RULE 1.17 SALE OF A LAW PRACTICE

Obsolete Date: 8/1/2006

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.

COMMENT

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 in total or in a particular area of specialty or practice and another lawyer or firm takes over the representation, the selling lawyer or firm may obtain compensation for the reasonable value of the practice as may withdrawing partners of law firms. See Rule 5.4 and Rule 5.6.

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 practice 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 so identical to the selling lawyer's so as to assure that the purchasing lawyer will be able to serve the selling lawyer's entire clientele. Under this rule, the selling lawyer may sell those discrete parts of the practice to lawyers best able to serve the clients within each part of the practice that is sold; this rule emphasizes the competency of a purchasing lawyer as a major consideration in the sale of a law practice.

Lack of Requirement that Seller Retire or Leave the Practice.ABA Model Rule 1.17 permits the sale of a law practice only where an attorney is retiring or otherwise entirely ceasing to practice law. This rule contains no such requirement. Such a provision is considered unnecessary because (a) the disclosure and other procedures contemplated by this rule 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 impossible for a lawyer to repeatedly build a "book of cases" with a view towards selling them. Finally, while 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 purchaser. The fact that a number of the seller's clients decide not to be represented by the purchaser but take 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 example, a lawyer who has sold the practice to accept an appointment to a judicial office does not violate the 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 does not prohibit employment as a lawyer on the staff of a public agency or a legal services entity which provides legal services to the poor or as in-house counsel to a business.

This rule permits a sale 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.

Single Purchaser. This rule requires that all the files in an area of practice be the subject of a single purchase by one or more lawyers. The prohibition against piecemeal sale of a practice or any area of practice protects those clients whose matters are less lucrative and who might find it difficult to secure other counsel if a sale could be limited to substantial fee-generating matters.The purchaser is required to undertake all client matters in the practice or particular area of practice, subject to client consent. If, however, the purchaser is unable to undertake all client matters 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 themselves consent to the purchase or direct any other disposition of their files, this rule requires an order from a court having jurisdiction authorizing their 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 file 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.

Fee Arrangements Between Client and Purchaser. The fees charged clients shall not be increased by reason of the sale, except as provided for in this rule. As a practical matter, thisrequires 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.

This rule, like ABA Model Rule 1.17, 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. This is in contrast to some states' rules which require the client to affirmatively assent to the transfer of the file. The automatic transfer provision should greatly reduce the possibility of a gap in the representation of the client. This is particularly true in instances where the selling lawyer has died, is disabled, will be retiring, or is entirely ceasing to practice law.

This 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 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 lawyer in the case of the sale of a practice, this rule contemplates that the selling lawyer continues representation of the client until the transfer is finalized. During the pendency of the transfer, the selling lawyer remains responsible to ensure that the clients' business is not neglected. The selling lawyer cannot evade the ethical duty to protect clients' positions by allowing the lawyer's practice to be "brokered." This rule retains 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. This rule applies to the sale of a law practice by representatives of a deceased, disabled, or disappeared lawyer. Thus, 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 does not conform to the requirements of this 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 association, retirement plans and similar arrangements, and a sale of the tangible assets of a law practice do not constitute a sale or purchase governed by this rule.

This 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.