Planning for a future crisis can be difficult for anyone. This holds especially true for lawyers. It is not easy to discuss or even think about circumstances that could render a lawyer unable to continue practicing law. Last year, the ABA issued a report estimating that nearly 65% of equity partners in law firms will retire over the next decade1. Confirming the difficulty of planning for the future, the ABA report also notes that very few lawyers and law firms have sufficiently prepared to manage transitions before a crisis occurs. As the below Superior Court of Pennsylvania case confirms, this is serious business; it presents significant malpractice concerns. With sufficient planning, however, lawyers can protect their clients, their family, their staff and their reputation in times of uncertainty.
Planning for a Crisis, or the Inevitable
The pinnacle of lawyer professionalism is often equated with the lawyer’s dedication to clients, service, competence and planning with good judgment. Lawyers have a duty not to abandon their client. Yet, a time of crisis carries a substantial risk that clients will be abandoned by their lawyer in the middle of the clients’ matters. Although the Rules of Professional Conduct do not specifically address transitions before a crisis, it can be fairly inferred from the Rules that lawyers should make arrangements for their client files to be maintained in the event of the lawyer’s retirement or death, or even the law firm’s dissolution.
ABA Rule 1.1 requires a lawyer to provide competent representation to a client. Competent representation requires the “legal knowledge, skill thoroughness and preparation necessary for representation.”
ABA Rule 1.3 requires a lawyer to “act with reasonable diligence and promptness in representing a client.” In combination, these Rules, among others, require lawyers to adhere to professionalism and have a plan of succession in place for the inevitable: an interruption or cessation of their law practice.
Planning for the inevitable cannot be overstated, particularly for those practicing in a solo practice setting. A comprehensive succession plan in advance of the inevitable will help a solo lawyer avoid personal and financial strife, unnecessary disciplinary complaints, and possible malpractice law suits commenced by a lawyer’s former clients. A lawyer’s succession plan should ensure important client matters will not be neglected. In a time of crisis, important client calendar matters, such as motion filing dates, court appearance dates and the statute of limitations, could be neglected until the client discovers that their solo lawyer is no longer able to work on his or her case. For that reason, a lawyer’s succession plan is essential to proactively protecting a client’s case.
Legal Malpractice Exposure
It should not be surprising, then, that a lawyer’s lack of a succession plan could possibly result in malpractice litigation arising from a small law firm’s neglect following the loss of one of its lawyers. In Clinger v. Tilley, 423 Pa.Super. 121, 620 A.2d 529 (Pa.Super.1993), the Superior Court of Pennsylvania affirmed the termination of a personal injury case due to inactivity following the death of the appellant’s lawyer. In that case, the appellant’s lawyer received notification of the termination of his client's case but did not read the notification. A year later, the appellant’s lawyer died.
Under Pennsylvania law, a terminated case due to inactivity may be reinstated “for good cause shown” where: (1) the petition for reactivation was timely filed; (2) plaintiff has a reasonable excuse for inactivity; and (3) the plaintiff alleges the existence of a meritorious cause of action. Complaints that are delayed for inactivity for more than two years will not be reinstated due to prejudice. For the reasonable excuse element, the appellant argued that her lawyer’s death excused the inactivity in the case.
Unfortunately, the Pennsylvania Superior Court found that the lawyer’s firm did not take any action on the case until a year after the lawyer’s death, which was more than two years after the lawyer originally received the notification for inactivity. In other words, no plan was in place by which the lawyer’s files were immediately reviewed for deadlines following the lawyer’s death. Accordingly, the Superior Court did not find good cause to reinstate the appellant’s case. It is not hard to imagine a legal malpractice case arising from Clinger.
So then how can a lawyer defend against possible claims arising from a lawyer’s death and failure to take proactive actions? Clinger exemplifies the old adage that “the best defense is a good offense.” While it may not be comfortable to discuss potential accidents, such as disability, unplanned retirement and untimely death, an affirmative duty exists for a lawyer to protect clients in the event of that lawyer’s inability to do so. Ultimately, Clinger stands for the principle that solo lawyers and small law firms must have a succession plan in place in the event of a lawyer’s sudden death to protect their client’s case and prevent neglect of client matters.
Comment  to the Pennsylvania Rules of Professional Conduct2, Rule 1.3, recommends that lawyers in solo firms should consider designating another competent attorney to review client files, notify each client of the attorney’s death or disability, and determine whether there is a need for immediate proactive action to prevent neglect of client matters in the event of a sole practitioner's death or disability. The appointment of a competent attorney, sometimes called a “successor attorney,” can represent either the attorney or the attorney’s clients, but not both.
For additional information on succession planning and other important practice managmeent articles for attorneys and law firms, you can visit the Pennsylvania Bar Association's Law Practice Management page at http://www.pabar.org/site/For-Lawyers/Law-Practice-Management. ________________________________________________________
This article was prepared by Andrew Jones and Spencer Richards of the New York City-based law firm of Furman Kornfeld & Brennan LLP. Andrew and Spencer work as part of a team of 15 lawyers and paralegals devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters, as well as the defense of construction and personal-injury accidents.
For more information about the above topic or the authors, please visit: www.fkblaw.com.
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