Presentation on theme: "Elizabeth A. Alston Alston Law Firm, LLC 985-809-6779"— Presentation transcript:
Elizabeth A. Alston Alston Law Firm, LLC 985-809-6779 http://ethicsbyalston.com firstname.lastname@example.org
Andy "The Animal" Anderson's practice includes a Jot of trial work encompassing personal injury cases, high-end domestic matters and high- profile criminal cases. Andy is involved in an automobile accident and severely injured. What issues does he face? Unfortunately, Andy dies. How does this affect his practice? What if there is some money in his trust account owed to a missing client?
Edward Jacobs has a large bankruptcy practice. To make the numbers work he has a large volume of open cases. Jacobs assisted several clients in committing bankruptcy fraud and got caught. After disciplinary proceedings he is disbarred. Can Edward work as a paralegal? Edward remains unemployed and is evicted, what happens to his files?
Mary Masterson has a nice practice doing estate planning. A larger firm "Mega Law Firm" wants her to join their firm what issues does she face? Several years after joining the firm Mary decides she hates the firm and is so distraught she wants to quit practicing law altogether. What happens to old cases and files? New cases and files? What if Mary has original copies of documents and wills?
It’s not something we think about every day, but we should have planning in place in the event of our Death Disability Kidnapping Voluntary departure from law office
Preparing the Client Lawyers in any kind of practice can envision how their departure will affect the client. Government lawyers: have you imparted the skill and knowledge you have acquired to another lawyer in your department, so that your governmental client will not be crippled by your departure?
Preparing the Client As the client of a lawyer in private practice, wouldn’t you feel more comfortable if you knew your lawyer had a contingency plan in the event he or she became unavailable?
Preparing the Client For lawyers in private practice, in firms large and small, have you considered acquainting your clients with your colleagues who would be expected to cover your practice if you are missing.
Preparing the Client A suggestion for the solo practitioner’s engagement letter: “My disability or death. I have made arrangements for other ethics counsel to come in and inventory my files upon my death or disability. Having another lawyer come in to my office and quickly review my files with my staff will ensure that the progress of your matters is maintained during my short-term disability. (cont’d)
Preparing the Client “It will also facilitate your transition to the lawyer of your choice in the event of my long- term disability or death. By signing this letter below, you consent to review of your files by my substitute ethics counsel, who will not take any steps in your matter without first communicating with you.”
Preparing the Client LSBA Ethics Counsel’s suggested engagement Letter or contract clause: In the event that due to an emergency situation your lawyer [name] becomes incapacitated or dies you the client authorize [transition lawyer] to step in and take whatever reasonable steps are necessary on a limited and temporary basis to protect the client's interests until client can hire new counsel.
Notifying the Client LSBA Ethics Counsel’s proposed language for voluntarily closing your practice: As of [date], I will be closing my law practice due to [reason]. I will be unable to continue represent you. I recommend that you hire another lawyer to complete this matter immediately so as not to prejudice your case. The following are a list of lawyers who you may wish to consider contacting, but please note that you can hire whatever lawyer you choose. Please contact me to come in and get your file or notify me in writing where to send same. If you or your new lawyer would like to communicate with me, please contact me at the following address or telephone number.
Notifying the Client LSBA Ethics Counsel’s proposed language for involuntary closure of office: Unfortunately, [lawyer's] law practice is closing due to [reason]. I have been designated the transitional lawyer to assist you with obtaining a copy of your file and finding new counsel. I recommend that you hire another lawyer to complete this matter immediately so as not to prejudice your case. The following are a list of lawyers who you may wish to consider contacting, but please note that you can hire whatever lawyer you choose. Please contact me to come in and get your file or notify me in writing where to send same. If you or your new lawyer would like to communicate with me, please contact me at the following address or telephone number.
RPC 1.16(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. (cont’d)
RPC 1.16(d) cont’d Upon written request by the client, the lawyer shall promptly release to the client or the client’s new lawyer the entire file relating to the matter. The lawyer may retain a copy of the file but shall not condition release over issues relating to the expense of copying the file or for any other reason. The responsibility for the cost of copying shall be determined in an appropriate proceeding.
LSBA Public Opinion 05-RPCC-001 “Lawyer Retirement – Ethical Requirements to Client”
LSBA Public Opinion 06-RPCC-008 “Client File Retention”
Preparing the Client If the solo practitioner has no plan, the clients may find themselves being contacted by a court-appointed lawyer pursuant to Louisiana Supreme Court Rule XIX, §27, “Appointment of Counsel to Protect Clients' Interests When Respondent is Transferred to Disability Inactive Status, Suspended, Disbarred, Disappears, or Dies.”
Preparing the Client A. Inventory of Lawyer Files. If a respondent has been transferred to disability inactive status, or has disappeared or died,... and no partner, executor or other responsible party capable of conducting the respondent's affairs is known to exist, the presiding judge in the judicial district in which the respondent maintained a practice... shall appoint a lawyer or lawyers to inventory the files of the respondent, and to take such action as seems indicated to protect the interests of the respondent and his or her clients.
Preparing the Client B. Protection for Records Subject to Inventory. Any lawyer so appointed shall not be permitted to disclose any information contained in any files inventoried without the consent of the client to whom the file relates, except as necessary to carry out the order of the court which appointed the lawyer to make the inventory.
Preparing the Successor For lawyers in law firms, does the firm or the section in which you practice have a policy whereby one or more lawyers is acquainted with how you keep your files and how to access them? Have you considered having one or more lawyers “shadow” your practice for a day or more?
Preparing for the Successor Are your client matters in sufficient shape so that your designated successor can easily determine the status of each matter? Is there a paralegal, assistant, secretary, or lawyer who knows where your files are kept (hard copies and electronic copies) and how to access them?
Preparing for the Successor Have you given your passwords to a trusted person, or stored them where they can be found? Have you done the same with keys necessary to access your office, documents, safe, etc.?
Preparing for the Successor In a solo or small firm practice, have you considered making arrangements for a successor or transitional lawyer to assist your clients? This lawyer could inventory files, notify clients of your unavailability and their options. Take action in the event of imminent deadlines or other emergency situations.
Preparing for the Successor Do you have a file retention/destruction policy? How will that be continued once you are gone? Where are closed files stored? Can the successor easily access them?
Preparing for the Successor The successor should be prepared to keep the clients’ identities and matters confidential. How should the successor lawyer handle client files which pose a conflict to him or her?
Preparing for the Successor A successor or transitional lawyer can undertake the tasks that you don’t want to leave for your family and friends: Sending clients their files with a report as to their status Auditing your trust account and disbursing money from it Closing out your other accounts
Preparing for the Successor Is your trust account balanced and accessible to your successor? Consider providing emergency access to accounts, discuss with bank Do you possess original wills, corporate or other entity papers, or other documents?
Preparing for the Successor Are your files orderly and easy to go through? Are you leaving a mess for someone else to clean up? Have you provided an explanation of and how to access your calendaring system?
Why is this so hard? Denial. Not going to happen, not going to be a problem, my assistant knows everything and will know what to do (not necessarily the case!) The natural competitiveness of lawyers: no one wants to “give up” their clients. “I don’t care. I’ll be gone anyway.”
Preparing the Staff A bad day at a large law firm Policies and procedures in case of an emergency Reassuring the staff that a plan for the continuity of their employment is in place
Preparing Financially It can be assumed than any law practice, no matter how large the firm, will be adversely affected financially by the departure of a productive lawyer. Consider the purchase of what has historically been known as “key man” life insurance
Preparing Financially In small or solo practices, have you set enough money aside to pay for: The successor or transitional lawyer File storage if necessary Paying for staff to continue until the transition is accomplished Paying for the facility until transition is done
Preparing Financially If you are voluntarily leaving the practice, or leaving as a result of disability, consider the purchase of tail coverage on your malpractice policy. Find out if your estate can purchase tail coverage and leave instructions for its purchase
Trust accounts Rule 1.15(a) provides in part: Complete records of such [trust] account funds and other property [belonging to clients or third parties] shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. Who is going to maintain these records once you are gone?
Louisiana Supreme Court Rule XIX, §28 A(2) Every lawyer engaged in the practice of law in Louisiana shall maintain and preserve for a period of at least five years, after final disposition of the underlying matter, the records, check stubs, vouchers, ledgers, journals, closing statements, accounts or other statements of disbursements rendered to clients or other parties with regard to trust funds or similar equivalent records clearly and expressly reflecting the date, amount, source, and explanation for all receipts, withdrawals, deliveries and disbursements of the funds or other property of a client.
Preparing the Facility In a large firm, who will get the corner office? In a smaller firm, will there be a surplus of space or an overhead too large to be maintained by the remaining lawyers’ incomes?
Preparing the Facility Has the solo practitioner made plans for the sale of the office building or for the termination of the office lease?
Like Disaster Planning You don’t want it to happen but everyone involved is prepared if it does How to handle works-in-progress and ongoing needs of clients What resources will be necessary to serve the clients How can those resources be secured in advance
Like Disaster Planning In a firm, consider a policy and procedures manual How the lawyers should keep the information necessary to continue their practices How the firm should react when a lawyer is gone, for a short term or permanently
Like Disaster Planning The lawyer in a small or solo practice should consider preparing a binder entitled “In Case of Emergency”