89-04 : Death or Disability of Sole Practitioners

The purpose of this practice direction is to urge sole practitioners to have arrangements in place to have another lawyer assume conduct of their law practice in the event of their death or disability. While the choice of new counsel is ultimately that of the clients to make, an arrangement to have a designated lawyer identified in advance allows emergencies to be dealt with quickly and on short notice.

When a member does not make this type of arrangement in advance, the Law Society must apply to the court for an Order under s. 57(1) of The Legal Profession Act, to assume custody of the lawyer’s practice. The Society will arrange for a lawyer to act as custodian of the practice to wind up the member’s practice. The custodian will deal with any urgent files, meet with clients and assist them in finding new counsel, prepare statements of account and collect fees on behalf of the estate for work completed by the member, and close out the member’s trust accounts. The closed client files and accounting records will then come to the Law Society where staff will cull and catalogue the files, review them for original documents, such as wills and titles, and store the files for ten years. Law Society staff will also deal with inquiries from former clients and lawyers about the whereabouts of specific files and documents.

Section 62 of The Legal Profession Act provides that the Society has the right to recover from a member or his/her estate, any expenses incurred by it in carrying out a custodial order. If no custodial arrangements have been made in advance by the member, and the Law Society is required to do this work, it will seek to recover custodial costs from the estates of those members in all but the most exceptional circumstances. In order to avoid this situation, an arrangement in lieu of custodianship may be made by the member or legal personal representative of the member for the management, winding up or disposition of his/her practice. This is preferable, and is encouraged.

The Society, in the case of death or illness of a member, will generally accommodate the personal representative of a member to have the requested lawyer put in place to deal with the member’s law practice. If required, the Society will make application to the Court to have that lawyer appointed co-custodian of the practice. In all arrangements of this type, the member or personal representative and the designated lawyer must agree that the costs of handling the custodianship will be the responsibility of the member or the member’s estate.

Sole practitioners who make arrangements for the conduct of their practice in the event of death or disability should write to advise the Chief Executive Officer of the name of the lawyer prepared to act in this capacity. They should also make sure that their personal representative and immediate family are aware of this arrangement. Where notice is not provided to the Society, the Society may allow such arrangements to be concluded within a limited time period, failing which, the Society will apply for an order appointing a custodian.

Once the Society has approved an arrangement in lieu of custodianship, it shall be entitled to receive periodic reports on the arrangement (or the custodianship) as requested. The Society reserves the right to apply at any time for an order appointing a custodian if one has not been appointed.