This article was initially published as: Solo Attorneys: Who's Got Your Back? You Need Backup Counsel to Protect Your Clients and Yourself, Greg McLawsen and Russell Mikow, The Bar News (Journal of the Tacoma-Pierce County Bar Association) (August 1, 2013)
[Greg's note: This article was written in the first-person at a time that I was still a solo attorney.]
A question for all solo attorneys: what would happen to your clients if something happened to you? The issue is not just for practitioners entering their golden years; accidents can befall even "young" attorneys. Imagine the impact to your client if your firm failed to meet a litigation deadline. What might your liability be if this could have been avoided?
Working as a law clerk for Kitsap Superior Court, Greg saw what happened when a solo practitioner passed away unexpectedly. His staff worked hard to protect client interests, but as non-attorneys they could not move for continuances in matters with fast-approaching deadlines. What would happen to your clients if you were bedridden with pneumonia or stranded by an airport closure?
As solo practitioners, we decided early in our practices that it was important to protect our clients in the event something happened to us. We struck up two different coverage agreements, one for succession planning in the event of death, the other for coverage if we become temporarily unavailable.
This article outlines factors to consider in identifying a backup attorney. Our backup attorney contract is available here. The WSBA also has a useful handbook available free of charge. See WSBA, Planning Ahead: A Guide to Protecting Your Client’ Interests in the Event of Your Disability or Death (undated).
Professional responsibility. The ABA's Standing Committee on Ethics and Professional Responsibility has advised that a sole practitioner has a duty to plan for protecting client interests in the event of the attorney's death. ABA Op. 92-369 (Dec. 7, 1992). This mandate arises from the duties of competence and diligence. RPCs 1.1 and 1.3. The ABA Committee opined that even though an attorney/client relationship might terminate upon the death of the attorney, the attorney's fiduciary duty carries on, making prospective planning vital.
Your insurance requires it. Most malpractice policies, including the WSBA-endorsed policy administered by Kibble & Prentice, require the insured attorney to have a designated backup. According to John Chandler of Kibble & Prentice, "it is universally expected in the insurance world that solos make arrangements for a backup attorney." An informal poll of solo practitioners we know suggest that many solos have at most an informal arrangement with another attorney to provide backup. Yet a vague arrangement that another attorney “has your back” is skating on thin ice.
Liability. It takes little imagination to envision how the unexpected absence of an attorney could greatly prejudice a client. In our line of work there are plenty of instances where a missed immigration deadline could destroy an individual’s ability to remain in the U.S. In transactional work, what if your unexpected absence caused an offer to expire unanswered. If damages could have been avoided by providing a backup attorney , this liability could land on your doorstep or fall to your estate.
Factors to consider in choosing a backup attorney.
Selecting a backup may be the most challenging aspect of this process. Who could competently walk into your law practice and run with the ball to protect your client’s interests? Who knows the area of law that you practice? Currently WSBA has no formal tools to help attorneys identify backups. Consider turning to WSBA’s Solo and Small Practice listserv, or reaching out through the TPCBA.
In our case, Greg’s practice is limited to immigration law, but Russ also does bankruptcy and consumer debt work, so our coverage agreement is limited to immigration cases only. If your primary practice area is family law, you don’t want your backup surprised to find herself defending a securities derivative action. You may also want to limit the backup’s responsibilities to time-sensitive matters (we did) to make clear the backup doesn’t need to draft your Ninth Circuit brief just because you’re stuck in Maui for a couple of days.
What triggers the backup?
Establishing unavailability. On a practical level, how does a back-up determine the other affected attorney is “unavailable” so that he knows when to act? In an ideal world, the affected attorney would call, email or text the backup to provide advanced notice. But a key goal of our arrangement was to provide coverage for unexpected absences, such as a medical emergency.
Our coverage agreement allows the backup attorney to use all evidence and information that can be deemed reasonably reliable, including communications with the affected attorney, his family members, representative, or opinion of health care professionals. We included a hold-harmless provision in the event a backup attorney makes a reasonable and good faith, but incorrect determination of unavailability.
How does the backup attorney get paid by the affected attorney?
We chose to compensate each other for backup work at an amount that was substantially reduced from our normal hourly fees. The main value to each of us is the reciprocal coverage arrangement itself. We also agreed that in no event would the total amount charged by the backup attorney exceed any flat fee originally charged to a client. In the event the fees incurred by the backup approached 25% of the total flat fee originally charged by the affected attorney, the affected attorney could chose to transfer the file to the assisting attorney after the client’s approval has been obtained.
A vital aspect of coverage agreements is to clearly spell out nature of the business relationship between the affected attorney and his backup. The agreement should clearly establish that the backup attorney is an independent contractor for the affected attorney, and the agreement should expressly disclaim an employment relationship. This minimizes the affected attorney’s liability for the backup attorney’s actions, and the requirement to pay payroll taxes, and other employer obligations.
Client representation agreements.
Our standard legal services agreements contain express consent to our backup attorney arrangement. First, consent is required to give rise to the attorney-client relationship that would allow the backup attorney to provide legal coverage for the client. But moreover, we want our clients to understand that arrangements are in place to safeguard their interests. The fact we formally arrange for backup coverage is an additional value offered to our clients (at no cost to them). To keep it simple we each use identical language in our standard legal service agreements. We also give the client the option to decline to proceed with the backup, and may retain a different attorney, in which case she may be entitled to a partial reimbursement.
Representations to clients.
We were very concerned about avoiding any representation that could accidentally give rise to an attorney-client relationship, other than in the limited backup context. Were a client to fall into a dispute with her attorney, we wanted carefully to safeguard against inadvertent liability to the attorney’s backup. We include an express disclaimer in our representation agreements, explaining that the backup attorney has no involvement in a client matter save for the limited backup function. We were also concerned about client perceptions since we are in a shared office suite. As a partial solution we agreed to create signage on our respective office doors clearly stating "This firm is associated with no other business or attorney in this building."
As a practical matter, how can an assisting attorney step into the affected attorney's shoes if required under the coverage agreement? To perform essential functions, a backup attorney will need access to client files and an understanding of the affected attorney’s office procedures. At a minimum, each attorney will need to provide the other with computer login codes, general business and IOLTA account information, and any other information that would be required to competently step into a client matter. Greg drafted a 30-page office procedure manual, which turned out to be a helpful exercise in identifying more efficient office protocols. WSBA advises that a third attorney should be assigned the role of signatory for the affected attorney’s IOLTA account to provide for “checks and balances.” Planning Ahead, supra, at 1-2.
The affected attorney and his backup must each have his own liability insurance. An affected attorney's failure to confirm such coverage on the part of the backup attorney could potentially lead to a malpractice claim by a disaffected client if the assisting attorney's legal representation is deficient.
A solo practitioner may have a long, successful career without ever needing another attorney to help out in an emergency. But the stakes are too high, and in our view the diligent practitioner should not ignore this important client safeguard.