An attorney on inactive status cannot serve as an executor of an estate.
I am an attorney who is retiring, but I am the executor on a number of estates. Can I remain in that capacity if I place myself on inactive status?
Inactive status is just a euphemism for administrative suspension. About five or six years ago, the Pennsylvania Supreme Court changed the terminology to being on inactive status from administrative suspension. The problem with that term (administrative suspension) is that it has a negative connotation that can create problems since it is misleading and suggests misconduct.
But under the Rules of Disciplinary Enforcement, Rule 217(c), the world has changed. The rules say a formerly admitted attorney, which is defined as a lawyer who is disbarred, suspended or on administrative suspension. This would also include a transfer to inactive status. That lawyer, once they go on administrative suspension or inactive status, has to notify all persons, agents or guardians to whom a fiduciary duty is or may be owed at the time of the administrative suspension or inactive status. Also, the attorney has to notify any other persons who they have had professional contacts with because of the reasonable possibility that they may infer that the person is still an active lawyer. The lawyer has to notify all courts of his inactive status.
The inactive lawyer can face potential problems. The best advice given to any lawyer who wants to retire or go inactive is just keep their law license active. There is only one requirement: keep paying the annual fee and taking the 12 hours of CLE.
Now, if a lawyer is suspended for more than one year or out on disability due to inactive status, under Pennsylvania Rules of Disciplinary Enforcement, Rule 217(b)(3), they have to resign all appointments as personal representative, executor, administrator, guardian, power of attorney or any other fiduciary position. They have to close their IOLTA account. They have to transfer all funds. They have to cancel all advertisements. They have to maintain proof of taking the above steps. Although the lawyer who is on inactive status or administrative suspension would not have to resign their trust positions, any lawyer who has been suspended for a period exceeding one year on an inactive disability status must do this.
Therefore, a lawyer who is suspended for more than one year or on disability can’t be a power of attorney, executor or administrator of an estate, etc. There is no exception, even if the estate is for a family member.
There is some concern the rule is too broad. It is understandable if a lawyer is suspended that they can’t practice law or do law-related activities. But if beneficiaries of an estate are notified that the executor is now a suspended lawyer, but still wish the suspended lawyer would continue on as executor of the will, it seems that is prohibited. Suspended or disbarred lawyers have to be able to make a living. Acting as a paralegal is severely restricted under Pennsylvania Rules of Disciplinary Enforcement, Rule 217(j). In the past, serving as an administrator was supplemental income.
Therefore, to answer the question, the inactive or administratively suspended lawyer has to notify all fiduciary parties of their inactive or administrative suspension. But they don’t have to resign the position. But any lawyer on inactive status due to disability or any lawyer who is suspended for more than one year must do so and can no longer serve as executors, administrators, etc.
It’s a fairly harsh rule, but all lawyers should take note of it.
Lawyers must maintain records.
I am a relatively young lawyer and I essentially have electronic files and communicate with my clients electronically. There are now ways of communicating where communications are destroyed by the service after a day or so. Is that ethical?
Communicating with clients and the duties to do so are set forth under Pennsylvania Rules of Professional Conduct, Rule 1.4. Under that rule, one has to properly inform the client of any decision, consult with the client, keep the client reasonably informed and comply with requests for information.
The problem with using communication tools that automatically erase the communications after a certain time period is that the lawyer will no longer have records of those communications. That would be a foolish thing. Although there is no requirement in the Rules of Professional Conduct to maintain the lawyer’s file for any period of time, a wise lawyer usually maintains files at least for the outer limits of the statute of limitation for either tort or breach of contract. That could go out as far as six years. This is unlike other obligations where the lawyer has to maintain financial records for five years and advertising records for three years.
If communications records are lost or not maintained, a lawyer might face problems down the line in either a disciplinary complaint or malpractice suit when the lawyer is unable to produce the documents because they were automatically destroyed.
Therefore, when using modern technology, one has to be careful to be able to maintain the records and have those records available. This writer, in the past, has represented lawyers in disciplinary complaints where it has been difficult to get emails five to seven years ago because of changing computers.
The ease of using modern technology sometimes runs counter to the professional nature of the legal profession. One must and should retain records not only to have a complete file, but also to be able to show the lawyer did what they were supposed to do if later questions are raised. Unfortunately, most modern technology cannot be guaranteed to be confidential. Most modern technology, such as cellphones, texts and emails, are easily accessible to anyone who has a minimum knowledge of how to hack or listen to this material. Now everyone uses these forms of technology, which are easily accessible. These forms of communications are convenient, but some day it might create a problem due to lack of confidentiality.
Law was never made to be an instantaneous profession. The best lawyers are sometimes a little more ponderous and take their time. Modern technology robs one of the time to reflect and focus. Perhaps lawyers should really reconsider their use of modern technology, which seems to contradict their professional obligations.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.