By Amy Symons and Julie Davis
I am going to blame it on the natural highlights that are making an appearance at my temples, but for the first time in more than a decade of practice a client asked me, “So what happens if something happens to you?”
I had an answer for him because my co-author and I had previously discussed it over lunch, but it was my wake-up call that we needed to take our conversation to the next level. Fortunately, Barb Cashman made that easy with her CLE presentation “Death of a Solo, Death of a Practice.” One of us attended her presentation and the other, in exchange for a peek at her materials, offered up a blog on what we did to put our own succession plan into place.
The first thing was to get permission from our clients to allow another attorney to access the client file if we were unable to complete the matter. Each of us added provisions in our engagement letter requesting that the client waive confidentiality if we were unable to complete the matter. The provision or casualty clause also included details about steps that would be taken after death, incapacity, or our inability to complete the mater. Although we noticed that some of the engagement letter provision examples that we reviewed didn’t provide contact information of the assisting attorney, we figured it was a comfort to our clients and provided the name, telephone number, and email address of the other attorney.
We met for coffee to discuss the ins and outs of the other’s practice. Both of us are cloud-based – one uses Google Docs and the other Clio and Dropbox – making our offices accessible with a password. We discussed how to access that password and how to determine which client matters are open and which are closed. We also talked about general operations, such as the fact that one of us is paper-based while a client’s matter is open, and executed documents are scanned into the system before they are mailed to the client.
Clio is a cloud-based practice management system that allows the user to log client matters and report the status of each, including when a matter is completed. It also includes COLTAF and Operating Account ledgers, making it easy to determine whose money is in the trust account. Because the COLTAF funds are still the client’s money, not knowing to whom they belong is another ethical violation waiting to rear its head.
Being able to slip into the others’ shoes in a password-based world is easy enough, but we needed to have documentation in place for financial institutions. A trip to the bank ensured that our Limited Power of Attorney was effective and that the safe deposit box could be accessed. One of us banks at a local, small bank and was asked by a teller if the COLTAF should be POD. It was worth a conversation with her as to why that should never be the case!
We each are drafting policy manuals that will offer a compass to the other. These include:
- a copy of the Limited Power of Attorney;
- a copy of our will and contact information for our Personal Representative;
- passwords to our computers, document retention systems, and online bank accounts;
- instructions to access our calendaring system;
- bank location and contact information, account numbers and where to access COLTAF balances;
- safe deposit box or office-safe access information;
- insurance information, including malpractice carrier and when we renew, life insurance policy numbers, providers, and amounts;
- disability insurance numbers and providers;
- health insurance providers, amount, and how paid;
- an explanation of how clients pay us and/or where to find that information in each client’s engagement letter;
- financial information such as annual and monthly budgets and operating expenses;
- contact information for accountants and bookkeepers or information about Quick Books and Intuit or other accounting systems; contact information for employees;
- employees’ salaries and employment arrangement or contract;
- general instructions about client files such as where to find engagement letters (including the casualty clause or relevant succession plan provision) and billing information;
- information about closed client files and how to access scanned documents after the paper file has been destroyed;
- the procedure the succession attorney is to follow when contacting clients and how to handle particular matters;
- and the procedure the succession attorney is to follow regarding death notices to the Bar and others.
There is nothing that illustrates the analogy of the shoemaker whose children have holes in their shoes as much as two estate planning attorneys who admit to each other that they have not drafted their own estate plans. The Limited Power of Attorney was drafted after we had coffee and we are committed to completing wills in the near future.
It is an interesting play in psychology to see yourself in your client’s shoes. One of us knows that she needs to call her insurance agent and increase her life insurance and acquire disability insurance but there is a hesitancy there – the same hesitancy that we see clients have about planning for their own demise. It isn’t so much that the fear of death is bothersome, it is the rationalization that there is plenty of time to do this. Most lawyers make a living based on planning for the unknown happening at any time. This blog post has prompted inquires of other solos and it is shocking how many of us do not plan for our own practice as we would for a client’s.
Follow this series and see previous articles about solo attorney succession planning here.