I saw an article the other day that the trustee for the defunct Howrey law firm was trying to figure out what to do with 220,000 boxes of closed files belonging to 10,000 clients. Not a pretty picture. And, except for the sheer volume, not all that uncommon a problem.
Disciplinary counsel frequently has faced a similar challenge when dealing with the group of lawyers we called the dead, disabled and disappeared. A lot of very kind and patient volunteers have had to wade through boxes and barrels of files belonging to these folks once a trustee is appointed for their practices and the problem of cleaning up their detritus becomes that of the bar. If there were ever such thing as civil sainthood, I would nominate these trustee folks in a heartbeat.
A similar problem happens every year when lawyers quit the practice. There is no central repository for old files, nor is there any place that their location can be registered. I used to get lots of calls from relatives of dead lawyers’ clients looking for estate planning files, wills, trusts, deeds, stock certificates and such. Sometimes we found an old partner. Sometimes we found a spouse. Often, there was nothing we could do.
Some states allow you to file a will with a county registry. That way, the survivors can get a copy when the testator passes on, and it does not matter if the lawyer cannot be found. Here we don’t have that option.
And there were the occasional calls from a landlord or neighbor that a now-abandoned law office was full of files, or that a Dumpster was overflowing with client files full of important information and documents. Again, a nightmare.
With half of the bar practicing in solo or small firms, and with this populace growing older as the baby boomers age out, the problem is only going to get worse. In the past, the Judicial Branch has on occasion taken such files and stored them at a courthouse. In other instances, it has paid for off-site storage. But with Connecticut’s perpetual budget mess only getting worse, this is not going to be a viable option in the future.
All of this argues for succession planning as part of a lawyer’s ethical responsibilities. Solos should designate a colleague to be there for their clients if they meet up with an accident or a medical emergency. Firms should have a program of routine file return or destruction to prevent huge piles of client stuff from accumulating.
Both the Connecticut Bar Association guidelines and Rule 1.15 of the Rules of Professional Conduct set seven years as the appropriate retention period for client information. Older files should be reviewed, sensitive materials returned or removed, and the files should either be given to the clients or destroyed.
Remember, Rule 1.6 requires a client’s confidences to be preserved forever. That means that if you have client materials, you have to preserve and protect them, even if you cannot find the clients. There is a law firm in Springfield that has boxes of files from the defense of Lizzie Border for the murder of her parents in 1892. They wanted to give them to a historical society on the 100th anniversary of the murders until the bar overseers told them that they might want to rethink the idea. Now they have to preserve the files forever. Same with the Baltimore firm with the Booth files related to something they call "the matter of Lincoln."
Historically the idea of selling a small law firm made no sense. The matters belonged to the clients, and there was nothing to sell. Now we have adopted Rule 1.17 which allows a lawyer to sell a whole firm or a whole practice area if she is leaving the area or the practice. Suddenly, a widow has an asset which may replace some of the lost earnings from her departed husband. But it is much easier to do this stuff if a lawyer has been designated to step in and transition the sale of the practice.
As a whole, we lawyers are really bad at planning ahead. Many have not saved for retirement. Many others do not have adequate insurance. Few have any meaningful succession plan in place. The end result is a mess, harm to clients, to the lawyer’s survivors, and to the system.
If there is any good news in the Howrey mess, it is that the wreck happened to a big firm, presumably with some partners who have the money to pay some of the costs. Imagine the bar and the bench trying to foot the bill for disposing of a quarter million files.
Mark DuBois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano.