Over the years, I have met a few lawyers who considered themselves immortal. Thus far, this has turned out not to be true. Which raises the question — what happens if your lawyer dies before finishing your case?
The answer can be found in a part of the Colorado Supreme Court’s rules that primarily deal with lawyer misconduct. (Death is not considered misconduct.)
Colorado Rules of Civil Procedure Section 251.32(h) states: “When … an attorney has died … and no partner, executor, or other responsible party capable of conducting the attorney’s affairs is known to exist, the chief judge of any judicial district in which the attorney maintains his office, upon the request of the Regulation Counsel, shall appoint legal counsel to inventory the files of the lawyer in question and to take any steps necessary to protect the interests of the attorney in question and the attorney’s clients.”
The Regulation Counsel is a lawyer employed by the Supreme Court to handle a variety of functions, including licensure, continuing education and discipline.
What this rule means in practical terms is that, if a deceased lawyer is not a part of a firm where the firm’s other lawyers can take over unfinished cases, another lawyer will be appointed by a local judge to look over the deceased lawyer’s files and sort things out.
Clients can take possession of their own files and find a new lawyer. If that doesn’t happen, the “sorting out” attorney can transfer a file to another lawyer thought to be competent in the area of law in question and who is willing to do the work; take on some of the work ; or do whatever else the court authorizes.
A client’s needs will be given high priority and a concerted effort will be made to accomplish as smooth a transition as possible. (As most clients know, nothing happens quickly in the legal system, so there will usually be ample time to develop and implement a thoughtful game plan.)
Lawyer disability, in contrast to death, can be more complicated. That’s because, although death is reasonably objective, disability is not. A lawyer experiencing a disability can decide to stop practicing and move into a licensure status called “disability inactive.”
However, if a lawyer does not voluntarily make this move, the Regulation Counsel can seek a disability determination and force a lawyer into disability inactive status. Again, client interests are given the highest priority, and the Regulation Counsel can get another lawyer appointed to inventory a disabled lawyer’s files and “take any steps necessary” to protect client interests.
As a further client protection, a lawyer appointed by a court to sort out a deceased or disabled lawyer’s files “shall not disclose any information contained in the files … without the consent of the client to whom such files relate, except as necessary to carry out the order of the court. … ”
Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. Email firstname.lastname@example.org.