ARTICLES

Plan to Say Good-Bye While You Are Able
By: Carol P. Waldhauser

At the age of 65, John Doe, Esquire, is an active attorney and he does not intend to retire.  In fact, he cannot bring himself to even whisper the R….word.  John realizes, however, that life happens.  Furthermore, John believes that he has an ethical obligation to protect his clients’ interests in the event of his death, disability, impairment or incapacity.  For those reasons, John decided that while he was active, thinking clearly and objectively, he should have a plan for retiring gracefully and at an appropriate time before becoming a burden and even worse an embarrassment or liability to his partners, associations and clients.

As Americans continue to live longer, healthier lives; many individuals are choosing to work well past the traditional age of retirement.  Some stay on for purely financial reasons, but a growing number continue to work because it is their life-line and their identity is intertwined with their careers.  For them, being forced to give up their practices because of old age would be equivalent to giving up their lives.

Similarly, while natural aging dictates that some point the deterioration of mind and body may require a lawyer to call it quits, a young lawyer may become chronically ill or disabled.  Often this happens before he or she is otherwise ready – financially or mentally – to stop practicing.  Subsequently a peer or friend may be left with closing a law practice due to an untimely health problem or death.

One law student, who prefers not to be named, still whishes more information was available when the sole-practitioner for whom she worked became chronically ill and subsequently died.  Although she found the courage to tell him to stop trying cases and even to stop driving to the office, so many other problems might have been avoided had detailed planning been done ahead of time?  In fact, the entire experience changed drastically all of the parties involved both prior to and after the sole-practitioner’s death.

Unfortunately, anxiety and avoidance are among the primary reasons that many attorneys fail to plan for an untimely disaster.  Fortunately, however, the astute attorney has ample information available today.  Listed below are some of the basic forms that are available through the MSBA’S Lawyer Assistance Program.  These forms can assist in protecting your clients’ interests and will help you to make your practice a valuable asset that can be sold to benefit you or your estate.  In addition, it will simplify the closure of your office – a step your family and colleagues will very much appreciate.   Here are the titles:

• Checklist for Lawyers Planning to Protect Clients’ Interest in the Event of the Lawyer’s Death, Disability, Impairment or Incapacity;
• Checklist for Closing Another Attorney’s Office
• Checklist for Closing Your Own Office
• Sample Forms
• Articles, Rules, Formal Opinions and other Resources.

Of course, we do not live in a perfect world and there are many attorneys who do not plan ahead and for some it is too late to do so.  In many instances the attorney continues to attract clients, but is unable to keep up with the pace of his/her practice.  Moreover, whether because of illness or senility the attorney may forget to appear in court, miss meetings and fail to respond to pleadings or letters, among other things.  Then when and if death occurs, the attorney may leave behind stacks of files and boxes without any semblance of organization or information as to where files may be found.  This in turn could lead to malpractice claims being filed against the dead lawyer’s estate.

Few law firms have instituted any policies short of mandatory retirement that are aimed at helping lawyers make the transition out of full-time law practice.  In the absence of policy, the MSBA’S Lawyer Assistance Program recommends an “intervention” to discuss retirement with a lawyer.  In an intervention, a group of people closes to the attorney come together to confront him or her with problematic behavior.  The model calls for the process to be conducted in a caring, yet straightforward manner, under the direction of a third party trained in facilitating interventions.

In some respects, retirement or planning for the closure of your practice is more difficult to discuss than other problems, because you are dealing with the end of a major portion of your life rather than a specific behavior.

For more information call the MSBA’S Lawyers Assistance Program at (410) 685-7878 x3041.