GPSolo Magazine - January February 2005
Lawyers and the Call-Up
A Survival Guide for Solo and Small Firm JAG Reservists
There are many National Guard and Reserve judge advocate officers (also known as “JAG officers”) now in private practice. With no official instruction from the Department of Defense on how to mobilize from a small firm or solo practice, will they be ready when the call comes? How can the private attorney organize her personal and professional life to cope with the increased calls to readiness that today’s post-9/11 world impose on Reserve Component (RC) military attorneys? This article will help answer the tough questions on budgets, clients, expenses, files, communication, and income commonly asked by RC JAG officers in private practice.
When Major Janet Gray, an Army Reserve judge advocate in a small firm, got the word that her unit was being mobilized, she first wondered about her job. Could her small firm just fire her and hire a replacement? Then she remembered USERRA, the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301-33, which protects those who leave a civilian job for military duty. Whether the call to duty is voluntary or involuntary, the law guarantees their rights to reemployment in the job they left upon their return to civilian life. (For full discussion of USERRA, see the article “ USERRA: When It’s Over Over There, GI Joe Gets His Job Back,” by Samuel F. Wright, on page 52 of this issue).
With her job rights secure, she decided to prepare a mobilization plan. A private attorney’s RC mobilization plan should cover all aspects of her practice, from finances to files to successor attorneys. The mobilization plan, in addition to being a practical document, is also an ethical responsibility. An attorney has a duty to be reasonably prepared for the client’s representation.
One of her concerns was personal and firm income. How would her firm survive? Would she earn enough money? When a mobilization hits a small firm practitioner such as Major Gray, she will need to come up with a small firm survival budget to allow her to return to an active law practice rather than a dormant former firm. To do this she should calculate what the annual firm income is without her client revenues and without her salary and other expenses. This will allow her to determine whether the firm will still be in the black upon her departure, or whether it will need to cut additional expenses (or bring in additional income) to survive. She may be able to reduce payments for the mortgage on her office, other office loans, and credit card obligations to 6 percent interest under the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. App. 501 et seq. She should also be sure to check if any fees may be waived, reduced, or suspended owing to active duty status; for example, she may be eligible for a suspension of bar dues and CLE requirements.
Office Management Duties
Janet should consider the management tasks she handles. Who will write the checks and pay the bills while she is deployed? If her mobilization site is nearby, she might return to the office on weekends to do this. If not, she should assign a primary and a secondary backup person to do this in her absence. This might be a law partner, a trusted associate, or even a spouse. She might also consider executing a special power of attorney (POA) to enable someone who is not a partner or principal to manage the law firm. The POA should be as specific as possible and should include authority to execute a new rental agreement for the law firm and authority to borrow funds. To avoid mismanagement of funds, she would want to use a “double-check system” for banking; this involves two people signing each check. She could also have her firm accountant do a quarterly audit to ensure that the payment of bills and writing of checks is being done properly. An insurance agent can advise Janet about procuring a fidelity bond to cover potential losses.
Janet Gray should notify her malpractice insurance company as soon as she is notified about mobilization. She will need to notify the carrier of the name, address, and telephone number of the assisting attorney who will take care of her client matters or the designated attorney who will wind up her practice if she is a sole practitioner. Janet will be protected during active duty by the SCRA. This act, which superseded the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), allows for the suspension, and subsequent reinstatement, of existing professional liability insurance coverage for military attorneys. The insurance company is responsible for claims brought as a result of actions prior to the suspension. The carrier cannot charge premiums during the period of suspension and must reinstate the policy upon the request of the professional.
Duties Regarding Clients
In making arrangements for serving clients while she is on active duty, Janet should write up case summaries for each matter she is handling. This lets her successor attorney see what each case involves and the particular stage of progress for each case. A case summary should include:
• a fact summary;
• a case log listing all the activity in the case (phone calls, incoming mail, results of reports, client discussions and interviews);
• client objectives;
• settlement status (efforts made to negotiate a settlement, results obtained);
• a case calendar (upcoming dates and deadlines); and
• a “to-do list” (what needs to be done to get the case ready for trial or settlement).
Janet needs to notify her clients regarding her situation. If she is in a firm, clients need to know that another member of the firm will be assigned to handle their case matters. She should arrange a turnover meeting with the successor attorney and the client so that the transition is complete and courteous.
If she is a sole practitioner and has insufficient notice, she should consult the chief judge and ask for guidance. The court may want her to make a motion for appropriate relief in each of her contested cases, with an expedited hearing before the presiding judges or the chief judge of the district as to a continuance for those cases in need of successor counsel.
If she has enough advance notice, she should meet with or call her clients, discuss the pending mobilization, and offer to find successor counsel or else assist clients with transfer of the case to their own chosen successor. Advance planning for a mobilization is similar to disability planning. It makes good sense to establish the equivalent of a disability plan by entering into a contract with an attorney who can take over the clients and cases during the RC judge advocate’s activation, perhaps even handling the solo practice’s finances and keeping the law office doors open.
The second option for the solo is winding up the practice. This generally involves closing out files that are inactive and returning such files to clients or placing them in storage. It also means transferring active cases to other attorneys and shutting down the office. Such responsibilities are similar to those faced by a civilian sole practitioner who is preparing for retirement, transfer to another firm, or death. The steps below will offer additional guidance on how to accomplish the transition.
Janet needs to consider who will handle her phone calls and e-mails while she is gone, how her staff will reply when a client or potential client asks for her, and whether she can be reached at her duty station if a real crisis occurs. She needs to be able to contact family members or friends during deployment.
She shouldn’t assume, however, that her communications will be limited to friends, family, and the First National Bank. It is unlikely that she will be able to transfer completely all professional responsibilities and firm clients and cases in the case of a short deployment notice. Here are some examples of professional communications Janet might expect from her “former life” as a civilian attorney:
• Her former supervisor has received a post-trial motion from the other side requesting a new trial based on her alleged misconduct during the trial, and he needs to discuss the merits of the motion with her.
• Her law partner needs to find a document. He doesn’t know where she filed it and wants to get her help in locating it.
• The trial judge needs to talk to Janet immediately, and his clerk has called her on the telephone. The clerk states that the judge has just held calendar call, and no one answered for Janet’s client, who is about to have a default judgment entered against him. Janet transferred the case to another attorney last month, and he agreed to stand in for her until her return or until the trial, whichever came first. Janet doesn’t know why he isn’t at court, and the clerk informs you that no one answers the telephone at his office.
But Janet must be careful about doing firm business on government time. She should instruct the firm that clients should not try to contact her while she is on active duty. She should, however, be able to take an occasional phone call after duty hours at her room at the bachelor officers’ quarters to deal with a client matter that her partner cannot handle, so long as she notifies her supervisor of what she is doing. She will need a reliable laptop and modem for personal and professional communications while she is away from her military office, and she should also have a phone card. Major Gray can also use the Internet for e-mail communication with her clients during off-duty hours. All of this must be done with the knowledge and support of her superiors.
Family and Finances
Janet will need to plan for her family’s financial security during her period of activation. She should first calculate how much money she will earn and how much she can send home. Subtracting federal and state taxes, Social Security, and Medicare from her gross military pay yields her net monthly pay. She would then add to this her non-taxable Basic Allowance for Housing and Basic Allowance for Subsistence to get her total net military income.
Next she should calculate her monthly personal expenses. This depends on her deployment site; she would spend considerably less living in a tent in Takrit, as opposed to an apartment near Ft. Belvoir, outside Washington, D.C. When she subtracts this “subsistence calculation” from her total net monthly military income, she will have the amount she can send home.
She should also examine her family’s budget. She should remember: (1) the effect of the SCRA’s 6 percent interest rate cap on her pre-mobilization mortgage, credit card, and other interest payments; (2) the right under the SCRA to request a stay of payments on an installment contract if entering active duty adversely affects her ability to pay; and (3) the availability of TRICARE medical insurance coverage for her family instead of the private policy she now carries. She should go to www.tricare.osd.mil/reserve/default.htm to review the “Frequently Asked Questions” section, the Reserve Component Healthcare Benefits Brochure, information about the TRICARE Dental Program, “TRICARE Benefits for Activated Reservists and their Family Members,” and a link to the Department of Defense Reserve Affairs home page with information about mobilization and family readiness.
These adjustments will reduce the monthly expenses of most families. If there’s not enough money for the budget, she might want to reduce her tax withholding by increasing the number of withholding allowances she claims on Treasury Form W-4. To get the money to her family, she should sign up for direct deposit of her paycheck at her family bank, with an allotment to her individual checking account; this means money goes into both accounts and avoids the impossible task of reconciling checkbooks for the same account at a considerable distance. For more information on allotments, pay, and benefits, go to the website of the Defense Finance and Accounting Service, www.dfas.mil.
Because she does not know whether her deployment will end before April 15, Janet should execute IRS Form 2848, which is a power of attorney to allow her agent to sign and file her taxes. The same should be done for state returns. The SCRA allows for a deferral of taxes if a servicemember can show that her ability to pay taxes was adversely affected by her military service, and no interest or penalty accrues during the deferral period. More information is available at IRS Publication 3, “Armed Forces Tax Guide,” at www.irs.gov. Major Gray should notify her creditors about pending mobilization, telling them how to contact her and requesting a reduction to 6 percent on the interest rate for her pre-mobilization debt. (For more information on SCRA, see the article, “ SCRA: For Those Who Go in Harm’s Way” by Gregory M. Huckabee, on page 20 of this issue.)
Janet should get her legal and administrative affairs in order before she departs (see the sample checklist on page 17). A family readiness toolkit can be found at www.defenselink.mil/ra/family/toolkit/. This includes information on pre-deployment and mobilization, servicemember readiness, employer support, financial management, legal affairs, health care, and family member readiness. Finally, she can use “the mother of all pre-mobilization guides,” prepared by the North Carolina State Bar’s Standing Committee on Legal Assistance for Military Personnel (LAMP). This TAKE-1 client handout, based on many of the above checklists, is called the “Family Member Pre-Movement Checklist,” and it can be found at www.ncbar.com/lamp/t_premove.htm.
These and many other steps should be taken by the RC judge advocate facing a mobilization. Advance planning is the key. If Major Janet Gray takes the time now to think through what would happen upon her call to active duty, she’ll do herself, her family, and her firm a huge favor.
|A Sample Checklist for Actions Needed|
• Do I have a current will? Does it name a guardian for minor children?
• Is it stored in a safe but predictable place?
• Have I reviewed the beneficiary designations for assets that pass outside the will (e.g., life insurance, retirement plans, IRAs)?
• Do I have a living will? An advance medical care directive (or health care power of attorney)?
• Do I need a general or special power of attorney (POA)? Does someone need a POA to store household goods and vehicles, make business or banking decisions, provide for children’s medical care?
• Do I need to terminate a vehicle lease under provisions of the SCRA upon mobilization?
• Do I need to change my automobile or renter’s insurance?
• Do my family members have current identification cards? Are they enrolled in DEERS (Defense Enrollment Eligibility Reporting System)?
• Will my vehicle registration and driver’s license expire soon? Is all maintenance current? Have I left behind the name and number of the garage or mechanic that I use? Have I left a spare key?
• (If leaving minor children behind) Have I made a list of names and phone numbers of the children’s doctors, dentist, emergency contacts, and trusted babysitters? Instructions on medications? Have I checked with the children’s school about needed paperwork?
• Will someone look after my house or apartment? Have I left a list of repairmen (e.g., plumber, electrician, HVAC service) and their contact information?
Mark E. Sullivan is a retired Army Reserve JAG colonel. He practices with Sullivan & Grace, P.A., in Raleigh, North Carolina. He is the Chair of the Military Committee of the ABA Family Law Section, a former Chair of the ABA Standing Committee on Legal Assistance for Military Personnel (LAMP), and a member of the ABA Working Group on Protecting the Rights of Servicemembers. He can be reached at Law8507@aol.com.