Who handles a lawyer's client files when the lawyer dies, resigns, is suspended, or disappears, and can those files ever be destroyed?

Currency note

The Board flags this opinion as not current: it issued in 1989 and Gov. Bar R. V was later amended, with the inventory-of-files provision now at Gov. Bar R. V §8(F) (effective July 1, 1992). Treat this page as historical context, not current guidance. Verify against the current Ohio Governing Bar Rules before relying on any specific rule or deadline mentioned here.

Plain-English summary

A bar association holding client files of several attorneys who had died, resigned, or been suspended asked what to do with the files. The Board located the answer in Gov. Bar R. V §22.

It explained that a suspended or resigning attorney must comply with the Supreme Court's suspension order under Gov. Bar R. V §22(b), which requires informing clients of the suspension or resignation, urging them to seek other counsel, and returning client files regardless of any fee dispute. If the attorney fails to comply and no other person is available or willing to conduct the attorney's affairs, the Disciplinary Counsel or the chairman of a local bar's certified grievance committee may appoint an attorney to protect the clients' interests under Gov. Bar R. V §22(c). The same appointment procedure applies when an attorney dies, cannot be found in the jurisdiction for sixty days, or refuses to meet or work with clients for sixty days; appointment is unnecessary where a partner, executor, or other responsible person is available and willing.

The appointed attorney may be paid reasonable fees upon approval of the Secretary of the Board, may not disclose information in the inventoried files without the client's written consent except as needed to carry out the appointment, and may not represent any of the clients. If the appointed attorney cannot locate a client after diligent effort, the files are returned to the appointing authority, which may destroy them five years after their return.

Common questions

Q: Who takes over a lawyer's files when the lawyer is suspended or dies?

A: Under this opinion, the suspended or resigning lawyer must return files and notify clients; if that does not happen and no one else is available, the Disciplinary Counsel or a local grievance-committee chairman may appoint an attorney under Gov. Bar R. V §22(c).

Q: Can the appointed attorney represent the former lawyer's clients or be paid?

A: The opinion stated the appointed attorney may not represent the clients but may be paid reasonable fees with the approval of the Secretary of the Board.

Q: Can the files ever be destroyed?

A: Yes. The Board concluded that files of clients who cannot be located after diligent effort may be destroyed by the Disciplinary Counsel or local bar association five years after the appointed attorney returns them.

Background and rules framework

The opinion interprets the Ohio Governing Bar Rules, Gov. Bar R. V §22 (and its subsections (b) and (c)), governing the duties of suspended or resigning attorneys and the appointment of an attorney to protect clients' interests. It is a Governing-Bar-Rules opinion rather than a Code interpretation.

Citations and references

Governing Bar Rules (Ohio):

• Gov. Bar R. V §22, duties on suspension or resignation and appointment to protect clients
• Gov. Bar R. V §22(b), notice, return of files, and confidentiality of inventoried files
• Gov. Bar R. V §22(c), appointment when no one else is available

See also

• Ohio BPC Opinion 1988-035: Delinquent Registration Is Not Unauthorized Practice
• Ohio BPC Opinion 1988-024: Withdrawal, Former Client, and Fee on Withdrawal

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-018.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 89-18
Issued June 16, 1989

[Not Current- subsequent rule amendments to Gov. Bar R. V; for inventory of files see Gov. Bar R. V §8 (F), eff. Jul. 1, 1992]

SYLLABUS: The Office of Disciplinary Counsel or chairman of a local bar association's certified grievance committee may appoint an attorney to handle client files of another attorney who dies, resigns, is suspended or disbarred, refuses to meet or work with clients for sixty days or cannot be located for sixty days, when no one else is available or willing to handle the files. The appointed attorney may be paid reasonable fees for his services with the approval of the Secretary to the Board of Commissioners. The files of those clients who cannot be located, after diligent effort, may be destroyed after five years by the Disciplinary Counsel or local bar association.

OPINION: We have before us a request from a bar association which has client files of several attorneys who have either died, resigned or were suspended from the practice of law. The bar association is asking this Board what should be done with these files. The answer to their question lies in Governing Bar Rule V §22.

A suspended attorney or an attorney who resigns from the practice must comply with the Supreme Court order of suspension under Gov. Bar R. V §22 (b). Suspended attorneys or attorneys who resign are required by this rule to inform their clients of the resignation or suspension and, urge their clients to seek other counsel. Attorneys who are suspended or who resign must also return their clients' files regardless of any fee dispute.

If an attorney fails to comply with Gov. Bar R. V §22 (b) and no other person is available or willing to conduct the attorney's affairs the Disciplinary Counsel or Chairman of a local bar association's certified grievance committee may then appoint an attorney to protect the interests of the clients. Gov. Bar R. V §22 (c). This includes authorization of any actions necessary under Gov. Bar R. V §22(b) or to protect the interests of the clients.

The same appointment procedure can be used when an attorney dies, cannot be found in the jurisdiction for sixty days, or refuses to meet or work with clients for sixty days. Appointing someone is not necessary when a partner, executor or other responsible person capable of conducting the attorney's affairs is available and willing to assume the appropriate responsibility.

An attorney appointed to handle another attorney's affairs may be paid reasonable fees for the attorney's services upon an approval of the Secretary of the Board. The appointed attorney shall not, except as necessary to carry out the order of the appointment, disclose any information contained in inventoried files without the written consent of the client involved. Gov.Bar R. V §22(b). The rule prohibits the appointed attorney from representing any of the clients. Id.

If, after diligent effort, the appointed attorney is unable to locate a client for whom he has files, the appointed attorney should return the files to the appointing authority. The Disciplinary Counsel or the local bar association, which now has the files, may destroy them five years from the time the appointed attorney returned the files.

In conclusion, the clients of attorneys who die, resign, are suspended or disbarred or who refuse to meet or work with clients or cannot be located for sixty days must be protected. The Office of Disciplinary Counsel or the chairman of a local bar association's certified grievance committee may appoint an attorney to handle the affairs of the attorney in question, if no one else is available or willing to do so. The appointed attorney may be paid reasonable fees for his services, with the approval of the Secretary to the Board. The files of a client who cannot be located may be destroyed by the Disciplinary Counsel or local bar association after five years.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Governing Bar Rules of the Supreme Court of Ohio.