The power to take over a practice

by Scott Drexel

The State Bar and the superior courts of California have available to them a powerful tool for the prompt protection of client interests from attorneys who are unwilling or unable to fulfill their fiduciary obligations.

In cases where an attorney has died or has abruptly ceased practicing law, whether as a result of resignation, disbarment, mental illness, drug or alcohol abuse or simple abandonment, the superior court for the county in which the attorney's office is located has the power to assume jurisdiction of the attorney's practice in order to protect the rights and interests of the attorney's clients.

Business & Professions Code §§6180 through 6180.14 permit a superior court on its own motion, or upon the motion of the State Bar, a client of the attorney or any interested party or entity, to make application to the superior court for the county in which the attorney maintains his or her office to assume jurisdiction over that law practice in cases where the attorney has died, has resigned from the practice of law, or has been disbarred, suspended or enrolled as an inactive member of the State Bar.

B&P Code §§6190 through 6190.5 gives similar authority to superior courts to assume jurisdiction over the law practice of a member who, due to substance abuse, physical or mental disability or other infirmity, becomes incapable of attending to his or her practice or of providing the quality of service which is necessary to protect clients' interests.

Additionally, §§6180.2 and 6190.1 give the State Bar the right to intervene in these proceedings and to assume primary responsibility for conducting the action.

If the superior court determines, after a hearing, that the attorney has left one or more unfinished client matters for which no other active member of the State Bar has agreed to assume responsibility or that the interests of one or more clients may be prejudiced, the superior court may assume jurisdiction of the attorney's practice and may appoint one or more attorneys to act under the court's direction to take specific actions, including (1) mailing notices to the former attorney's clients of the cessation of his or her law practice; (2) examining the attorney's files and records to obtain information about pending matters; (3) applying for extensions of time pending employment of other counsel by the client; (4) with the consent of the client, filing notices, motions and pleadings on behalf of the client where the jurisdictional time limits are involved; and (5) arranging for the surrender or delivery of clients' papers and property.

As a practical matter, the attorneys appointed by the superior court to examine and distribute client files or to file motions and pleadings to protect jurisdictional time limits are usually either attorneys who have volunteered to do so through their local county bar association or, if no local attorney is available, State Bar prosecutors.

Upon the filing of a motion by the State Bar's Office of the Chief Trial Counsel, along with a certified copy of the superior court's order assuming jurisdiction of the member's law practice, the State Bar Court may order the attorney's involuntary inactive enrollment pursuant to B&P Code §6007(b)(2) in order to prohibit the attorney from continuing to practice law. (See rules 410-416, Rules of Procedure of State Bar.)

In order to subsequently return to the practice of law, the attorney must file a petition with the State Bar Court and, at a subsequent hearing, must prove by clear and convincing evidence that there is no longer any basis for the member's involuntary inactive enrollment. (See rules 440-447, Rules of Procedure of State Bar.)

If the State Bar Court determines that there is no longer a basis for the member's inactive enrollment, the attorney must then apply to the superior court for an order terminating its assumption of jurisdiction over his or her law practice. (B&P Code §6190.6.)