Last week’s Maryland Daily Record describes what happens when solos get sick. The story features one of my buddies, Herb Dubin, a lawyer here in Maryland – and as the article emphasizes, he’s the last person I’d have ever expected to get sick. I met Herb at a Solosez lunch, but for a couple of years, we’d bump into each other at the Panera across the street from my daughters’ school, where I’d be returning from drop off and Herb would have breakfast after his morning workout en route to work.
Herb’s a great lawyer, but he’s somewhat old
Her insistence saved his life. He had double pneumonia and a nasty bacterial infection, which landed him in the hospital for 12 days and kept him out of the office for more than a month after that.
Dubin had no plan for what would happen to his practice if he were incapacitated.
“Does the shoemaker ever take care of his own shoes?” said Dubin, whose practice includes personal injury, legal malpractice and attorney discipline defense, criminal defense and commercial litigation.
The other solos with whom he shares an office swooped in and kept things running until he got back, but he can’t imagine what would have happened had they not been there.
“The bottom line was, I just happened to be sharing space with a good bunch of guys,” he said. “Suppose I was practicing the way a lot of new, young lawyers are: from my house, by myself.”
Experts say too few solo and small-firm lawyers have made plans for what will happen to their practice if they suddenly get sick. Not planning can leave attorneys open to malpractice claims or the loss of money and clients.
“We’re trying to get attorneys to think about this more often so that they plan for retirement and plan for absences due to illness or the like, because these things happen,” said Maryland Bar Counsel Melvin Hirshman, whose office sometimes has to pick up the pieces of a practice when a lawyer fails to plan.
Patricia A. Yevics, director of law office management assistance at the Maryland State Bar Association, said planning for a possible illness is a lot like planning for what happens if a natural disaster, arson or burglary hits the office.
“One of the most important things that they absolutely, positively have to do, and we tell them we don’t care how young you are, there has to be this really long, detailed checklist,” Yevics said. “Here’s where you find the key to the safe deposit box, here’s my password. If something happens and the solo and small-firm practitioner can’t even respond, like if they have a stroke and you can’t even communicate with them, you want to be able to have someone step in.”
Yevics suggests a “buddy system,” where solos can pair up and promise to handle each other’s business affairs if the worst happens, “at least [to] come in and stop the bleeding.”
Your malpractice insurance company wants you to make an emergency plan, too.
“So many malpractice claims occur because something got overlooked,” rather than because a lawyer was incompetent, said Todd Scott, vice president of risk management at Minnesota Lawyer Mutual Insurance Co., which manages the Legal Mutual Liability Insurance Society of Maryland.
Lawyers can reduce the chance of being sued for malpractice by making sure another lawyer can step in if there is an emergency, Scott said. Any agreement should be in writing.
“It’s almost like the lawyers are making a promise to each other that they will keep things in an orderly fashion,” he said. “They promise to calendar all their important dates, to document their client files with notes, keep their billing up to date.”
“These are issues that you need to deal with,” Scott added. “Otherwise, you’re going to leave the problems up to the people that you love or care about.”
Or to Bar Counsel.
Hirshman said that if an illness becomes serious and an attorney can’t return, his office may have to become a conservator, going through open files, notifying clients of their lawyer’s illness or death, and figuring out what to do with files.
When Herb Dubin’s wife finally convinced him to go to the emergency room, he was wheeled right from the ER to the intensive care unit and put on oxygen. In addition to the pneumonia, he had Methicillin-resistant Staphylococcus aureus (MRSA), an aggressive infection, and it spread to his heart.
“I’m now told that I didn’t realize how sick I was,” he said.
Dubin, 69, could fairly be called a fitness fanatic. Before he got sick, his exercise routine consisted of a five-day-a-week, 5:50 a.m. regimen called the Sergeant’s Program, where he and a class of others ran, lifted weights, and did push-ups, pull-ups and dips. Some days, he also swam. On the weekends, he ran. He was only able to resume running in March 2009 and the Sergeant’s Program in July. His goal is to be in shape to run the Army Ten-Miler race in Washington next October.
While he was in the hospital, his officemates found his calendar and started making calls to get postponements. If a client arrived for an appointment, one of the other lawyers handled the visit. Dubin said he didn’t have the strength to worry about work.
“I wasn’t thinking about the office,” he said. “I was thinking about breathing.”
Aside from one judge, who wanted the equivalent of “a note from my mom,”
judges, clients and other lawyers understood, Dubin said.
“Nobody was pissed,” he said. “Nobody was angry. People get sick. [It] happens.”
It happened to Laurie Filippi in 1998, when she found a lump in her leg. While it turned out to be benign, she was laid up for weeks with two surgeries. She wound up working from her couch in an ankle-to-hip cast, then having her secretary’s husband ferry her back and forth to the office for a few hours each day.
But her clients and opposing counsel understood her situation, and she says other Baltimore County lawyers volunteered to help her keep the practice afloat while she was recuperating.
Stuart Schadt, a solo who practices mainly criminal defense, juvenile and civil litigation, reported a similar experience with the Towson bar. In May 2004, he started having neck pain but attributed it to having to keep his arms still when his newborn son fell asleep in them.
It turned out that he had a herniated disc that required surgery — twice — and he was “completely incapacitated for a couple of months” after each of them.
“But just being out here, I found how accepting the other members of the bar were, the judges [too],” Schadt said. “No one gave me a hard time [or said] ‘Why don’t you find someone else to handle your case.’ ”
While Schadt survived his downtime with his finances relatively unscathed, both he and Filippi say they were lucky.
Washington, D.C., lawyer Joseph Conte can testify to the worst-case scenario when a solo gets sick. He shared an office with his close friend Jensen Barber, a criminal defense solo who often practiced in Maryland.
On Aug. 4, Barber was hospitalized with an infection. Five weeks later, he died.
Conte is now going through Barber’s files and notifying clients of his passing. He
has also been working t pack up Barber’s office.
Conte cannot get involved in anything regarding money, though. The personal representative of Barber’s estate will have to sort out which clients should get some or all of their money back and which clients or government agencies — Barber did a lot of court-appointed work — owe money to the estate. That will not be easy.
“We can’t find any of his billing records,” Conte said.
Also, “He was working on several huge cases and I don’t think he ever submitted vouchers to the court system,” he said.
An extra wrinkle: The lease for the office that Barber shared with Conte and four other solos was in Barber’s name.
And Conte has no idea what to do with Barber’s old files. He can send some back to clients, but many of Barber’s clients are in prison and have nowhere to put the files.
Barber’s untimely death and the fallout have led Conte and his officemates to start sharing more information about their practices with each other, he said.
“It made us all think about it,” he said.
Click here for a related sidebar with tips on how to prepare for a medical illness.