The U.S. Bureau of Labor Statistics projects that by the year 2020, 25.6 percent of the United States' work force will be age 55 and older. Because of the nature of the practice of law and the progression of one's career, law has traditionally been one of the fields with a higher concentration of what are considered "older" workers.
For a variety of reasons, many attorneys now are choosing to delay retirement, or even choosing not to retire at all. Others work until they are ready to quit and then do. And, unfortunately, there are those who, due to death, incapacity, or other reasons, leave the practice of law without warning.
Then there's the one topic that few want to talk about: attorney suicide. It is an ever-present risk that continues every year with steady frequency in some of the most unexpected situations.
All of these events have implications that extend well beyond the termination of a business or business relationship.
For attorneys, obligations to clients and the courts extend well beyond retirement, incapacity, or death. For example, the attorney-client privilege remains even after either the client or the attorney dies. See HLC Props., Ltd. v. Superior Court, 105 P.3d 560 (Cal. 2005) (noting that, under California law, privilege survives client's death but may be asserted only for so long as the deceased client's estate is being administered). Further, potential claims for services rendered years ago remain a risk even after an attorney has retired or died. Because of an attorney's unique fiduciary duties, law practices often face some of the greatest challenges in the one area where they are least prepared: the unexpected departure of an attorney.
When an attorney departs without warning, an unprepared law practice can be thrown into chaos. And the simple truth is that most firms and attorneys are unprepared.
As a result, many law practices do not have a plan for how to transition cases, who should assume management of the departed attorney's responsibilities, or even who will take the lead in delegating that attorney's work. Most do not keep a list of important information, such as relevant accounts and passwords. Instead, when the attorney leaves unexpectedly, they are left with an inbox full of emails, a file full of contacts that few people know about and a calendar full of commitments. Those are not enough.
The potential risks associated with this lack of preparedness are clear. These practices risk a lack of leadership, lost files and documents, missed deadlines and court appearances, failed communication with clients, and the inability to access key files and accounts. Thus, this lack of preparedness only increases the practice's risk of potential malpractice claims.
Every law practice and every attorney can take steps to prepare for the unexpected, including the protocols and procedures outlined below. Needless to say, these steps should be tailored to the individual circumstances of each law practice.
Create a protocol
Even in the absence of death, partners may leave for extended periods of time due to illness, impairment or other life events. Attorneys cannot decide when these kinds of things will happen to ensure everything is ready when it does. Therefore, the best time to prepare for an extended leave is when there is no imminent situation requiring rushed decisions and quickly created solutions.
The starting point is an extended-leave protocol. Typically, an extended leave of absence includes any time an attorney is unable to actively manage her case load on a daily, full-time basis due to injury, illness, family matters or other reasons.
Because law practices vary, each law practice can adjust the actual amount of time away that triggers its own extended-leave protocol. For many practices, a leave of absence for more than three consecutive weeks triggers action. If the law firm's legal malpractice or disability insurance policy addresses this issue, then those policy terms should control the length of time used in the firm's protocol.
In reasonably foreseeable situations that will trigger time away from the office, such as a medical diagnosis or a non-debilitating accident, the impacted attorney can implement the extended-leave protocol. If the extended leave is indeed unforeseen, the firm's management will have to implement the protocol. To be effective, the protocol should be in writing and should be distributed to all attorneys and staff.
The best protocols include an outline for managing the law practice in the attorney's absence. Rarely does this protocol mean that another attorney just steps into the shoes of the attorney on leave. Instead, the guidelines depend on sharing detailed information with other attorneys, including open matters, client responsibilities, deadlines and a strategy for using that information to manage the absent attorney's practice.
Of course, the key to a successful transition protocol is a predetermined plan of action for using the best available resources.
Maintain key firm management lists
Another key component of any law practice's emergency protocols and procedures is a regularly updated attorney practice management packet that includes: (i) a client contact file; (ii) an exportable calendar entry file; (iii) a "cast of characters" and timeline for every file; (iv) an ongoing tasks list; and (v) a complete open client/matter list with the name of the employees working on each matter.
In addition, every attorney should have a list of log-in accounts and any associated user names and passwords, including daily use accounts such as email, voice mail, calendars, state bar memberships and research accounts. It also should include any firm management related accounts, such as bank accounts, credit cards, firm properties, storage facilities and key firm service providers such as vendors and insurers. Finally, this data packet should include the employee's home address and personal email and phone number so the attorney may be contacted in the event of an emergency, including an unexpected departure by any firm lawyer.
This process is designed to enable the portability of a legal representation. It also serves as an effective building block for building a growing law practice into the future.
There is nothing more frustrating than dealing with an unexpected departure only to find that while all of the necessary information exists, no one knows where it is, how to get to it, and what the user names and passwords are.
Specify what happens
When planning for the unexpected, consider two sources for defining exactly how, when and what happens. First, the partnership agreement or employment agreement can address many of the responsibilities and obligations of both the law practice and the attorney. Of course, these provisions must comply with all applicable employment laws, rules, and regulations. But beyond that, these provisions may operate to protect both the interests of the law practice and the attorney.
Second, the attorney can vest a myriad of responsibilities in an executor or trustee through appropriate estate-planning documents. This can include living wills, trusts and powers of attorney with specific limitations and conditions for use.
By planning ahead and implementing a protocol, a law practice can prepare for the unexpected.
As published by The Recorder