(a) Appointment of Receiver. Whenever an attorney is alleged to be incapacitated, or is missing, deceased, disbarred, or subject to an administrative or disciplinary suspension, the Court may appoint a Receiver to manage or conclude the attorney's law practice. The Receiver, who shall be a licensed Maine attorney in good standing, shall be appointed by the Court upon the recommendation of Bar Counsel. Bar Counsel shall consider and may recommend the proxy recommendation on the attorney's annual registration statement under Rule 4(b). A Receiver shall be authorized by Court order to take some or all of the following actions:(1) secure the professional files, client data, law office mail, office and client property in an appropriate location and notify the board of that location; (2) create an inventory of the open and closed client files; (3) give priority attention to client matters that are identified as open, active, and apparently time sensitive, including notifying clients of the need to seek new counsel or to represent themselves. If necessary, the Receiver may seek protection for certain clients by giving notice to tribunals or others concerning the circumstances giving rise to the Receivership, without entering an appearance for the client;(4) notify all clients that the law practice is being managed by the Receiver or concluding and invite clients to retrieve their client files. Such notice may be by letter, phone, email, newspaper advertisement in a newspaper in general circulation in the county where the law practice was located and/or such other method as will effect notice. Notice to clients with open matters should be made by as direct means as possible; (5) if necessary, provide notice of appointment to all Courts and relevant state and county agencies;(6) prudently utilize the operating accounts to effect the management or conclusion of the practice, including the temporary retention of office staff or hiring other personnel as necessary and appropriate;(7) if necessary, establish a bank account in the Receiver's name in order to protect assets to manage or conclude the practice and/or protect the clients' interests;(8) prudently utilize the operating accounts and client trust accounts in the appropriate distribution of client funds and property held in trust; (9) review and audit any IOLTA accounts; (10) submit to the Court a record of hours worked and disbursements made to allow in some cases for payment of legal fees and expenses;(11) receive payment of legal fees under the terms negotiated with the Board and approved by the Court; (12) continue to act as Receiver until discharged by the Court in accordance with Rule 32(c); and(13) take any and all other appropriate action consistent with the discretion vested in the Receiver by the Court and/or as specifically ordered by the Court. (b) Receiver's Discharge Plan. Prior to petition for discharge, the Receiver shall formulate for the approval of the Court a plan for the custody, care, appropriate release and ultimate destruction of client files. The plan will identify a file caretaker (who may be the Receiver) who will preserve client confidentiality and maintain and appropriately release the client files to clients subsequent to the discharge of the Receiver. The plan must provide for confidential destruction of all client files and data pursuant to M.R. Prof. Conduct 1.15(f). The destruction date may be earlier if so ordered by the Court. The plan must include the requirement that the file caretaker provide written notice to the Board of Overseers confirming the confidential destruction of files and data immediately after it has occurred.(c) Term of Receiver. The Receiver shall serve until discharged by the Court. The Receiver may petition the Court for discharge from appointment upon completion of duties or sooner for other good cause. With the petition for discharge the Receiver shall file a report of services rendered. With the approval of the Court, the report or any part thereof may be filed under seal. Without divulging confidential information, the report should include, if applicable: (1) an inventory of files and the status of each file as released or retained;(2) the plan for the security and handling of the retained client files; (3) an accounting of the law practice operating accounts during the period of Receivership;(4) an accounting of the law practice client trust fund accounts during the period of Receivership; and(5) any other information deemed by the Receiver or the Court to be necessary and appropriate.(d) Client Rights. Any Receiver so appointed may not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out a court order, including any order under this rule. Any Receiver may be engaged by any former client of the deceased, missing, or incapacitated attorney, provided that the Receiver informs any such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order under section (2) of this rule does not mandate or recommend employment by the client of the Receiver. The Receiver is subject to the Maine Rules of Professional Conduct. However, the client's retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of the Receiver's appointment under this rule.(e) Liability. The Receiver shall be protected from liability for professional services rendered pursuant to the Order appointing such a Receiver. (f) Pleadings. The Receiver shall provide copies of all pleadings under this Rule to the Board.Adopted effective 7/1/2015.Reporter's Notes - June 2015
Rule 32(a) is a drastic change from Model Rule 28 and is a virtual incorporation of former Maine Bar Rule 7.3(f)(1). Although Model Rule 28 provides for appointment of counsel to protect clients' interests in certain circumstances, the committee felt that former Maine Bar Rule 7.3(f)(1) to (6) was more thorough and complete. Therefore, the committee largely voted to adopt the former Maine Bar Rule, while making it somewhat more robust and detailed and retaining the structure of the model rules. The committee felt that the improvements were necessary in light of the aging of the Maine bar, and concluded that clearly enumerating the powers, duties, and obligations of receivers would help to protect clients. Although the former Maine Bar Rule refers to the person appointed by the Court as a "proxy," the committee felt that use of the word receiver, rather than proxy, was more accurate in this context. The remaining changes are largely organizational.
Rule 32(b) follows former Maine Bar Rule 7.3(f)(2) and is consistent with current Maine practice.
Rule 32(c) follows former Maine Bar Rule 7.3(f)(3).
Rule 32(d) follows former Maine Bar Rule 7.3(f)(4).
Rule 32(e) follows former Maine Bar Rule 7.3(f)(5).
Rule 32(f) follows former Maine Bar Rule 7.3(f)(6).
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