Matter of Hickey , 36 N.Y.S.3d 766 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 25, 2016 D-49-16
___________________________________
In the Matter of JAMES R.
HICKEY JR., a Deceased
Attorney.
MEMORANDUM AND ORDER
(Attorney Registration No. 2009348)
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Calendar Date: August 8, 2016
Before: Lahtinen, J.P., McCarthy, Lynch, Devine and Aarons, JJ.
__________
Khandikile Patricia Mvunga Sokoni, Tompkins County Bar
Association, Ithaca, for Tompkins County Bar Association.
__________
Per Curiam.
James R. Hickey Jr. (hereinafter decedent) was admitted to
practice by this Court in 1980. He maintained an office for the
practice of law in the City of Ithaca, Tompkins County.
Decedent died intestate on July 14, 2016 without any plan
in place for the continuity of his solo law practice. The
Tompkins County Bar Association (hereinafter TCBA) now
accordingly moves pursuant to Rules of the Appellate Division,
Third Department (22 NYCRR) § 806.11 for an order appointing one
or more attorneys as custodian of the files of decedent's clients
for the purpose of protecting the interests of those clients.
TCBA also moves pursuant to Rules of Professional Conduct (22
NYCRR 1200.0) rule 1.15 (g) for the appointment of an attorney to
serve as successor signatory to decedent's law office and escrow
bank accounts. Both the Committee on Professional Standards and
the Lawyers' Fund for Client Protection advise that they do not
oppose the motion. The Committee additionally indicates that the
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requested relief would serve to protect the public.
Under the particular circumstances presented, we grant the
motion to the extent that TCBA is hereby appointed the limited
custodian of decedent's law office files (see generally Matter of
Van Zandt, 53 AD3d 982 [2008]). That part of the application
seeking the appointment of a successor signatory for decedent's
law office and escrow bank accounts is denied, without prejudice
to the appropriate application being made to a Justice of the
Supreme Court within the Sixth Judicial District (see Rules of
Professional Conduct [22 NYCRR 1200.0] rule 1.15 [g] [2]).
Lahtinen, J.P., McCarthy, Lynch, Devine and Aarons, JJ.,
concur.
ORDERED that the motion by the Tompkins County Bar
Association is granted to the extent that it is appointed limited
custodian of the files of the clients of decedent for the purpose
of taking possession and examining decedent's files and taking
such action as deemed proper and advisable to notify decedent's
clients of decedent's death and to protect the interests of
decedent's clients, including, where necessary, the release of
the files to decedent's clients upon appropriate request of the
client and/or the client's new counsel; and it is further
ORDERED that the Tompkins County Bar Association shall
comply with the provisions of Rules of the Appellate Division,
Third Department (22 NYCRR) § 806.11, including refraining from
the disclosure of any information contained in the client files
so examined without the consent of the client to whom such file
relates, except as may be necessary to carry out the provisions
of this order; and it is further
ORDERED that, if necessary, the Tompkins County Bar
Association may apply to this Court for appropriate instructions
regarding the proper discharge of its duties as limited
custodian; and it is further
ORDERED that so much of the Tompkins County Bar
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Association's motion seeking appointment of a successor signatory
to decedent's law office files and escrow bank accounts is
denied, without prejudice to an appropriate application being
made to a Justice of the Supreme Court within the Sixth Judicial
District; and it is further
ORDERED that, upon application of the Tompkins County Bar
Association, this Court may determine and award compensation and
costs incurred in connection with this order; and it is further
ORDERED that, within 45 days of the entry date of this
order, the Tompkins County Bar Association shall submit a status
report to this Court setting forth all actions taken pursuant to
the authority set forth in this order, which shall include the
name and address of each client and the disposition of each
client's file.
ENTER:
Robert D. Mayberger
Clerk of the Court