Twenty-First Century Solutions to the Age-Old Problem of Lawyers Who Abandon Practices Due to Death, Incapacity or Illness

The problem of lawyers abandoning a practice and leaving clients in the lurch is hardly new. Yet abandoned law practices are increasingly becoming a crisis for the legal profession reports Cincinnati Enquirer and Lexington Herald.

In Kentucky, a recent tragic spike in the number of lawyer suicides  (six in 2012 alone) galvanized the bar’s attention on abandoned law practice, but the problem is national.  In a weak economy with unemployment still high, some jobless lawyers hastily hang shingles only to ditch them when steady paying work comes along, while older lawyers practice who past their prime because they cannot afford to retire may become incapacitated or die without a succession plan. And of course, financial stress can result in alcoholism, addiction and depression which takes a toll on a practice.

Naturally, “the overriding concern of the courts and the organized bar is the protection of clients who might be harmed when a law practice is abandoned for whatever reason, “according to William T. “Bill” Robinson III, a past ABA president. So the ABA and states have encouraged lawyers to adopt contingency plans that would designate a surrogate lawyer with authority to review clients files and notify clients of the lawyer’s death. Recognizing that may lawyers may not be proactive, states like Indiana adopted a rule that appoints retired judges as surrogates when lawyers in solo practices gets sick, die or abandon their clients and also allows for a four-month suspension of all deadlines in the cases picked up from abandoned practices. But be aware, many other jurisdictions do not provide for comparable arrangements, note Courtney Kennaday and Reid Trautz.

Still, many bar associations do have succession planning guides like this one (from Missouri) with forms and checklists that lawyers can use to designate back up lawyers, appoint a successor and list passwords and instructions for accessing accounts. Although some of the information is state specific, most of the forms can be used in any practice if your state bar does not have its own materials.  

Still, not all states, particularly those that have not revisited the issue of abandoned practices in the past five years, have taken account of 21st century advancements that must be considered in succession plans as well.  For example, as virtual law practice pioneer Stephanie Kimbro observed  a few years back, lawyers operating online practices may face unique considerations — such as inability of clients or trustee to access online files or transfer of files when the online provider terminates the lawyer’s account) that heighten the need for planning.  Stephanie’s post offers some useful solutions to ensure access to files and continuity of representation for virtual practices.

In addition, today’s lawyers may have other digital assets — blogs, social media presence and domain names — that are not used to serve clients but nonetheless may have substantial value. Ed., the pseudonymous editor Blawg Review who sadly passed away two months ago, had the prescience to put a succession plan for the site place six years ago but other lawyers may not have done so, thus depriving their estate of potential value or worse, inadvertently conferring the value of a reputable domain name on a scammy SEO operation through inaction. Recently, there have been several useful articles on digital estate planning at Lawyerist  (authored by Allison Shields) and the ABA Journal  (by Dennis Kennedy). Jim Lamm at Digital Passing also has an extensive round up of states with laws in place or under consideration that grant fiduciaries access to an incapacitated or deceased person’s online accounts and other digital property. The ABA is also involved in the Uniform Laws’ Commission’s efforts to develop a Model Act on Fiduciary Access to Digital Assets.

Still, even as technology adds a new dimension to law firm succession planning, it also carries the promise to simplify the process.  For example, in April 2013, Google created an  Inactive Account Manager that empowers users to choose what happens to account information if it becomes inactive after a certain period of time and for any reason (including death or incapacity). Users can ask Google to delete information or may designate a trusted contact to receive some of the data.  Similarly, why couldn’t the state bars establish a best practice for vendors serving the legal market to require lawyers, as a prerequisite for creating an account, to designate a representative with authority to access and assume control of the account in the event of some period of inactivity and/or incapacity or death?  In fact, with the steady emergence of new law firm practice management platforms and portals and branded networks, some more reputable than others, a well-thought out vendor policy for lawyer designation of representatives could show a commitment to the legal sector and offer a competitive advantage over other services.

Whether justly or not, the problem of abandoned law practices — and the increased publicity that they have now generated — disproportionately impacts solos since clients may wonder what will happen to their case if something happens to the solo. For that reason, solos and smalls can’t afford to wait to have a succession plan in place, but must take steps to put back up arrangements in place and be prepared to share those arrangements with clients if they ask.

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