Wisconsin Lawyer
Vol. 80, No. 7, July 2007

Question

I am a sole practitioner and I am concerned for my clients if something happens to me unexpectedly. Am I obligated to make any special arrangements?

Answer

SCR 20:1.3 (effective July 1, 2007) is the general rule that requires lawyers to act with diligence when representing a client. The rule states: "A lawyer shall act with reasonable diligence and promptness in representing a client." While this rule seems to focus on the action that must be taken by a lawyer when representing a client, a comment to this rule gives clear direction to sole practitioners about protecting their clients' interests.

Comment 5 to SCR 20:1.3 provides:

"To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Model Rules for Lawyer Disciplinary Enforcement R. 28 (2002) (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer)."

From this comment, sole practitioners can see that there is a special requirement they must undertake to protect the interests of their clients. While the ABA comments to Chapter 20 - Rules of Professional Conduct are not binding like the rule language, the comments certainly provide clear direction and guidance on how to comply with the black letter rule. Thus, the sole practitioner should have a plan in place to ensure that his or her clients are protected in the event of the lawyer's death or disability. The sole practitioner should advise the client, perhaps through an engagement letter, that an emergency plan is in place in the event of the lawyer's death or disability.

There is no specific requirement as to the nature and scope of the plan developed by the sole practitioner. It may entail an agreement with another attorney that the attorney will step in and review all pending cases and files of the sole practitioner and address emergent situations while finding other attorneys to handle the matter on behalf of the sole practitioner's clients.

Of course, the client always has the right to choose the attorney to represent the client. The attorney stepping in in an emergency to assist the sole practitioner's clients may have the right to take immediate action deemed necessary to protect the client's interests; however, the substituting attorney should, as soon as practicable, obtain the client's informed consent to continue with the representation, if that is the plan in place.

Another option is to develop draft documents for the circuit court to appoint a trustee to act to ensure the protection of clients and the distribution of client files to other attorneys if the sole practitioner is unable to continue in the practice of law. While this process may be more of a formality than a necessity, it does provide a definite procedure to follow in the event of an emergency situation.

What is most important is protecting the interests of the sole practitioner's clients regardless of exactly how that protection takes place. It is incumbent on the sole practitioner to maintain proper files and to maintain proper calendars and reminder systems so that the substituting attorney can easily determine what deadlines are approaching that require his or her immediate action. Maintaining timekeeper systems and files certainly is a part of the diligence requirement for all attorneys.

Wisconsin Lawyers Mutual Insurance Co. in Chapter 7 of its publication Law Practice Toolkit: The Wisconsin Lawyer's Guide to a Better Law Practice provides several checklists that sole practitioners may consider when developing an emergency preparedness plan of this nature.

The new version of the Rules of Professional Conduct for Lawyers does not make substantive changes to SCR 20:1.3, which requires an attorney to act with reasonable diligence in representing a client. The comment to the rule now includes a strong suggestion that a sole practitioner should have an emergency plan in place in the event of the sole practitioner's death or disability. It certainly is a best practice to develop such a plan to protect the clients of sole practitioners.

Wisconsin Lawyer