Alanna Clair. left, and Shari Klevens

While law firms often evaluate the sufficiency of risk management protocols throughout the year, an opportune time to conduct a comprehensive assessment is at the start of a new one. This allows firms and their attorneys to reflect on the prior year and anticipate what the new year may bring.

One critical component of this process for many firms is assessing whether there are adequate contingency plans in place to cover the unexpected, such as changes in revenue, the nature of the firm's practice, and staffing needs. Each of these areas can be impacted by planned or unexpected attorney departures. In recent years, many attorneys have chosen to delay retirement, while others may practice until their health prevents them from continuing. No matter the cause, each of these events can impact a law practice in ways other than the end of a business relationship.

For attorneys, obligations to clients and courts may not automatically cease due to retirement or even incapacity or death. The attorney-client privilege, for example, typically survives the death of either the client or the attorney. Additionally, legal malpractice claims stemming from services rendered years ago can remain a risk long after an attorney has left the firm.

The fiduciary duties borne by law practices can present challenges when an attorney unexpectedly departs. For example, some firms may not have a plan to address the transition of cases from the departed attorney to others or even who will take the lead in making critical decisions regarding that transition. As a result, law firms can be left with an inbox full of emails, a list of contacts that few people know, and a calendar full of commitments.

A lack of preparation can result in lost files and documents, missed deadlines and court appearances, internal and external miscommunications, and the inability to access key files and accounts. Each of these risks, among others, can increase the odds of a legal malpractice claim.

To that end, there are certain steps, including the protocols and procedures outlined below, that law practices may consider taking in order to prepare for the unexpected.

Establish a Leave-of-Absence Protocol

A partner who is away from the firm for extended periods of time on account of illness, impairment, or other life events can have the same effect as a permanent departure from the firm. It can be helpful to prepare for an extended leave before the circumstances necessitating the leave materialize. When there is no imminent situation requiring rushed decisions and solutions, it may be that more effective and efficient solutions can be implemented.

One starting point to consider is implementing a protocol addressing extended leave. Such a protocol could be used any time an attorney is unable to actively manage her or his caseload on a full-time basis due to injury, illness, family matters, or other reasons.

Every law firm is unique. Thus, firms can evaluate what specifically works best for their respective clients and attorneys. Law firms can establish a length of time before the protocol will take effect. If the law firm's legal malpractice or disability insurance policy addresses this issue, then those policy terms might provide additional guidance.

Because it is not always easy for another attorney to step into the shoes of the attorney on leave, the protocol can provide for the sharing of detailed information with other attorneys, including with respect to open matters, client responsibilities, and deadlines. By using all available resources and implementing a predetermined plan of action, the transition can go as seamlessly as possible.

In reasonably foreseeable situations that will trigger time away from the office, such as a medical diagnosis or a nondebilitating accident, the impacted attorney can play a role in implementing the extended-leave protocol. Where the leave is unforeseen, another individual may have to take charge. Some practices detail these procedures in writing for the benefit of impacted attorneys and staff.

Communicating the Protocol

Law firms may consider two sources for advising its attorneys and staff of the protocols in the event of an attorney departure. First, law firms can set forth the responsibilities and obligations of both the law practice and the attorney in the partnership agreement or the employment agreement.

Second, an attorney can vest responsibilities relating to her or his law practice in appropriate estate-planning documents. This can include living wills, trusts, and powers of attorney with specific limitations and conditions for use.

Practice Management Packets

Even if there is a plan in place on an attorney's departure, sometimes the risk comes from the successor attorney having no idea where to start with a file. One option is to include as part of the emergency protocols an attorney practice management packet that includes: (i) a client contact file; (ii) an exportable calendar entry file; (iii) a “cast of characters” and timeline for the file (where applicable); (iv) an ongoing tasks list; and (v) a complete open client/matter list with the name of the employees working on each matter.

If possible, the attorney can provide information regarding user names and other logins for voice mail or email (if not already possessed by the firm). Depending on the practice, it may also be appropriate to provide information for firm-related accounts, such as bank accounts, credit cards, storage facilities, and key firm service providers such as vendors and insurers. Finally, this data packet can include the employee's home address, personal email, and phone number so she or he may be contacted in the event of an emergency. Firms handling this information typically also take care to safeguard it as confidential.

While this process is designed to enable the portability of a legal representation, it can also serve as an effective building block for growing a law practice into the future.