The Oklahoma Bar Journal November 2024

L aw P ractice T ips

Planning Ahead to Protect Your Clients in the Event of Your Death or Incapacity By Jim Calloway

L AWYERS TAKE PRIDE IN their loyalty to their clients, representing them to the best of their abilities. But there are steps you can take to protect your clients even if you are not personally available to assist them. For this estate planning-themed edition of the Oklahoma Bar Journal , we have chosen to discuss “estate planning” for a lawyer’s law prac tice. Lawyers who do estate plan ning for clients know that there are often procrastination and delays caused by clients who know they need to have a plan but still hate thinking about their own demise. It is an easy thing to put off. But while clients who fail to execute wills and other estate planning documents may miss out on benefits, and their heirs may incur additional expenses, at least laws govern intestate succession in probate. But a lawyer who dies or dis appears, leaving no instructions about handling client matters, can generate hardships for clients and the lawyer’s heirs. I hope that every lawyer will take the opportunity to download and review the OBA’s Planning Ahead Guide: Attorney Transition Planning in the Event of Death or Incapacity . Instructions on downloading it are available at the end of this column.

going to be accessible. Your client information in the digital practice management solution used by the firm can be accessed. There should be no lost files or lost information. In larger law firms, the law firm management team and the law office legal administrator typically take care of such business continu ity planning without most lawyers being individually involved. Scenario 2 : Now, let’s examine the other end of the spectrum. A hypothetical solo lawyer works with no other lawyers and has a habit of not keeping office staff longer than a year. The lawyer is unmarried and has no will. Much of the lawyer’s practice is in a prac tice area that few in the lawyer’s community handle. But the lawyer has just settled two rather sizeable personal injury matters on a con tingency fee basis, and the clients are already asking when they will receive disbursement of their funds from the lawyer’s trust account. The lawyer used paper-based client files exclusively. There is likely some useful information on the lawyer’s computer about billing, but no one knows the password. This sounds a bit like a law school exam hypothetical. But we all can see how this will become a complicated situation. No obvious

Most lawyers will benefit from reading this detailed information or at least skimming through the document to make certain they have addressed everything. But while all lawyers have these ethical duties, the extent to which a lawyer in private practice must take affirmative actions often depends on the practice setting. Scenario 1 : You are a recent graduate who has taken a job as an associate with a 15-lawyer firm that has been in operation for many years. Here, unless something you observe gives you reason to be concerned, you can assume the existing law firm has this handled. Usually, making assumptions about something so important would be risky. But there’s another important factor to consider: If something takes you out of action, either temporarily or permanently, there are lawyers available in the firm who can immediately step in. They will be motivated to do a good job – both to retain the client for future legal services and to pre vent a professional liability claim from being filed. It is unlikely a new associate is even listed as an authorized signer on the law firm trust account, much less as the only one listed. This means that needed client funds in the trust account are

66 | NOVEMBER 2024

THE OKLAHOMA BAR JOURNAL