The State Bar Association of North Dakota Winter 2014 Gavel Magazine | Page 12

Succession Planning
Really Isn’t Optional

(Particularily for the Solo Attorney)

Mark Bass

ALPS Risk Manager

At ALPS, be it from RISC visits, on ap
plications for insurance, or at CLE events
we continue to find that a significant
number of solo practitioners have yet
to take the step of creating a succession
plan.
When working with these attorneys
our message is always the same, if no
plan is in place, now is the time. You
really don’t want to leave the headache of
having to deal with stacks of closed files
to an unsuspecting non-lawyer spouse,
and yes, such calls continue to come in.
Always remember that someone paid
for the production of every file you have
in your possession and that someone
has an interest in their file. We all know
that client property cannot be destroyed
whenever an attorney feels like doing
so; but of course, non-lawyer spouses
aren’t bound by our rules, and it happens because they don’t know what else
to do. Heaven forbid that post attorney
death and after a grieving spouse has
had all the old files destroyed, a certain
file is needed to properly defend against
a claim of malpractice. Making matters
worse, it turns out that there is no insurance in place to cover the fallout of the
claim because no one knew they had to
timely contact the malpractice carrier in
order to purchase tail coverage after the
attorney passed. The end result is that
the deceased attorney’s estate may now
not be what everyone was counting on it
being. The failure to plan can end badly;

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but wait, there’s even more.
Rule 1.3 of the ABA Model Rules of
Professional Conduct addresses diligence. The Rule reads, “A lawyer shall act
with reasonable diligence and promptness
in representing a client.” Most attorneys,
if not all, are well aware of this rule. As
lawyers, we are to act with commitment,
dedication, and where appropriate even
zealous advocacy. Our workloads are to
be reasonable so that all matters can be
resolved competently. Procrastination
is an enemy to be avoided at all costs;
for it has and will continue to lead to
malpractice claims if and when clients
are ever harmed as a result. In the end
we are all to strive to deliver our services
in a professional, competent and timely
fashion. Yet our obligations do not end
here. There is an obligation to prevent
neglect of a client matter post attorney
death or disability.
In 2002 the comments to ABA Model
Rule 1.3 were amended with the following language. Comment 5 now states,
“To prevent neglect of client matters in the
event of a sole practitioner’s death or disability, the duty of diligence may require
that each sole practitioner prepare a plan,
in conformity with applicable rules, that
designates another competent lawyer to
review client files, notify each client of the
lawyer’s death or disability, and determine
if there is a need for immediate protective
action.” Given all that I have seen and
experienced over my years with ALPS, I
personally have trouble coming up with
a set of circumstances where I would feel
comfortable saying no such plan would
be required for a solo. The only question
for me is how to get there.
The most important aspect of planning for your death or disability is in the
designation of an attorney who will be
responsible for administering the winding down of your practice. This attorney
should be competent, experienced, and
someone who displays the utmost professionalism. This person should have
the time, or the ability to make the time,

to come into the practice. She must be
able to make rapid decisions and assume,
at least for a period of time, something
of an additional practice. Now remember that the purpose of the designated
attorney is not to come in and take over
the practice but rather to take the lead
in winding down the practice. It’s about
being expeditious with file review, client notification, protective action, and
transitioning files to other attorneys.
Perhaps these responsibilities could even
be shared among a select group if time
constraints are a concern. Obviously, the
designated attorney ought to be someone
quite familiar with your practice areas
and also not likely to have a significant
number of conflict concerns arise as a
result of ever having to step in. Finally
don’t overlook the importance of making
certain that appropriate employees are
aware of who the designated attorney is
and how to contact this individual in an
emergency. One added benefit of choosing a designated attorney (and often this
is a reciprocal designation) is that this
individual can also act as your backup
attorney thereby allowing you to take
extended absences from your office for
work, pleasure, or health reasons.
Beyond designating an attorney, there
are a number of other things that should
be done with your practice if they are
not already taken care of. Consider providing notice of the existence of and reason for a designated attorney in your fee
agreements so that clients are aware of
the steps you have taken to protect their
interests in the event of an emergency.
Maintain a current office procedures
manual that discusses the calendaring
system, conflict system, active file list,
open and closed file systems, accounting
system, and any other key system as this
can be valuable in expeditiously bringing
the designated attorney up to speed on
how your practice is run. It is imperative
that critical systems such as the calendar
and conflict systems be kept current at
all times and make certain that all files

The Gavel Winter 2014