GPSOLO October/November 2009
Being Prepared for Unexpected Events
Someone once said that even though the probability of getting hit by lightning is much greater than the probability of winning the mega-lotto, many people live their lives ignoring lightning while hoping for winning numbers. The reality is that not only does lightning occasionally strike, but numerous potential disaster scenarios frequently loom around us. We don’t know if anything bad will ever happen to any one of us, and we hope that it won’t. However, we also know that adverse, unexpected events occur in all shapes and sizes, ranging from large-scale public tragedies to close personal casualties.
The reality for solos and small firm lawyers is that the occurrence of any close personal disaster often instigates a professional crisis. The crisis results from the gap in office supervision that occurs when the lawyer is separated from the law practice. The supervision gap often facilitates malpractice, ethical lapse, or financial loss. However, a little bit of advanced preparation can ensure that your practice will recover if disaster strikes. Consider these real-life examples from lawyers:
A woman recalled, “When I stepped out of the doctor’s office with my diagnosis of cancer, my first thought was that I didn’t know whether to worry about my office or myself.”
A man explained, “I didn’t have a clue about how to reconstruct either my law practice or my personal identity. I kept all of my important records either right in my office or in a bank safe deposit box just across the street, but after Hurricane Katrina swept everything away, for miles and miles, everything was gone.”
Another lawyer confided, “While I was in the hospital, I had family poke around my desk to see what files looked like they needed attention and then ferry them back and forth to me; I didn’t realize until much later that by doing that I had exposed myself to great ethical risk.”
It is much easier to become prepared for the unexpected if you understand that there are really only two types of events that can happen. There are the events that happen to your things and then there are events that happen to you personally. If there is a fire, you can pull the fire alarm; if the computer crashes, you can call the consultant; if there is a flood, you may be able to move files and equipment to high ground or a remote site. The incidents that affect you more personally are often associated with disability, incapacity, or absence. You can cherry-pick plans that safeguard your things: files, physical plant, computer. However, providing for continued management if something happens to you personally requires a more comprehensive plan. The requirement of having such a plan in place to deal with possible incapacity, disability, or absence is suggested by Comment 5, Rule 1.3 of the ABA Model Rules of Professional Conduct on “Diligence,” which states:
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 conformity 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.
The challenge is to form a plan that is sufficiently well defined that it can be executed without you yet plastic enough that it can mold to any number of possible situations—and at the same time be something that can be formulated by a single busy practitioner. The challenge is met through the five principles of being prepared explained in the book Being Prepared (see the sidebar below). The five principles are: define, enable, empower, keep, and inform :
- Define the identity of all of your potential helpers (both lawyers and nonlawyers) and define the various roles that they may fulfill as part of your personal support network.
- Enable your support network by collecting and organizing an emergency casualty manual that contains your firm’s institutional memory; that is, the working knowledge of the things and procedures needed to run your enterprise and serve your clients.
- Empower your helpers with documents that will give authority, understanding, and direction. Then add those documents to your emergency casualty manual.
- Keep your emergency casualty manual safe but at the same time also make sure that it will be available to your helpers if a time of need arrives.
- Inform the members of your network and others close to you that you have formulated an emergency plan and composed an emergency casualty manual.
Ask yourself, “What would happen if for any reason I did not show up at work one day?” Who would check the deadline calendar? Who would make calls to reschedule appointments or obtain substitute counsel? Would anyone even let the judge know ahead of time that there is a good reason for absence? If the event continued, would anyone assist in maintaining client confidence? During an extended absence would anyone have the authority to help collect money, pay bills, or assist with required trust account transactions? Besides yourself, does anyone else share a comprehensive knowledge about how the things and systems in your office work and how client information is kept? In other words, does anyone else share your firm’s institutional memory? If so, would that person also have the authority and the inclination to act on your behalf? If so, do you trust that person enough that you would actually want him or her acting for you in your absence?
The answer goes past the mere designating of another lawyer to step in following an emergency. You must ensure that your helper is competent to intervene. As good and knowledgeable as your backup person may be, your designee will not really be competent to review client files to determine whether there is a need for immediate protective action unless you leave clues about how your office is run and how the relevant client information can be accessed. The bonus here is that one good plan can serve many purposes, including the preparing of an office for sale or other transition. Another bonus is that at the same time that you develop a plan for protecting clients, you can also provide for the preservation of your own practice, personal interests, and financial well-being. As a matter of fact, protecting clients is really just a by-product of protecting yourself; use the five principles to do that.
1. Define your support network. If you are in a firm that is too small to have centralized management, you need to have a network of people to fall back on in addition to whatever automation you use. This is not as difficult as it sounds because a law office is an enterprise made up of more than just clients. You probably already have a natural group around you, not all of whom are lawyers. Although business overhead and personal disability insurance can help, it may not be feasible to have a lawyer supervise the entire enterprise. However, you can distribute various functions among lawyers, staff, and other volunteers.
The review of client files must be restricted to lawyers, but there are many roles that nonlawyers can fill—securing the physical plant, maintaining and backing up computers, and keeping the office open and the phones answered, just to name a few. If something does happen, it will probably be someone other than a lawyer who performs the important function of alerting others to the emergency. Roles for lawyers include checking calendar deadlines, continuing work in progress, and reviewing client files to see if any immediate protective action is necessary. When planning, take the opportunity to define if your caretaker lawyer is primarily representing you, the client, or both. Consider the different ethical perspectives flowing from each option.
2. Enable your network with an institutional memory. To enable others to effectively act in your stead, knowledge about how your office functions will need to get out of your head and into an emergency casualty manual. Consider what things are needed in order to provide service. Start with the basics. Instructions about gaining entry to your office might include explanations about keys, alarms, and building managers. Instructions about computers or other electronics might include which consultant to contact and which backup to maintain. In addition, your caretaker lawyer will not be able to competently protect either you or your clients unless full and immediate access to calendars and work lists is granted. Explain which calendar is the real deadline manager and share access passwords.
From there, anticipate an event that might last longer than a few days by including your desires about paying or laying off staff, collecting and spending money, and undertaking trust account transactions. Also, use the manual to centralize all your emergency information. Remember that you are important: List your own emergency medical and family contacts and insurance information. Then include anything else that might be useful to those helping you.
3. Empower your helpers. For your support network to quickly and effectively come to your aid, your helpers will need some written authority, understanding, and direction. For instance, consider adding a backup signature of another lawyer to your lawyer’s trust account. Think about establishing some actual agency relationship with your proposed caretaker lawyer, and weigh the benefits of mentioning something about that in your attorney-client agreements.
Letters of understanding can be used to educate your potential helpers about their roles and alert them to the importance of their help. Beyond that, the functions of some appointees may require actual power of attorney. Sometimes powers of attorney are simple, but other times their drafting can become complicated. Decisions may need to be made about the extent of the power being granted, when the power should spring into action, and if a certain disability or absence should be present to trigger the authority. Also, the amount of overlap or separateness that should exist between the law practice and your personal life will vary depending on each individual’s life situation. For these reasons, it may be wise to consult an estate planning attorney and tie your law practice management plan into your personal estate plan.
4. Keep your information safe and available. Some of your emergency casualty manual might be kept in an actual paper manual, and other parts might be kept electronically. Some of the information might be kept in your office, and other parts might be tucked farther away. Whatever the configuration, make sure that it is backed up, with copies kept at a safe remote location. Also, recognize that some of the information will require different levels of security, accessibility, and immediacy. For example, instructions to your caretaker lawyer about how to access client and calendar information will need to be readily available. In contrast, information pertaining to financial and personal identity will need to be kept more securely and remotely.
When pondering how to make the information both safe and accessible, evaluate the trust and confidence that you have in others. Consider who will need access and under what conditions should access be permitted. Consider having a human gatekeeper—that is, an independent custodian of your emergency casualty manual information and powers of attorney, who can be charged with its safekeeping and instructed as to when their release would be appropriate. This gatekeeper might be a lawyer with whom you have a reciprocal agreement, or it can be an independent custodian. Whatever you decide, the information should be updated annually.
5. Inform others of your plan. Because we can’t predict the future, the network will need to be flexible. No one plans on being consumed by a public disaster or sustaining a personal casualty. But, to a certain extent, widespread public disasters or even deaths are easier to cope with than a personal event—everyone is aware of the publicized emergency. Yet during a public emergency, it may be much more difficult to coordinate your helpers. So, to be truly effective, all members of your support network need to know their roles and the existence of the other potential helpers. A simple calling tree or contact information list can fulfill this function. Because you don’t know what type of emergency, disaster, or personal event you are preparing for, or who is going to be available during your time of need, generally let people know that you have developed an emergency plan and have assembled an emergency casualty manual. Then, proudly publicize the professionalism that you have achieved through careful planning.
The concern about a crisis of supervision arising from casualties that separate a lawyer from communication with the law practice is greater now than at any time before. As a profession, we are growing older and we practice in a more mobile and independent fashion. And the world is simply a less forgiving place than it used to be. Future clients, malpractice insurers, ethics tribunals, and judges are not going to be so easily mollified by the excuse, “well you just need to understand that the barrister has been ill.”
The traditional picture of the lawyer was a person surrounded by paperwork and supported by an assortment of clerks, assistants, and secretaries. In contrast, the modern picture loses most of the paperwork and replaces the people with a host of computers, Internet platforms, and outsourced services. As inefficient as the past was, that bloated staff collectively formed a natural support network and a living institutional memory that could be tapped when the boss was absent.
Today’s efficiencies are achieved through the sacrifice of a staff that knows everything about the office. So when formulating disaster plans, solos and small firm lawyers must decide how to compensate for the loss of that traditional support network and its living institutional memory. Use the five principles to close the gap: define, enable, empower, keep, and inform . Even though each of us knows that unexpected, adverse events may lie ahead, we are not really planning for disaster. We are not courting doom. We are really planning to stay safe and be well. Yet, we know that the best way to stay safe is to remain prepared. So be well, but be prepared.
Lloyd D. Cohen, coauthor of Being Prepared: A Lawyer’s Guide for Dealing with Disability or Unexpected Events (ABA, 2008), may be reached at firstname.lastname@example.org. He is available to help or consult regarding the formation, safekeeping, or implementation of your emergency casualty manual and plan.