Operation Enduring LAMP
Mobilizing Bar Associations to Provide Legal Help for Military Personnel/Reservists

Mobilization Readiness Advice	Consent to Close Office
Notice to Client	Checklist for Closing Another Attorney's Office
Mobilization Checklist	Office Closure File Tracking Chart

The notice or alert has just come from your armed forces reserve unit signaling that your unit may be activated in the coming days or weeks. Worse yet, the phone or personal contact has occurred, the activation order has been given and you are to report for duty in 48 hours. What steps should you take to ensure your practice is in order? Whether activated on a voluntarily or involuntarily basis, there are a number of issues that the attorney/reservist needs to address prior to reporting for duty. Here are the things that you need to accomplish before reporting for duty. If at all possible, start this process before you receive your activation order. The more time that can be devoted to this process, the less troublesome the transition will be for your clients.

Although your initial orders may state that your time commitment is 179 days, don't be surprised to find that once you are in country the orders are extended for an indefinite period. You should view this situation as requiring you to wind down your practice, and understand that the winding down does not occur over night. If you have the good fortune of being able to return to your practice before the winding down process has been completed, then so much the better.

If you previously established a succession plan, contact your designated attorney. If this hasn't been done, you need to designate an attorney to administer the winding down of your practice. She will handle all business concerns associated with closing the practice and will likely send letters to clients, be available to address any significant and immediate client issues, and assist in locating new counsel for your clients. She does not continue your practice during your absence.

The designated administrating attorney should be someone of competence and experience, and one who displays the utmost professionalism. Remember that if this attorney discovers evidence of legal malpractice or an ethical violation, she may have an ethical obligation to inform your clients of your errors. She should be someone who is very familiar with your areas of practice and she should have adequate malpractice coverage in place. She should also be someone who has the time to devote to winding down your practice, and the ability to make rapid decisions and assume the burdens of being responsible for administering an additional practice for a period of up to several months. If no one person is available to assist with this task, consider asking several attorneys to share in the responsibility.

After obtaining and/or notifying your designated administrating attorney, your most immediate task is to review and update the staff and the administrating attorney on the current status of each and every file. If this cannot be done in the available time, then review the most pressing matters. Keep in mind that once you report for duty, you will be sent to a mobilization station and may remain there for some period of time. While there, you should try to find some additional time to address questions from the administrating attorney and staff, and tie up any loose ends. If there are imminent deadlines or other matters that now are unmanageable, the court system may be willing to make allowances for your emergency reserve activation, and assist in your efforts to reduce the negative impact upon your clients' interests.

The next most immediate concern is to notify your clients. If you think that it is likely that you will be activated, do not wait for the activation order to arrive before sending out letters or placing calls. If you might be activated, your clients should be made aware of this. Tell your clients the specifics of what may happen and how you plan to handle their matters if you indeed are activated. Remember that the file belongs to the client. If you are activated, you should give your clients a choice as to where they wish the file to go. The administrating attorney can assist in locating other counsel or may be available to handle the client matter herself. The client sometimes will want to find alternative counsel on his own. Let your clients know that your staff and the administrating attorney will be available to answer questions and to help in any way that they can. Assure your clients that the attorney/client privilege extends to the administering attorney.

The final task is to review with your administrative attorney all of your office systems. She will need to understand your office conflicts system and calendar system. She will need a list of support staff that includes a brief job description and contact information, the client list and the vendor list with contact information, and the name and contact information for the individual you have given power of attorney during your absence. She will need to know your passwords to the computer system and the location of any computer backup or recovery media, and she will need to have copies of the keys to storage areas and the office. Also, be sure to advise her of any other office procedures that are unique to your practice and must be followed in order to fully serve your clients.

Document your administration arrangement with the designated attorney. Items to consider include, but are not limited to, the following:

• A signed consent form authorizing the attorney to contact your clients for instructions on transferring their files;
• Authorization to obtain extensions of time in litigation matters;
• Authorization to provide notice of the closure of your practice to all relevant people;
• Instructions as to drawing checks on the firm's business account covering payment of such current and future liabilities as payroll, taxes, utilities, rent and debts;
• Instructions as to billing, accounts receivable and collection matters;
• Instructions as to the trust funds;
• Instructions as to the storage or disposition of closed files; storage or disposition of office furnishings equipment and supplies; the disposition of the office space; and,
• The arrangements for payment to the designated attorney for her services rendered.

If you maintain a client trust fund you must allow the designated administrative attorney access to this account prior to your departure, or else your client's money will remain in the trust account until a court grants access. Waiting for such a court order will likely cause delay, and may put some of your clients in a difficult position. Either your staff or your administrating attorney will have to account for all clients who have funds held in trust, and must arrange for transferring the balance to the client's chosen new attorney. Otherwise, you will have to remit the client's funds. More than likely, the administrative attorney will be responsible for resolving these client trust account issues.

Remember that if the administrating attorney misappropriates money, your clients will suffer and you may be held responsible. Therefore, your choice of administrating attorney is a very important decision. Again, make sure you find someone who exhibits the utmost in professionalism. If you practice in a remote area of the country where attorneys are few and far between, and finding a designated attorney is difficult, try contacting your local and/or state bar association for assistance.

You should also contact your malpractice insurance carrier to advise the carrier of your situation. If you convey this situation by telephone, the insurer will likely require written notification of the situation. Although every carrier will address this situation differently, you should be prepared to advise the carrier exactly who is the administrating attorney, and whom you have given power of attorney during your absence. The malpractice carrier may be required by federal law to waive your premiums while you are on active duty.

You should maintain an active malpractice insurance policy for at least as long as you expect the designated attorney to finish winding down your practice. At that point, the individual to whom you gave power of attorney should arrange for an extended claim-reporting period or "tail policy." Note that many carriers will write a tail policy for only one year at a time. Thus, your firm's tail policy should be renewed annually for as long as you are away from your practice. After you return, your carrier may provide a new active policy that backdates the loss inclusion date to that which was in force before you left for active duty. In other words, the time away and the presence of a tail policy would not create an insurance coverage gap for you upon your return. You should discuss this issue with your carrier before you leave for active service.

Every attorney's practice is different, and no single article can cover every issue that might arise as a result of being called to active duty. However, if you address the issues raised here, you go a long way toward seeing that your business affairs are in order prior to departing. Your willingness to serve our country and the sacrifices that you have and are making are greatly appreciated. Good luck and God Bless.

Sample Notice to Client of Possible
Attorney Call to Active Duty

[Date]

____________________

____________________

____________________

RE: Possible Call to Active Duty

Dear Client:

I am writing to inform you that I am a reservist in our nation's military. I serve in _______________________________. My unit has just been notified that we may be called to active duty at any time. I am writing to make you aware of the procedures that I have in place in order to ensure that your legal interests are protected and that your legal matter is handled appropriately if I am called to active duty. Rest assured that until I receive a call to active duty, I will continue to be responsible for your legal matter and that I will give your matter the full attention that it deserves.

I have named ______________________ to act as my designated administrative attorney if I am called to duty. Once called to active duty, I may have as little as 48 hours in which to prepare for departure. (designated attorney) or I will inform you immediately of the situation. At that time (designated attorney) will be given the ability to fully manage my practice. He/she will not attempt to maintain my practice indefinitely. However, he/she will be responsible for handling any crises or concern that arises until all clients of my practice have found substitute counsel or have had their matters concluded.

You will have the opportunity to decide what to do with your file. Choices may include having (designated attorney) find another attorney to handle your matter, having (designated attorney) handle your matter if able, or having the opportunity to locate a substitute attorney of your own choosing.

Questions or concerns about this development and its implications are welcome. Please feel free to contact us for further information.

Sincerely,

_________________________

Attorney at Law

A word of caution regarding this form: This form is not intended to suggest or establish practice standards or standards of care applicable to an attorney's performance. We are happy to provide this form to assist you. Our interest is in serving lawyers and particularly in avoiding malpractice claims, by providing resource material from which one can develop a customized form. This form is not intended to respond to any individual situation or concern. The ABA, the form's author, or any ABA employee cannot be held liable for any direct, indirect, or consequential damages resulting from the use of this form.

Mobilization Readiness Checklist

Notice of Possible Activation

_____ Designate an attorney to administrate the winding down of the practice if activated. (Make certain that this person has malpractice insurance in place.)

_____ Prepare and properly execute an instrument giving to the person of your choice.

the power of attorney regarding your personal affairs.

_____ Send all clients a notice regarding possible activation.

_____ Develop reference materials for the administrating attorney to use if you are activated.

These materials should include:

___ A description of office procedures,

___ The names, job duties and contact information for all office staff,

___ The company name, contact person and contact information for all vendors including your malpractice carrier, business insurance carrier, landlord, all suppliers, the individual to whom you have given power of attorney, your accountant, the bank, the computer consultant and utility companies,

___ Any computer passwords,

___ The location of any necessary keys,

___ The location of all safety deposit boxes and a list of what they contain,

___ The combination to any safes,

___ A list of all property stored for clients and instructions for the disposition of this property if necessary,

___ A list of all bank accounts and the location of all bank records,

___ Instructions on the storage or disposition of closed files,

___ Instructions on the storage or disposition of office furnishings, equipment and supplies,

___ Instructions on billing, accounts receivable and collection matters,

___ Instructions on the disposition of the office space,

___ Instructions on drawing checks on the firm's business account covering payment of such current and future liabilities such as payroll, taxes, utilities, insurance, rent and debts,

___ Instructions on handling the client trust funds.

___ The arrangements for paying the administering attorney for services rendered.

_____ Contact the designated administrating attorney.

_____ Sign and deliver to the administrating attorney a consent form authorizing the attorney to contact your clients for instructions on the disposition of their file.

_____ Sign and deliver to the administrating attorney your authorization to obtain extensions of time in litigation matters and to provide notice of the closure of your practice to all relevant people.

_____ Review with staff and the administrating attorney the current status of all files.

_____ Review the master calendar with staff and the administrating attorney.

_____ Transfer trust account signature authority to the administrating attorney.

_____ Contact your malpractice carrier.