Rule 1.17 SALE OF A LAW PRACTICE
A lawyer or a law firm may sell or purchase all or part of a law practice, including good will, if the following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law or some particular area of the practice of law within an agreed upon geographic area in which the practice has been conducted;
(b) The practice or particular area of practice is sold as an entirety to another lawyer or law firm;
(c) Actual written notice is given by certified mail, return receipt requested, to each of the seller's clients regarding:
(1) the proposed sale;
(2) the terms of any proposed change in the fee arrangement authorized by paragraph (d);
(3) the client's right to retain other counsel or right to take possession of the file; and
(4) the fact that the client's consent to the sale will be presumed if the client does not take any action or does not otherwise object within ninety days of receipt of the notice.
If written notice by certified mail is ineffective, the seller should take all reasonable steps to see that notice of the sale is received by the client. If after all reasonable steps have been exhausted, notice has still not been received by the client, representation of the client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.
(d) The sale may not be financed by increases in fees charged the clients of the practice. Existing agreements between the seller and the client as to fees and the scope of the work must be honored by the purchaser, unless the client consents in writing after consultation.
(e) Any sale of any particular area of practice arising out of the selling lawyer's cessation of practice in an area of practice must include all of the selling attorney's files in the area of specialty or practice.
 The practice of law is a profession, not merely a business. Clients are not
commodities that can
be purchased and sold at will. Under this rule, when a lawyer or an entire firm ceases to practice
total or in a particular area of specialty or practice and
another lawyer other
lawyers or firm takes
firms take over the representation, the selling lawyer or firm may obtain compensation
reasonable value of the practice as may withdrawing partners of law firms. See Rules 5.4 and
Sale of a Part of a Practice
This rule does not require that the practice be sold in its entirety, but allows a seller
to sell all or a
part of the practice to different purchasing lawyers. Allowing the sale of a portion of a law
will benefit clients because every lawyer's practice is unique and, consequently, lawyers develop
unique expertise from which to serve that practice. A purchasing lawyer's expertise may not be
identical to the selling lawyer's so as to assure that the purchasing lawyer will be able to serve
selling lawyer's entire clientele. Under this rule, the selling lawyer may sell those discrete parts
the practice to lawyers best able to serve the clients within each part of the practice that is sold;
rule emphasizes the competency of a purchasing lawyer as a major consideration in the sale of a
Lack of Requirement that Seller Retire or Leave the
ABA Model Rule 1.17 permits the sale of a law practice only where an attorney is
otherwise entirely ceasing to practice law. This rule contains no such requirement. Such a
is considered unnecessary because (a) the disclosure and other procedures contemplated by this
are sufficiently rigorous to deter lawyers from developing and selling their practice as a routine
matter; and, (b) the predominately rural nature of North Dakota would make it practically
for a lawyer to repeatedly build a "book of cases" with a view towards selling them. Finally,
covenants not to compete are heavily burdened under North Dakota substantive law, a valid
covenant not to compete would go a long way towards addressing the perceived problem.
The requirement that all of the private practice or an entire area of practice be sold is
satisfied if the
seller in good faith makes the entire practice or area of practice available for sale to the
The fact that a number of the seller's clients decide not to be represented by the purchaser but
their matters elsewhere, therefore, does not result in a violation. Neither does a return to private
practice as a result of an unanticipated change of circumstances result in a violation. For
a lawyer who has sold the practice to accept an appointment to a judicial office does not violate
requirement that the sale be attendant to cessation of practice if the lawyer later resumes private
practice upon being defeated in an election for the office.
 The requirement that a seller cease to engage in the private practice of law
or an area of practice
does not prohibit employment as a lawyer on the staff of a public agency or a legal services
which provides legal services to
the poor persons of limited means or
as in-house counsel to a
Sale of Entire Practice or Entire Area of Practice
 This rule permits
a the sale of an entire
practice attendant upon retirement from the private
practice of law within the agreed upon geographic area. It accommodates the lawyer who sells a
practice upon the occasion of moving to another state or to another geographic area. There is no
requirement that the lawyer leave the jurisdiction; it is sufficient that the selling lawyer ceases to
practice in the agreed upon geographic area where the practice to be sold is located. See also
commentary to Rule 5.6.
 This Rule also permits a lawyer or law firm to sell an area of practice. If an area of practice is sold and the lawyer remains in the active practice of law, the lawyer must cease accepting any matters in the area of practice that has been sold, either as counsel or co-counsel or by assuming joint responsibility for a matter in connection with the division of a fee with another lawyer as would otherwise be permitted by Rule 1.5(e). For example, a lawyer with a substantial number of estate planning matters and a substantial number of probate administration cases may sell the estate planning portion of the practice but remain in the practice of law by concentrating on probate administration; however, that practitioner may not thereafter accept any estate planning matters. Although a lawyer who leaves a jurisdiction or geographical area typically would sell the entire practice, this Rule permits the lawyer to limit the sale to one or more areas of the practice, thereby preserving the lawyer's right to continue practice in the areas of the practice that were not sold.
rule Rule requires that all the files in an
area of practice be the subject of a single purchase
by one or more lawyers the seller's entire practice, or an entire area of practice be
prohibition against piecemeal sale of a less than an
entire practice or any area of practice protects
those clients whose matters are less lucrative and who might find it difficult to secure other
if a sale could be limited to substantial fee-generating matters. The purchaser
is Purchasers are
required to undertake all client matters in the practice or particular area of
practice, subject to client
consent. If This requirement is satisfied, however, the
even if a purchaser is unable to undertake all
a particular client matters matter because of a conflict of
interest in a specific matter respecting
which the purchaser is not permitted by Rule 1.7 or another rule to represent the client, the
requirement that there be a single purchase is nevertheless satisfied.
Client Confidences, Consent, and Notice
 Negotiations between seller and prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Rule 1.6 than do preliminary discussions concerning the possible association of another lawyer or mergers between firms, with respect to which client consent is not required. Providing the purchaser access to client-specific information relating to the representation and to the file, however, requires client consent. The rule provides that before such information can be disclosed by the seller to the purchaser the client must be given actual written notice of the contemplated sale, including the identity of the purchaser and any proposed change in terms of future representation, and must be told that the decision to consent or to make other arrangements must be made within ninety days. If nothing is heard from the client within that time, consent to the sale is presumed.
 A lawyer or law firm ceasing to practice cannot be required to remain in
practice because some
clients cannot be given actual notice of the proposed purchase. Since these clients cannot
consent to the purchase or direct any other disposition of their files, this rule requires an order
a court having jurisdiction authorizing
their the transfer or other
disposition. The court can be
expected to determine whether reasonable efforts to locate the client have been exhausted, and
whether the absent client's legitimate interests will be served by authorizing the transfer of the
so that the purchaser may continue the representation. Preservation of client confidences requires
that the petition for court order be considered in camera.
 All the elements of client autonomy, including the client's absolute right to discharge a lawyer and transfer the representation to another, survive the sale of the practice or an area of practice.
Fee Arrangements Between Client and Purchaser
 The fees charged clients shall not be increased by reason of the sale, except as
provided for in
rule Rule. As a practical matter, this requires the purchasing
lawyer to honor the existing fee
agreement between the seller and the client unless and until the purchasing lawyer and the client
agree to a new fee arrangement.
rule, like ABA Model Rule 1.17, Rule
provides for the automatic transfer of the client's
legal work to the purchaser if the client does not object within ninety days of the proposed sale.
is in contrast to some states' rules which require the client to affirmatively assent to the transfer
the file. The automatic transfer provision should greatly reduce the possibility of a gap
representation of the client. This is particularly true in instances where the selling lawyer has
disappeared or is disabled, will be retiring, or is entirely ceasing to practice law.
Other Applicable Ethical Standards
 Lawyers participating in the sale of a law practice or a practice area are subject to the ethical standards applicable to involving another lawyer in the representation of a client. These include, for example, the seller's obligation to exercise competence in identifying a purchaser qualified to assume the practice and the purchaser's obligation to undertake the representation competently (see Rule 1.1); the obligation to avoid disqualifying conflicts, and to secure the client's consent if consent is allowable under Rule 1.7(c); and the obligation to protect information relating to the representation (see Rules 1.6, 1.8(b) and 1.9).
rule Rule also provides that either the selling
lawyer or someone authorized to act on the
selling lawyer's behalf in the case of a deceased, or disabled or
disappeared lawyer, is responsible
for preparing and providing the clients with the notice of sale. While it is obviously necessary for
someone to act on behalf of a deceased, or disabled or disappeared
lawyer in the case of the sale of
a practice, this rule contemplates that the selling lawyer continues representation of the client
the transfer is finalized. During the pendency of the transfer, the selling lawyer remains
to ensure that the clients' business is not neglected. The selling lawyer cannot
evade avoid the ethical
duty to protect clients' positions by allowing the lawyer's practice to be "brokered." This rule
accountability with the selling lawyer until the transfer is complete.
Approval of Substitution of Counsel
 If the approval of the substitution of the purchasing attorney for the selling attorney is required by the rules of any tribunal in which a matter is pending, such approval must be obtained before the matter can be included in the sale. See Rule 1.16.
Application of the Rule
rule Rule applies to the sale of a law practice
by representatives of a deceased, disabled,
or disappeared lawyer. Thus, a seller may be represented by a non-lawyer representative
who is not
subject to these rules. Since, however, no lawyer may participate in a sale of a law practice that
not conform to the requirements of this rule Rule, the representatives
of the seller as well as the
purchasing lawyer can be expected to see to it that they are met.
 Admission to or retirement from a law partnership or a professional
plans and similar arrangements, and a sale of the tangible assets of a law practice do not
a sale or purchase governed by this
rule Rule does not apply to the transfers of
legal representation between lawyers when
such transfers are unrelated to the sale of a law practice.
Reference: Minutes of the Joint Committee on Attorney Standards Meetings of 09/15/95, 12/01/95, 06/11/96; 02/27/04, 03/18/05, 06/14/05.