Supreme Court of Missouri
en banc
December 20, 2016
Effective July 1, 2017
Effective July 1, 2017
In re:
Repeal of subdivision 5.26, entitled "Appointment of Trustee," of Rule 5, entitled "Complaints and Proceedings Thereon," and in lieu thereof adoption of a new subdivision 5.26, entitled "Designation and Appointment of Trustee."
ORDER
1. It is ordered that effective July 1, 2017, subdivision 5.26 of Rule 5 be and the same is hereby repealed and a new subdivision 5.26 adopted in lieu thereof to read as follows:
5.26 DESIGNATION AND APPOINTMENT OF TRUSTEE
(a) For purposes of this Rule 5.26, the following terms mean:
(1) "Disability," a physical or mental condition resulting from accident, injury, disease, chemical dependency, mental health problems, or age that more than minimally impairs judgment, cognitive ability, or volitional or emotional functioning in relation to the lawyer's performance of professional duties and commitments;
(2) "Fiduciary entity," a partnership, limited liability company, professional corporation, or a limited liability partnership in which entity a lawyer is practicing with one or more other members of the bar of this state who are partners, shareholders, or owners;
(3) "Lawyer," for purposes of being subject to the appointment of a trustee under this Rule 5.26, a member of the bar of this state who is engaged in the private practice of law in this state. "Lawyer" does not include a member of the bar whose practice is solely as an employee of another lawyer, a fiduciary entity, or an organization that is not engaged in the private practice of law;
(4) "Trustee," a member of the bar of this state, in good standing, who has been appointed by an authorized court to protect the interests of the clients of a lawyer and other affected parties.
(b) Designation of Trustee.
(1) At the time of completing the annual enrollment statement required by Rule 6.0l, a lawyer may designate a trustee by specifying the name and the bar number of the trustee and certifying that the trustee has agreed to the designation in a writing in possession of both the lawyer and the trustee. The designation of a trustee shall remain in effect until revoked by either the designated trustee or the lawyer designating the trustee. The lawyer who designates the trustee shall notify the clerk of this Court of any change of designated trustee within 30 days of such change. The clerk shall keep a list of designated trustees and their addresses.
(2) A lawyer practicing in a fiduciary entity shall state the name and address of the fiduciary entity in the appropriate section of the annual enrollment statement. Because of the ongoing responsibility of the fiduciary entity to the clients of the lawyer, no trustee shall be appointed for a lawyer practicing in a fiduciary entity.
(3) A lawyer not practicing in a fiduciary entity who does not designate a trustee pursuant to Rule 5.26(b)(1) will be deemed to designate a suitable member of the bar of this state in good standing appointed by an authorized court to perform the duties of a trustee under this Rule 5.26.
(c) Appointment of Trustee. A circuit court in the circuit where the lawyer maintained an office, through the presiding judge or a judge of the circuit designated by the presiding judge, may appoint the trustee designated by the lawyer or, if no trustee has been designated by the lawyer in the lawyer's annual enrollment statement, may appoint one or more members of the bar to serve as a trustee for a lawyer upon a showing that:
(1) The lawyer is unable to properly discharge the lawyer's responsibilities to clients due to disability, disappearance, or death, or
(2) The lawyer failed to comply with Rule 5.27 after disbarment or suspension.
Notice of the trustee's appointment shall be given by the clerk of the court to the chief disciplinary counsel who shall monitor and assist the work of the trustee as necessary and appropriate.
(d) Duties of Trustee. The trustee shall take whatever action seems indicated to protect the interests of the clients and other affected parties, including:
(1) Inventory active files and make reasonable efforts to distribute them to clients;
(2) Deliver any undistributed active client files and any inactive client files to the chief disciplinary counsel for an action as required by this Rule 5;
(3) Take possession of and review the lawyer trust and business accounts;
(4) Make reasonable efforts to distribute identified trust funds to clients or other parties (other than the lawyer);
(5) After obtaining an order of the court, dispose of any remaining funds and assets as directed by the court; and
(6) Initiate any legal action necessary to recover or secure any client funds or other property.
The lawyer, to the extent possible, shall cooperate and promptly respond to reasonable requests for information from the trustee.
(e) Protection of Client Information. The trustee shall be bound by the Rules of Professional Conduct pertaining to client confidentiality with regard to the records of individual clients.
The trustee shall not disclose any information contained in any file under this Rule 5.26 without the informed, written consent of the client to whom the file relates except as necessary to:
(1) Carry out the order of appointment, or
(2) Comply with any request from an appropriate disciplinary authority.
The trustee shall report professional misconduct on the part of the lawyer as required by Rule 4-8.3.
(f) Reports to the Court. The trustee shall file written reports with the clerk of the appointing court:
(1) Within 120 days of appointment;
(2) Prior to being discharged if later than 120 days of appointment; and
(3) At such other times as directed by the appointing court.
The reports shall describe the nature and scope of the work accomplished and to be accomplished under this Rule 5.26 and the significant activities of the trustee in meeting the obligations under this Rule 5.26.
The final report must include accountings for any trust and business accounts, the disposition of active case files, and any requests for disposition of remaining files and property.
The trustee may apply to the appointing court for instructions whenever necessary to carry out or conclude the duties and obligations imposed by this Rule 5.26.
(g) Immunity. All trustees appointed pursuant to this Rule 5.26 shall be immune from liability for conduct in the performance of their official duties in accordance with Rule 5.315. This immunity shall not extend to employment under Rule 5.26(h).
(h) Acceptance of Clients. With the consent of any client, the trustee may, but need not, accept employment to complete any legal matter.
(i) Legal Responsibility of Lawyer. The lawyer for whom a trustee has been appointed or the estate of a deceased lawyer for whom a trustee has been appointed is liable to the trustee for all reasonable fees, costs, and expenses incurred by the trustee as approved by the appointing court. To the extent that the approved trustee's fees, costs, and expenses are paid by the disciplinary authority or other third party, the lawyer or the estate shall be liable to make reimbursement to the disciplinary authority or other third party for such payment.
(j) Fees, Costs, and Expenses. Application for allowance of fees, costs, and expenses shall be made by affidavit to the appointing court, which may enter a judgment in favor of the trustee and against the lawyer or the estate of a deceased lawyer for whom a trustee has been appointed. The application shall be made on notice to the chief disciplinary counsel, the lawyer or, if deceased, to the lawyer's personal representative, or heirs. For good cause shown, an interim application for fee, costs, and expenses may be made.
As approved by the appointing court, the trustee shall be entitled to reimbursement from the lawyer or the deceased lawyer's estate for:
(1) Reasonable expenses incurred by the trustee for costs, including, but not limited to, clerical, paralegal, legal, accounting, telephone, postage, moving, and storage expenses; and
(2) Reasonable attorneys' fees.
In the absence of other funding sources, the chief disciplinary counsel may pay the approved fees, cost, and expenses from the advisory committee fund.
2. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
3. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
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PATRICIA BRECKENRIDGE
Chief Justice