It was many, many years ago (almost exactly 5 years ago) that I wrote a bit about how important it can be for lawyers who have solo practices to have contingency plans in place in case something suddenly happens to them in order to provide a way for their clients to be protected.
As we are in the middle of a pandemic that seems like it may never end (though I guess it may not even be accurate to say “middle” when the duration seems unknowable), it seems as good a time as any to remind folks about the need for this kind of planning.
And because it is often easier to learn from actual stories that happened, and because this is a story that seems to have occurred before the pandemic and is one I can indirectly make “personal” because of a common surname, I’ll offer this one.
(Obviously, when you go look at the documents, you will see when I say “common” surname I do not mean that the surname is a common one. It is very uncommon, but it is one that I have in common with the former Florida lawyer. Given that fact, it is highly likely that we are related in some degree.)
This story, which unfortunately will double as a story of how disciplinary proceedings can go from bad to worse if not handled appropriately, involves a Florida lawyer who became seriously ill, quite suddenly in January 2018, and left Florida to move to New York to be cared for by family. This former lawyer also was plagued by additional health issues including cancer further contributing to the inability to work.
She entered into a consent judgment in Florida which was accepted by the Florida Supreme Court in January 2020 to be suspended from practice for 90 days. Because of her sudden illness, having become bedridden and unable to talk, she abandoned a litigation matter she was handling for a pro bono client. The consent judgment lays out a more complicated story — a story in which readers could conclude that the pro bono client in question had already been failed prior to any health issues as the client’s case had apparently languished with no activity for nearly two years prior to January 2018.
Nevertheless, and despite the fact that the consent judgment included the lawyer acknowledging she was likely never going to be able to resume practice, the suspension order did not become effective for 30 days in order to give her time to do what she had failed to do originally, notify clients and make arrangements, etc. That order even went so far as to say: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”
Unfortunately, the lawyer either did not do that or, if she had no other clients to notify, did not make arrangements to file the necessary paperwork to notify Florida and, thus, she was subsequently found in contempt and suspended for 91 days in August 2020. Again, even in that order, the lawyer was given 30 days until it would take effect. That order also again stated: “If Respondent notifies this Court in writing that she is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately.”
Unfortunately, the lawyer again did not do any of those things. As a result, last month, the Florida Supreme Court entered an order disbarring them on July 22, 2021. That order, unlike the ones that preceded it, was made immediately effective.
If you practice law in a firm of sufficient size, you can get away with procrastination when it comes to thinking about your own morbidity or mortality because someone else at your firm will likely step in to save your, and the firm’s clients’, bacon. If you practice law by yourself, the risk of failing to plan is much more severe.
If you are a solo practitioner in Tennessee, and you have not already put a plan together for what will happen to your clients should something suddenly prevent you from continuing to practice law, do make the time to go familiarize yourself with the provisions in Section 29 of Tenn. Sup. Ct. R. 9 that allow for the appointment of receiver attorneys. While many lawyers have heard of this concept, many only know that affords courts with the ability to appoint someone to step in when a lawyer has become unable to practice. What is even more important though is that the rule blesses, in Section 29.9, advanced planning efforts to accomplish the same purpose:
29.9. Advance Designation of a Receiver or Successor Attorney. An attorney may designate in advance another attorney by contract, appointment, or other arrangement to handle or assist in the continued operation, sale, or closing of the attorney’s law practice in the event of such attorney’s death, incapacity or unavailability. In the event an attorney to whom this rule applies has made adequate provision for the protection of his or her clients, such provision shall govern to the extent consistent with this Rule unless the trial court or the Court determines, upon a showing of good cause, that the provisions for the appointment of a receiver attorney under this Rule should be invoked.
Such contracts need not be unwieldy or overly complicated, and they can not only serve the public good by protecting your clients, but also having one might just play a big role in having your story (should something happen to you from which you can recover) be one of temporary troubles rather than a downward spiral to disbarment.