What to Do When an Attorney has
Abandoned his Practice, is Incapacitated, or Deceased:
Assumption of Jurisdiction
A Guideline for Judges or Other Interested Persons
Attorneys are aging. Because of a weak economy many
attorneys are sole practitioners (while others never wanted anything other than
to practice on their own) and are forced to work as long as they can. It is a
combustible combination.
Unless an attorney practices in a smaller location or
before the same judge or judges, it may take a while to learn that an attorney
has become incapacitated or has died. A client may learn an attorney is no
longer available when the attorney’s phones are disconnected and the office
appears abandoned. A judge may learn the attorney is unavailable when a client
contacts the court for information on what to do to continue with their case
when their attorney has disappeared.
The Texas Rules of Disciplinary Procedure, Part XIII,
provides for the Cessation of Practice as follows:
13.02 Assumption of
Jurisdiction: A client of the attorney, Chief Disciplinary Counsel, or any
other interested person may petition a district court in the county of the
attorney’s residence to assume jurisdiction over the attorney’s law practice.
If the attorney has died, such petition may be filed in a statutory probate
court. The petition must be verified and must state the facts necessary to show
cause to believe that notice of the cessation is required under this part. It
must state the following:
A. That an attorney licensed to practice law
in Texas has died, disappeared, resigned, become inactive, been disbarred or
suspended, or become physically, mentally or emotionally disabled and cannot
provide legal services necessary to protect the interests of clients.
B. That cause exists to believe that court
supervision is necessary because the attorney has left client matters for which
no other attorney licensed to practice law in Texas has, with the consent of
the client, agreed to assume responsibility.
C. That there is cause to believe that the
interests of one or more clients of the attorney or one or more interested
persons or entities will be prejudiced if these proceedings are not maintained.
13.03 Hearing and
Order on Application to Assume Jurisdiction: The court shall set the
petition for hearing and may issue an order to show cause, directing the
attorney or his or her personal representative, or if none exists, the person
having custody of the attorney’s files, to show cause why the court should not
assume jurisdiction of the attorney’s law practice. If the court finds that one
or more of the events stated in Rule 13.02 has occurred and that the
supervision of the court is required, the court shall assume jurisdiction and
appoint one or more attorneys licensed to practice law in Texas to take such
action as set out in the written order of the court including, but not limited
to, one or more of the following:
A. Examine the client matters, including
files and records of the attorney’s practice, and obtain information about any
matters that may require attention.
B. Notify persons and entities that appear
to be clients of the attorney of the assumption of the law practice, and
suggest that they obtain other legal counsel.
C. Apply
for extension of time before any court or any administrative body pending the
client’s employment of other legal counsel.
D. With the prior consent of the client, file
such motions and pleadings on behalf of the client as are required to prevent
prejudice to the client’s rights.
E. Give
appropriate notice to persons or entities that may be affected other than the
client.
F. Arrange
for surrender or delivery to the client of the client’s papers, files, or other
property.
The custodian shall observe the attorney-client relationship
and privilege as if the custodian were the attorney of the client and may make
only such disclosures as are necessary to carry out the purposes of this part.
Except for intentional misconduct or gross negligence, no person acting under
this part may incur any liability by reason of the institution or maintenance
of a proceeding under this Part XIII. No bond or other security is required.
The following assumption forms are attached for
your review and convenience:
·
Petition for Assumption – Deceased Attorney
·
Petition for Assumption – Incapacitated
Attorney
·
Agreed Order – Deceased Attorney
·
Agreed Order – Incapacitated Attorney
·
Order Dissolving Custodianship