AGREEMENT TO CLOSE LAW PRACTICE IN THE FUTURE
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
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 issues—see DR 5-101 and 5-104).
[note: consider giving Closing Attorney first option to purchase. Also, terms and