At ALPS, be it from RISC visits, on applications for insurance, or at CLE events we continue to find that a significant number of solo practitioners have not taken the step of creating a succession plan. When working with these attorneys our message is always the same, if no plan is in place, now is the time. You really don’t want to leave the headache of having to deal with stacks of closed files to an unsuspecting non-lawyer spouse and yes such calls continue to come in. Remember someone paid for the production of the file you have in your possession and that someone has an interest in that file. We all know that client property cannot be destroyed whenever an attorney feels like doing so; but of course, non-lawyer spouses aren’t bound by our rules and it happens. Heaven forbid that post attorney death and post file destruction by a grieving spouse a certain file is needed to properly defend against a claim of malpractice. Making matters worse, there is no insurance is in place to cover the fallout of the claim because no one knew they had to timely contact the malpractice carrier in order to purchase a “tail” once the attorney passed. The deceased attorney’s estate may now not be what everyone was counting on it being. The failure to plan can end badly; but wait, there’s even more.
Rule 1.3 of the ABA Model Rules of Professional Conduct addresses diligence. The Rule reads, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Most attorneys, if not all, are well aware of this rule. As lawyers, we are to act with commitment, dedication, and where appropriate even zealous advocacy. Our workloads are to be reasonable so that all matters can be resolved competently. Procrastination is an enemy to be avoided at all costs; for it has and will continue to lead to malpractice claims if and when clients are ever harmed as a result. In the end we are all to strive to deliver our services in a professional, competent and timely fashion. Yet our obligations do not end here. There is an obligation to prevent neglect of a client matter post attorney death or disability.
In 2002 the comments to ABA Model Rule 1.3 were amended with the following language. Comment 5 now states, “To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine if there is a need for immediate protective action.” Given all that I have seen and experienced over my years with ALPS, I personally have trouble coming up with a set of circumstances where I would feel comfortable saying no such plan would be required for a solo. The only question for me is how to get there.
The most important aspect of planning for your death or disability is in the designation of an attorney who will be responsible for administering the winding down of your practice. This attorney should be competent, experienced, and someone who displays the utmost professionalism. This person should have the time, or the ability to make the time, to come into the practice. She must be able to make rapid decisions and assume, at least for a period of time, something of an additional practice. Now remember that the purpose of the designated attorney is not to come in and take over the practice but rather to take the lead in winding down the practice. It’s about being expeditious with file review, client notification, protective action, and transitioning files to other attorneys. Perhaps these responsibilities could even be shared among a select group if time constraints are a concern. Obviously, the designated attorney ought to be someone quite familiar with your practice areas and also not likely to have a significant number of conflict concerns arise as a result of having to step in. Finally, don’t overlook the importance of making certain that appropriate employees are aware of who the designated attorney is and how to contact this individual in an emergency. One added benefit of choosing a designated attorney (and often this is a reciprocal designation) is that this individual can also act as your backup attorney, thereby allowing you to take extended absences from your office for work, pleasure, or health reasons.
Beyond designating an attorney, there are a number of other things that should be done with your practice if not already taken care of. Consider providing notice of the existence of and reason for a designated attorney in your fee agreements so that clients are aware of the steps you have taken to protect their interests in the event of an emergency. Maintain a current office procedure manual that discusses the calendaring system, conflict system, active file list, open and closed file systems, accounting system, and any other key system as this can be valuable in expeditiously bringing the designated attorney up to speed on how your practice is run. It is imperative that critical systems such as the calendar and conflict systems be kept current at all times and make certain that all files are thoroughly documented. The designated attorney will need to review all client files as quickly as possible in order to make a determination as to whether any immediate protective action is necessary. Mistakes can and will be made with poorly documented files. Finally, write a letter for the designated attorney that details duties for all employees; includes instructions on use of and passwords for the computer system; provides financial details such as location and account numbers for all bank accounts, particularly client trust accounts; and contact information for all staff and principal vendors such as banks, insurance companies, utility companies, and the landlord. In short, think about what you would need to know if you were the person coming in to wind down your practice and capture that intellectual capital in a way that can be left for the designated attorney.
If you feel that you need assistance in developing a plan for your death or disability, the Oregon State Bar Professional Liability Fund has published a handbook with related forms that can be of real help. This handbook, available to out-of-state lawyers at a reasonable price, will also provide significant help to the designated attorney should his or her services ever be needed. In this book entitled Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death, you will find items such as a checklist for closing another attorney’s office, a sample notice of designated assisting attorney, sample letters to clients, a sample authorization for the transfer of a client file, and much more. Also be aware that a few useful resources based upon the materials in this Oregon guide are available on the websites of a number of state bars. Finally, the ABA has published a similar resource entitled Being Prepared: A Lawyer’s Guide for Dealing with Disability or Unexpected Events that might be of use as well.