October 23, 2018 Technology

TAPAs: Disaster Planning

By Jeffrey Allen and Ashley Hallene

Okay, everyone reading this who still believes that they have immortality in their genes, will suffer no disabling illness, and will not fall victim to a terrorist’s attack may stop reading now. (You shouldn’t, but you may, as this likely will not resonate with you). As for the rest of you, pay close attention, as the tips in this column may one day save your practice (or your estate).

Sudden disabling medical events (such as an accident, a heart attack, or a stroke) often come with no warning, much like terrorist attacks. They sometimes affect younger people as well as older ones—more likely the younger ones will experience an accident or even a terrorist attack than a stroke or a heart attack, but life comes with no guarantees, and many younger people have had heart attacks, strokes, and other disabling medical conditions. For those of us who practice law and often have the lives and fortunes of our clients at stake, a terrorist attack or a disabling medical event affecting us can prove a very serious problem beyond the personal crisis it causes. If you should have an accident, a heart attack, a stroke, or have a similar disaster befall you, someone must pick up the pieces of your practice, either until you can return to your practice or, if you cannot return to your practice, permanently. Someone may also have to pick up the pieces of your personal life until you can return to their management.

That means someone needs to have access to your personal information, your business information, and your client information. If you have a spouse or functional equivalent, that person may have access to your personal financial information and may have the ability to step into the breach at that level. If not, you should make sure that they can access that information or select someone else to do so. Unless that person works in your firm, they likely will not have access to your business, client, and case information (and ethically they should not).

If you practice in a partnership or other similar group setting, one of the other attorneys in your operation may have access to that information and can step up and cover for you. If you practice by yourself, you need to have someone in the wings who can and will step up while you are disabled and potentially for as long as you are unavailable. Some states (for example, California) require sole practitioners to have identified someone to do this. Whether or not your state requires it, common sense demands it. Otherwise, deadlines go unmet and problems unsolved, potentially resulting in liability for you (or your estate) for damages to your clients. Even more important, morally, you would not want to see your clients damaged as a result of your disability.

Now that we have identified the problem, let’s talk about the plan to deal with it:

Tip 1: Identify someone with the ability and the willingness to step up and cover for you professionally (and also regarding your personal affairs). You may have different people do personal and professional. Lacking a better term, we will call each such person your surrogate. While it might go without saying, we think it best to say you should:

  • Pick someone you trust completely.
  • Pick someone with the requisite knowledge and experience to perform competently.
  • Discuss the situation with each surrogate and confirm that they agree to do it for you if the need arises (you may end up with an agreement that you do it for each other).

Tip 2: Make a list of relevant information for your personal surrogate. That information should include:

  • All relevant financial information respecting your personal life: bank accounts, medical and other insurance information, assets, and financial obligations (what payments need to occur, when, and to whom).
  • Location of your will.
  • Location of your medical power of attorney.
  • Location of any other important documents.
  • List of people to notify of your situation.
  • Location of safe deposit boxes and keys.
  • List of any other important information you want to ensure that your surrogate has available, including, without limitation, information as to your personal online existence (computer locations, e-mail addresses, personal accounts with user names and passwords). NOTE: If you change your passwords regularly, as you should, you will need to update this list each time you change a password to ensure that it remains relevant.

Tip 3: Make a list of relevant information for your professional surrogate. That information should include:

  • All relevant financial information respecting your practice, including all assets held by you in trust for others and financial obligations of your practice (what payments need to occur, when, and to whom).
  • A current list of names and contact information for each of your clients (you also need to take care to keep this list current). We recommend that you have it in both electronic and hard-copy formats and that you store it securely, providing access information (location, unlock codes, keys, etc.) to your surrogate.
  • A current list of names and contact information for each of your employees (again, it remains important that you keep the list current).
  • Current information on your professional insurance (including malpractice coverage).
  • Where and how you keep your calendar.
  • Where and how you keep your case information/client files.
  • How you organize client and business information on your computers.
  • What backup procedures do you use for your computers and where you store your backups (also access codes to enable use of the backups).
  • How you do your billing and where you keep your billing files and backup documents for them (time records), along with any required access information.
  • The keys to your professional online existence: computer locations and access information, passwords for tablets and smartphones, all e-mail addresses (with user names and passwords to allow access to them, online accounts relating to your practice and access information, etc.). NOTE: If you change your passwords regularly, as you should, you will need to update this list each time you change a password to ensure that it remains relevant.

Tip 4: Advise those close to you who is to step up and help out if there is a problem so they can contact those people, if necessary. The people in your office should know who to call if something happens to you. If you are a sole practitioner, check with your state bar, as some states may require that you keep the bar advised of the identity of your surrogate.

Tip 5. Consider what documentation you should have in place and make sure you get it prepared and executed, providing copies to the appropriate people, including your surrogate(s). At a minimum, you should consider:

  • Your personal will.
  • Your medical power of attorney.
  • Instructions to be followed upon your death.
  • Any necessary powers of attorney to enable your surrogate to act on your behalf during your incapacity.

Hopefully, nothing said in this column came as a shock to any readers. The information comes under the heading of “important but basic”. That said, if we set the “over/under” of having all this in place at 50 percent, we would take the under every time, betting that far less than half of the attorneys who read this column will have already done everything we recommended before reading this column. Perhaps the more important question: What’s the over/under for compliance six months after reading this article?

Like they say on the police shows: “Be careful out there.” Take appropriate precautions to protect yourself against such a disastrous event. We don’t mean live in a bubble; we do mean, take care to limit your risk as much as possible by not needlessly exposing yourself to injury or illness. Remember, as Flannery O’Connor once noted: “The life you save may be your own”!

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Jeffrey Allen is the principal in the Graves & Allen law firm in Oakland, California, where he has practiced since 1973. He is active in the ABA (particularly in the GPSolo and Senior Lawyers Divisions), the California State Bar Association and the Alameda County Bar Association. A frequent speaker on technology topics, he is Editor-in-Chief of GPSolo magazine and GPSolo eReport. He serves as an editor and the technology columnist for Experience Magazine and has served on the Board of Editors of the ABA Journal. He also serves on the ABA’s Standing Committee on Information Technology. Recently, he coauthored (with Ashley Hallene) Technology Solutions for Today's Lawyer and iPad for Lawyers: The Tools You Need at Your Fingertips. In addition to being licensed as an attorney in California, he has been admitted as a Solicitor of the Supreme Court of England and Wales. He teaches at California State University of the East Bay. He may be reached at jallenlawtek@aol.com.

 

Ashley Hallene is a petroleum landman at Alta Mesa Holdings, LP, and practices Oil and Gas law, Title Examination, Due Diligence, Acquisitions and Oil and Gas Leasing in Houston, Texas. She maintains a diverse solo practice on the side. Ashley is the coauthor of the technology overview Making Technology Work for You (A Guide for Solo and Small Firm Attorneys) along with attorney Jeffrey Allen. She has published articles on legal technology in GPSolo Magazine, GPSolo eReport, and the TechnoLawyer Newsletter. Ashley is an active member of the American Bar Association’s General Practice Solo & Small Firm Division, ABA’s Young Lawyers Division, the Texas Young Lawyers Association, the Houston Young Lawyers Association, and the Houston Association of Petroleum Landmen. She frequently speaks in technology CLEs and is Deputy Editor-in-Chief of the Technology and Reviews Department of the GPSolo eReport. She may be reached at ahallene@hallenelaw.com.