Patricia Savitz explains the Florida Bar’s requirement for members to designate an inventory attorney under Rule 1-3.8.
The Florida Bar Podcast
Patricia Savitz is staff counsel for the Lawyer Regulation Department at the Florida Bar.
Christine Bilbrey is a Senior Practice Management Advisor at The Florida Bar’s Practice Resource Center. She holds...
Karla Eckardt, a Miami native, moved to Tallahassee to pursue a bachelor’s degree in international affairs and...
The Florida Bar’s Rule 1-3.8 requires every member to designate an inventory attorney. Why? Your clients need to be protected in the event you are suddenly unable to practice law, and your inventory attorney will contact your clients and ensure the proper handling of their files. To help members understand how this process works, hosts Christine Bilbrey and Karla Eckardt talk with Patricia Savitz about the details of Rule 1-3.8 and how to designate an inventory attorney through the Florida Bar member portal.
Patricia Savitz is staff counsel for the Lawyer Regulation Department at the Florida Bar.
The Florida Bar Podcast
How to Designate an Inventory Attorney — Rule 1-3.8 for Florida Lawyers
Intro: You’re listening to The Florida Bar Podcast, brought to you by the Florida Bar’s Practice Resource Center, LegalFuel, produced by the broadcast professionals of The Florida Bar.
Christine Bilbrey: Welcome to The Florida Bar Podcast brought to you by LegalFuel, the Practice Resource Center of The Florida Bar. We’re so glad you’re joining us. This is Christine Bilbrey. I’m a Senior Practice Management Advisor at the Bar and one of the hosts for today’s show, which is being recorded from our offices in Tallahassee, Florida.
Karla Eckardt: Hello. I am Karla Eckardt. I am a Practice Management Advisor at The Florida Bar and co-host of today’s podcast.
Our goal at The Practice Resource Center is to assist Florida attorneys with running the business side of their law practices. We focus on a different topic each month and carry the theme through our website with related tips, videos and articles.
Christine Bilbrey: So today, we are discussing Rule 1-3.8, or the Right to Inventory, to help our members better understand and stay compliant with Bar Rules and many Bar members are not aware that Section E of this rule states that “Each member of the Bar who practices law in Florida shall designate another member of The Florida Bar who has agreed to serve as inventory attorney”. With a caveat, if you are — unless you’re a government attorney. So we’ll get into all the details of that.
And joining us today to talk all things inventory attorney is Attorney Patricia Savitz. Patty received both her Undergraduate and her Law degree from the University of Miami. She is Staff Counsel for the Lawyer Regulation Department of The Florida Bar. She has been with the Bar since 1997 and was previously Bar Counsel with the Orlando branch of The Florida Bar, where she handled all aspects of Bar disciplinary proceedings.
Patty was previously an assistant public defender in the 20th Judicial Circuit in Fort Myers and was a senior attorney with the Department of Children and Families. She has done extensive appellate work including oral argument before the Fifth District Court of Appeal and the Florida Supreme Court.
Welcome to the show, Patty.
Patricia Savitz: Good morning. Welcome and thank you.
Christine Bilbrey: So Patty, tell our listeners a little bit about yourself and your department here at the Bar.
Patricia Savitz: Well, the information in the bio is accurate. I have been a government employee since 1986 and here at the Bar as far as lawyer regulation goes, we are charged with the oversight of the discipline process. That’s from the beginning, which is the initial call by a member of the public to our ACAP Hotline or Attorney Consumer Hotline, all the way through prosecution and appeal, which can include oral argument before the Supreme Court, and intermixed in there motion practice, use of subpoenas, different things that would go along with any practice, such as depositions and sworn statements.
Karla Eckardt: So the reason we invited you to be guest on the show is because we get calls all the time about inventory attorneys or unfortunately an attorney has passed away and an associate doesn’t know what to do or a spouse doesn’t know what to do, and while we do have certain resources in our department, we inevitably always send them to your department.
So let’s take it back and start from the beginning, what is an Inventory Attorney and why is this Rule necessary?
Patricia Savitz: The Inventory Attorney first of all is not part of the attorney-client relationship, and I put that out there first because many people, lawyers decline to serve as an inventory attorney because they think automatically it creates that attorney-client relationship with these people that may or may not be locatable in the files.
So the inventory attorney has two primary responsibilities; to inventory the files or what is left of the files or what can be found of the files and then to match the file to the client as a way to protect the client from harm, such as the Statute of Limitations, maybe a motion for sanctions, that type of thing.
And Inventory Attorneys are critical because as we know anything can happen on any given day. It’s not necessarily our aging practitioners, it’s not necessarily our younger practitioners, it’s anybody, and you could do something as simple as have your own practice and all of a sudden be elevated to judge and then get sick, or you could have an illness that debilitates you, whether for a long period of time or a short period of time.
So the Supreme Court many, many years ago promulgated this rule requiring that all attorneys shall, and it’s a “shall”, designate an inventory attorney. The flip side of that is, the designated Inventory Attorney is not required to serve. So you put someone down, the Bar is obligated to contact that someone and then after that kind of follow-up progression to find somebody who will serve, but it is necessary because the practice has grown so large for everybody that we need to make sure the clients’ interests are protected.
Christine Bilbrey: And I find that when we talk to new attorneys and we’re telling them all the things they need to do because we do get calls from people who say they’re so excited. I just passed the Bar, what do I need to do? So we have some checklist depending on if they’re starting their own practice, but so many of them have no idea that they need to designate an inventory attorney and people that have been here for 30 years don’t have inventory attorneys, because maybe they are not keeping up with the rule changes.
Do we have any idea how many, the percentage of Bar members that have actually complied with the rule and designated someone?
Patricia Savitz: No, we don’t really keep that statistic because it’s not something, it’s not one of those rules that if you fail to comply you would be prosecuted for. It just makes protecting your clients more difficult on the other side. It’s designated as a shall and all Bar members know shalls are not negotiable, but this one is in the body of the earlier rules that tell lawyers kind of our process and procedure, keep your record Bar address up to date, that type of thing.
So it’s out there but my guess is a lot of members don’t know about it, and now that we’ve got such a large population that puts out their own shingle, I think it’s become more of an issue.
Karla Eckardt: And I want to go back to what you mentioned about the designated Inventory Attorney having to serve or not having to serve, let’s say you designate an Inventory Attorney, but then ten years down the line when they are called to serve because something has happened, they are no longer able or no longer willing.
What does the Bar do if they can’t find someone willing even if they have designated someone, if they can’t find someone willing to serve as their Inventory Attorney?
Patricia Savitz: Well, the first thing the Bar does when they contact that designated Inventory Attorney, we use every contact as a potential resource. So you might decline to serve, so we would ask you, is there anybody within the voluntary Bar Association that you participate in, kind of going to that designated person first. Is there a member of the individual’s family, and we kind of — if you fear like spider fingers or spider webs going all out, we pull out all the stops, hit up grievance committee members, volunteer arbitrators, volunteer mediators, volunteer Bar associations and then go to the immediate family. Sometimes in the immediate family there may be a family member who is an attorney who had no idea that they could serve. Sometimes you think family member would exclude you.
So we start with that designated inventory attorney and there’s no tally board that marks the number of times the designated person says I declined to serve. So we don’t keep that, but we start with that person as a resource, and unfortunately we have five branch offices, each of the branches does have those cases where we cannot find an inventory attorney.
So the Bar does not step in as the inventory attorney, there’s not a provision for that, but we do make sure to the extent that we can at their safekeeping of those files and we do try to essentially pull out all the stops to find a person, and even a team of people to match the client with the file.
Christine Bilbrey: And so, if this is news to our listeners, they had no idea that they shall do this, how do you officially designate someone as your inventory attorney?
Patricia Savitz: Excellent question. The first thing the member needs to do, is go to the Bar’s webpage and log in and sometimes that strikes fear in some members, because they can’t remember their login, they might have someone who logs in and posts CLEs or logs in and posts their Bar fees, payment of Bar fees. We also do not keep a tally board of people who cannot remember their passwords.
So please, the first thing is, recapture your password, login, and that’s where you update yourself up. The Bars that you’re admitted to, your record Bar address and there is a section there where you could designate the inventory attorney.
We also urge people, let that other person know, I’ve designated you, you want to designate me, kind of a quid pro cool thing. So that means two people are now in compliance and covered, but it’s very simple, it takes less than five minutes and even the recapturing if your password is only about ten seconds.
Karla Eckardt: Right.
Christine Bilbrey: So it’s very simple, but it’s like naming a guardian for your child, except it’s your clients and your files, but I love that it’s that simple, you can just login. How do you do it if we have members who are like I don’t login to my portal, I’m not going to, is there another way to designate your person?
Patricia Savitz: In this electronic age I don’t know. I would be happy to find out and maybe send something to you, because we do so much that’s by electronic, and we do have those Bar fee paper statements that are mailed out.
I would assume that there is a portion on there for those who like to do the old-fashioned submit, write a trust check, not a trust check, operating check.
Christine Bilbrey: We have the whole podcast about that.
Patricia Savitz: Right, and I just mix here operating and trust with the trust account statement on the Bar fees but there should be also a statement on the Bar fees for inventory attorneys and I’ll double-check that. So there’s always alternate ways but it has to come from the member. You can’t have somebody call for you or write for you. That doesn’t mean that behind the scenes your trusted employee logs in for you. I cannot confirm or deny that that exists out there in the world, but that’s the easiest way and the fastest way.
Karla Eckardt: And once someone is appointed, how does that inventory attorney actually know what to do. Let’s say they’ve never done this before, are there guidelines for them to follow or should they just simply treat these files as their own and follow just the Bar rules on keeping confidential information stored correctly, don’t dump it out in the public garbage bin or things like that. What do they do? Where do they start?
Patricia Savitz: The first thing I would recommend every member do is go to the Bar’s main page. In our Search box, just type-in “inventory attorney”. You’re going to get an entire page of how-to-dos, frequently asked questions, that type of thing and it does start with that first statement that you do not create the attorney-relationship. It also gives you a rundown of what the Bar will do for you and what you need to do.
Typically in each of the branches they have a checklist that once they identify an attorney, the Bar will do the initial heavy lifting, making sure that the documents are filed with the Circuit Court because the Circuit Court is the one that enters that order. So the Bar will pay that filing fee, we do try to get the circuits to waive that fee since we are obviously a not-for-profit and assist us with that, and then we have sample pleadings for the inventory attorney report, we have sample pleadings that might need to go to the bank. So we try to behind the scenes, make sure it’s easy for the inventory attorney that he or she does not have to create from a blank sheet of paper, reports pleadings anything like that and there’s also a guide goes all the way back to when J.R. Phelps was with our LOMAS office.
Karla Eckardt: That’s Harold Department.
Patricia Savitz: Exactly. J.R. Phelps did an article that we keep on hand and it’s been updated over the years, but it’s essentially that how-tos and what to do as an inventory attorney, and then the Bar also will act as a resource using our staff investigator if necessary and that type of thing.
Christine Bilbrey: And can you clarify — so we’re saying broadly everyone should be doing this, but what are the specific cases where you are not required to have an inventory attorney like if you — you’re a member of the Bar but you don’t need to do this. Who are those people?
Patricia Savitz: The exclusions are government attorneys. Government attorneys don’t maintain a true attorney-client relationship or a true client file. The problem there is when you leave government service you forget, or when you enter government service you forget. So you need to make sure and all those to do, is changing your record Bar address that you do that as well.
So government attorneys are excluded, of course members of the judiciary as members of Bar are excluded, and then attorneys that are licensed in Florida that do not maintain a practice or a client in Florida are excluded, but that means if you are licensed, dual licensed in New York and Florida and you’re in New York and you have even just one client in Florida you must designate an inventory attorney. So it comes down to protecting clients’ interests so —
Christine Bilbrey: What about like in-house counsel? If you’re in Florida, you’re a Bar member but you work for a corporation?
Patricia Savitz: The in-house counsel has that separate category and they don’t have that inventory requirement as well.
Karla Eckardt: And we often get this question when people say, well, I don’t have anyone that can serve as inventory attorney or no one I know can serve as inventory attorney. Do the designees need to practice the same area of law as the member who designated them?
Patricia Savitz: No, not at all, primarily because they are not taking over that practice. Now the rules do allow and the ethics opinions do allow that attorney with consent to the client to take over those files. Sometimes we’ll get a volunteer who’s a younger attorney who is willing to become competent in an area of law or does practice that area of law and take over a file, but the designated inventory attorney does not need to be in your — either in your firm or in your area of practice.
Christine Bilbrey: So if you have someone who has stepped in as inventory attorney that was one of my questions. They are permitted to become the attorney of record on some of those. Is it like when there’s a change in firm composition where it’s still up to the client to say yea or nay, I’m willing to have this person take over my file or is it — what’s the relationship there? If you get notified that your attorney has passed away, this is the point of contact for all of the files. What happens on the client’s side?
Patricia Savitz: The client is given the opportunity to select counsel for his or her own choosing. The inventory attorney can actually make a referral to the client of somebody, but it’s always with the client’s consent. Would you like me to give you some names? Here are some names, here’s a lawyer referral service, and the attorney can also say, I am available to take over your case if you’d like me to do so that’s with your full disclosure and consent.
Christine Bilbrey: And you mentioned that when you become the inventory attorney there’s actually a pleading that goes to the court, so you are official, and you mentioned that this goes to the bank. So is the inventory attorney also handling the trust account for the attorney’s files?
Patricia Savitz: Yes and no. The inventory attorney does not assume the duties of the reconciliation, the comparison, the maintenance of the journal, the ledger cards, all those things that I’m sure you guys have covered in another podcast, but just like with the files, the inventory attorney must match the money to the clients. That can be a little difficult. Oftentimes the Bar can step in and help to a certain extent with that. The hope is that all attorneys maintain their trust accounts and substantial compliance which makes the inventory attorneys’ job a little easier.
Christine Bilbrey: But when it comes to — so the inventory attorney has stepped in, and one of the things that they differentiate on the website page for this they talk about members who have staff and members who don’t have staff. So if you’ve had to take over the files, you’re the inventory attorney. You’ve stepped in and maybe the person has deceased. If those clients say, I found someone, I’m going to go with this law firm down the street. So I know that then they come in and you release the file to them or at their instruction, you release it to the new counsel.
Does the inventory attorney write the trust check to move that person’s money to the new attorney they’ve selected? Like what are the mechanics of that?
Patricia Savitz: It starts with the order from the Circuit Court. In most cases before even the first check is written like that, the identification of the funds, the total amount of funds is identified. So even if you transfer that file probably because there’s an upcoming hearing, or a deadline, or something like that. The trust funds would probably be the last step that’s done because you don’t want to write a check to client A if under certain circumstances you’re using part of client B’s money to fund client A. So the trust account component is the very, very last step of the inventory process.
Karla Eckardt: And then again on the website of the many resources that are included for inventory attorneys, there’s listed the Pre Need Inventory Attorney Agreement. What is that? What are the advantages of completing it? Does everyone or should every one complete it?
Christine Bilbrey: Ahead of time or is that something that you wait?
Patricia Savitz: The best practice would be to complete it ahead of time and what’s on the webpage accessible to our members is just a suggestion. They may have another form that they prefer to use. One that many times an attorney with a PA might have their own counsel. You can take that to counsel, counsel may use something else, but you’re better off while you can stating forth just like you would with your family issues. What you’d like done? How you’d like it done and what’s needed to be done, and it’s okay to just take that form and use that but more preparation in advance is better.
Karla Eckardt: So I would say the recommendation from us is, everyone should complete it again.
Christine Bilbrey: Is it almost like a Power of Attorney that you’re doing for the person that’s going to step in for you? Like, is that what the Pre Need represents? I mean, what kind of power are you conveying when you complete that ahead of time?
Patricia Savitz: It’s a limited power just like the same way we would as the Bar go in and get that Circuit Court order through the inventory process, the Pre Need designates or delivers that authority in advance of that paperwork.
Christine Bilbrey: And so many of the calls that we get in our office really is, it’s either a client or a family member and they’re calling in and sometimes it stranged me, it’ll be the day after like that someone died and they’re so concerned that they’re calling us, and so typically we will say, we’re going to transfer you up to lawyer regulation. They’ll be able to tell you if there was already an inventory attorney designated, and that’s the extent of what we see.
But I’m curious with all of the discipline side of it. Say, you have someone who’s been disbarred that they were doing something. They were very much in violation of the Bar Rules. They have been disbarred, is that a situation where an inventory attorney gets involved and how do you know the person that they designated isn’t involved, like what if they are in the same firm and there is some nefarious things that went on, does the Bar sort out if this person is going to handle it correctly, what happens then?
Patricia Savitz: You use the word sort out, you essentially mean vet. Do you mean vet the inventory attorney?
Christine Bilbrey: Yes.
Patricia Savitz: More often than not in situations where we have a respondent attorney, whether a him or her, there is no designated inventory attorney, so the Bar starts kind of behind the line segment in the negative numbers and has to catch up. And then in those cases it’s sometimes tricky to find an inventory attorney, because if you have a respondent who committed misconduct after a final hearing, filing of papers, whatever it might be, so we are not talking alleged misconduct at this point, an attorney sometimes is hesitant to take on those files.
We are very grateful that in many cases we do find someone, because again, their job is just to match the file to the client. As far as the vetting goes, there is the typical, we do check in the membership data, is that person a subject of a grievance, what’s the nature of the grievance, is that person’s trust account in substantial compliance, but because we do try to assist members with the inventory process, we try to make it not a difficult undertaking and if someone has a, I don’t want to give the listeners this misapprehension that if you have a Bar grievance filed against you, you can no longer be an inventory attorney, those are just some of the ways we look at things.
You don’t assume because a Bar complaint has been filed that someone has done anything wrong; there are certain areas of practice that are just prone to them and just because you have got that doesn’t mean you cannot do the ministerial job of matching the client to the file.
And most of our members that are inventory attorneys come from voluntary Bar Associations. Those members that are active in their practice in other ways and give back in many other ways and sometimes they don’t even know that person and it doesn’t matter to them if they are a disbarred lawyer.
In cases of disbarred lawyers with many files sometimes we will look at a team, one or two or three inventory attorneys, so kind of divide and conquer.
Christine Bilbrey: That’s a good point, because the caseload could be so big that they are going to — it’s going to pull them away from their own practice, I can see that happening.
So you are saying that basically through the voluntary Bars there is sort of a pool of people that are volunteers, on standby that they — have you reached out — are there some people that are like semi-retired and they are just — they are happy to do this as service?
Patricia Savitz: I think we are pushing for the goal of a pool of volunteers. Volunteer database essentially membership is where we go to first; grievance committee members who have termed off, members who might have been a part of the executive council for their voluntary Bar. So it’s not a set pool, but there are people that we as the Bar see over and over again in voluntary situations doing pro bono, doing civic work, and we usually go to them first because they are someone who kind of participates in Bar proceedings in the sense of Bar voluntary actions.
Karla Eckardt: Is it possible for a member to call Lawyer Reg and say I want to serve as inventory attorney, I want to be part of that pool should the occasion ever come up, should someone ever need inventory attorneys, is that possible or is it just the Bar looking into certain usual suspects for, again, just we know that you are able to serve, can you serve, is there an official pool?
Christine Bilbrey: Can they put their hand up if they are like, yeah, I would be interested in doing that?
Patricia Savitz: Compound questions. We have no official pool. We would absolutely welcome a phone call and it’s based on where you are at. So our five branch offices, Fort Lauderdale, Miami, Tallahassee, Tampa and Orlando, if you practice geographically associated with those, call the main office, tell the receptionist I am interested in being on a list to serve as an inventory attorney, you will be immediately transferred to the right person I assure you and we will take your information down and we will keep that on file and each office maintains whatever information they get differently.
My previous position as Bar Counsel I was with the Orlando branch and our chief branch discipline counsel does get calls from time to time people that are willing to serve and she has an amazing way of finding volunteers. So we would welcome the cold call from one of your listeners that wants to serve.
Karla Eckardt: Wonderful. And when we first started this conversation you mentioned other instances, not just when someone passes away, where they would be required to have an inventory attorney or where an inventory attorney would be required to step in. What are some maybe weird actual instances that maybe don’t have to do with someone passing away where an inventory attorney has to have been appointed or designated or the Bar has had to step in and maybe find someone from the unofficial pool to serve? Are there any very interesting stories?
Christine Bilbrey: No names, just —
Patricia Savitz: One of the ones that comes to my mind is a practitioner who was facing some discipline cases and for whatever reason we can assume facts not in evidence, such as mental health, emotional situation, addiction, for whatever reason he just chose to not practice anymore and that does happen more than you would think and that person essentially ends up in parts unknown, whereabouts unknown and the files sit someplace. And we had a case like that and we have to find somebody to take possession of those files and work with them.
One of the most interesting cases I had was it became a marital dispute between the respondent and his former spouse and the former spouse — I said his, but it could be her because we are not revealing anything, the former spouse had assistance of some kind, we can only assume what the assistance was and essentially took the files from wherever they were located and put them out to trash.
Christine Bilbrey: Was this former spouse an attorney as well?
Patricia Savitz: No, no.
Christine Bilbrey: Oh, so it’s just a revenge file dump kind of —
Patricia Savitz: Potentially, it was motivated by something, but the call we got was some of those files are here, what’s the Bar going to do about it, and that call usually comes at a time where it’s late in the afternoon and people are in court or in hearings or at lunch and we as an agency mobilize as quickly as we can. We ask for grace, if you have got your hands on them, hold them, we promise you somebody will come out, but that was interesting.
They were, like you said, discarded like garbage and this person was not whereabouts unknown, this person was in a different office, but it was a situation that had some malice involved.
Karla Eckardt: Wow. So just to be clear, your spouse, your non-attorney spouse cannot serve as your inventory attorney.
Christine Bilbrey: Yeah, correct that. Yeah, we get calls all the time; my father, my husband has passed, I am sorting through these files, and I immediately say, are you an attorney? Oh no, but they are all stored here. And you say that that it’s rare; I have been at the Bar almost five years and I know that I have gotten 10 calls where somebody was like I am cleaning out, my dad died 10 years ago, his carport is completely full of client files, what should I do? Constantly, like I think there are just files stashed in attics and basements and carports all over the State of Florida, so we do get that call.
I am thinking of a particular call I got where I wasn’t sure how to direct the woman. So it was a husband and wife, they were in practice together. He practiced in one area; she practiced in an entirely different area, so she had no knowledge of his cases. He passed and she was calling us and she said this has happened. I don’t really know what I am supposed to do. And I said are you his inventory attorney? She didn’t know what that was and she didn’t know if he had appointed her or not.
What is the protocol there? If she is his legal — she is his law partner, can she function — does she have to go through the Bar as the inventory attorney or can she just contact all the clients of his and deal with it that way, what should she do?
Patricia Savitz: And it sounds in that situation since they are partnered, there is already that attorney-attorney relationship, so the least restrictive alternative would be for her to have assistance to make that client list and match the clients with the file and go that way.
The question we hear sometimes is can the personal representative or the attorney for the personal representative serve as the inventory attorney. The attorney for the estate can serve as the inventory attorney, that’s a yes. The personal representative, if he or she is a licensed attorney in Florida, can also serve as the inventory attorney, because it doesn’t create that attorney-client relationship.
So from the personal representative’s perspective it’s not going to create that conflict of interest. The personal representative owes the duty to the estate, a 100% duty to the estate, the files are part of the estate so the extension of that is matching the files to the clients.
Christine Bilbrey: Even if the personal representative is not an attorney?
Patricia Savitz: No, no, the personal representative has to be an attorney.
Christine Bilbrey: Because lots of personal representatives aren’t in a will situation.
Patricia Savitz: Right, but sometimes we get the attorneys for the trust that don’t want to do that and I don’t know if it’s because of a malpractice coverage issue and I wouldn’t be able to speak to that, I don’t know what the coverage would say or not say, but that’s something we can always assist with and do our best to try to find inventory attorneys. They are very, very difficult to find, but the Bar is intended to accomplish that task.
Christine Bilbrey: So at a minimum that particular instance that I was talking about, the husband and wife law firm, at a minimum her responsibility to the Bar was probably just to let us know that he had passed so that his like portal — I mean his profile could be updated that he was deceased?
Patricia Savitz: That’s correct and then from there kicks in all the other obligations, anything he has filed, notices of appearance, anything that has critical upcoming court dates, filing dates, things like that, that comes first notifying the clients so the clients’ rights are protected. And then, because they are a partnership the assumption is they are maintaining their trust account in substantial compliance, it should be easy to match the ledger cards with the clients on whatever is remaining in the trust account.
Christine Bilbrey: And I think you have had the call where it’s a non-attorney contacting us and they are looking at the files as like personal property, but they also think, we have had this call where they think that the trust account is an asset of the deceased person so that it’s part of the estate and we have had to explain that that is not the case.
Karla Eckardt: It gets convoluted, because again a lot of times it’s just family members and our first step is always to tell them well, one, ask them are you an attorney. If it’s a no, invariably a lot of times it’s going to be a no, we say well, you should contact Lawyer Reg to find out if one has been appointed and maybe let them know that your parents or your spouse has passed and that they were designated as inventory attorney and if they are willing to serve, then they can contact the Bar and see what all else they need to do in order to meet all those duties I suppose.
But going back to Christine’s example of the spouse who is an attorney, would she have been required to notify the Bar that she is stepping in as inventory attorney? Does the Bar want to have this on record in the event that a client calls and says so-and-so is my attorney, they passed and for whatever reason the attorney spouse was unable to contact them, do you require that self-appointed inventory attorneys officially designate themselves as such within our records?
Patricia Savitz: In looking at the Rule, which is 1-3.8, I don’t think there is an obligation for that self-appointed attorney to notify the Bar and of course that person could not go in and change the inventory attorney designation for the membership records.
It sounds like in your example the attorney would be the partner associate in-house with that same attorney so the client’s first call is going to be to that law firm, not to the Bar, so that client would get an answer on the first call versus the client that calls the firm, and the firm says we don’t know, then they call ACAP, then they call you, then they call Lawyer Reg, so in a situation like that, should be able to proceed even though there hasn’t been a formal designation under the rules of the inventory attorney.
Christine Bilbrey: And what if it’s a little bit different, what if it’s a husband-wife situation but they are not in practice together. So say she passed and was a solo and her husband is part of another firm, can he still step in or does he then need to be officially the inventory attorney if they are in separate firms?
Patricia Savitz: That’s also tricky because it may be based on what his firm says. His firm may have a firm rule that regardless of family membership, your 100% duty of loyalty is to the firm, which means you cannot do that, so that would be a little trickier. And things happen so suddenly, I don’t know if in a situation like that there could be a planned for event; one spouse knows the other is getting sick or the other wants to retire or wind down from practice. So your question would be a little more difficult to answer because it has the actual variable, the other firm.
Christine Bilbrey: And I guess from the client side, this is a person that you know officially, because their name isn’t on the sign, so them saying hey, I know that your attorney died, I am the wife of this person, I am taking over, I don’t think that would have the same level of comfort as if they were in the same firm together already.
Patricia Savitz: And if you add the fact that a lot of husbands and wives have different last names, it’s not a set thing that a husband and wife practice with the same last name, so the call to the client could take the client kind of unawares.
Karla Eckardt: I think the moral of the story is designate an inventory attorney, follow the rules, plan ahead of time and on our website we even have a sort of article; we call them — it’s a Resource, where we talk about inventory attorneys and planned and unplanned absences may require you or you may want to consider appointing an inventory attorney even for a planned absence.
Again, you mentioned earlier if you are getting sick and you are going in for treatment, you are not dead, you are just going in for treatment, you are going to be unable to practice, you can’t show up to hearings on behalf of your clients anymore, you are going to have to shut down your practice even if it’s only temporarily, you may want to consider appointing an inventory attorney at least in those instances because again, planned, unplanned, you just never know.
Christine Bilbrey: Or you are in Italy on vacation and you plan to be back in a week, but now you are quarantined, in that situation would the inventory attorney, could you say hey, my designee is going to take over because I don’t know when I am going to be back, it could be a couple of months, is that still a situation where you would need someone to officially step in?
Patricia Savitz: That’s a little different, that’s more like a coverage attorney, because remember the inventory attorney is only going to match the client with the file, which means once you match the client with the file, the client is free to go elsewhere, which means when you get back from Italy you now no longer have a client. So that brings up the other issue, probably another podcast for you all is finding a coverage attorney or participating in a coverage program that they have.
The other thing I had mentioned earlier in the podcast with inventory attorneys, don’t in the pay it forward, don’t just designate somebody, find somebody and tell them I will do you a solid, I will be yours, now you don’t have to worry about it, so that way it kind of accomplishes the inventory attorney of two people.
Karla Eckardt: Right, right.
Christine Bilbrey: That’s a good way to do it, because I have had, like I told you very young attorneys call us, they don’t know anybody in there, like they hung out a shingle because they felt like maybe they had done enough of a — they had been a law clerk and they have done the clinics and they feel comfortable they are getting a client base, but they really don’t know anybody to designate, but if you have law school friends and they are in the same boat, I guess that would be a good way to do it.
Karla Eckardt: Right, right, you don’t have to practice the same area of law, we covered that earlier, so again, that’s just a good strategy, you be my inventory attorney, I would be yours. Coverage attorney is something separate, you might want them to practice the same area of law if they are going to be your coverage attorney.
Is there anything else that you want our listeners to know and to take away about the inventory attorney rule and the process?
Patricia Savitz: My takeaway is don’t guess, do not guess, keep the Bar’s webpage open on your desktop, on your iPad, on your mini, on your phone, wherever you can keep it open and as I said in the beginning in that search box put inventory attorney, everything you need will pop up at your fingertips.
Karla Eckardt: Yeah, and that’s our goal, usually when we interview internal guests like you and other Bar representatives we want our listeners to understand that we are here to help, so if you can’t get to a computer and in that search box type in inventory attorney, pick up the phone and call the Bar. We are here to help you and to assist you and to walk you through all these rules. So we don’t expect you to memorize these rules and to know them forward and backwards like some of our staff counsel do, but we are here to help. So I think that’s ultimately our goal to let people know that if you have not designated an inventory attorney or have not read about it or don’t know about the rule, pick up the phone and call us, we are here to help.
Patricia Savitz: And the us is the global us, you can call any of the five branches and get that information.
Karla Eckardt: The Florida Bar. We will route you to the correct department we promise.
Christine Bilbrey: Well, it looks like we have reached the end of our program. Thank you Patty Savitz for joining us today.
Patricia Savitz: You are very welcome.
Christine Bilbrey: If our listeners have questions, so we have talked about use the search box for inventory attorney on the main page. Also on legalfuel.com, which is Karla and my department, The Practice Resource Center of the Florida Bar, you can go through our document library on the front page and click on the category Inventory Attorney, we have all of those posted and we update them.
But if they take Karla’s advice and they are calling, are they going to just call the main Bar number, do they need to ask for ACAP, who is the actual person that’s going to know all the answers to this or should they all call you, Patty?
Patricia Savitz: Unfortunately I would not be able to take everybody’s calls. I would recommend that because we have five branch offices in the geographic regions in the state that you call a local Bar office that’s closest to where your record office is, your primary office is, if you have more than one office and for our listeners those phone numbers are on the Bar’s website where it says, I think Contact Us is the tab.
Each of the branch offices can take your call and from there route you to the person within the office. I believe also if you call the main number for Lawyer Regulation here in our headquarters office, you will get answers and you will get answers also from our ACAP Department as well.
Karla Eckardt: Call the Bar.
Christine Bilbrey: If you like what you heard today, please rate us in Apple Podcasts. Join us next time for another episode of the Florida Bar Podcast, brought to you by LegalFuel, the Practice Resource Center of the Florida Bar. I am Christine Bilbrey.
Karla Eckardt: And I am Karla Eckardt. Until next time, thank you for listening.
Outro: If you would like more information about today’s show, please visit legalfuel.com. Don’t miss an episode by subscribing to The Florida Bar’s podcast via iTunes, Google Podcasts, Spotify and RSS. Find The Florida Bar’s Practice Resource Center LegalFuel on Twitter, Facebook and Instagram.
The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by The Florida Bar. None of the content should be considered legal advice. As always, consult a lawyer.
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|Published:||April 30, 2020|
|Podcast:||The Florida Bar Podcast|
The Florida Bar Podcast
The official podcast of the State Bar of Florida.