What would happen if a lawyer died without having any plans in place for dealing with ongoing client matters, client files or funds held in a trust account? What would happen if that lawyer was you, or someone you know?  What if nobody was willing or able to help?  What are the clients to do? 

This is not a hypothetical.  This is a very real and frequent problem in Colorado and throughout the U.S.  Many lawyers have done little or no succession planning, and have nobody lined up to deal with client matters and files if they die or become disabled before fully winding up a law practice.  One practical solution is to engage in effective succession planning, a topic to be addressed in a future article.  Absent such planning, the best solution is often the appointment of an attorney to serve as protective or inventory counsel.  This article is a call to action – a request for volunteers willing to help a fellow lawyer, and his or her family and clients, in a time of need.

When an attorney has died, disappeared, or become disabled, Rule 251.32 (h) of the Colorado Rules of Civil Procedure gives the Office of Attorney Regulation Counsel (“OARC”) the authority to seek appointment of an attorney to inventory the files of another lawyer and to take any steps necessary to protect the interests of that attorney and the attorney’s clients.  In 2016, OARC filed 13 petitions to appoint inventory counsel.  In 2017, that figure rose to 22.  Through just the first three quarters of calendar year 2018, OARC has filed 17 more petitions. OARC is receiving information indicating the need for appointment of inventory counsel for more lawyers than ever before, and the total number of petitions to appoint inventory counsel in 2018 will likely exceed the record number from 2017.

The increasing need for inventory counsel is not surprising in light of other statistical data included in OARC’s Annual Report.  In 2017, there were 40,773 registered attorneys in Colorado.  Of those, 22,550 were 50 years old or older.  14,362 registered attorneys in Colorado were 60 or older, and 5,818 were 70 or older.  At the same time, 69% of active attorneys in Colorado were in private practice, and 35% of those were solo practitioners.  Another 22% were in firms with 2-5 lawyers. 

In many cases in which the need for inventory counsel arises, OARC is appointed as inventory counsel and most of the actual inventory counsel functions are performed by OARC staff under the supervision of that lawyer.  However, OARC cannot meet the growing need for such functions. 

WE NEED YOUR HELP! 

If a significant number of Colorado lawyers would agree to take appointment as inventory counsel just one time over the course of their career, the problem could be solved.  Much of the actual work can be done by a lawyer’s staff under the lawyer’s supervision.  OARC can provide guidance and assistance every step of the way.  In most cases, OARC also can reimburse out-of-pocket expenses reasonably incurred by inventory counsel, not including labor costs.

This is a limited but necessary role.  Inventory counsel does not take over representation of clients for the deceased or disabled attorney.  Inventory counsel does not become the personal representative of the estate of a deceased lawyer, and is not responsible for dealing with or disbursing the deceased lawyer’s own property.  Inventory counsel does not become responsible for paying ongoing expenses of the law practice.  Any payments to be made to clients or third parties from a trust account over which inventory counsel takes control are pursuant to court order.  Similarly, any confidential destruction of files of former clients is pursuant to court order.  Inventory counsel does not risk malpractice liability to the clients of the deceased or disabled lawyer, unless inventory counsel independently agree to take on representation in a particular matter. 

Serving as inventory counsel one time in a career could be one of your most significant contributions as a lawyer.  If you are willing to take on this important duty, or want more information about serving as inventory counsel, please contact me via email at g.sapakoff@csc.state.co.us.