This article applies to Filipino lawyers: how to prepare for the death of a lawyer in order to protect the interests of his clients in their pending cases.
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PROBLEMS WITHOUT A PLAN
A plan, however, is exactly what a lawyer’s fiduciary duty requires. Though a legacy of chaos is not what most attorneys hope to leave behind, when a solo or small-firm practitioner dies without a plan in place, the legal burden for clients and loved ones is great.
Steve Crossland of Crossland Law Office in Cashmere, Wash., knows firsthand that when the unthinkable happens to an attorney without written instructions for closing a practice, chaos is the result.
“Clients are the biggest losers when a lawyer dies without a plan,” he says, “because there are statutes of limitations, hearing deadlines and the like that can expire with no retroactive remedy—other than a potential malpractice claim, of course, against the estate, if there is any—which means that then the deceased lawyer’s loved ones may pay the price.”
The immediate-past president of the Washington State Bar Association, Crossland also chaired its task force on attorney succession planning. “Even when you have a plan, chaos can result if the details haven’t been put in writing for winding down a deceased attorney’s practice.”
As in most business relationships, confusion and ethical dilemmas can be avoided by having a well-written agreement in place between the attorney who is selected to assist and the planning attorney—also referred to as the “affected attorney”—who is making the plan for closure.
“It’s really important for the assisting lawyer and the affected lawyer to discuss the details of what role the assisting lawyer is to play in the event of death or incapacitation,” Crossland says.
First and foremost, identify who exactly the assisting attorney is intended to represent: the interests of the affected attorney or the interests of the affected attorney’s clients. Crossland offers the questions to discuss:
“Transitioning clients to other attorneys—for example, what information about the affected attorney can be revealed to clients? How deep into the client file can the affected attorney go for purposes of protecting client confidentiality, especially in a small community where everyone knows each other or each other’s family? Another consideration is that in smaller regions there may not be many attorneys. From a potential conflict of interest, you’ve got to ask yourself whether you can really take on the affected attorney’s clients as your own given your current and former clients.”
Professional liability is another potential conflict-of-interest situation where the importance of clearly defining the attorney-client relationship is key. For example, if the assisting attorney discovers malpractice or misappropriation of client funds while transitioning active cases, whose interest is the assisting attorney supposed to protect? Defining the relationship dictates whether the assisting attorney has a duty to report the error to the client, as well as the assisting attorney’s own ethical duties.
When ambiguity surrounds the attorney-client relationship, case law suggests that courts typically apply the viewpoint of what would be the reasonable belief of the client whose matter was being transitioned.
Alicia Beeler Villines: "If she had known she was going to die in such a short period of time, Diane would have done things differently." Photo by Earl Richardson.
PUT IT IN WRITING
Barbara Fishleder, executive director of the Oregon Attorney Assistance Program, says that “giving the transfer agent, often referred to as the assisting attorney, written permission to contact your clients for instructions on transferring their files and authorization to notify people of your office closure are some of the things you will want to cover.”
Protecting clients’ interests and confidentiality in the event of the lawyer’s death or incapacitation also protects loved ones from exposure. With no plan, Fishleder says, “expect bewildered and stressed clients who, one, frantically want their file in order to protect their legal interests and, two, need their retainer back from your trust account so that they can get another lawyer.
“As the empathy and patience of your clients diminish and their legal needs become more acute, their concerns may end up taking the form of professional malpractice claims for missed deadlines, claims filed against you or your estate for a refund of their retainer, or even ethics complaints,” she says.
Fishleder notes that “every lawyer’s situation is different, as is the situation—and skill set—of the helpers they enlist.”
Some lawyers find that it is best to have someone assigned as their “file triage captain,” and someone else to take responsibility for winding down the business affairs.
“The most important thing you can do after you write down ... passwords is to find someone who will serve as your file triage agent. In many cases, it can be the person that you shared the passwords with,” Fishleder says. “They will be the ones who look at your calendar to see which case matters require attention first. This system works best, of course, if you have an up-to-date calendar system.”
Villines’ experience shows why readily accessible, current information is necessary.
“I had to contact Diane’s former secretary for help in tracking people down,” she recalls. “Diane had an extensive Rolodex, but it had very few client phone numbers. Diane’s former secretary didn’t work for her for the last eight months of Diane’s life, but was still familiar with many of the clients. I think once a person has received a terminal diagnosis, he or she needs to keep some sort of assistant on hand who knows what’s going on.”
Moreover, when an affected attorney is diagnosed with an illness, Villines advocates asking the difficult questions that call for answers one may not want to hear.
“The fact that your doctor hasn’t told you ‘how long you have’ does not mean you have a long time, nor does it mean that [your doctor] doesn’t know. It may only mean that this medical professional believes the difficult conversation will take at least 20 minutes, the waiting room is full, and he or she would really like to get out of the office in time to watch his or her kid play soccer.”
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