Can a disbarred or suspended lawyer sell their law practice to another attorney in Maine?

Plain-English summary

Bar counsel asked whether a disbarred or suspended attorney may sell that attorney's practice to another attorney. The Commission found nothing in the Bar Rules that prohibits a disbarred or suspended attorney from selling the practice to an attorney licensed to practice in Maine. Several rules impose requirements on the sale of a practice and on the conduct of disbarred or suspended attorneys, but none bars the sale outright.

The Commission grounded the answer in Bar Rule 3.14, which permits the sale or purchase of a law practice, including goodwill, where the selling attorney has retired, become disabled, died, or "has ceased to engage in the private practice of law in the State of Maine." Because a disbarred or suspended attorney has ceased to engage in the private practice of law, that attorney may sell the practice to another licensed attorney, subject to other applicable Bar Rules.

The Commission noted that Bar Rule 7.3 specifies the steps a disbarred or suspended attorney must take to wind up the practice, including notifying each client of the disbarment or suspension and the consequent inability to act as an attorney, and promptly advising each client to substitute other counsel or seek legal advice elsewhere. The opinion adds that a disbarred or suspended attorney selling the practice should take care to notify all clients of their right to appoint a new attorney of their own choosing. The Commission concluded that, while these provisions impose requirements pertinent to the sale, the Rules do not create an outright prohibition of the sale under these circumstances.

In practice

Under the Maine Bar Rules as the opinion read them (the sale-of-practice rule corresponds to ABA Model Rule 1.17, and the winding-up duties to Model Rule 1.16), the opinion holds that disbarment or suspension does not by itself prevent a lawyer from selling the practice; it satisfies the "ceased to engage in the private practice of law" predicate of the sale-of-practice rule. The opinion makes the sale conditional on compliance with the separate winding-up obligations: the selling lawyer must notify each client of the disbarment or suspension and the inability to act, advise each client to substitute counsel or seek advice elsewhere, and preserve each client's right to choose a new attorney rather than be transferred automatically.

Common questions

Q: Does disbarment or suspension prohibit a lawyer from selling the practice?

A: No. The opinion finds nothing in the Bar Rules that bars a disbarred or suspended attorney from selling the practice to a Maine-licensed attorney, because such a lawyer has ceased to engage in the private practice of law under Rule 3.14.

Q: Who can buy the practice?

A: A Maine-licensed attorney. The opinion frames the sale as permitted to an attorney licensed to practice in Maine, subject to the other applicable Bar Rules.

Q: What must the disbarred or suspended lawyer do for clients before or during the sale?

A: Notify and advise them. The opinion holds Rule 7.3 requires notifying each client of the disbarment or suspension and the inability to act as an attorney, and advising each client to substitute counsel or seek legal advice elsewhere; the selling lawyer should also notify clients of their right to choose their own new attorney.

Background and rules framework

The opinion interprets Maine Bar Rule 3.14 (sale and purchase of a law practice, including goodwill) and Bar Rule 7.3 (duties of a disbarred or suspended attorney to wind up the practice, including Rule 7.3(i)(1)(B)(i) and (iii)). These correspond to ABA Model Rule 1.17 (sale of a law practice) and Model Rule 1.16 (declining or terminating representation and protecting client interests on termination).

Citations and references

Rules of Professional Conduct:

• Model Rules 1.17, 1.16
• Maine Bar Rules 3.14, 7.3 (including 7.3(i)(1)(B)(i) and (iii))

See also

• ABA Formal Op. 468: Facilitating the Sale of a Law Practice
• NY State Bar Op. 961: Selling a Practice for a Share of Future Fees
• NY State Bar Op. 707: Selling Part of a Law Practice

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89470

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: March 8, 2002

Question

Bar counsel has forwarded the following question to the Commission. May a disbarred or suspended attorney sell her or his practice to another attorney?

Opinion

The Commission finds nothing in the Bar Rules that would prohibit a disbarred or suspended attorney from selling that attorney?s legal practice to an attorney licensed to practice in Maine. While there are a number of provisions of the Bar Rules that impose requirements with respect to the sale of a legal practice, as well as other provisions of the Rules that impose requirements with respect to actions taken by attorneys disbarred or suspended from practice, none of these Rules impose a prohibition on the sale of such a practice.

Bar Rule 3.14 provides in pertinent part as follows:

A lawyer or law firm may sell or purchase a law practice, including goodwill, if the selling attorney or each attorney in the selling firm has retired, become disabled or has died; or the selling attorney or each attorney in the selling firm has ceased to engage in the private practice of law in the State of Maine.

Drawing from the above language of Bar Rule 3.14, a disbarred or suspended attorney ?has ceased to engage in the private practice of law.? Therefore, acting pursuant to this Rule, such an attorney may sell her or his practice to another licensed attorney, subject to other applicable Bar Rules.

The Commission makes note that Bar Rule 7.3 specifies actions that must be taken by a disbarred or suspended attorney to wind up the practice of law. Among the requirements of this Rule, such an attorney is required to notify each client of the disbarment or suspension and the attorney?s consequent inability to act as an attorney. Bar Rule 7.3(i)(1)(B)(i). In addition, such an attorney is required to advise each client promptly to substitute another attorney or attorneys or to seek legal advice elsewhere. Bar Rule 7.3(i)(1)(B)(iii). In complying with this Rule, a disbarred or suspended attorney, who is selling her or his practice, should take care to notify all clients of their right to appoint a new attorney of their own choosing.

While these provisions impose requirements pertinent to the question presented, the Rules do not create an outright prohibition of a proposed sale of a legal practice under these circumstances.