The start of a new year presents a perfect opportunity for attorneys to reflect on 2016 and to make plans for what might come in 2017. An important part of this process is to assess whether a law firm has adequate contingency plans in place to cover the unexpected, including changes in income, staffing and the nature of the firm's practice.
Many attorneys are choosing to delay retirement, if they retire at all. However, others may choose to abruptly leave the practice of law for a variety of reasons (such as moving in-house) and, unfortunately, there are those who, due to death, incapacity or other health or personal reasons, leave the practice of law unexpectedly. As the boomer generation gets older and considers retirement, the issue of succession planning becomes more important for firms and individual attorneys.
Each of these events can have implications that go well beyond simply the end of a business relationship. For attorneys, obligations to clients and the courts are not terminated due to retirement or even incapacity or death. The attorney-client privilege, for example, typically lives on after either the client or the attorney dies.
In addition, potential claims for services rendered years ago remain a risk long after an attorney has left the firm. The unique fiduciary duties associated with law practices can create challenges for a law practice that is not prepared for the unexpected departure of an attorney.
For example, some law practices may not have a plan for how to transition cases from the departed attorney to others or even who will take the lead in making such decisions. Instead, law firms can be left with an inbox full of emails, a list of contacts that few people know and a calendar full of commitments.
There are many potential risks associated with a lack of preparation, including a lack of leadership, lost files and documents, missed deadlines and court appearances, a failure to communicate properly with clients and the inability to access key files and accounts. Each of these risks can lead to a potential malpractice claim.
Indeed, in recognition of the associated risks, Georgia Rule of Professional Conduct 4-105 provides that an Investigative Panel shall address situations where an attorney's death or incapacity poses a substantial threat of harm to clients or the public and recommend action where no partner, associate or other appropriate representative is available to prevent the harm.
To avoid such circumstances, there are certain steps that may help any law practice prepare for the unexpected, including the protocols and procedures outlined below.
Consider implementing an extended-leave protocol
A partner leaving for extended periods due to illness, impairment or other life events can have the same effect as a permanent departure from the firm. The best time to prepare for an extended leave is when there is no imminent situation requiring rushed decisions and solutions that are not well thought out.
A good starting point to consider is an extended-leave protocol. Such a protocol could be used any time an attorney is unable to actively manage her or his case load on a full-time basis due to injury, illness, family matters or other reasons.
Each law firm can determine what works best for its clients and its attorneys. Law firms can establish a length of time, three weeks for example, before the protocol will take effect. If the law firm's legal malpractice or disability insurance policy addresses this issue, then those policy terms might provide insight.
In reasonably foreseeable situations that will trigger time away from the office, such as a medical diagnosis or a nondebilitating accident, the impacted attorney can play a role in implementing the extended-leave protocol. Where the leave is unforeseen, another individual will have to take charge. These procedures are most effective when set forth in writing and distributed to all attorneys and staff before a situation arises.
Because it is not always easy for another attorney to step into the shoes of the attorney on leave, the protocol can provide for the sharing of detailed information with other attorneys, including with respect to open matters, client responsibilities and deadlines. By using all available resources and implementing a predetermined plan of action, the transition can go as seamlessly as possible.
Create key firm management lists
Even if there is a plan in place upon an attorney's departure, sometimes the risk comes from the successor attorney having no idea where to start with a file. Many law firms, therefore, will consider as part of their emergency protocols an 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 the file (where applicable); (iv) an ongoing tasks list; and (v) a complete open client/matter list with the name of the employees working on each matter.
If possible, it would be helpful for the attorney to provide information regarding user names and other log-ins for voicemail or email (if not already possessed by the firm). Depending on the practice, it may also be appropriate to provide information for firm-related accounts, such as bank accounts, credit cards, storage facilities and key firm service providers such as vendors and insurers. Finally, this data packet can include the employee's home address, personal email and phone number so she or he may be contacted in the event of an emergency, including an unexpected departure by a firm lawyer. Firms dealing with such information typically must also take care to safeguard such confidential information.
While this process is designed to enable the portability of a legal representation, it can also serve as an effective building block for growing a law practice into the future.
Make clear plans
Law firms may consider two sources for setting forth protocols in the event of an attorney departure. First, law firms can set forth the responsibilities and obligations of both the law practice and the attorney in the partnership agreement or the employment agreement. These provisions must of course comply with applicable employment laws and regulations.
Second, an attorney can vest responsibilities relating to her or his law practice in appropriate estate-planning documents. This can include living wills, trusts and powers of attorney with specific limitations and conditions for use.
With these protocols in place, a law firm can be ready for the unexpected in 2017.
Many potential risks are associated with a lack of preparation, including a lack of leadership, lost files and documents, missed deadlines and court appearances, a failure to communicate properly with clients and the inability to access key files and accounts.