How may a Missouri lawyer help wind up a deceased solo lawyer's practice and access confidential files?

Plain-English summary

The available role depends on the deceased lawyer's will, the personal representative's plan for the practice, retained estate counsel, and any lawyer designated under Rule 5.26.

Unless clients previously consented to outside-lawyer access after death, only the appointed trustee has authority over files, confidential trust records, client funds, and assets. A lawyer may move for appointment, represent another applicant, or request personal appointment.

Rule 5.26 defines trustee duties and official immunity. With a client's consent, the lawyer may separately accept employment to finish that client's matter, but that representation has no trustee immunity.

In practice

Under this opinion, informal help from the surviving spouse does not itself authorize confidential file or trust-record access. Court appointment or prior client consent supplies authority.

Common questions

Q: May any assisting lawyer review the files?

A: No, absent prior client consent; the Rule 5.26 trustee has that authority.

Q: May the lawyer seek trustee appointment?

A: Yes.

Q: May the lawyer finish a client matter?

A: Yes, with that client's consent, outside trustee immunity.

Background and rules framework

Rule 4-1.6 protects the information, while Rule 5.26 governs trustee appointment, authority, duties, and immunity.

Citations and references

• Missouri Rules 4-1.6 and 5.26

See also

• Mississippi Ethics Op. 257: Deceased Lawyer Client Files
• Louisiana Op. 05-RPCC-001: Retiring or Closing a Practice

Source

• Landing page: Missouri Informal Opinion 2018-11

Original opinion text

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

Question: Attorney has been contacted by the surviving spouse of another lawyer, a solo practitioner, who has recently passed away. The surviving spouse is seeking Attorney’s help in contacting the deceased lawyer’s clients and in winding up the practice. How should Attorney proceed?

Answer: The role Attorney can play in the winding up of decedent’s practice will depend on various factors, including whether the lawyer’s will contains provisions governing the handling of the law practice by the estate; the intent of the personal representative to sell, close, or liquidate the practice; whether the personal representative plans to hire counsel to assist in the handling of the law practice; and whether the deceased lawyer had designated another lawyer per Rule 5.26 for court appointment as trustee. Unless the deceased lawyer had obtained clients’ informed consent for another lawyer outside the firm to access confidential client information in the event of the lawyer’s death, only a trustee appointed pursuant to Rule 5.26 has the authority to handle client files, examine confidential information in trust account records, and dispose of client funds and assets. See Rule 4–1.6. Attorney may move for the appointment of a trustee per Rule 5.26 in the circuit court where the lawyer maintained an office, represent another lawyer in requesting appointment, or request the court to appoint Attorney as trustee. Rule 5.26 outlines the rights and duties of the trustee, including immunity from liability for conduct in performance of official duties. With the consent of any client, Attorney may, but need not, accept employment to complete a legal matter. Such employment is not subject to immunity under the Rule.