“Each member of the bar who practices law in Florida shall designate another member of The Florida Bar who has agreed to serve as inventory attorney under this rule.” Rule 1-3.8, Rules Regulating the Florida Bar, effective 1/1/06.

What do you do with the client files of a deceased lawyer? If the lawyer has partners, they will take over the files. But about half the lawyers in Florida are sole practitioners, so what happens to their files?

This is important because client files contain confidential attorney-client privileged and work product privileged information. Disclosure of such information to someone not employed by the deceased lawyer’s P.A. could result in loss of the privilege and liability to the decedent’s estate. However, those files do not belong to the clients, so they cannot be “returned” to the clients. Under Florida law, a lawyer’s files relating to a client matter belong to the lawyer. Therefore, those physical files are assets of the probate estate. This makes it necessary to appoint a lawyer to supervise dealing with those files.

Beginning January 1, 2006, every Florida lawyer must designate an inventory attorney to deal with the lawyer’s files in case of death, disability or disbarment. Rule 1-3.8 of the Rules Regulating the Florida Bar now require such designation. However, designation differs from appointment. The Rule still requires that the inventory attorney be appointed by the circuit court. Therefore, the designation is really an advance designation (similar in concept to an advance directive for health care).

The Rule does not provide much guidance as to the forms and procedure that the probate lawyer handling the deceased lawyer’s estate should follow. The author submits that the following procedure and the appendix of forms (Designation, Petition, Consent, and Order) will be sufficient to comply with the Rule.

Here is one way to ethically deal with the deceased Florida sole practitioner lawyer’s client files:

1. Designate Inventory Attorney. The attorney should, while still living, designate an inventory attorney as required by the new rule amendment. A form of designation appears in Appendix “A”. The rule does not specify whether the designation must be filed with The Florida Bar, the Supreme Court, or otherwise, so until further guidance is provided, it is suggested that both the designating attorney and named inventory attorney keep duplicate signed originals of the Designation in their files.

2. Appoint PR. The first step after the lawyer’s death is to open the probate administration by filing the will and petition for administration and having the probate court appoint the personal representative (PR) named in the will. For purposes of this article, we assume that the PR is not a lawyer; even if the PR is a lawyer, it would be wise to proceed with the next step to make it clear that the PR is acting in dual roles.

3. Appoint Inventory Attorney. The PR then immediately petitions the probate court to appoint an inventory attorney to deal with the deceased lawyer’s clients and the IOTA trust account and to review the attorney’s files relating to client matters. The inventory attorney does not become the attorney for the clients or for the estate, but protects the interests of both by separating the deceased lawyer’s client matters from the deceased lawyer’s business matters. A petition, consent and order for appointment of inventory attorney are set forth in the Appendix.

4. Change from P.A. to Inc. If the deceased lawyer practiced as a P.A., the P.A. must convert to a regular business corporation in order to continue the business (non-legal-advice-rendering) part of the practice and wind it up. The PR does this by first holding a shareholder meeting of the P.A. at which the PR votes the shares to (a) amend the articles of incorporation to remove the practice of law from the purposes of the corporation, (b) amend the articles to change the corporate name from P.A. to Inc., (c) amend the bylaws to remove the requirement of being a lawyer from the provisions for shareholders, directors and officers, and (d) elect the PR to be sole director. The PR then holds a board of directors meeting of the P.A. at which the PR as sole director (a) approves the amendments to articles and bylaws, (b) elects the PR to be president, secretary and treasurer, and (c) approves new bank signature account cards naming the PR as sole signer on the non-IOTA bank account. The articles of amendment are then filed with the Florida Division of Corporations.

The sample forms in the Appendix cite the specific Florida Statutes, cases, and Rules Regulating The Florida Bar which are the basis for the above procedure. While it may seem complicated, the procedure is intended to protect the deceased lawyer’s clients, estate, beneficiaries and public by providing a means by which the inventory attorney can deal with attorney-client matters while the practice is wound up in the probate estate.

James W. Martin is a probate, real estate, and corporate lawyer in St. Petersburg, who has written for the Florida Bar Journal and News, ALI-ABA Practical Lawyer, and West Publishing, and has more information on his Web site, www.jamesmartinpa.com.
 

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Appendix “A”

DESIGNATION OF INVENTORY ATTORNEY

Designating Attorney:_________________________________ Florida Bar Number:______
Named Inventory Attorney:_____________________________ Florida Bar Number:______

The Designating Attorney, being a member of The Florida Bar practicing in the State of Florida, pursuant to Rule 1-3.8, Rules Regulating the Florida Bar, hereby designates the Named Inventory Attorney to serve as my inventory attorney in case I am suspended, disbarred, become a delinquent member, abandon my practice, disappear, die, or suffer an involuntary leave of absence due to military service, catastrophic illness, or injury, when no partner, personal representative, or other responsible party capable of conducting my affairs is known to exist.

The Named Inventory Attorney agrees to serve as inventory attorney under Rule 1-3.8 when appointed by a court of competent jurisdiction, but reserves the right to withdraw this agreement at the time such appointment becomes necessary or at any time prior thereto.

This designation is an advance designation of inventory attorney and is not a court appointment of inventory attorney. The Inventory Attorney named herein does not yet have the powers of an inventory attorney. An inventory attorney can only be appointed by a Circuit Court pursuant to Rule 1-3.8.

Designating Attorney: Named Inventory Attorney:

_______________________________ ________________________________

Date:__________________ Date: __________________________


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Appendix “B”


IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA
PROBATE DIVISION
UNIFORM CASE NO.:_______________
REFERENCE NO.:_________

IN RE: ESTATE OF
____________________,
DECEASED.
________________________________//

PETITION FOR APPOINTMENT OF INVENTORY ATTORNEY
FOR DECEASED LAWYER

Petitioner, _________________, as Personal Representative of the Estate of ____________________, Deceased, alleges:

1. Rule 1-3.8: Inventory Attorney. This is a petition for appointment of inventory attorney of a deceased Florida lawyer under Rule 1-3.8 of the Rules Regulating The Florida Bar.

2.  Petitioner. Petitioner is Personal Representative of this Estate. Petitioner is not a member of the Florida Bar and is not licensed to practice law in Florida and is therefore not capable of conducting Decedent's affairs as a lawyer so an Inventory Attorney should be appointed.

3. Lawyer. Decedent _________ was, at the time of death, a member of The Florida Bar (Florida Bar Number _________) who practiced law in Florida.

4. Files Owned by Probate Estate. Decedent's files relating to client matters are assets of Decedent's probate estate and do not belong to present and former clients. Long v. Dillinger, 701 So.2d 1168 (Fla. 1997), citing Dowda & Fields v. Cobb, 452 So.2d 1140 (Fla. 5th DCA 1984):

"As noted by the Fifth District Court of Appeal in Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984), files prepared and maintained by attorneys on their clients' cases are commonly referenced by a particular client's name. In reality, however, such referral simply means that the file relates to a particular client; the file and its contents are the personal property of the attorney. Id. at 1142. The court reached this conclusion based on the fact that the attorney's file may or may not contain documents or other property of the client. Importantly, the court noted that, while the attorney may have an ethical duty to communicate information to successor counsel, only actual property of the client must be returned."

5. Inventory Attorney. _________ is a member of the Florida Bar (Florida Bar Number _________) and is willing to serve as Inventory Attorney for the deceased lawyer. The duties of the Inventory Attorney would include the following:

A. Client Matters. The Inventory Attorney will assist clients in finding attorneys to take over their cases from Decedent. The Inventory Attorney does not, by this appointment, become attorney for clients, but clients may select him to become their attorney.

B. Fee. The Inventory Attorney will not be an employee of this probate estate, but agrees to accept a fee from this probate estate at the rate of $_________ per hour for services as Inventory Attorney.

C. Trust Account. The Inventory Attorney will have supervision and control and signature authority over the Decedent's IOTA trust account, for the purpose of returning funds to the proper client or owner. The probate estate has no ownership interest in such trust account, except for the nominal amount needed to keep the account open.

D. Files Relating to Client Matters. As noted above, the files relating to client matters are assets of this probate estate and not of the clients. Rule 1-3.8 of the Rules Regulating the Florida Bar prohibits the Inventory Attorney from disclosing any information contained in files relating to a client without the consent of the client, except as necessary to carry out the order of this Court. The Inventory Attorney shall not disclose to Petitioner or to Petitioner's attorney any information contained in such files. The Inventory Attorney will have supervision and control of files of the Decedent that relate to Decedent's client matters for the purpose of maintaining the attorney-client privilege, work product privilege and other privileged or confidential information that may be contained therein, but such physical files remain the property of the probate estate, subject to the Rules Regulating The Florida Bar, and shall not be disposed of or disclosed to others without the prior written consent of the Personal Representative, who shall, nevertheless, not be allowed to see the contents of such files or to be told their confidential content therein. Pursuant to Rule 1-3.8, the Inventory Attorney will "take such action as seems indicated to protect the interests of clients" and to "prevent or reduce claims against" Decedent's probate estate.

6. Interested Persons. The following are the interested persons in this Estate, and consents of each to this Petition are filed herein: ________________.

Wherefore, Petitioner requests that this Honorable Court appoint _________ as inventory attorney pursuant to Rule 1-3.8 of the Rules Regulating The Florida Bar and enter the Order in the form attached hereto.

Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.
Date: __________________

______________________________
Personal Representative, Petitioner

______________________________
Attorney for Petitioner
(Name)
(Firm)
(Address)
(Phone)
Florida Bar Number:______________________

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Appendix “C"

IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA
PROBATE DIVISION
UNIFORM CASE NO.:_______________
REFERENCE NO.:_________

IN RE: ESTATE OF
____________________,
DECEASED.
________________________________//

CONSENT TO APPOINTMENT AS INVENTORY ATTORNEY

The undersigned, _________, hereby joins in and consents to the Petition for Appointment of Inventory Attorney for Deceased Lawyer, consent to appointment as Inventory Attorney for ____________________, Deceased, and agrees to abide by the orders of this Court and the Rules Regulating The Florida Bar.

Date: _________

Signature: ______________________________
(Name)
(Firm)
(Address)
(Phone)
Florida Bar Number:______________________



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Appendix “D”

IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA
PROBATE DIVISION
UNIFORM CASE NO.:_______________
REFERENCE NO.:_________

IN RE: ESTATE OF
____________________,
DECEASED.
________________________________//

ORDER APPOINTING INVENTORY ATTORNEY FOR DECEASED LAWYER

This matter came before the Court upon the Petition for Appointment of Inventory Attorney for Deceased Lawyer filed by _________________, as Personal Representative of the Estate of ____________________, Deceased, pursuant to Rule 1-3.8 of the Rules Regulating The Florida Bar, and the Court having reviewed the petition and consent and being otherwise duly advised, finds that _________ was a member of the Florida Bar (Florida Bar Number _________) who died on _________, 20____, that _________________ is not a member of the Florida Bar and is therefore not capable of conducting Decedent's affairs as a lawyer, that it is in the best interest of the Decedent's clients and estate to appoint an inventory attorney, and that _________ is a member of the Florida Bar and is willing to act as inventory attorney for the deceased lawyer, and it is

ORDERED that the Petition is granted and _________ is hereby appointed to be the Inventory Attorney for the deceased lawyer ____________________ pursuant to Rule 1-3.8 of the Rules Regulating The Florida Bar and is hereby authorized and instructed to inventory the files of the Decedent regarding client matters and to take all necessary steps and actions in order to close the law practice of Decedent in a timely manner and to protect Decedent's clients and Decedent's estate, including but not limited to the following:

A. Substitute Attorneys. The Inventory Attorney will assist active clients in finding attorneys to take over their active cases from Decedent. The Inventory Attorney does not, by this appointment, become attorney for clients, but clients may select Inventory Attorney to become their attorney. If the Inventory Attorney becomes substitute counsel, then he or she shall be attorney for the client directly and not in his or her role as Inventory Attorney. In no event shall clients be clients of this probate estate.

B. Appearances. To make limited appearances to advise the courts of any extensions or postponements necessary to protect the rights of Decedent's active clients.

C. Compensation. The Inventory Attorney will not be an employee of this probate estate, but shall be paid a fee from this probate estate at the rate of $_________ per hour for services as Inventory Attorney.

D. Trust Account. The Inventory Attorney will have supervision and control and signature authority over the Decedent's IOTA trust account for the purpose of returning funds to the proper client or owner. The probate estate has no ownership interest in such trust account, except for the nominal amount needed to keep the account open.

E. Files Relating to Client Matters. The files relating to client matters are assets of this probate estate and not of the clients. Rule 1-3.8 of the Rules Regulating the Florida Bar prohibits the Inventory Attorney from disclosing any information contained in files relating to a client without the consent of the client, except as necessary to carry out the order of this Court. The Inventory Attorney shall not disclose to Petitioner or to Petitioner's attorney any information contained in such files. The Inventory Attorney will have supervision and control of files of the Decedent that relate to Decedent's client matters for the purpose of maintaining the attorney-client privilege, work product privilege and other privileged or confidential information that may be contained therein, but such physical files remain the property of the probate estate, subject to the Rules Regulating The Florida Bar, and shall not be disposed of or disclosed to others without the prior written consent of the Personal Representative, who shall, nevertheless, not be allowed to see the contents of such files or to be told their confidential content therein. Pursuant to Rule 1-3.8, the Inventory Attorney will "take such action as seems indicated to protect the interests of clients" and to "prevent or reduce claims against" Decedent's probate estate, including but not limited to examining the files relating to Decedent's client matters and keeping them in storage for such time as the Inventory determines to be in compliance with the Rules Regulating The Florida Bar or until further order of this Court.

DONE AND ORDERED in _________ County, Florida, on this _______ day of _________, 20____.

______________________________
Circuit Court Judge

Link to The Florida Bar FAQ

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