Current through Register Vol. 54, No. 44, November 2, 2024
(a)
General rule. Enforcement Rule 322(a)-(c) provides that:
(1) The conservator shall take immediate
possession of all files of the absent attorney; that if such possession cannot
be obtained peaceably, the conservator shall apply to the appointing court for
issuance of a warrant authorizing seizure of the files; and that probable cause
for issuance of such a warrant shall be an affidavit executed by the
conservator reciting the existence of the conservatorship and the fact that the
persons in control of the premises where the files are or may be located will
not consent to a search for them or their removal or other facts showing that
the files cannot be obtained without the use of the process of the
court.
(2) The conservator shall
make a written inventory of all files taken into his or her
possession.
(3) The conservator
shall make a reasonable effort to identify all clients of the absent attorney
whose files were opened within five (5) years of the appointment of the
conservator, regardless of whether the case is active or not, and a reasonable
effort to identify all clients whose cases are active, regardless of the age of
the file. The conservator shall send all such clients, and former clients,
written notice of the appointment of a conservator, the grounds which required
such appointment, and the possible need of the clients to obtain substitute
counsel. All such notices shall include the name, address and telephone number
of any lawyer referral service or similar agency available to assist in the
location of substitute counsel. The conservator shall, if necessary, send a
second written notice to all clients of the absent attorney whose files appear
to be active.
(4) All clients whose
files are identified by the conservator as both inactive and older than five
(5) years shall be given notice by publication of the appointment of a
conservator, the grounds which required such appointment, and the possible need
of the clients to obtain substitute counsel. All such notices shall include the
name, address and telephone number of any lawyer referral service or similar
agency available to assist in the location of substitute counsel. The specific
method of publication shall be approved by the appointing court, as to both the
method, and duration, of publication. The conservator shall deliver proofs of
publication to the appointing court at the time of filing the application for
discharge.
(5) A file may be
returned to a client upon the execution of a written receipt, or released to
substitute counsel upon the request of the client and execution of a written
receipt by such counsel. The conservator shall deliver all such receipts to the
appointing court at the time of filing the application for discharge. On
approval by the appointing court of the application for discharge, all files
remaining in the possession of the conservator shall be destroyed by the
conservator in a secure manner which protects the confidentiality of the
files.
(b)
Prohibited conduct. Enforcement Rule 322(d) provides that
neither the conservator nor any partner, associate or other lawyer practicing
in association with the conservator shall:
(1)
Make any recommendation of counsel to any client identified as a result of the
conservatorship in connection with any matter identified during the
conservatorship.
(2) Represent such
a client in connection with:
(i) any matter
identified during the conservatorship; or
(ii) any other matter during or for a period
of three years after the conclusion of the conservatorship.
(c)
Written
report. Enforcement Rule 322(e) provides that the conservator shall
file a written report with the appointing court and the Board no later than 30
days after the date of appointment covering the matters specified in subsection
(a) of this section; that if those duties have not been accomplished, then the
conservator shall state what progress has been made in that regard; and that
thereafter, the conservator shall file a similar written report every 60 days
until discharged.
(d) Enforcement
Rule 322(f) provides that in the case of a deceased attorney, the conservator
shall notify the executor of the estate of the Disciplinary Board's need to be
reimbursed by the estate for the costs and expenses incurred in accordance with
§
91.128(3)
(relating to compensation and expenses of conservator).
