The Risk Manager, Fall 2015
The key malpractice prevention procedure for maternity leave is a plan for a smooth transition to a backup lawyer ready and qualified to perform required services during the leave. In larger firms this is relatively easy and the professional responsibility issues of client confidentiality, client communication, conflicts, client trust accounts, and fees are usually manageable. For the solo practitioner none of this is easy. The answer most often recommended is to have a plan for the solo practice to cover lengthy absences, expected and unexpected. A gloss of recommendations from several commentators on an effective plan follows:
FIND A BACKUP LAWYER
- Reach agreement, preferably in writing, with a trusted lawyer to back up your practice during defined absences; e.g., maternity leave, vacations, and extended illness.
- For Kentucky practices the backup lawyer should be a licensed KBA member in good standing with appropriate qualifications for your practice, unlikely to have conflicts with your clients, and with professional liability insurance.
- The agreement should define the duration and scope of the backup lawyer’s authority. Is the backup to handle all client matters? Only matters in litigation? For how long – short term or long term?
- Consider making arrangements for the backup to handle your client trust account. One way is to make the backup a signatory on the trust account. A better way is a special power of attorney that permits the backup to act for you only in specified circumstances.
- The agreement should cover when and how much the backup is to be compensated. Consider such things as the time spent on the matter by you, the backup, and whether the case is on a contingency fee basis. Identify the source of funds from which the backup will be paid; e.g., accounts receivable, settlements, or fees received for the backup’s services only. It is almost certain that Kentucky Rule of Professional Conduct 1.5(e) on fee sharing will apply. Be sure to comply with its disclosure and client consent provisions.
- Backup arrangements may be implemented only with client consent. The best practice is to notify clients in advance of these arrangements. Many lawyers do this in a letter of engagement acknowledged in writing by the client. This has the advantage of in- place client consent for a backup to take over a matter without delay. Some lawyers send a letter to clients shortly prior to taking maternity leave informing them of the forthcoming absence, explaining the backup arrangements, and asking for client consent. In either case the backup lawyer should always notify clients immediately upon taking over to avoid any misunderstandings.
- Protecting client confidentiality is the paramount concern in backup situations. In sudden emergencies such as the death of a lawyer it is permissible for an unassociated lawyer to inspect the deceased lawyer’s client files without client consent to the extent necessary to identify clients and determine matters that require immediate attention. Given the long lead-time in planning for maternity leave there should be no sudden emergency. There is ample opportunity to get client consent for backup service and avoid any question of breach of confidentiality by an apparent interloper.
YOUR RISK MANAGEMENT ACTIONS PRIOR TO TAKING MATERNITY LEAVE
- The goal for every lawyer going on a lengthy absence is to be sure all active cases have up-to-date files, are accurately calendared, and in a posture to be continued without interruption. This is best accomplished by completing detailed case management plans for every active matter that includes a description of work done and a schedule for accomplishing remaining work. This also helps to determine how fees could be shared with the backup.
- In a perfect world, every practice has a written law office procedures manual or standing operating procedure – in this world relatively few do. If your practice does not have written procedures, you should prepare them for your backup before going on maternity leave. Cover the following information at a minimum and be sure to share it with the backup well before your absence:
- Calendaring and conflict check systems.
- Case management plans.
- Client contact and notification information including telephone numbers and mailing list.
- Computer system including passwords, backup systems, and software employed.
- Office file plan.
- Billing practices including status of accounts receivable and special situations.
- List of office equipment used in the delivery of legal services.
- Insurance program to include professional liability and general liability coverage.
- Employee information.
North Carolina’s Lawyers Mutual Risk Management Practice Guide “Extended Leave” offers guidance for extended leave for solo and small firms. It includes the following checklist that is a useful supplement to the other checklists in this article. To read the Guide, go to www.lawyersmutualnc.com, click on Risk Management, go to Practice Guides, and click on “Extended Leave.” (last viewed on 9/15/2015)
Checklist For Preparing For Extended Leave
- Notify clients.
- Notify professional contacts.
- Notify malpractice carrier.
- Prepare employee(s).
- Print a master client/ contact list.
- Prepare case status summaries.
- Arrange for collection of mail.
- Arrange for payment of bills.
- Arrange for processing of payments received.
- Update voice mail and email messages.
- Update calendar.
- Place a sign on your door.
- Map your files.
- Backup your data.
- Plan for emergencies.
- Prepare for the unexpected.