X

Seriously, Who Will Clean up After You?

 

Locating the client files or determining the disposition of the client files of an attorney who has been disabled, or disappeared, or died was a recurrent problem throughout my 39-year career with the Cincinnati Bar Association. It never ended.

 

At first, in 1982, the calls I received from attorneys concerning client files were, “How long do I have to keep this?” and, “How long do I have to keep that?”  In my naivete, my response was to try to develop a “wallet card” to guide attorneys. Of course, I soon realized that while state and federal rules and statutes provide specific disposition schedules for public documents, attorneys are not given such precise guidance for the retention or destruction of client files.1


These inquiries became much more problematic when I received my first call concerning abandoned client files. The caller reported that client files were in boxes set at the curbside in front of a house in the City of Wyoming. Unfortunately, Ohio’s attorney disciplinary system did not—and still does not—designate a clear path to resolution in these situations. I soon learned from my colleagues in the National Organization of Bar Counsel that the same gap exists in many other jurisdictions.

 

The biggest client-file abandonment case of my career began when the CBA received a phone call from an individual who had a rental storage unit in Sharonville. The caller reported that there were hundreds of client files in a dumpster; rents were overdue and the caller was culling through whatever the landlord had removed from units and discarded. The caller had removed the files, which were not in boxes, and secured them in his own unit. We learned that the files belonged to bankruptcy clients of attorney Gary E. Wolosin2 and that the stack of files was about seven feet wide and three feet high. I called the Board of Commissioners on Grievances and Discipline3 and received authorization to pay for bankers’ boxes (about 30) and to hire Ray Hamilton Movers. I called U.S. Bankruptcy Judge J. Vincent Aug, who agreed that the clerk of his court would accept possession of the boxes. We hired a recent college graduate for one week to sit at the court’s offices, go through the files, and create a computerized list of the clients’ names. Notices of the availability of files were published and a few clients did claim their files. After one year, Judge Aug ordered the destruction of the remaining files. I don’t know what the total cost of this enterprise was, but you can use your imagination. Recently, Judge Aug recalled, “I remember the Wolosin case as presenting us with little guidance on some very nubby decisions.”4


Efforts by the organized bar in Ohio to establish a clear protocol for the disposition of an attorney’s client files have largely failed. In January 2010, the Ohio State Bar Association appointed a 20-member committee, the Masters at the Bar Task Force, which was charged with conducting a comprehensive review of issues affecting Ohio lawyers aged 55 and over. One of several recommendations in the final report of the Task Force5 was that the Supreme Court of Ohio should adopt a rule requiring every attorney in private practice to designate a “Surrogate Attorney” to take over the practice in case of disability, death, or disappearance. Ultimately, this recommendation was rejected by the court.

 

Yet the problems continued. At one point, the Office of Disciplinary Counsel in Columbus was storing 2,299 boxes of client files recovered from the offices of missing or deceased Ohio attorneys. Currently, that office pays about $6,500 per year to store abandoned client files.6


In March 2015, the CBA rolled out its Inventory Attorney Program.7 This is a voluntary system whereby local attorneys designate a contact person to provide a starting point for winding down a law practice. The goal of this program is more modest than the OSBA’s proposal, in that the inventory attorney is not expected to take over the law practice. Rather, we simply want attorneys to “tell us who to call if something happens to you.” As might be expected, without the force of a rule, participation in the CBA program is minimal. Voluntary programs by the Cleveland Metropolitan Bar Association and the Columbus Bar Association reportedly meet a similar fate.

 

The Michigan Supreme Court has just enacted Rule 21 of the Rules Concerning the State Bar of Michigan, effective as of September 1, 2023.8 The title of this rule is “Mandatory Interim Administrator Planning.” It applies only to attorneys who are in “private practice,” defined as those who have one or more clients for whom they provide legal services which require a Michigan law license.9


Rule 21 and other amendments to the Michigan Rules of Court establish the requirement for private practice attorneys to designate an attorney, a law firm, or the State Bar of Michigan itself to serve as their interim administrator if they become unable to practice law temporarily or permanently. Beginning with the 2023-2024 annual license renewal, all active private practice attorneys must:

 

(1) Name a “person with knowledge” of their practice, and

(2) Designate an interim administrator OR enroll in the State Bar of Michigan Interim Administrator Program.

 

A “person with knowledge” should know the location of the attorney’s paper and electronic files and records as well as the location of passwords and other security protocols required to access the same. Although the person with knowledge can be the same individual as a designated interim administrator, that person does not have to be a licensed Michigan attorney.10


An interim administrator, however, must be an active Michigan attorney in good standing or a law firm with at least one other active Michigan attorney in good standing. There is no additional licensing fee if an interim administrator is designated at the time of license renewal. In the alternative, if the registrant chooses to enroll in the State Bar of Michigan Interim Administrator Program, there is an additional $60 annual fee.11


The purpose of Mandatory Interim Administrator Planning is to protect clients, attorneys’ interests in their law practices, and the judicial system.12 To that end, the duties and powers of an interim administrator are set forth in Michigan Court Rule (MCR) 9.307. A proceeding for the appointment of an interim administrator is commenced by filing a petition in the Circuit Court13 for the county affiliated with the affected attorney’s residence or law office. The circuit court has jurisdiction over all of the files, records, and property of clients of the “affected attorney.” 14


The appointment of an interim administrator does not automatically create an attorney-client relationship between the administrator and any of the affected attorney’s clients. However, the attorney-client privilege does apply to all communications by or to the administrator and the affected attorney’s clients.15 An important caveat is that the administrator is prohibited from representing an affected client in a pending matter without the informed written consent of the client. The consent must contain an acknowledgment that the client is not obligated to retain the administrator.16


Finally, administrators are entitled to reasonable compensation for the performance of their duties and to reimbursement for actual and reasonable expenses.17


Ohio’s Rules of Professional Conduct state that a lawyer’s “duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”18 “May” is weak. It’s not enough. Seriously, who will clean up after you?


Patterson retired as General Counsel for the CBA in 2021 and now serves on the Ethics Committee.

1  See  Client File Retention Guide, Ohio Board of Professional Conduct (2016).

2  Wolosin was subsequently disbarred from the practice of law in Ohio.  Cincinnati Bar Assn. v. Wolosin, 84 Ohio St.3d 401 (1999).

3 The Board of Commissioners on Grievances and Discipline was renamed the Board of Professional Conduct, effective January 1, 2015.

4 E-mail from J. Vincent Aug to Edwin Patterson, September 16, 2023.

5 https://www.ohiobar.org/globalassets/special-reports/masters_at_the_bar.pdf

6 E-mail from Senior Assistant Disciplinary Counsel Amy Stone to Edwin Patterson, September 22, 2023.

7 CBA Report, March 2015, p.6.

8  Michigan Supreme Court ADM File No. 2020-15.

9  Active membership in the State Bar of Michigan is mandatory to practice law in the state.  Rule 3 (A), Rules Concerning the State Bar of Michigan (hereinafter “SBR”).

10 SBR 21 (A)(2).

11 SBR 21 (B).

12 See Chandler, What you need to know about Rule 21, 106 Mich B J No. 06, p. 12 (2023).

13 Michigan Court Rule 9.305 (hereinafter “MCR”); compare to Ohio’s Courts of Common Pleas.

14 MCR 9.311.

15 MCR 9.309.

16 MCR 9.317.

17 MCR 9.313.

18 Prof. Cond. Rule 1.3, Comment 5 (emphasis added).

print