Administration of a deceased advocate practice in Tanzania

PRELIMINARY

An advocate as other human beings, it may reach a time when he or she dies. And as other human beings, after death, an advocate may have some contracts which need his assistance even after his death especially contracts relating to his or her professional practices. An advocate may die and leave a number of duties left by him un-accomplished and when such situation happen it sometime cause a number of problems if a deceased advocate died intestacy. Without direction of a deceased advocate, especially on conducting activities that he or she used to deal with during his lifetime, there is a huge chance for mis-understanding between the parties surviving advocate’s life. Also problems may rise up due to the death of an advocate concerning un-accomplished duties by an advocate to the clients due to the type of a law firm that he used to work.

In United Republic of Tanzania, the laws are not silent about administration of a deceased advocate practice, but at the same time the laws do not provide enough provisions to cover all the circumstances and problems that may happen when an advocate dies with duties un-accomplished and died without even leaving a piece of paper stating how his or her duties left should be implemented by the successors.

The Advocates Act[1], section 57 (1) of the Act on death or incapacity of an advocate, the Act provide that;

 “If, after some business has been done under an agreement made pursuant to section 54 but before the advocate has wholly performed it, the advocate dies or become incapacity of acting, then any party to, or a representative of any party to the agreement may apply to High Court and the High Court shall have the same jurisdiction as to the enforcing agreement so far as it has been performed or setting it aside, as it would have had if the advocate had not died or become incapable of acting.”

The provision tries to cover some issues when an advocate dies with his or her duties un-accomplished and when an advocate dies without giving direction on how some activities he left should be handled by the successors. But the section does not cover all situations which may arise due to the death of an advocate and left his duties to the clients un-accomplished.

EFFECTS OF AN ADVOCATE’S DEATH TO THE CLIENTS IN REGARDING A TYPE OF LAW FIRM OR FORM OF PRACTICE OF AN ADVOCATE

In Solo Law Firm, as known, a single advocate carry all activities of the firm himself or herself. In this type of law firm when happen an advocate dies, he or she dies with office and all activities that is un-accomplished. Due to this situation, there will be no any continuation of activities left by a deceased advocate. Many instances like this has happened in many countries across the globe especially in USA where a SOLO advocate dies and leave some his clients into prison and no any direction was left with an advocate and that mark the end of business between clients and an advocate.

Scenario, a well-respected attorney dies in a motorcycle accident. The clerk of the court or bar association sends letters to all clients the attorney was listed as representing. But most of those clients are in prison, waiting for the attorney to complete their appeals. Worse, the clients have drained their savings to pay the attorney's retainer. With hearing and statute-of-limitations dates fast approaching, the clients are unable to obtain new counsel without somehow recovering the unused retainer needed to pay the new counsel[2].

But some advocates (solo advocates), due to this problem which has existed for a number of years, they tried to put things in writings so as to prevent problems when happen they die before finalizing their duties to their clients. Most of them put directions on their livings will on how they want their duties to be conducted by their successors after their death.

In Small Law firm, most of these law firms tend to have two to ten advocates or lawyers, they also allowed to collaborate with other law firms in exercising their duties. Most of these law firms exercise its duties as a company and the clients are recognized as clients of the company and not the clients of a single advocate of a company.

The clients of small law firm are the clients of the company and not clients of a single advocate. Due to this, when happen an advocate dies, his or her duties may be given to another advocate within a law firm and there will be no problems when happen an advocate dies and left his or her duties un-accomplished.

The Large Law Firm as the small law firms is composed of a number of advocates, lawyers and other employees of the firm who are not lawyers of the company or advocates. And they deal with a number of issues and their system of running a firm is a same as running a company, the death of an employee do not mark the end of the activities of the company because if a an advocate dies, the duties imposed on him will be given to another advocate of a company[3].

IMPORTANCE OF LEAVING WILL BY AN ADVOCATE, CONCERNING DUTIES THAT HE/SHE MAY DIE AND LEFT IT UN-ACCOMPLISHED.

An advocate who work as a solo advocate, to make an environment clean after his/her death, he must make sure to leave a will which direct how his or her duties and activities should be handled by the successors after his or her death. By doing this, it will reduce claims and blames of clients whose their activities failed due to the death of an advocate. A will that needed here is about the legal practice that left un-accomplished by an advocate and not about his personal properties. It is advised by many associations (General Practice, Solo & Small Firm Division Best of ABA Sections) that, the solo law firm owners must leave a will which explain how activities of a firm may be conducted after his or her death.

There is no problem to the small and large law firm because such firms operate as companies and the death of an employee do not mark the end of a company. Most of large law firm, they put all their things in MEMARTS so as to cover all situations and control of the company.

Leaving a will concerning implementation of legal activities and duties of a deceased advocate to the clients is useful in solving some problems which may happen after the death of an advocate. In USA, there is a number of rules established to cover this situation but some advocate still fall under this situation. In United Republic of Tanzania, the will is needed because the Advocates Act[4] does not provide each and everything on the administration of a deceased advocate’s practice.

                                                                                       

BIBLIOGRAPHY

BOOKS

Berson, S. A. (2013, Janaury 1). Death of a Practice: After Lawyer Dies, Her Friend is Faced with Closing Down Her Firm.

Byerley, T. K. (1999, October). Protecting the Client When a Lawyer Dies or Becomes Disabled. Michigan.

Cooperman, S. N. (1998, Spring). What Happens When a Lawyer Dies? General Practice, Solo & Small Firm Division of the ABA.

Troyer, T. M. (2002, February).Picking up the Pieces after the Death or Disability of a Lawyer. Massachusetts: Massachusetts Bar Association.

ONLINE SOURCES

https://hirealawyer.findlaw.com/choosing-the-right-lawyer/types-of-law-firms.html

https://www.tzaffairs.org/1984/01/the-legal-profession-in-tanzania/

http://www.abajournal.com/magazine/article/death_of_a_practice_terminally_ill_lawyers_friendfaces_closing_down_firm/

STATUTES

The Advocates Act, Cap 341 R:E 2002

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[1] Cap 341 R:E 2002

[2] http://www.abajournal.com/magazine/article/death_of_a_practice_terminally_ill_lawyers_friend_faces_closing_down_firm/

[3] https://hirealawyer.findlaw.com/choosing-the-right-lawyer/types-of-law-firms.html

[4] ibid