Vol. 77, No. 6, June
Plan for Absence from Practice
This column is the first in a series, "Taking Down the Shingle," that
will address liability issues related to planned or unplanned
interruptions in law practice.
by Ann Massie Nelson
Nelson is a regular contributor to Wisconsin Lawyer
and communications director at Wisconsin Lawyers Mutual Insurance
A lawyer dies of a heart attack in the stands at a Badger football
Dementia forces a sole practitioner to end his practice; two
colleagues must close his office.
Smoke inhalation from a house fire lands a lawyer in bed for a
A senior partner announces he will retire but continue to serve "of
counsel" to selected clients.
A disagreement about business practices prompts two lawyers to
abruptly resign from a law firm and form a new partnership.
All of these events involved Wisconsin lawyers, who probably thought,
like you may be thinking right now, "Nothing like that will ever happen
In reality, lawyers do become disabled, die, retire, and change
firms. Every lawyer's shingle will come down someday, whether by choice
or by chance.
While lawyers may be mortal, liability for errors or omissions in
their professional capacity endures in perpetuity. Malpractice claims
have been made against lawyers' estates decades after the legal services
To help lawyers manage professional liability risk incurred through
expected and unexpected departures from practice, Wisconsin Lawyers
Mutual Insurance Co. (WILMIC) will hold seminars and publish articles on
the topic of "Taking Down the Shingle: Planning for Retirement,
Disability, Death, or Changing Firms."
How well prepared are you should you walk out the door today and not
return for a week, month, year, or maybe forever? How will you continue
to protect your clients' interests in your absence? Would your partners,
office staff, spouse, or other family members know what to do in your
Ready or Not?
The following questions will help you assess how well prepared you
are and introduce some of the key concepts to consider in developing a
- Who is the attorney you have designated to handle your client
matters in your absence?
- Is this agreement noted in your engagement letter to clients? Have
you discussed your contingency plan with clients and obtained their
consent and signature?
- Do you have a signed agreement with the other attorney that is
- Where will your files be kept? Who will have access? How long will
your client files be retained? If your firm ceases to exist, what will
happen to client files?
- Who can access your calendar? Address book? Email? Voice mail?
- Are your calendar and docketing system current? Are they
- Who will notify your clients, the courts, and other counsel?
- Who will manage your firm's business affairs?
- How current are your billing records? Will someone collect your
accounts receivable? What about contingent fee agreements and/or fee
- What financial obligations do you have, for example, salaries, rent,
equipment leases, utility bills, and insurance premiums?
- Who is authorized to access your client trust account? Under what
- Where are your bank accounts located? Who are the account
- Who will need access to your post office box, safety deposit box,
safe, and locked file cabinets?
- Where are your insurance policies kept?
- Where is your will or estate plan located?
- How will your practice be valued for sale?
- Who is the personal representative for your estate? Is the personal
representative apprised of your agreement with another lawyer to close
- Who has health care power of attorney for you? Under what
circumstances will your practice be closed?
- What provisions does your professional liability insurance policy
make for lateral transfers? Will the insurer provide prior acts coverage
for lateral hires?
- If a lawyer retires or resigns from a firm, what obligations does
the firm have to continue insurance coverage?
- Does your professional liability policy provide for an extended
reporting period (often called "tail") endorsement for malpractice
claims against you, your former firm, or your estate?
- How much time does your firm or your personal representative have to
exercise the tail endorsement?
- If the attorney who closes your practice or assumes your files
discovers an error or omission in your work, is he or she obligated to
inform your clients and/or to notify your malpractice insurer?
- What ethics rules apply to you in your absence due to disability,
impairment, disappearance, retirement, or lateral transfer?
- What rules apply to the lawyers who assume your client matters?
- If the attorney who closes your practice discovers ethics
violations, is he or she obligated to report violations to the client
and/or to the Office of Lawyer Regulation?
- Does the succeeding attorney represent you or your former clients?
Can he or she ethically represent both?
Future "Managing Risk" columns and the fall seminars (see
accompanying sidebar) will help you, your firm, and your family explore
answers to these difficult questions and develop a plan for your
"Taking Down the Shingle: Planning for Retirement, Disability, Death,
or Changing Firms" is a morning-long program sponsored by WILMIC that
will address the labyrinth of liability questions surrounding lawyer
career transitions. More information will be available about the
seminars in the months ahead; for now, please mark your calendar, or
phone WILMIC at (608) 288-1866.
Friday, Nov. 5 Hudson House Inn Hudson
Friday, Nov. 12 Robbins Restaurant Oshkosh
Friday, Nov. 19 Grand Geneva Lake Geneva
Friday, Dec. 3 Wintergreen Resort Wisconsin Dells