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Solo Lawyer Dies or Becomes Incapacitated

Prior Planning. It is hard to think about events that could render you unable to continue practicing law. Unfortunately, freak accidents, unexpected illness, and untimely death do occur, and if they happen to you, your clients' interests may be unprotected. If the sole practitioner has not properly provided for such events, obvious consequences would include client complaints, delays, staff confusion, and misdirection. In turn, these circumstances might lead to grievances, breaches of duty, and malpractice claims.

For this reason, a lawyer's duty of competent representation includes arranging to safeguard the clients' interest in the event of the lawyer's death, disability, impairment, or incapacity. These instructions are designed to help you fulfill these ethical responsibilities and to reduce future malpractice claims against you and your estate. Most commercial malpractice carriers require the lawyers they insure to make similar arrangements.


Written Plan.

Sole practitioners should have a written plan addressing what will happen to client matters upon the lawyer's death, disability, impairment, or incapacity. The plan should be stored in a safe, readily available location and shared with all firm members, including support staff, lawyers of counsel, and associates.

Forms: Agreement to Close Law Practice, Limited Power of Attorney, and Sample Will Provisions.
Sample Letters: Letter Advising Clients that Lawyer is Unavailable, Letter of Understanding between Attorney and Holder of Power of Attorney

 

Rule 1.4 SCRPC, requires that lawyers keep clients reasonably informed about their cases and explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Client Notice.

A lawyer contemplating a transition arrangement should incorporate notice to current clients. One way to handle client notice is to include a statement in the Engagement Letter or fee agreement.

Conflicts.
Be mindful of conflict issues. Be sure your backup counsel is sensitive to conflict issues. Agreements with backup counsel may not unilaterally allow access to client information since ethics rules require lawyers to protect client confidences and secrets. A lawyer may not disclose confidences and secrets or use confidences and secrets to the benefit of a third party or for the lawyer's own interests, without the client's consent. Partners and employees are bound by the lawyer's duty to protect confidences and secrets within a law firm. The solo practitioner's personal representative is not. The best way to deal with this problem is to be sure to add a paragraph to the retainer letter or fee agreement providing that, in the event of the lawyer's disability or death before the conclusion of the matter, a backup lawyer will have access to the client's name, address, and representation file in order to notify the client so the client may obtain substitute counsel. Rules 1.6, 1.7, 1.9, and 1.10.

Rule 31 of Rule 413, SCACR, provides where no partner, personal representative, or other responsible party capable of conducting the lawyer's affairs are known to exist, disciplinary counsel shall petition the Supreme Court for the appointment of a lawyer to inventory the files of the inactive, disappeared, deceased, suspended, or disbarred lawyer and to take action as appropriate to protect the interest of the lawyer and the lawyer's client. The rule sets forth the duties of the appointed lawyer, the period of appointment, the representation of clients, the termination of appointment, the compensation and expense due the appointed lawyer, and the lawyer's duty to protect client information.