The Advocate - June 2006 - Idaho State Bar - Idaho.gov

that both you and the assisting attorney have an office copy of the
agreement, and then the signed original agreement should be
retained in the safety deposit box or fire-proof safe of your office.
The existence and location of the original agreement must be information
retained by your paralegal or assistant.
SIX–MAKE ARRANGEMENTS FOR ACCESS TO TRUST ACCOUNT.
In practical terms, what would happen if you became physically,
emotionally or mentally unable to continue your law practice
and no arrangements had been made for someone to access your
trust account? If those arrangements had not been made, your
clients’ money would have to remain in the trust account until a
court order could be obtained to allow someone access to that
account. Practical complications that could ensue might include
money not being available to close a time-sensitive transaction or
the client not having access to the money to retain a new attorney.
Situations like this would put clients in a difficult position, which
could result in a potential ethical complaint, a claim against the
client security fund or even a suit for malpractice.
That having been said, however, it will be important for you
to be circumspect about just who you allow to have access to your
trust account. For example, if the person having access to your
trust account misappropriates the money in it, your clients will be
damaged and you or your estate will probably be held liable.
Not only are there no quick and easy answers to this problem,
but there is also no way to know with absolute certainty if you
have made the right choice even after you have given careful consideration
to whom you will allow access. You will need to give
careful consideration to not only the person who will have access,
but also the question of under what circumstances that access will
be allowed. But, as is the case with all of the planning discussed in
this article, looking at the alternatives available to you and weighing
the relative risks should allow you to make a reasoned choice,
which is better than not making any choice at all.
After deciding the “who” question about access, the two major
components of the “how” question about access are, first, do you
want to give general access to your trust account to someone or,
instead, access that is contingent upon the happening of a triggering
event, and, secondly, who do you want to determine if the triggering
event has occurred, such as impairment, disability, incapacity
or some other reason that prevents you from being able to conduct
your business affairs? There are probably two main approaches:
1) giving the assisting attorney general access to your trust
account, or 2) allowing the assisting attorney access to the trust
account only during a specific time period or following a specific
triggering event. If you use the second approach, you will then
need to choose between either allowing the assisting attorney to be
the one to determine if the triggering event has occurred, or having
some third party, who could be your spouse, another trusted
family member or best friend, hold a power of attorney for the
assisting attorney until that person determines whether a triggering
event has occurred so that the power of attorney should be
given to the assisting attorney.
Once you have decided who will have access, and when, the
final action necessary will be that of documenting the authorization
with your bank. With the advent of anti-terrorism legislation,
that will probably require a visit to your bank with the assisting
attorney.
SEVEN–NOTIFY YOUR CLIENTS
After you have a documented agreement between you and the
assisting attorney, the next step of action is to give information
about your plans to your clients. For existing clients, one way to
provide notice would be sending out a letter in your next monthly
billing. You may want to consider sending an extra copy of the
notification letter with a place that the client could register any
objection to your arrangements, or sign the copy and return it to
your office. With prospective clients, the best way to provide notification
would be to include the information in your engagement
letter. It would be well to provide prospective clients with an
opportunity to agree to the plan by signing and returning the
engagement letter.
ROUTINE OFFICE PROCEDURES TO FACILITATE SUCCESSION
There are several other basic procedures that you can build
into your practice routine to facilitate the process of the assisting
attorney closing your office. Those procedures include the following:
1) have a manual of office procedures explaining, among
other things, how to generate for your open files a list of the
names and addresses of the clients; 1) have two calendaring systems,
one maintained by you and one maintained by your assistant
or paralegal, on which are routinely set forth all follow-up
reminders and deadlines; 3) invest the relatively-small amount of
additional time to make sure that every client file is documented
with its present status and what you are intending to do for the
client; 4) maintain up-to-date records of your time and billings; 5)
provide your assisting attorney with a walk through during which
you and your assistant or paralegal can acquaint the assisting
attorney with the procedures of your office and the operation of
your office systems; 6) calendar a reminder each year, on a set date,
to renew your written agreement with the assisting attorney; 7)
adhere to the routine practice of not keeping your clients’ original
documents unless absolutely necessary; and, 8) consider the potential
for the need to have sufficient funds to pay for the closing of
your practice in the event of some impairment, incapacity or disability.
Since those problems could adversely impact your ability
to generate accounts receivable, you may want to consider whether
you should carry a disability insurance policy.
After reviewing the list, you may be asking yourself the question,
“Even if I am motivated now to try to do everything listed,
will I continue to have sufficient motivation in the future to still
be performing the items on that list in the months and years I
hope are yet to come?” Here are some important elements to give
you that motivation: 1) If the assisting attorney finds your office
in good order, the assisting attorney’s job in closing down the
office will be more simple, thereby costing your estate less; 2) your
law practice, which will be found in a situation of good organization,
will be a more-valuable asset that can be sold more quickly
and at its maximum value, thereby benefiting your heirs; and, 3)
perhaps of utmost importance, you will have ended your practice
on a high ethical note and you will have left your clients in a good
status.
SPECIAL CONSIDERATIONS CONCERNING THE DEATH OF A SOLE
PRACTITIONER
Your authorization of the assisting attorney to close your law
practice constitutes a special power of attorney. By use of the
appropriate language, you can make a durable special power of
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