What must a solo lawyer do to protect clients and their information if the lawyer dies or becomes disabled, and what may a successor lawyer do with the files?
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This page answers the general question as of 2026. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer is a sole practitioner with no partners, associates, or employees, whose files contain client information. The opinion answers two questions: whether the lawyer must take steps to safeguard clients and their information in case the lawyer dies or becomes disabled, and what a successor lawyer who is arranged to disburse the files must or may do.
The opinion applies Oregon RPC 1.1 (competence) and Oregon RPC 1.6 (confidentiality). It notes that ORS 9.705 to 9.757 set up a statutory scheme for a court to take jurisdiction over a nonperforming lawyer's practice, but that for a solo with no staff there could be a significant gap after death or disability during which the phone goes unanswered, mail is unopened, and deadlines are missed. The opinion concludes that the duty of competent representation includes, at a minimum, making sure someone will step in to avoid client prejudice; that person need not be a lawyer, and it may be enough to instruct the person to contact the presiding judge of the county circuit court to start the ORS 9.705 process, while also instructing the person about the lawyer's duty to protect client information under RPC 1.6.
The opinion adds that a lawyer may go further and arrange for another lawyer to come in and disburse the files. Nothing in ORS 9.705 to 9.757 makes that statute the exclusive means. Like a court-appointed custodial lawyer, a voluntary successor lawyer must protect the clients' confidential information, must promptly inform the clients that the successor has the files, and must ask what the clients want done. Unlike a court-appointed custodian, the voluntary lawyer may offer to take over the clients' work, but only in compliance with Oregon RPC 7.3 on solicitation, and not if the lawyer is unqualified for the work or doing so would create conflicts under RPC 1.7. A footnote notes that if a client requests particular steps, or the lawyer learns of a limited time remaining to practice, the lawyer should begin notifying clients as soon as possible.
In practice
The opinion holds that, under the current Oregon rules, succession planning is an aspect of competence for solos: the lawyer must put someone in place to prevent client prejudice and to protect client information if the lawyer cannot continue. Per the opinion, the successor's duties track those of a court-appointed custodian on confidentiality and client notice, with the added freedom (and the solicitation-rule limit) to offer to take over the work. Verify the current text of Oregon RPC 1.1, 1.6, and 7.3, and ORS 9.705 to 9.757, before relying on any specific point.
Common questions
Q: Does a solo lawyer have to plan for death or disability?
A: Yes. The opinion concludes the duty of competent representation requires, at a minimum, arranging for someone to step in to avoid client prejudice if the lawyer dies or becomes disabled.
Q: Does the person who steps in have to be a lawyer?
A: No. Per the opinion, the person need not be a lawyer; it may be enough to instruct them to contact the presiding judge to start the ORS 9.705 custodial process and to protect client information under RPC 1.6.
Q: What must a successor lawyer who takes the files do?
A: The opinion concludes the successor must protect the clients' confidential information, promptly inform the clients that the successor has the files, and ask what the clients want done with them.
Q: Can the successor lawyer take over the clients' cases?
A: Yes, with limits. Per the opinion, the voluntary successor may offer to take over the work only in compliance with Oregon RPC 7.3 on solicitation, and not if unqualified or if doing so would create conflicts under RPC 1.7.
Background and rules framework
The opinion interprets Oregon RPC 1.1 (competence) and Oregon RPC 1.6 (confidentiality), with Oregon RPC 5.3 (supervision of nonlawyers), 7.3 (solicitation), and 1.17 (sale of a law practice), corresponding to Model Rules 1.1, 1.6, 5.3, and 1.17, and the custodial statutory scheme in ORS 9.705 to 9.757.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.1 / Model Rule 1.1 (competence)
- Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)
- Oregon RPC 5.3 / Model Rule 5.3 (responsibilities regarding nonlawyer assistance)
- Oregon RPC 7.3 (solicitation of clients)
- Oregon RPC 1.17 / Model Rule 1.17 (sale of a law practice)
Statutes:
- ORS 9.705 to 9.757 (custodial jurisdiction over a nonperforming lawyer's practice)
Other opinions cited:
- OSB Formal Ethics Op. No. 2005-50 (rev 2026) (office sharers, opposing parties)
- OSB Formal Ethics Op. No. 2005-44 (rev 2026) (shared nonlawyer, adverse firms)
See also
- OSB Ethics Op. 2005-43: Preserving Wills of a Missing Client
- OSB Ethics Op. 2005-50: Office Sharers, Opposing Parties
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-129.pdf
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