Sole practitioners and attorneys in small firms should give serious consideration to creating and implementing a succession plan in case the attorney suffers a sudden health crisis. Doing so will help you protect your clients as well as your family, your employees and possibly your practice, if you are suddenly unable to continue in practice.
The terms “sudden health crisis succession plan” and “sudden health crisis emergency plan” are used largely interchangeably throughout this information, but the hope is that forward-thinking lawyers will create a “succession” plan in advance to avoid the need to create and execute an “emergency” plan after the fact of the lawyer’s disability.
By arranging in advance for either the temporary management or the permanent closing of your law practice in the event of a sudden health crisis, your ongoing client matters can be handled in a timely manner and your clients better protected. Your sudden health crisis will be less likely to cause a court date or other deadline to be missed or your clients’ interests damaged. Creation of a sudden health crisis succession plan will also help assure that your family’s financial interests in your law practice is protected. If you do not create a sudden health crisis plan and the State Bar appoints a receiver for your practice, the receiver may not protect your claim for fees owed by your clients, which could adversely impact your family and your practice.
For a more comprehensive and detailed analysis of the topic, please refer to the following papers:
All three of these papers have excellent forms that can serve as a model, but each must be tailored to the specific needs of your practice and the requirements of Georgia law.
You can do many different things now to plan for a
sudden health crisis.
You can do other things in advance to help smooth the transition. One often overlooked item is to develop a clear, thorough and written set of procedures to run your office most efficiently even before suffering a sudden health crisis. The specifics of such office procedures are beyond the scope of the information listed here, but the State Bar’s Law Practice Management Program has many helpful resources. At a minimum you should have a detailed office manual which explains all facets of the workings of your office. Whether you have a sudden health crisis or not, clear written office procedures will increase your profitability, permit you to take more time away from your business with less stress and ensure a good transition whenever you decide to stop practicing law for any reason.
At a minimum, you should maintain a complete electronic list of all active cases/matters/clients, including relevant deadlines, contact information for the client, court and opposing counsel, if applicable. It is imperative that this list be kept up to date. A reliable member of your team should be assigned to maintain the list, and you should check it monthly to ensure your team member is doing the job properly. Good practice management software can go a long way to ensuring that this list is created and well maintained.
You should also develop clearly defined roles and job descriptions for all of your office personnel. These roles should be in writing. Not only will creating clear, written, well-defined roles help in the event you suffer a sudden health crisis, it will also better help your staff understand the jobs they are to do, as well as the ones they don't need to worry about doing. In other words, clear job descriptions will improve your office efficiency.
In addition, you should give serious consideration to adding language to your will and any financial power of attorney you may execute (for use in the event that you are alive but unable to function after a sudden health crisis) as indicated below.
In discussing transition issues with your transition person, you should also discuss the possibility that you may have a sudden health crisis of temporary duration and might expect to return to practice in the future. This is particularly important if your sudden health crisis is not so sudden, and you have some time to speak with your transition person in advance of your disability. It is critically important for your transition person to know whether it is possible that you might return to your practice in the future so that steps can be taken to minimize the adverse impact on your practice from the sudden health crisis.
The possibility of your future return to practice should also be discussed with your Designated Attorney to ensure that steps can be taken to return to practice to you when you're able to resume the practice.
An Estate Executor’s Checklist is available here, and it may be of further assistance to you in setting up your plan.
Encourage coordination and cooperation among the three people or groups of people you have charged with helping you following your sudden health crisis: your Designated Attorney/succession “buddy,” your key staffer(s) and your personal transition helper (spouse, significant other, child, etc.). If these people don’t know one another, have a joint meeting with them once you have created your plan and before any sudden health crisis may strike you. Request that they meet jointly as soon as possible after any sudden health crisis strikes to begin implementing your plan. Make sure all three people have full contact information about one another.
Make sure your personal transition person and/or your conservator or executor has full information about your personal assets and liabilities as well as those of your business, describe where they (or their documentation) are located, and indicate what you think they are worth. In addition to assets and liabilities, include information about your income and expenses, and indicate where copies of your prior tax returns (income and gift tax) are kept.
You should also give this person a list of the documents governing your estate plan, such as wills, inter-vivos trusts, business buy-sell agreements, advanced directives (combination of the old living will and durable power of attorney for health care) and any financial power of attorney documents, and note where they are located. This person should also know about your professional advisers whose services may be needed in settling your estate and closing out your practice, such as your preferred probate lawyer and your accountant. Identify coverage you have under any life, property, medical, hospital, accident and credit life policies, and note where the policies are located.
While your preferred probate lawyer can help your personal transition person identify who is to be notified in the event of your disability, some of these people include family, friends, business associates and colleagues in bar association and civic activities as well as any special instructions or messages to give to them.
With regard to your key staffer, items to discuss in your plan should include contacting the Designated Attorney to transfer active files to clients; contacting a (perhaps a different) lawyer to wind up your law practice; checking on and dealing with any statutes of limitations and court appearances and deadlines by notifying courts and opposing counsel of your sudden health crisis; notifying clients of your disability; disposing of closed or inactive files; billing and collecting fees and expenses on all open files; closing your office and disposing of your office furniture, equipment, library and other tangible assets; deciding who will be authorized to draw checks on the office account (including any trust accounts for client funds); refunding any unearned trust/escrow account funds; continuing of employment of your office manager, paralegal, secretary or other staff while your office is being closed out; handling subletting or terminating the lease on your office space occupancy and any leased equipment; paying current liabilities (such as utilities, rentals, debt service, salaries and wages, payroll taxes and benefits, service agreements, subscriptions); making appropriate arrangements to discontinue any legal directory and other listings and professional memberships; collecting accounts receivable and writing off uncollectible accounts; notifying your malpractice insurance carrier of your disability and purchasing any “tail” or similar appropriate insurance given your change in status; and ensuring any tax returns and tax liabilities (income and payroll) are handled timely.
For the benefit of your clients, employees and your family, it would be a good idea for you to organize vital information regarding your law practice in case you were to be temporarily or permanently unable to practice law. Writing a few notes now can save countless hours and great expense later when someone has to blindly go through your office to ensure clients aren’t damaged by delay in their case. Take the time to gather together information about your practice that would enable another attorney to keep your practice running while you recover or wind down your practice, if you are unable to return. A good way to get this information into the hands of someone who can assist is to compose a letter. It is recommended that you review and update your letter periodically so you may reflect changes in important software, filing systems, personnel, banks, practice areas, etc. You may find the following letter a good, basic starting point for creating your sudden health crisis succession plan: Emergency Letter for a Law Practice. Feel free to tailor it to your situation.
A Law Firm List of Contacts form is also an excellent idea. See, e.g., the Michigan paper, p. 18.
Finally, you should review the webpage addressing the issues that confront staff and family of lawyers who suddenly become disabled without a sudden health crisis succession plan. Reviewing this information will likely help you come up with additional items and areas your own plan should address.