When written in Chinese, the word ‘crisis’ is composed of two characters. One represents danger and the other represents opportunity. – John F. Kennedy
The irony in the quote above should not be lost that President Kennedy used a Chinese quote when helping people to see the upside in crisis management. In many ways, this crisis will pass, but the consequences will be with us for a long time. You can put your head in a box and hope it runs it course with the least amount of change to your practice. Or, you can look about you to find someone to help you now, and in the future, to do what you should be doing in any event. Many state bars are requiring this action even now.
The choice is yours. You can either wait it out and hope the virus passes and your practice resumes to normal operations. Or you can take the time that this crisis slows your practice to a crawl and use it to do necessary and productive planning.
How do you do that?
As a solo practitioner, you are at risk of a disability or untimely death without proper back-up. Under any of the rules of professional responsibility, you really have no choice but to have a back-up plan. What that means, is that you have in place a plan of action so that your practice can continue with minimal disruption. Here is the unfortunate truth – that planning has not been provided for by most solo practitioners. Dying at your desk is not a planning option. Instead, it is a recipe for client disruption and at worst, legal malpractice for failure to plan. Nearly 1/2 of the lawyers in private practice are solo practitioners. And nearly 40% of them are rapidly approaching 60 years of age. That is a recipe for disaster as the gray tsunami approaches without property transition planning. Best practices would suggest a 5-10 year transition plan would be ideal, but these are not ideal times. For now as you are restricted in your movements, I highly recommend you put into place an emergency transition option. How do you do that? If you want to consider this in purely financial terms, remember, you can leave your family an asset with proper planning. Or you can leave your family with a liability without proper planning. Your choice.
You need a plan that gives another licensed attorney to take over your practice under a governing document, a durable power of attorney. The individual you appoint needs to be someone who is knowledgeable concerning your area(s) of practice. It needs to be someone who is fully informed concerning your office operations. That means that the backup person needs to know what accounts you have, where they are located and how they can be accessed including passwords. That includes financial accounts, trust accounts, other business accounts and accounts from other suppliers. Who is your financial advisor and how do they get access to that person with permission to discuss your operations? This means that the person has to be someone that you can trust and that information needs to be kept updated at all times.
Other than the financial operations, you need to be able to educate the backup attorney regarding the status of all your active files and the contact information for those clients. Those clients need to be informed in advance of who this person is and that you have a plan in place. This will give them greater confidence that you have planned for emergencies.
Another possibility is that you contact the state bar association with the plan that you have put in place and ask for guidance regarding the details of your plan and see if they have any further recommendations.
Immediately below is a link to a podcast which I just completed for the GPSolo Division of the ABA which includes guidance along with a suggested format that you might consider to authorize another attorney using a power of attorney to give that person authority to take over your practice in an emergency and other considerations to help you identify that person. You do not need to be a member of the ABA to listen to this podcast, and you can also find it directly on the ABA Website.
Coronavirus: Impacts and Planning Strategies (ABA Podcast)
This is an hour long detailed podcast that you can listen to. The ABA is also offering access to a power of attorney which I drafted. It has one suggested format that you might consider modifying for your individual and jurisdiction’s requirements. One major consideration is how it is triggered. I recommend you find a trusted third person to endorse it and to acknowledge that that transition of power is authorized by identifying, in advance, someone that you both feel will look out for the interests of all concerned. If you suffer a disability, perhaps the onset of senility, it might be difficult to define and even more difficult to get your financial institutions to honor it. I would also recommend you provide your malpractice carrier with this information and all of the details that you can in advance of the need to trigger it. Make sure any of those agencies, banks, and others with critical confidential information have knowledge that that person is empowered to take over. Of course, if you are both able to participate and sign an acknowledgement, that would be ideal. But, as in the case of your sudden death, that may not be possible. That is why I have included language which addresses that situation.
One final note. If your practice is paper based, you may find it difficult to operate virtually with your clients as this crisis unfolds. You may want to consider purchasing a scanner that is dedicated to scanning. I am not describing a combo scanner, printer, fax machine as they are generally not robust enough for you to scan multiple documents. While you are confined, you can purchase one for delivery to your home or office and use it to start scanning documents now. That way you can save them to the cloud and share with your clients without having to meet them in person. Get a scanner with high volume capacity like 20-30 pages per minute. Also look for one that will save those documents in a text-searchable format so that you can find information quickly when they are saved digitally. There are several brands on the internet and if you don’t know which one to order, ask members of the bar that have gone paperless (or nearly so) to help you find one that you can use. If you find someone using one, they would be able to guide you through the set up and help you understand how to save documents and share them with clients.
During the time you practice social distancing, you can use that scanner to take active files and scan them so that you have access to them from home or anywhere you can access the internet. This will also give your backup attorney access as long as they have the password to their storage location. There are multiple cloud storage options including Google Docs, Drop Box, One Drive and others. If you are not sure how to do this, almost any adolescent, or better yet, law student, can walk you through the process. This will keep you busy doing something that will save you time and money later on.
I hope this information proves to be helpful and that you come out of this crisis in better shape than when this national emergency started. Stay put, if you can and stay safe.