Presumably you have a will. We’re lawyers. We understand the importance of such things. But does your law firm have an equivalent plan in case of an emergency or death? Last week I attended the 39TH ABA Conference on Professional Responsibility. One of the plenary sessions, “Closing One Door and Opening Another: Legal, Ethical, and Practical Problems with Shutting Down a Law Firm,” dealt with what one should plan for in the event of a lawyer’s death. Such a plan is complicated and involves a lot of forethought, but even some planning can be better than no planning.
A Plan of Succession
There must be a plan for a lawyer’s death. The smaller the firm, the more important such a plan is. If a solo practitioner passes away, as I contemplate in this post, someone must step up and take responsibility for the clients, the cases, the files, and the office. Some states have a system for the local court to appoint someone to take over the firm in the shoe’s of the deceased attorney. But not every state. Others leave it to the local bar association to sort out.
You don’t want these problems to land in someone else’s lap. So come up with an attorney (or a firm) that can step in and perform the necessary duties to wrap up the firm. This person should know about their duty in advance, and be aware of the authority they have. Will the successor attorney handle the books? Sign checks? Or just review files and send correspondence to clients?
Protecting the Client’s Information
The Rules of Professional Conduct dictate that a lawyer keep the client’s information in confidence. The members of the panel discussion stressed that this information is confidential even once a lawyer dies. That means whoever comes in to review the files must be authorized to do so. It can’t simply be a spouse or a lawyer that the deceased was close with. It should be somebody appointed by the court or chosen by the deceased lawyer ahead of time.
When the reviewing attorney obtains all of the files, she should first and foremost conduct a conflicts check. After all, if it is a local attorney, she could very well represent the opponent on one or more of the deceased attorney’s cases.
After conducting a conflicts check, the next step for a successor attorney, according to the panel, is an immediate triage on the files. Alternatively, the panel noted that this could possibly be performed by a secretary or paralegal. Someone who clearly has no conflicts and has had access to the files for a while would have a better sense of where things stand.
Regardless of who performs the triage, they must look at each file. Which cases have deadlines coming up? Are there any court appearances in the near future? These things need to be assessed as quickly as possible and dealt with accordingly. Technically the successor attorney may not have the authority to simply handle the case. That would depend on the specific plan in place, state law, and the state’s ethics rules.
The clients of the firm may not be automatically absorbed into the successor attorney’s practice. Assuming there are no other attorneys in the firm, the panel agreed that the successor attorney should send a letter to all clients. In the letter the attorney can inform them of the situation, and give them an option for staying with her or finding another attorney.
Beyond the clients themselves, the physical (or digital) files must be stored somewhere. In some states, the file is clearly the property of the client and can be returned. In others the file belongs solely to the attorney and must be retained for a number of years. Yet many states have law that falls somewhere in between. Find out what your state’s rules are so you can appropriately incorporate a transition or archiving of files into your plan.
Informing Others About Your Plan
Like a will, a succession plan is completely useless if nobody knows about it. So tell others. Obviously any staff or associates should know the plan. But informing the local bar association (if it’s a small enough bar for it to matter) may be a good ideas as well. The panel also recommended informing any off-site employees/contractors. For instance, does someone know to contact your receptionist service and let them know? What about your insurance carrier? Your bank?
Finally, what about your clients. Like using cloud computing software, this is just a part of your practice. So I don’t think clients should really get a say in the plan. But I believe, and the panel agreed, that the clients should be aware that some kind of plan exists, and if something happens to you, someone else will be reviewing their file.
Considerations for Your Plan
- Who will review your files in the event of your death or incapacity?
- How will this person be paid? Do they have authority to bill the general operating account? Is there a separate account set aside for this kind of expenditure?
- What authority does the reviewing attorney have? Can this person handle finances as well? If not, who will make sure the rent gets paid, and debts paid/collected?
- How will the reviewing attorney access digital files, e-mails, services, etc.?
(photo: Bearers a carrying a coffin via SHUTTERSTOCK