Advanced Designation of Custodian Attorney
Published on June 15, 2023 Succession Planning
Upon cessation of practice, a law practice may end, but not be at rest.
A custodian attorney assists in winding down a lawyer’s practice, if needed.
The custodian attorney does not take over representation of clients or “assume” the lawyer’s law practice.
Principal objectives of custodianship include:
Access to client files.
Notice to clients and others that the lawyer has ceased practice.
Client direction on where the client wants the file to go.
Return of client property.
The State Bar of Texas created an online portal to record advance designations.1Texas Rule of Disciplinary Procedure 13.04
A custodian attorney assists in winding down a lawyer’s practice, if needed.
The custodian attorney does not take over representation of clients or “assume” the lawyer’s law practice.
Principal objectives of custodianship include:
Access to client files.
Notice to clients and others that the lawyer has ceased practice.
Client direction on where the client wants the file to go.
Return of client property.
The State Bar of Texas created an online portal to record advance designations.1
At the portal, state your choice of colleague and click SELECT. This prompts an email to the designated attorney, who may accept or decline the designation. Acceptance signifies current willingness to serve as a custodian attorney, if needed.
You can also designate alternate custodians. The process takes only minutes.
Texas Rule of Disciplinary Procedure 13.04
A new rule, TRDP 13.04, allows for voluntary appointment of custodian attorneys, with similar liability protection. A 13.04 custodian does not become the new lawyer for the clients. Indeed, if the custodian steps into representation of a client, “the lawyer’s role as custodian terminates, and the lawyer’s actions are subject to the Texas Disciplinary Rules of Professional Conduct regarding the client-lawyer relationship.” Tex. Rules Disciplinary P. R. 13.04.
Resources
- Law Practice Resources, About Us: https://www.texasbarpractice.com/about-us/
- Succession Planning: https://www.texasbarpractice.com/law-practice-management/plan/
- Portal to Online System for Advance Designation of Custodian Attorneys: https://www.texasbar.com/AM/Template.cfm?Section=Succession_Planning&Template=/Succession/vendor/Instructions.cfm
- Sale of a Practice: https://www.texasbarpractice.com/law-practice-management/article/best-practices-when-selling-a-practice/
- Closing a Practice: https://www.texasbarpractice.com/law-practice-management/close/
- Part XIII of the Texas Rules of Disciplinary Procedure (Cessation of Practice): https://www.legalethicstexas.com/resources/rules/texas-rules-of-disciplinary-procedure/voluntary-appointment-of-custodian-attorney-for-cessation-of-practice/
- The mechanics of TRDP Part XIII differentiate between ordinary cessations and cessations involving extraordinary circumstances. Ordinary cessations channel through TRDP 13.01.
- In extraordinary circumstances, any interested person may petition a court to assume jurisdiction over the lawyer’s law practice. Prerequisites for the petition appear at TRDP 13.02. If the court assumes jurisdiction, the court will appoint one or more Texas attorneys to serve as custodian-attorneys under TRDP 13.03.
- Under TRDP 13.04, lawyers may enter agreements for custodianship, appointing their own custodian attorneys.
- Opinion 627 (Disposition of Files and File Screening): https://www.legalethicstexas.com/resources/opinions/opinion-627/
- Opinion 657 (Additional File Screening in Criminal Cases – Example of Attorney’s Eyes Only Information): https://www.legalethicstexas.com/resources/opinions/opinion-657/
- Sample of Template Pleadings in the Event of Court-Appointed Custodianship, (Linked at Bottom Right): https://www.texasbarpractice.com/law-practice-management/close/
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Law Practice Management Committee
The Law Practice Management committee is comprised of experienced lawyers from across Texas who have been appointed by the State Bar President.
