The start of a new year presents an ideal opportunity for attorneys to reflect on 2017 and to make plans for what might come in 2018. An important part of this process is to assess whether a law firm has adequate contingency plans in place to cover the unexpected, including changes in income, the nature of the firm's practice, and staffing.

In the current climate, many attorneys are choosing to delay retirement, if they retire at all. However, others may choose to leave the practice of law for a variety of reasons and, unfortunately, there are those who, due to death, incapacity, or other health or personal reasons, leave the practice of law unexpectedly. As the boomer generation ages and retirement approaches, the issue of succession planning becomes more important for firms and their attorneys.

Each of these events can have implications that go well beyond simply the end of a business relationship. For attorneys, obligations to clients and courts may not be terminated due to retirement or even incapacity or death. Moreover, potential malpractice claims related to legal services rendered years ago remain a risk long after an attorney has left the firm. The unique fiduciary duties associated with law practices can create challenges associated with the unexpected departure of an attorney.

For example, some law practices 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 such decisions. Instead, 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.

There are various potential risks associated with a lack of preparation, including lost files and documents, missed deadlines and court appearances, miscommunication with clients, and the inability to access key files and accounts. Each of these risks can lead to a potential malpractice claim.

To help minimize the risks of a claim due to an attorney's unanticipated departure, there are certain steps, including the protocols and procedures outlined below, that law practices may consider taking to prepare for the unexpected.

Consider an Extended-Leave 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. If possible, it can be helpful to prepare for an extended leave is before the circumstances necessitating the leave materialize. This may reduce the risk of making rushed decisions and solutions.

A good starting point to consider is an extended-leave protocol. 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. Each law firm is unique, so firms can evaluate what works best for their respective clients and attorneys. Law firms can establish a length of absence that will trigger the protocol, typically longer than a typical vacation or short medical leave. If the law firm's legal malpractice or disability insurance policy addresses this issue, then those policy terms might provide insight.

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.

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 firm can take steps to ensure that the transition can go as seamlessly as possible.

Key Firm Management Lists

Even if there is a plan in place upon an attorney's departure, sometimes the risk comes from the successor attorney having no idea where to start with a file. Some law firms facing this issue have implemented as part of their emergency protocols the preparation of 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, it would be helpful for the attorney to provide information regarding user names and other log-ins for voicemail 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, including an unexpected departure by a firm lawyer. Firms handling this information typically 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.

Making Plans

Law firms may consider two sources for advising their 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.

With these protocols in place, a law firm can better position itself for adeptly addressing the unexpected in 2018.

Shari L. Klevens is a partner at Dentons and serves on the firm's U.S. Board of Directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team. Alanna Clair is a senior managing associate at Dentons and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”