Step Up When Stepping In
Unlike big-firm counterparts who can trace their firms’ roots back a hundred years to the long-deceased lawyers who gave them their names, most solo attorneys’ firms have exactly the same life span as their founders’ careers.
So what happens when the firm of “Joe Lawyer, Esq.” folds because of the retirement, incapacity or untimely death of its sole licensed practitioner? And if you’re the lawyer who takes the call from Joe or his family, asking for help in sorting out his firm’s affairs and possibly taking Joe’s clients, where do you start? And how do you protect yourself from potential malpractice claims or ethical issues arising from your attempt to help out a fellow solo?
The answers depend in part on whether the attorney’s withdrawal from practice is voluntary and planned, or comes suddenly as a result of illness or tragedy, says Arthur Macomber, a solo in Coeur d’Alene, Idaho.
If the lawyer is retiring, the new attorney should take the time to meet with the retiring lawyer’s biggest regular clients. The retiring lawyer might offer to introduce his clients and recommend that the client hire the new attorney.
“You have to ask, ‘How compatible are these people? Is there a good personality match so that the clients will feel comfortable with the new person? Do they practice in the same areas of law?’ ” says Macomber.
Toward a Smooth Transition
The retiring attorney should be available for consultation to facilitate the transition. In addition, old and new attorneys should work out a compensation schedule that considers the good will the retiring attorney generated with the clients left behind. For example, a portion of the fee may be going to the retiring attorney to compensate for good will. In many jurisdictions, that agreement must be disclosed to the client just as with any other fee-splitting arrangement. Both attorneys must be careful to inform clients in writing that they are not obligated to hire the new attorney, Macomber says.
All state ethics rules hold that the choice of representation is the client’s, he notes. So, while the old attorney may recommend his replacement, he must do more than simply tell the client that he’s turning over all of his business to the new attorney. Clients should be offered the chance to pick up their files and seek other counsel if they choose, says Macomber.
When a lawyer dies suddenly or is rendered incapable of continuing to practice, the situation gets more complicated. For a lawyer who gets a panicked call from the spouse of a fellow solo, the desire to help the family should not outweigh ethical obligations, says Jett Hanna, vice president of underwriting and administration for the Texas Lawyers’ Insurance Exchange, a malpractice insurer in Austin, Texas.
If the ailing lawyer does litigation, the first step for the replacement attorney is to gain access to the office and review pending files. Notify relevant courts where hearings are scheduled, and ask what the court wants done. In some jurisdictions, the court or local bar association will appoint someone to step in. In others, the court may simply continue the case until the client can find new counsel.
If the new attorney must make an appearance for a client at a hearing before the court can be notified, the lawyer should contact the client first and ask permission to step in. If there is not enough time to fully review the client file, the attorney must make clear to the client in writing that the appearance is solely to notify the court and seek a continuance.
Clients without pending court hearings must also be notified by letter. But before offering to step in, do the same sort of review you would do before taking on any new client, Hanna says.
First, make sure you are qualified to handle the case. Second, make sure you don’t have a conflict of interest with the client or anyone connected to the case. Third, make sure you have a clear idea of the case status and are sure you can pick up the work your predecessor was doing. You don’t have to handle the case exactly the same way, but you should be able to go forward without starting from scratch. If you find a serious problem with a client’s case, let the client know. As in the case of the retiring lawyer, let clients know even in emergencies that they are free to hire other counsel.
For clients who elect to hire you as their new attorney, make sure you sign an engagement letter that spells out the date you became responsible for their case and other specifics to make sure you are not held liable for whatever may have happened before you took over.
In situations where the old attorney’s estate may have a claim to pending receivables, advise the family to hire its own counsel to protect its financial interests. All lawyers should have an agreement with another local attorney to step in for each other in an emergency. Sometimes the emergency may last for half a day, as with conflicting hearing times. But the agreement should also address a long-term or permanent need to help each other’s clients, says Emily Eichenhorn, a risk-control consulting attorney for the CNA insurance company in West Bloomfield, Mich. Family members should be told to call the other attorney in an emergency if the lawyer is unable to do so personally.
It’s important for all lawyers, especially solos, to have a complete, up-to-date client list, including contact information. The list should be stored in more than one place in case the lawyer’s office is destroyed or inaccessible, Eichenhorn says. Since best practices dictate off-site backup of computer systems, the client list should also be regularly backed up, she notes. Make sure that a trusted family member or friend knows how to access this list and whom to give it to in the event of incapacity or death.
And when you get that call, be prepared to act to protect your colleague’s clients, family and reputation without sacrificing your own, says Eichenhorn.
“Take a good look at what’s pending and triage. Make sound decisions. Call the local bar and ask for help and advice. And by all means, call your predecessor’s malpractice carrier and let them know what’s going on.”
