Most people spend very little time contemplating their own demise. Those of us who do think mostly about our friends and family, and how our death will affect them. At some point, you probably had a will written up to handle your estate. For solo practitioners, this grim topic is something that must be planned for. Whether you are a solo practitioner or work in a small firm, you should have provisions in your will to wrap up all the loose ends at your firm. You owe it to your friends, family, and clients.
Your Ethical Obligation
The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 92-369 on Disposition of Deceased Sole Practitioners’ Client Files and Property (December 7, 1992) dictates that all solo attorneys have a plan in place in the event of their death or incapacitation. The plan should “…at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention, and who should notify the clients of their lawyer’s death.” In some states, such as Florida, this triage attorney is a legal requirement. While it may not be a legal requirement in your jurisdiction, such a plan will ease things along after you’re gone.
Having another attorney come in and assess the status of your files upon your death is a great start, but it cannot be the entire plan. Some other things to consider are:
- Who will notify the local bar association, the courts, and your malpractice insurance provider of your death?
- If clients owe you money, who will be in charge of collecting?
- How long will your firm stay open and pay any administrative staff?
- Will the designated attorney collect a salary from the law firm?
You should have an in-depth conversation with your family, staff, and the attorney who will triage your files. Make sure that everyone is aware of your plans for your practice should something happen to you.
The Digital Component
With so many attorneys going paperless, there are numerous websites where a successor will find important information. After your death, someone will need access to your e-mail, file-sharing services, digital backups, and social media accounts to thoroughly handle your affairs. Make sure your successor has access to all of the necessary passwords. You should also have a plan in place for closing down your website and any social media accounts that may exist under your name.
Preparing Your Clients
While your death may be a surprise to clients, friends, and family, your plan should not. Notify clients that you have a contingency plan for your death or incapacitation. Include a brief outline of the plan in your engagement letter. Make sure the client knows her information will be kept safe and confidential after your death, and her case will be evaluated by an attorney right away upon your death.
Although potentially uncomfortable to think or talk about, a responsible attorney must address these issues. Especially if the attorney practices in a solo practice.