By David Chavez,2014-07-09 19:39
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    This Agreement is entered into this ___ day of __________, 200__, by and between

    ___________________ (“Planning Attorney”), an individual admitted and licensed to practice as

    an attorney in the Courts of the State of New York and whose office for the practice of law is

    located at ___________________, and ___________________ (“Closing Attorney”), an

    individual admitted and licensed to practice as an attorney in the Courts of the State of New

    York and whose office for the practice of law is located at ___________________.


    WHEREAS, Planning Attorney is a sole practitioner engaged in the practice of law; and

    WHEREAS, Planning Attorney recognizes the importance of protecting the interests of

    his clients in the event that he is unable to practice law by reason of his death, disability,

    incapacity or other inability to act; and

    WHEREAS, Planning Attorney wishes to plan for the orderly closing of his law practice

    if he is unable to practice law for the above stated reasons; and

    WHEREAS, Planning Attorney has requested Closing Attorney to act as his agent to take

    all necessary actions to close Planning Attorney’s practice and Closing Attorney has consented

    to this appointment; and

    WHEREAS, Planning Attorney and Closing Attorney are entering into this Agreement to

    define their rights and obligations in connection with the closing of Planning Attorney’s practice.

    1. Effective Date. This Agreement shall become effective only upon Planning Attorney’s

    death, disability, incapacity or other inability to act, as established by paragraph 2. The

    appointment and authority of Closing Attorney shall remain in full force and effect as

    long as it is necessary or convenient to carry out the terms of this Agreement, or unless

    sooner terminated under paragraphs 8 or 9.

    2. Determination of Death, Disability, Incapacity. Closing Attorney shall make the

    determination that Planning Attorney is dead, disabled, incapacitated or otherwise unable

    to practice law, and if disabled or incapacitated, that such disability or incapacity is

    permanent in nature or likely to continue indefinitely. Closing Attorney shall base his

    determination on reliable evidence such as communications with the members of

    Planning Attorney’s family and written opinions of licensed physicians and other medical

    professionals who diagnosed or treated Planning Attorney. As part of the process of

    determining whether the Planning Attorney is disabled, incapacitated, or otherwise

    unable to continue the practice of law, all individually identifiable heath information and

    medical records may be released to Closing Attorney, even though the authority of the

    Closing Attorney has not yet become effective. This release and authorization applies to

    any information governed by the Health Insurance Portability and Accountability Act of 11996 (“HIPAA”) 42 U.S.C. 1320d and 45 C.F.R. 160-164. Closing Attorney may also

1. To assure compliance with HIPAA, the Planning Attorney, upon execution of the Agreement To Close Law

    Practice, should sign two written authorizations, one to his or her health care provider, and one leaving the

    provider line blank, giving the identity of the Closing Attorney and authorizing the disclosure of

    information relating to the Planning Attorney’s capacity to practice law upon request by the Closing

    Attorney. A sample authorization is attached to the end of this document.

     consider the opinions of colleagues, employees, friends or other individuals with whom

    Planning Attorney maintained a continuous and close relationship. Closing Attorney shall

    sign an affidavit stating the facts upon which his determination is based, and such

    affidavit shall, for the purposes of this agreement, be conclusive proof that the Planning

    Attorney is disabled, incapacitated, or otherwise unable to continue the practice of law.

     [or consider having the family or physicians determine incapacity, and including

    a measurable standard such as a determination by two physicians that Planning

    Attorney is incapable of conducting law practice by reason of incapacity]

    3. General Power and Appointment of Closing Attorney as Attorney-In-Fact. Upon the

    determination that Planning Attorney is unable to continue the practice of law by reason

    of death, disability, incapacity or other inability to act as provided herein, and is unable to

    close his own practice, Planning Attorney consents to and authorizes the losing Attorney

    to take all necessary actions to close Planning Attorney’s law practice. Planning Attorney

    appoints Closing Attorney as his attorney-in-fact with full power to do and accomplish all

    of the actions expressed and implied by this Agreement as fully and completely as

    Planning Attorney would do personally but for his inability.

    4. Specific Powers. Planning Attorney consents to and authorizes the following actions by

    Closing Attorney in addition to any other actions Closing Attorney in his sole discretion

    deems necessary to carry out the terms of this Agreement.

    a. Access to Planning Attorney’s Office. To enter Planning Attorney’s office and

    use his equipment and supplies as needed to close Planning Attorney’s practice.

    b. Designation as Signatory on Financial Accounts. To replace Planning Attorney

    as signatory on all of Planning Attorney’s law office accounts with any bank or

    financial institution, including without limitation, attorney trust, escrow or special

    accounts, checking accounts, and savings accounts. Planning Attorney’s bank or

    financial institution may rely on this authorization unless such bank or financial

    institution has actual knowledge that this Agreement has been terminated or is no

    longer in effect.

    c. Opening of Mail. To receive, sign for and open Planning Attorney’s law practice

    mail and deliveries by courier and to process and respond to them, as necessary.

    d. Possession of Property. To take possession, custody and control over all of

    Planning Attorney’s property relating to his law practice, real and personal,

    including client files and records.

    e. Access to and Inventory/Examination of Files. To enter any storage location

    where Planning Attorney maintained his files and to inventory and examine all

    client case files, including client wills, property and other records of Planning

    Attorney. If Closing Attorney identifies a conflict of interest with a specific file or

    client, he shall assign the file to the Successor Closing Attorney in accordance

    with paragraph 8(b).

    f. Notification to Clients. To notify clients, potential clients and those who appear

    to be clients, of Planning Attorney’s death, disability, incapacity or other inability

    to act, and to take whatever action Closing Attorney deems appropriate to protect

    the interests of the clients, including advising the clients to obtain substitute


    g. Transfer of Files. To safeguard files and arrange for their return to clients; to

    obtain consent from clients to transfer files to new attorneys, to transfer files and

    property to clients or their new attorneys; to obtain receipts therefor.

    h. Storage of Files and Attorney’s Records. To arrange for storage of closed files,

    unclaimed files, and records that must be preserved for seven years under

    Disciplinary Rule 9-102 (d) of the Code of Professional Responsibility.

    i. Transfer of Original Documents. To arrange for and transfer to clients all

    original documents, including wills, trusts and deeds.

    j. Extensions of Time. To obtain client’s consent for extensions of time, to contact

    opposing counsel and courts/administrative agencies to obtain extensions of time,

    and to apply for extensions of time if necessary pending employment of new

    counsel by clients.

    k. Litigation. To file motions, pleadings, appear before court, and take any other

    necessary steps where the clients’ interests must be immediately protected

    pending retention of other counsel.

    l. Notification to Court and Others. To contact all appropriate agencies, courts,

    adversaries and other attorneys, professional membership organizations such as

    the New York State Bar Association or local bar associations, the Office of Court

    Administration, and any other individual or organization that may be affected and

    advise them of Planning Attorney’s death or other inability to act and that

    Planning Attorney has given this authorization to Closing Attorney.

    m. Collection of Fees and Return of Client Funds. To send out invoices for

    unbilled work by Planning Attorney and outstanding invoices; to prepare an

    accounting for clients on retainer, including return of client funds; to collect fees

    and accounts receivables on behalf of Planning Attorney or Planning Attorney’s

    estate; to prepare an accounting of each client’s escrow fund and arrange for

    transfer of escrow funds, including obtaining consent from client to transfer

    escrow funds and acknowledgment of receipt of escrow funds by new counsel or


    n. Payment of Business Expenses and Creditors. To pay business expenses such

    as office rent, rent for any leased equipment, library expenses, salaries to

    employees or other personnel, to determine the nature and amount of all claims of

    creditors, including clients, of Planning Attorney and to pay or settle same.

    o. Personnel. To continue the employment of Planning Attorney’s employees and

    other personnel to the extent necessary to assist the Closing Attorney in the

    performance of his duties, to compensate and to terminate such employees or

    other personnel; to employ or dismiss agents, accountants, attorneys or others and

    to compensate them.

    p. Termination of Obligations. To terminate or cancel business obligations of

    Planning Attorney, including office lease; lease of equipment such as copier,

    computer, furniture; library, magazine or newspaper subscriptions.

    q. Insurance. To purchase, renew, maintain, cancel, make claims against or collect

    benefits under fire, casualty, professional liability, or other office insurance of

    Planning Attorney; to notify any professional liability insurance carriers of

    Planning Attorney’s death, disability, incapacity or other inability to act; to

    cooperate with such insurance carriers regarding matters related to Planning

    Attorney’s coverage, including addition of Closing Attorney as an insured under

    said policy.

    r. Taxes. To prepare, execute or file income, information or other tax returns or

    forms and to act on behalf of Planning Attorney’s law practice in dealing with the

    Internal Revenue Service, any division of the New York State Department of

    Taxation and Finance, or any office of any other tax department or agency.

    s. Settlement of Claims. To settle or compromise, or submit to arbitration or

    mediation, all debts, taxes, accounts, claims, or disputes between Planning

    Attorney’s law practice and any other person or entity; to commence or defend all

    actions affecting Planning Attorney’s law practice.

    t. Execution of Instruments. To execute, as Planning Attorney’s attorney-in-fact,

    any deed, contract, affidavit or other instrument on behalf of Planning Attorney.

    u. Attorney as Fiduciary. To resign any position which Planning Attorney holds as

    a fiduciary, such as executor or trustee, and to notify other named fiduciary, if any,

    and beneficiaries of the estate or trust; if the trust or will does not name a

    successor fiduciary, to apply to the court for appointment of a successor fiduciary;

    to confer with the personal representative of the Planning Attorney’s estate with

    respect to the obligation of such personal representative to account for the assets

    of the estate or trust that Planning Attorney was administering.

    v. Power of Sale and Disposition. To sell or otherwise arrange for disposition of

    Planning Attorney’s furniture, books, or other personal property located in

    Planning Attorney’s law office. w. Representation of Planning Attorney’s Clients. To provide legal services to

    Planning Attorney’s clients, provided that Closing Attorney has no conflict of

    interest, obtains the consent of Planning Attorney’s clients, and does not engage

    in conduct that violates Disciplinary Rule 2-103 of the Code of Professional

    Responsibility. If Planning Attorney’s clients engage Closing Attorney to perform

    legal services, Closing Attorney shall have the right to payment for such services

    from such clients.

    x. Access to Safe Deposit Box. To open Planning Attorney’s safe deposit box used

    for law practice, to inventory same, and to arrange for return of property to clients.

    5. Preservation of Attorney-Client Privilege and Confidences and Secrets of Client.

    Closing Attorney shall maintain the confidences and secrets of a client and protect the

    attorney-client privilege as if the Closing Attorney represented the clients of Planning


    6. Sale of Planning Attorney’s Practice. In the event of Planning Attorney’s death,

    disability, incapacity, or other inability to act, Closing Attorney shall have the power to

    sell Planning Attorney’s law practice in accordance with Disciplinary Rule 2-111 of the

    Code of Professional Responsibility. In the case of the death of the Planning Attorney,

    the sale shall be approved by the personal representative of the deceased Planning

    Attorney. Such power shall include, without limitation, the authority to sell all assets of

    the Planning Attorney’s practice such as good will, client files and fixed assets such as

    furniture and books; to advertise Planning Attorney’s law practice; to arrange for

    appraisals; and to retain professionals such as lawyers and accountants to assist Closing

    Attorney in the sale of the practice. Upon the sale of the practice, Closing Attorney will

    pay Planning Attorney or Planning Attorney’s estate all net proceeds of sale.

     [note: in case of death, Planning Attorney should provide in Will that sale of

    practice is to be handled by Closing Attorney; alternative would be to specifically

    authorize Executor to sell the practice in which case this power to Closing

    Attorney should be deleted from above provision in the event of sale by reason of


     Closing Attorney shall have the right to purchase, in whole or in part, Planning

    Attorney’s practice, provided that the purchase price is the fair market value as

    determined by an appraiser and that the terms of the sale are approved by the Executor or

    Administrator of Planning Attorney’s estate or an independent third party (But note

    potential issuessee DR 5-101 and 5-104).

     [note: consider giving Closing Attorney first option to purchase. Also, terms and

    conditions of sale to Closing Attorney may be described in this Agreement or by

    separate agreement]

    7. Compensation. Closing Attorney shall be paid reasonable compensation for the services performed in closing the law practice of Planning Attorney. Such compensation shall be

    based on time and Closing Attorney agrees to maintain accurate and complete time

    records for the purposes of determining his compensation. Closing Attorney’s

    compensation shall be paid from Planning Attorney’s law practice (or from the estate of

    the deceased Planning Attorney, in which case provision should be made in Planning

    Attorney’s Will for such payment).

    8. Resignation of Closing Attorney and Appointment of Successor Closing Attorney.

    a. Prior to the effective date of this Agreement, Closing Attorney may resign at any

    time by giving written notice to Planning Attorney. After the effective date of this

    Agreement, Closing Attorney may resign by giving written notice to Planning

    Attorney, or if Planning Attorney is deceased, to Planning Attorney’s Executor or

    Administrator, subject to any ethical or professional obligation to continue or

    complete any matter undertaken by Closing Attorney.

    b. If Closing Attorney resigns or otherwise is unable to serve, Planning Attorney

    appoints _______________________ as Successor Closing Attorney, and

    Successor Closing Attorney consents to this appointment as evidenced by his

    signature to this Agreement. Successor Closing Attorney shall have all the rights

    and powers, and be subject to all the duties and obligations of Closing Attorney.

    During the tenure of Closing Attorney, Successor Closing Attorney shall review

    and take any necessary action with respect to those client files of Planning

    Attorney in which Closing Attorney identifies a conflict of interest. c. Closing Attorney or Assisting Attorney shall not be required to post any bond or

    other security to act in their capacity.

    9. Liability and Indemnification of Closing Attorney. Closing Attorney shall not be liable

    to Planning Attorney or Planning Attorney’s estate for any act or failure to act in the

    performance of his duties hereunder, except for willful misconduct or gross negligence.

    Planning Attorney agrees to indemnify and hold harmless Closing Party from any claims,

    loss or damage arising out of any act or omission by Closing Attorney under this

    Agreement, except for liability or expense arising from Closing Attorney’s willful

    misconduct or gross negligence. This indemnification does not extend to any acts, errors

    or omissions of Closing Attorney while rendering or failing to render professional

    services as attorney for former clients of Planning Attorney.

    10. Revocation, Amendment and Termination.

    a. Prior to the effective date of this Agreement, Planning Attorney may at any time

    remove the Closing Attorney, or revoke, amend or alter this Agreement by written

    instrument delivered to Closing Attorney and Successor Closing Attorney,

    provided that any amendment or modification to Closing Attorney’s obligations

    hereunder and to his rate of compensation shall require Closing Attorney’s written


    b. This Agreement shall terminate upon (i) prior to the effective date of this

    Agreement, delivery of written notice of termination by Planning Attorney to

    Closing Attorney and Successor Closing Attorney; and (ii) after the effective date

    of this Agreement, delivery of a written notice of termination to Closing Attorney

    by the Executor or Administrator of Planning Attorney’s estate upon a showing of

    good cause, or by a Guardian of the property of Planning Attorney appointed

    under Article 81 of the Mental Hygiene Law pursuant to court order.

    11. Miscellaneous. a. This Agreement shall be governed and interpreted in all respects by the laws of

    the State of New York.

    b. Whenever necessary or appropriate for the interpretation of his Agreement, the

    gender herein shall be deemed to include the other gender and the use of either the

    singular or the plural shall be deemed to include the other. c. The paragraph headings are for convenience only and are not to be relied upon for

    interpretation of this Agreement.

    IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and

    year first above written.


    Planning Attorney


Closing Attorney


    Successor Closing Attorney




Patient Name: ____________________________________________________________

    Address: ____________________________________________________________ Social Security

    Number: ____________________________________________________________

I authorize the custodian of the records ___________________ to disclose/release the following

    information ______________________ [all medical records, including mental health, substance

    abuse and HIV/AIDS records] or [a subset of records]. These records are for services rendered

    [in the last two years] or: _______________________.

    Please send the records listed above to [Agent]

    Name: ____________________________________________________________ Address: ____________________________________________________________ Phone number: ____________________________________________________________

    The information may be used/disclosed to assist in the determination of my mental or

    physical capacity to practice law.

    The Authorization expires one (1) year from the date it is presented to the custodian of


    I understand that after the custodian of records discloses my health information, it may no

    longer be protected by Federal privacy laws. By signing below I represent and warrant that I

    have authority to sign this document and authorize the use or disclosure of protected health

    information and that there are no claims or orders pending or in effect that would prohibit, limit

    or otherwise restrict my ability to authorize the use or disclosure of this protected health


    ______________________________ ______________________________

    Signature of Patient Date


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