Many thanks for the outpouring of support.  The healing vibes mean more than I can adequately express. Now, back to our regularly scheduled programming!

Today, I have tips for lawyers in firms of all sizes.

For smalls & solos, plan for emergencies & disasters!

For larger firms, plan for emergencies & disasters!

Sometime people ask “Mike, what’s the worst misconduct you’ve seen?” I’ve certainly seen a lot. However, I tend not to focus as much on the nature of misconduct as its impact on clients, the lawyer, and the lawyer’s family.  Of course, misappropriation is as bad as it gets.  Still, when it comes to the adverse impact on a lawyer’s clients and family, there’s not much as damaging as the fallout from a lawyer’s failure to prepare for their own unavailability.

Simply, what will happen if you’re not around? Not only to your clients, but to your family and loved ones stuck with cleaning up.

Consider a succession plan.[1]  Even something as simple as a list of your clients and instructions on how to access your calendaring system is better than nothing. Ideally, and as recommended here by the American Bar Association, “recommended items for an effective succession plan completed in conformity with applicable rules include, but are not limited to:

  • Written instructions concerning how and where client information is stored, including bank and other account details (e.g., operating and trust account information);
  • Information concerning disposition of closed client files, information about law office equipment leases or other contracts;
  • Information regarding payment of current liabilities;
  • Instructions to gain access to computer and voicemail passwords; and
  • Information detailing how the successor will be compensated.”[2]

Of course, emergencies, tragedies, and calamities aren’t reserved for smalls and solos.  So, a few years ago, I posted Is your firm prepared for a disaster?  I did so in response to the ABA Standing Committee on Ethics and Professional Responsibility release of Formal Opinion 482: Ethical Obligations Related to Disasters.  Here’s what 2018 me wrote:

  • I’d say that the key takeaway from the opinion is this:

Or, as the Committee elaborated:

  • “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”
  •  

My thinking hasn’t changed.

In conclusion, I doubt the phrase originated with basketball coaches, but it’s one that we use a lot:  failing to plan is planning to fail.  When it comes to planning for their own unavailability, the same can be said for lawyers and law firms.

As always, let’s be careful and kind out there.

[1] Rule 1.3 requires a lawyer to act with reasonable diligence when representing a client.  Comment [5] states that “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 accordance with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

[2] The VBA’s disaster planning resources have are on the lower left of this page.  Additional resources are available from the Washington State Bar Association,  South Carolina Bar Association, the State Bar of Nevada, the Knoxville Bar Association, and the Maryland Bar Association.