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Failing To Plan For Attorney Incapacity Is A Plan For Failure

September 14, 2017


Lawyers Professional Liability Insurance, Attorneys Malpractice Insurance


      Every trusts and estates lawyer knows the importance of planning for the possibility of incapacity or the eventuality of death. They encourage people to lay out their directions ahead of time and discuss them with loved ones, all to help insert some order amid the chaos that often surrounds illness or death.

      Such advance planning is equally important for law practices—especially solo practitioners—to help avoid malpractice or ethical problems when an attorney dies or is disabled in some way.

These steps can help avoid trouble for those stepping in on your behalf:

Get advance authorization from clients for sharing of information with a successor Attorney.     

      Ethics rules prohibit the sharing of client information—including the very fact of representation—with anyone outside of the firm the client hired without the client’s permission. This obligation of confidentiality extends beyond the attorney’s death (or the firm’s demise), and to non-attorney personnel of the firm. Thus, if a solo practitioner dies, there may be no ethical way for anyone to even look through her files to figure out how to contact clients and get them moved to other representation.

      You can avoid this problem by including in your engagement agreement an advance designation of an authorized successor or stand-in attorney, or even authorization to allow a legal or administrative assistant to access minimum client information for the limited purpose of notifying the client of their attorney’s incapacity or death.


Keep an up to date list of all clients and their contact information.       

      While this seems like something necessary to day-to-day firm operations, often successor attorneys can’t confirm that they’ve got a complete list of an attorney’s clients. Best is to use client management software that automatically records client contact information and connects it with any work done for that client. It is important that the list includes clients for whom your work may currently be dormant but who would still need to be notified should you be incapacitated. This could include escrow assignments, estate document storage or matters requiring only annual action.


Make Sure At Least One Designee Can Access Your Physical And Electronic Files

      In this digital age, the biggest challenge may be ensuring that a successor or stand-in has access to all of your information. This means, at base, knowing passwords for your email accounts, your case and client management systems, and your banking interfaces. One way is to use any of a number of password keeper programs and designate one additional trusted person as having access to it.

      Similarly, you should designate at least one other person as an administrator on your firm’s website and social media platforms so that they can change or dismantle your firm’s presence on the web.

      Don’t overlook your physical files; ensure someone knows where your keys are, including keys to lock boxes at banks


Put It In Writing

      Document all of this information in writing, and provide a copy to a trusted advisor, officemate, or family member.

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