in fee contracts and files) when the sole practitioner who employed them dies. It noted that a surviving partner could pick up the pieces, but in a true sole practice the deceased lawyer's personal representative ordinarily steps in to notify clients, arrange for disposition of files, and wind up the practice (SCR 3.395 also allows appointment of a Special Commissioner in limited circumstances). The Committee encouraged sole practitioners to make a succession plan designating another lawyer to review files and notify clients (citing ABA Formal Op. 92-369).

Where no plan exists, the Committee concluded the former employees may be able to protect the clients' interests and encouraged them to try, but only with the timely cooperation of the personal representative; they should not be expected to work for the estate without compensation, and they may lack knowledge of unfamiliar matters, access to files, or authority over accounts.

The Committee concluded that the formerly employed lawyers retain the limited obligations in KRPC 1.1, 1.3, 1.4, and 1.15: to notify the clients they have been serving so those clients can give protective instructions, and to move to withdraw from any matter pending before a tribunal where the lawyer is no longer authorized to act. Those clients may retain new counsel or hire the contacting lawyer (subject to any estate interest under a pre-existing contract), and such contacts are not prohibited solicitation given the prior professional relationship. As to clients with whom an associate had no attorney-client relationship, the Committee concluded the associate owes no duty to provide continuing services.

Currency note

This opinion was issued in 1998 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: When a Kentucky sole practitioner dies, who winds up the practice?

A: Per the opinion, ordinarily the deceased lawyer's personal representative, who notifies clients and arranges for the files; SCR 3.395 also allows a Special Commissioner in limited circumstances.

Q: What did the surviving associate lawyers have to do?

A: The opinion concluded they retained limited duties under KRPC 1.1, 1.3, 1.4, and 1.15: to notify the clients they had served so those clients could give instructions, and to withdraw from pending matters they could no longer handle.

Q: Could an associate contact the deceased lawyer's clients and offer to keep representing them?

A: Per the opinion, yes for clients the associate had served; those contacts were not prohibited solicitation given the prior professional relationship, subject to any estate interest under an existing contract.

Q: Did the associates owe anything to clients they had never served?

A: The opinion concluded no. As to clients with whom the associate had no attorney-client relationship, the associate had no obligation to provide continuing services.

Background and rules framework

The opinion interprets the duties of competence and diligence (KRPC 1.1, 1.3; Model Rules 1.1, 1.3), communication (KRPC 1.4; Model Rule 1.4), and safekeeping of client property and files (KRPC 1.15; Model Rule 1.15) as they apply to associates after the death of the employing sole practitioner, alongside the wind-up mechanism in SCR 3.395.

Citations and references

Rules of Professional Conduct:

• MR 1.1, MR 1.3 / KRPC 1.1, 1.3 (competence; diligence)
• MR 1.4 / KRPC 1.4 (communication; notifying clients)
• MR 1.15 / KRPC 1.15 (safekeeping client property and files)

Other authorities cited:

• SCR 3.395 (winding up a deceased or disabled lawyer's practice; Special Commissioner)
• ABA Formal Op. 92-369 (1992): planning for a sole practitioner's death

See also

• KBA Ethics Op. E-395: Holding a Client's File Over a Fee Dispute
• KBA Ethics Op. E-418: Imputed Disqualification in Office-Sharing Arrangements

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-405.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Kentucky Bar Association
Ethics Opinion KBA E-405
Issued: June 1998

The Rules of Professional Conduct are amended periodically. Lawyers should consult
the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

A “sole practitioner” - for purposes of this opinion a lawyer who has no law
partners or persons with similar rights and powers - dies. A “sole practitioner”
employed asso
ciates or salaried lawyers who have no proprietary interest in the business of the deceased
lawyer’s firm, no or extremely limited managerial responsibilities, and no or very
limited rights in the attorney-client fee contracts and files. Upon the death of the
“sole practitioner,” the formerly employed lawyers find themselves unemployed,
unpaid, and technically unable to act as agents for the deceased lawyer, the
“firm,” or the estate. What ethical duties do these lawyers owe to clients with
whom they dealt personally and to courts in which they are appearing on behalf of
clients of the “firm”?
Answer:

See Opinion.

References:

KRPC 1.1, 1.3, 1.15; ABA Formal Op. 92-369 (1992); Del O’Roark, Post
Mortem Professional Responsibility, 57 Bench & Bar 2, Spring 1993 (pg. 41).
OPINION

This question has come up several times in recent months. Of course, a law partner in a
partnership would have the ability and authority to pick up the pieces. In the absence of a law
partner, it is assumed that the deceased lawyer’s personal representative would step into the
deceased lawyer’s shoes, not for the purpose of practicing law, but for the purpose of notifying
clients, arranging for the disposition of files, and winding up the deceased lawyer’s affairs. See
SCR 3.395. While SCR 3.395 provides for the appointment of a Special Commissioner to
protect client interests in limited circumstances, the KBA will understandably be reluctant to
assume the burdens and expenses associated with SCR 3.395 if there is a surviving partner or a
personal representative available to do the winding up.
To fulfill his or her obligation to protect client files and property, a sole practitioner
should prepare a future plan providing for the maintenance and protection of client interests in
the event of the lawyer’s death. Such a plan should, at a minimum, include the designation of
another lawyer who would have the authority to review client files and make determinations as
to which files need immediate attention, and who would notify the clients of their lawyer’s death.
For further guidance see ABA Formal Op. 92-369 (1992).

Unfortunately not all sole practitioners will have made such plans. If the lawyers left
behind were employees with no proprietary interest in the firm, it may be possible for them to
protect the interests of all of the sole practitioner’s clients, and we encourage them to attempt to
do this. However, this would require the timely cooperation and support of the deceased
lawyer’s personal representative. The now unemployed lawyers should not be expected to work
for the benefit of the estate or the deceased sole practitioner without compensation. Furthermore,
the lawyers may have no knowledge of matters involving clients whom they have not personally
served, may have no access to client files, and may have no authority to write checks or deal with
accounts of the decedent.
The Committee is of the opinion that the formerly employed lawyers continue to have the
limited obligations set forth in the KRPC - e.g., KRPC 1.1, 1.3, 1.4, and 1.15 - e.g., to notify
clients for whom they have been providing services, so that those clients may provide them with
instructions that will protect the clients’ interests; and move to withdraw from representation in
any matter pending before a tribunal if the lawyer is no longer authorized to act for the client.
Obviously, those clients may obtain other counsel or employ the lawyer contacting them, subject
to any interest of the estate arising from any pre-existing contract. These contacts are not
prohibited solicitation given the lawyer’s prior professional relationship with the client.
However, in matters where there exists no attorney-client relationship between the
associated lawyers and the client, the associated lawyers have no obligation to the clients or the
estate of the responsible attorney to provide continuing professional services.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.