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Proxy Designation
What is a Proxy? A proxy is an attorney who will act to protect the interests of clients to manage or conclude the law practice of an attorney who is incapacitated, suspended, disbarred, disappears, or dies. Active Maine attorneys who indicate they are in private practice must designate a proxy when completing the annual registration process.
Who can serve as a proxy? Any active Maine attorney who has given his/her consent may be designated as a proxy. A proxy does not have to engage in the same fields of law as the requesting attorney. A proxy performs functions similar to a triage nurse: Determining the needs of the clients and sending the clients in the right direction.
Does the proxy requirement apply to partners or associates of a law firm? Yes. There is no exclusion for partners or associates of law firms. Much like the IOLTA registration statement, each active status attorney engaged in private practice must complete the designation.
Does the proxy requirement apply to non-resident attorneys? Yes. There is no exclusion for attorneys who do not reside in Maine. If a non-resident attorney engages in the practice of law in Maine, a proxy must be designated.
Why is this necessary? It is a matter of diligence. Any of us could be injured in an accident, or could suddenly suffer a debilitating illness. An inability to work on client files results in ethical issues. "A lawyer shall act with reasonable diligence and promptness in representing a client." M. R. Prof. Conduct 1.3. "To fulfill the obligation to protect client files and property, a lawyer should prepare a future plan providing for the maintenance and protection of client interests. Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention." Formal Op. 92-369, ABA Standing Committee on Ethics and Professional Responsibility, Dec. 7, 1992. See also M. R. Prof. Conduct Rule 1.3 Cmt. [5].
Why is consent necessary? Professional courtesy is a factor. Commitment is another. The designating attorney and proxy must realize there will be work involved. If the designating attorney’s practice is reasonably well organized, the proxy’s work will be performed more efficiently. At a minimum, the proxy should be satisfied the designating attorney can provide requisite information for the proxy to make decisions. A list of pertinent information is {link to list #1} The proxy needs to know what she/he is agreeing to undertake, and assess whether it will be difficult it will be to perform the required tasks.
Can the client hire the proxy? Conflict of interest rules must be followed. The client must understand the proxy has not been appointed to represent the client. The client should also understand that the client is under no obligation to have the proxy represent the client, and the client is free to select any Maine attorney. If there is no conflict of interest, and if the client knows what choices are available, the client can hire the proxy as her/his attorney.
What will the proxy be expected to do? The proxy may be called upon to close the practice of an attorney who can no longer practice. Alternatively, the proxy will oversee the operation of the practice until the attorney can resume work. Closing the practice will involve such activities as transferring files out of the attorney’s office. The files may go to the client or to an attorney designated by the client. Office services will be terminated. Employees will be discharged. Bills will be generated for work in progress. A secure system for accessing closed client files will be established, including a process for destruction of those files when requisite time has passed. {See checklist, #2 attached. (For a possible checklist, see…)} Alternatively, if the attorney is expected to return to practice, the proxy will oversee the operation of the office. Clients would be notified of the attorney’s temporary absence. Depending on the circumstances, clients may have to be advised to secure the assistance of alternative counsel. It is highly recommended that the attorney and the proxy have a clear understanding regarding the intent of the attorney, the financial implications of continuing to operate the practice without a primary income producer, and related issues.
Is a proxy exposed to claims or disciplinary action? A proxy must follow the Rules of Professional Conduct. Confidential information must be protected. Conflict checking and screening is mandatory. If the proxy is appointed as a Receiver under (Revised) Maine Bar Rule 32, the proxy/Receiver will be immune from liability for professional services rendered. Consultation with Bar Counsel is necessary.
