GPSolo Magazine - October/November 2004

Being Solo
Incapacitated: What Happens to Your Solo Law Practice?

It’s every solo attorney’s worst nightmare—you fall ill or are injured and suddenly you are not there to take care of your clients. Your incapacity may be so severe that you are unable even to direct others how to handle your practice in your absence.

In such a situation the damage to your practice could be catastrophic. Yet, how many solo attorneys prepare themselves for such an eventuality?

Even if you dismiss this as an unlikely possibility, keep in mind that the very nature of your solo practice makes this an issue for anyone thinking of hiring you. Some may just take it on faith that you will always be there—never sick or incapacitated in any way. Others may assume (without ever verifying it) that you have prepared for such a contingency. And finally, some may simply decide not to hire you because their unspoken concern was never addressed by you.

No solo attorney wants to come back to the office after an unplanned absence of several weeks or more to find his or her law practice in ruins.

Preparing for the Worst

The best backup system you can create (and at the least possible cost, I might add) is forming a relationship with another solo attorney who has a practice similar to yours. There are lots of solo attorneys out there, and they should be as interested as you in establishing such a relationship.

This might be difficult if you live in a small community where you are the only lawyer or the only lawyer in your area of practice. In that case it is better to form a relationship with an attorney a couple of towns over than not to have any backup at all.

If your backup attorney is some distance away, you should explore opening an account with a service such as GoToMyPC.com, which would allow the backup attorney to use his or her own computer to access all of the files on your computer via the Internet. While it won’t be the same as the attorney physically being in your office, it will at least allow the attorney to check the client correspondence, e-mails, and documents on your computer. The service will allow the attorney to make fewer visits to your office (maybe only a single visit) and handle everything else long-distance.

Wherever they are located, it is key that the attorney you choose practices in the same field or fields as you so that he or she will require a minimum amount of time to take over a matter and, once handling a file, will do a good job.

Don’t assume that the attorney has malpractice insurance—request a copy of his or her policy and provide yours as well. You might be surprised to find that the attorney’s deductible is very large or the coverage limit is very low; if so, look for another attorney.

Details, Details, Details

Okay, you found someone in your field and exchanged phone numbers and insurance information. You’re done, now, right? No, not before you take care of a few more things.

I recommend that you formalize your relationship with a written agreement. It should cover procedures to follow if the backup attorney is needed, compensation, any limitations on the authority to act in your place, and a provision that the client reverts to you once you return. Otherwise, you might find that the attorney in whom you have placed your trust has taken such a liking to a particular client of yours that he or she is reluctant to hand the matter back to you.

The agreement should also provide for confidentiality and non-solicitation not only of active clients but your entire client list, because the attorney will have access to that information as well. Naturally, these provisions will be mutual—either one of you might become incapacitated.

Each of you should provide the following to the other:

• A tour of your office showing the location of files and how your filing system works.

• A demonstration of your computer and how you organize everything on it.

• All passwords needed to operate your practice.

• Office procedures manual or a memo summarizing office procedures.

• Keys to your office.

You will have to decide how far you want to go with this. For instance, most attorneys probably would not add a backup attorney as a signatory on their law firm bank accounts, even though this might be helpful in case of a lengthy absence.

Consider keeping a current status memo of all active matters and making sure that your backup attorney knows where to find it if needed. Keeping an updated client status memo would be good for your own personal organization as well.

Provide your backup attorney’s name and phone number to those who likely would be the first people aware of your incapacity so that they can contact him or her if needed. Your office should know about your backup attorney; you don’t want your staff surprised by a stranger walking into your office and running your practice, should it ever come to that.

Hoping for the Best

You’re probably thinking that doing all this will be a real pain in the neck for such an unlikely event, but keep in mind that this relationship might blossom into something even more useful. Once your backup system is set up, each of you can cover for the other while on vacation (yes, solos occasionally take vacations), and you might like working with each other enough that you decide to form a firm together. Such a merger could involve moving into the same office or both staying where you are and the new firm having two offices.

If you do form a firm and lose your solo status, I hope you continue to read Being Solo. I’d hate to lose readers just because they followed my advice.

David Leffler is a member of the New York City law firm Leffler Marcus & McCaffrey LLC, which represents clients in business matters and litigation. Prior to that he was a solo attorney for more than a dozen years. You can write to him at lefflermailbox@aol.com.

 

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