When a solo practitioner dies, what duties does an associate lawyer who worked as the solo's employee owe to the firm's pending clients?

Plain-English summary

Opinion E-87-9 addressed what an associate, working as an employee for a solo practitioner, owes to the firm's pending clients when the solo practitioner dies before retirement, including the situation where the estate's personal representative refuses to compensate the associate, reduces the associate's compensation, or discharges the associate. The committee observed that while Wisconsin Supreme Court Rules address protecting client interests in cases of attorney medical incapacity (SCR 22.27) and disbarment or suspension (SCR 22.26), none expressly cover closing the practice of a deceased solo practitioner.

The committee summarized the associate's responsibilities in stages. Immediately after the death, and before the associate's role in winding up the practice is formally clarified, the associate should take action, in the words of SCR 22.26(3), "as may be necessary for the sole purpose of protecting his clients' rights, the clients' files and the clients' property." As soon as practicable, the associate should communicate with the deceased attorney's surviving spouse, personal representative, and/or the probate judge about emergency and extended services to the estate, and the committee recommended that the associate's authority to assist in winding up the practice be clarified and confirmed by court order. Once that authority is confirmed, the appointed lawyer notifies past and present clients about the practice's termination and how to obtain their files, examines files and financial records to render an accounting, retains copies of files carrying potential grievance, malpractice, or fee-dispute exposure, provides emergency legal services to avoid prejudice, cooperates in substitution of counsel, and stores or destroys files in accordance with court authorization and clients' rights.

On the compensation questions, the committee concluded that disputes over whether the personal representative would adequately compensate or might discharge the associate ordinarily would be resolved through the court order appointing a lawyer to wind up the practice, noting that SCR 22.26(3) provides for compensation of an appointed attorney from estate assets in an amount approved by a judge in the disbarment or suspension context, and citing Wis. Stat. section 857.25 and SCR 20:5.4(a)(2) regarding completion of a deceased lawyer's unfinished business.

Currency note

This opinion was issued in 1987, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code and the Rules re-created effective January 1, 1988. The cited Supreme Court Rules and statutes may since have been amended or renumbered. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: A solo practitioner I worked for as an associate just died. What do I do first?

A: The opinion stated the associate should first take action necessary to protect clients' rights, files, and property, quoting SCR 22.26(3), before the associate's formal role in winding up the practice is clarified.

Q: Who has authority to wind up a deceased solo's practice?

A: The committee recommended that the winding-up authority be clarified and confirmed by court order, consistent with the equivalent procedure in SCR 22.26(3); the appointed lawyer then notifies clients, accounts for funds, and assists in transferring matters.

Q: What if the estate won't pay me or tries to discharge me?

A: The committee concluded those compensation issues ordinarily would be resolved in the court order appointing a lawyer to wind up the practice, pointing to SCR 22.26(3)'s provision for judge-approved compensation from estate assets and to Wis. Stat. section 857.25.

Background and rules framework

The opinion drew on Wisconsin Supreme Court Rules governing protection of client interests on incapacity (SCR 22.27) and on disbarment or suspension (SCR 22.26), and on the rules of professional conduct of general applicability, including the duties of competence and communication (SCR 20:1.1 and 20:1.4 / Model Rules 1.1 and 1.4), the duties on termination of representation (SCR 20:1.16(d) / Model Rule 1.16), the responsibilities of a subordinate lawyer (SCR 20:5.2 / Model Rule 5.2), and the provisions on independent professional judgment and compensation of a lawyer completing a deceased lawyer's work (SCR 20:5.4(c) and 20:5.4(a)(2) / Model Rule 5.4).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.1, 20:1.4, 20:1.16(d) / Model Rules 1.1, 1.4, 1.16 (competence, communication, duties on termination)
• Wis. SCR 20:5.2 / Model Rule 5.2 (responsibilities of a subordinate lawyer)
• Wis. SCR 20:5.4(a), 20:5.4(c) / Model Rule 5.4 (completing a deceased lawyer's business; independent judgment)
• Wis. SCR 22.26, 22.27 (protection of client interests on suspension/disbarment and incapacity)

Statutes:

• Wis. Stat. section 857.25 (continuation of the business of a decedent)

Other opinions cited:

• Wisconsin Formal Op. E-87-6 (termination of a law practice)
• Wisconsin Formal Ops. E-82-7 (copying client files) and E-84-5 (disposition of closed client files)
• Wisconsin Informal Op. 1/63

See also

• ABA Formal Op. 92-369: Deceased Sole Practitioner Files
• CA COPRAC Op. 2014-190: Duties on Firm Dissolution
• CO Bar Op. 147: Succession Planning
• WI Ethics Op. EF-17-01: Retention and Destruction of Closed Client Files

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-87-9.pdf