Law Trends & News

Being Prepared With Law Office Emergency Planning

By Lloyd D. Cohen

From a hospital bed a lawyer scheduled for emergency surgery begins a stream of consciousness recitation about the law office. The anxious spouse jots onto “sticky notes” everything that can be remembered about files, deadlines, and money. The surgery is a success, but the ethical and malpractice exposure is a near miss. Another lawyer is not so lucky. By the time that the family recovers from the shock of the lawyer’s untimely demise, the staff has fled, the clients have panicked, and the value of the practice has disappeared. Still another lawyer temporarily separated from the practice by a freak occurrence wonders how to get word to any of a number of friends who would volunteer to help if only someone had a clue! What the above examples have in common is an emergency situation exacerbated due to a lawyer’s loss of ability to supervise a law practice. Regardless of the type of emergency at hand, the professional aggravation compounding it can be minimized if some forethought is given to the development of a law practice emergency plan.

A new ABA book titled Being Prepared explains how lawyers can insulate their law practice from life’s unexpected events and at the same time fortify themselves against the ethical and malpractice demons that may haunt these contingencies. Regardless of whether the emergencies at hand spring from a personal disability or a larger unexpected event, these contingencies emphasize the importance of developing an emergency casualty manual. The manual does not necessarily need to be a notebook or even be on paper, but somehow enough information must be preserved to provide a game plan for your helpers. Events that can diminish your ability to supervise your practice can be as widespread and devastating as a Gulf hurricane or a Mississippi flood, but they can also be as personal and intimate as sickness or as serendipitous and capricious as an isolated a civil disturbance occurring while you are at your favorite vacation spot. If the inevitable occurs, becoming prepared now can protect your life’s work and reputation. Although a flood or hurricane may provide a good excuse for losing files or missing deadlines, the tasks needed to prepare a law office for headline disasters are much the same as the steps needed to make sure your professional practice is protected in the event of personal disability or other temporary absence.

No one wants to plan on having a disaster, but lawyers know the value of being prepared. Even when faced with a case that has a bad set of facts, being prepared allows a lawyer to take advantage of opportunities that can sometimes turn a poor start into a winning finish. In somewhat analogous fashion, being prepared for life’s unexpected events can allow a lawyer to save a practice. The plan needs to organize a human support network available to help if you are sidelined. Then, the plan should create the legal relationships needed to empower your helpers. Then some kind of emergency manual should be readied to preserve the essential parts of your firm’s institutional memory in order to provide continuity for clients and support for office functions. Finally, appropriate controls for access to this information must be set in place. Within this context, the following factors should be considered:

1. The Unexpected Can Happen
1. Compromise of your office or physical plant
2. Interference with your ability to get to your office
3. Sudden diminishment of your physical or cognitive ability to supervise your office or cases
2. Identify and Nominate People Who May Be Available to Help
1. Secondary helpers who may to available to give support and who are aware of your preparation and the identity of your primary helpers
2. Primary Helpers
1. Lawyer or lawyers who, if necessary, can review cases and contact clients, and if needed, take immediate protective action to preserve client rights
2. Lawyer or nonlawyer friends who might be available to help preserve your physical plant, if needed
3. Helpers who can assist in maintaining your firm’s financial integrity
3. Enable Your Helpers
1. Consider a financial power of attorney
2. Consider backup bank account signing authority
3. Consider other formal or informal agreements
4. Facilitate Your Helpers
1. Back up: (1) passwords, (2) bank names and account numbers, (3) alarm codes or office keys, and (4) any other essential information
2. Describe where and how to access your primary and other calendars and dockets together with contact names and phone numbers of courts or persons with whom you normally have contact
3. Describe where and how to review active files to determine if any immediate action is needed to maintain a case, insure compliance with deadlines, or other action needed to protect client rights
5. Guild Your Helpers
1. Provide instructions for when and how information about your clients and your practice should be accessed and when and how it should be used
2. Provide for both multiple safeguards and multiple helpers so that no one person can act unilaterally and at the same time no one person becomes indispensable; thereby the “team” will be able to adapt to changing circumstances, as needed
6. Be Prepared by Preserving Your Emergency Casualty Plan
1. Store a copy or copies of the above information in alternate safe place(s)
1. One of the places can be in an electronic format
2. One of the places should be a different physical location from your office
2. Give effect to your plan and preparations by making sure that one or more of your primary helpers know about your emergency casualty plan and one or more of your primary helpers know how to retrieve it

The ABA book Being Prepared guides lawyers though these factors and explains how to record your firm’s intuitional memory, gather your human support network, and form the legal relationships that will create your emergency plan. Because the last thing that small firm lawyers need is another management project, the great thing about this book is that it shows the reader how to avoid having to assemble everything alone. It actually guides whatever helpers you nominate, delegate, or otherwise enlist. It makes preparation into a process that does not require doing everything at once. The book is divided into portions and steps that permit progress in stages, and it is organized for delegation. Chapters 1 and 2 of the guide immediately bring a beginning level of preparedness. Chapter 1 introduces the concepts and provides the first questionnaire, while chapter 2 is a guide for helpers during the first 72 hours following an emergency. These two chapters can be completed immediately, and together they give you the beginnings of a recovery plan. Chapters 3, 4, 5, and 6 fortify the ability to respond to crises by providing more details, additional questionnaires, and refined plans. Their completion creates a framework that would help your law office adapt in the event of an unforeseen extended period of absence or unavailability.

To complete an emergency plan, you do not need to dwell on every detail or fill out every questionnaire. They are provided as a compendium of items that you can consider, delegate, discard, or use. Their function is to permit you to dispense with the need to consider everything the entire project might entail before getting started. This book is a working manual that simply allows you to get started. Chapter 7 adds resources that include a number of Internet links for free downloadable legal forms. Instead of merely reprinting what’s already available on websites, the authors instead describe both the sources and contents of existing available free sites so that you can efficiently obtain appropriate planning documents without having to read though entire scholarly works. Together with a completed emergency manual, the planning documents would help your family or estate preserve the value of your law practice should something happen to you. The completed plan would provide continuity for a deceased lawyer’s active cases. The plan would also establish a structure in which a caretaker lawyer could provide immediate action to protect client interests. However, because death is only one of many casualties that can befall any of us at any time, this guide does not dwell on that possibility. Instead, it focuses on the self-reliant, independent, essential practitioner for whom temporary casualties should stay temporary and not escalate into professional or economic catastrophes.

The picture of the past was a solo lawyer surrounded by a team of loyal support people. The picture of the future is a small firm lawyer surrounded by computers, electronic aids, and outsourced services. As inefficient as the past was, that bloated staff collectively maintained an institutional memory that could be tapped when their boss was absent. Today’s efficiency is achieved through the sacrifice of a staff that knows everything about the office. Furthermore, this evolution to electronic practice styles now comes at a time when the “graying” of our profession raises the absent lawyer scenario to a matter of heightened concern. These modern problems can be alleviated though the development of an emergency manual and plan. For more information about these issues and their solutions, look for Being Prepared: A Lawyer’s Guide for Dealing with Disability and Unexpected Events by Lloyd D. Cohen and Debra Hart Cohen, which should be on the ABA Solo|GP Bookstore website in August.

Lloyd D. Cohen is a solo of more than 28 years, has practiced a lot of bankruptcy and a little estate planning in Columbus, Ohio, and can be found at www.lloydcohen.com or blog to http://planandprepare.blogspot.com.

© Copyright 2008, American Bar Association.