This is part two of the previous post about some of the obstacles as well as rewards of solo and small firm lawyers getting their disability and death plans in place. In the first part I mentioned I was posting this due to my participation in the American Bankruptcy Institute’s Rocky Mountain regional conference. Next month I will be putting on a similar program for the Aurora Bar Association.
Let’s dive in with (a review of) Kipling’s serving men –
I keep six honest serving-men
(They taught me all I knew);
Their names are What and Why and When
And How and Where and Who.
. . .
The Elephant’s Child, by Rudyard Kipling.
We’ll begin where we left off, with the fourth serving man. . . .
Here’s the fourth man, HOW . . .
Well, you can always start with a simple plan, which involves another person (the sixth man is “who”). It’s best to start with a person in mind to help you (known in the appendix as the “assisting attorney”) because it’s often easier to get going with this plan if there are two of you who are holding each others’ feet to the fire, so to speak. If you can’t think of another attorney with whom you can get started, try a request on the BR listserv or ask on the SSF listserv.
Don’t let the fear of confidentiality and conflicts (as in the CRPC variety) stop you in your tracks. Any arrangement to manage or take over the lawyer’s practice must include appropriate protections for client confidentiality. The assisting lawyer taking over must beware of conflicts and must safeguard confidential information. The assisting lawyer should be introduced to or familiar with office staff. Staff or family members of an affected lawyer need to know how to contact the assisting lawyer in the event of disability or death. They need to know where any agreements, powers of attorney, or other planning documents are located. Family members and the PRs should be advised of the arrangements so they know of their existence and any important provisions. Instruction letters could prove invaluable and of course an office procedure manual would be ideal to help locate and decode the affected lawyer’s system.
A more advanced plan and even the super deluxe plan aren’t rocket science as such (unless you have an engineering background). Lloyd Cohen’s ABA book Being Prepared is very useful in this regard AND it’s available from the CBA’s lending library.
Enter Kipling’s fifth, WHERE.
This one is up to you! Meet somewhere with your law partner, a trusted colleague, a family member or office staff at a place and time where you can get started on the difficult conversation that leads to . . . the documents. The documents need to be kept in a safe place where your assisting attorney can have access to the documents in the event they must be used or held by a third person like an escrow holder. At a minimum you will need an easily understood and complete filing system with access by someone who has some familiarity with the system.
And last but not least, there is WHO.
This can be a very challenging detail – on whom can you rely for this type of assistance? Will it be asking too much of the person? These are not easy questions to answer, but many of us deal with these questions regularly in representing our clients. The arrangement you make with the assisting attorney should establish the scope of the assisting attorney’s duty. Will the assisting attorney be the personal attorney for the deceased or incapacitated lawyer? This can be an important distinction. If the assisting attorney personally represents the deceased or incapacitated lawyer, in the event he or she discovered malpractice or ethical violations in any matters, the assisting attorney would not be able to inform the clients and also the assisting attorney could not represent the clients. If it is intended that the assisting attorney take over representation, then he or she would not be the personal counsel for the deceased or incapacitated attorney and must obtain each client’s consent to representation.
The compensation of the assisting attorney should be addressed, as should the matter of staff support to assist the assisting attorney in performing his or her duties and arrangements to pay for these services. If you are looking for more inspiration about the intersection of (1) what to avoid by planning and (2) how a community of lawyers came together to help one of its own, read this 2013 article from the ABA Journal.
Okay, we’re finished with Kipling’s serving men, and I hope they have helped demonstrate how simple this process can be (note: I did not say it was easy). Just in case you need a little extra ethics ammo to get you motivated, take a look at the American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-369, December 7, 1992, Disposition of Deceased Sole Practitioners’ Client Files and Property, which provides:
To fulfill the obligation to protect clients’ files and property, a lawyer should prepare a future plan providing for the maintenance and protection of those client interests in the event of the lawyer’s death. Such a 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.
Many state bars require such plans of solos (our neighbor Wyoming, for example). Colorado does not – let’s not give OARC a reason to require this of us – plan now! If you are looking for more ideas by way of checklists, LDPOAs, casualty letters, and other documents associated with this planning, and you are a solo attorney and have a question about my forms, get in touch!
©Barbara Cashman 2015 www.DenverElderLaw.org