ARDC thoughts

Introduction

In this article I would like to cover two topics that are important to senior lawyers in Illinois. First, I will note trends regarding the aging of the legal profession and describe some challenges that trend will present the Bar and the Court.

Second, I will discuss some things senior lawyers should do to create a contingency plan to assist their own families, and to protect clients, if the lawyer should suffer from a sudden illness or disability.

The Demographic Reality, or the Advent of a Senior Tsunami

Illinois will see a significant rise in the number of attorneys over 65 years of age engaged in the practice of law over the next 10 to 15 years. Some of the numbers show that, in 2011, there were about 6,700 attorneys on the Master Roll over 65 years of age, but in 2016 we will have 13,000 lawyers in that category. By 2021, the number will rise to 20,900 and then to 29,000 by 2026.

As a result, more attorneys may be practicing without adequate support staff while suffering from age-related impairments. In turn, clients may suffer from a lack of care and oversight by those attorneys due to those impairments.

Why are we seeing so many senior lawyers? There are several factors, including the increase in the number of attorneys over the last 50 years and broad demographic trends about population in general. For example, the total number of people over 65 will double in 25 years and the proportion of the population over 65 will grow from 13% to 20%. Improvements in health care over the last 100 years have had the happy consequence of allowing more attorneys to live longer and practice longer.

One challenge will be to develop appropriate responses to age-related impairments. While Rule 8.3(a) requires an attorney to report serious misconduct by another attorney, there is little guidance for attorneys or judges faced with an apparently impaired senior attorney who is not engaging in serious misconduct, but whose impairment may present a risk of harm to clients.

In this circumstance, colleagues, clients or judges may be reluctant to interfere or to act. Additionally, when confronted, an age-impaired attorney may often deny the allegations or resist efforts to address the problem.

I believe the process used by the Lawyers Assistance Program (LAP) can help a great deal. LAP uses carefully planned and researched interventions to address specific concerns to an attorney who is the subject of the intervention. While LAP predominantly uses its services for drug or alcohol problems, LAP has noted an increase in age-related impairments and has performed interventions for that issue as well. The LAP model is useful because it is non-adversarial and because LAP has healthcare resources that may be essential to evaluate the extent of any age-related impairment. A traditional disciplinary process may be unwarranted because, if the lawyer suffers from age-related impairments, there may be no element of willfulness or serious harm as occurs, for example, in a conversion of estate assets.

Sudden Illness, Disability and Other Sad Realities

The second topic I want to address concerns the sad circumstance that occurs when sudden illness or death creates a crisis for a senior lawyer, and places a burden on family, friends and clients. While this article is addressed to senior lawyers, such misfortune may strike an attorney at any age. For this reason, all attorneys should have a plan to designate a successor to care for client matters if such a misfortune should occur.

Insights provided by Rule 1.3 and the Duty of Diligence

Rule 1.3 is rather straightforward. It provides that “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Comment 5 to that Rule provides that, as part of the duty of diligence, each sole practitioner should prepare a plan 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. The Comment then refers to the Illinois Supreme Court Rule regarding receiverships.

So, if you are a senior lawyer winding down a law practice, or a sole practitioner, you should have a plan to provide a smooth transition in case you should suffer a disability or death. The best approach is probably to team up with another sole practitioner or small firm to cover for each other if some problem should arise. This will help the attorney and the clients of the attorney.

Checklist of topics for a sole practitioner to discuss with a designated successor

I want to briefly suggest a plan for a sole practitioner, or a senior lawyer thinking of reducing the volume of cases in the practice, and offer a partial checklist of some things to do.

First, the attorney should have written instructions to family members or support staff to describe how to generate a list of client names and addresses. Also, the attorney should be able to generate a list of open matters and closed matters as well. In this regard, Supreme Court Rule 769 is useful and instructive. That Rule is entitled Maintenance of Records and it provides important guidance to attorneys. The Rule has two parts. The first requires every attorney to maintain records which identify the name and last known address of each of the attorney’s clients and which reflect whether the representation of the client is ongoing or concluded. This information is also important for good office management because it allows the attorney to list and review all matters that are subject to his duty of care and diligence.

Also, an attorney should be able to produce the telephone numbers of all clients in pending matters so that someone could call those clients and reach them quickly, if necessary, to inform them that the attorney is unavailable and that they need to speak to another lawyer promptly about any ongoing legal matter. The second part of Rule 769 provides that an attorney shall maintain all financial records related to the attorney’s practice, for a period of not less than seven years, including but not limited to bank statements, time and billing records, checks, check stubs, journals, ledgers, audits, financial statements, tax returns and tax reports.

Second, the attorney should have written instructions about how to locate a calendar or computer program that lists all pending matters and due dates on all cases. The instructions should include passwords or other necessary items. Since ongoing litigation proceedings are time sensitive, they are of the highest priority, and any plan to manage this contingency should focus on this aspect of the matter. The plan should therefore focus on identifying the name, title and case number of any pending litigation matters, and the name and address and telephone number for the client. This information would allow someone to communicate by phone or mail with clients to inform them of the bad news and invite them to retrieve the file and to speak to another attorney.

Third, the attorney should prepare careful instructions about any client trust account or escrow account. These instructions should identify the financial institution where the account is located, the title of the account and the account number. In addition, the attorney should describe where the client trust account records are located in the office to assist the designated attorney in finding all necessary items.

Fourth, there should be written instructions about how to retrieve messages from the voice mail system, and how to change the greeting to the voice mail system. This can be a simple and effective way to alert callers to the sad news and to refer them to a contact person to arrange the return of the file to the clients.

Fifth, there should be instructions regarding closed files. The instructions should describe where the closed files are stored and how those files are organized. The attorney should take care to identify any closed file that may contain an original will, deed or trust agreement that may require additional care and effort to return to the former client.

Sixth, it is a good idea to include a reference to the contingency plan in any initial attorney-client agreement with new clients so that clients are aware of your plan in case of death or serious illness. The statement could be as simple as including a paragraph to note that, in case of death or serious illness, the law office has made arrangements for attorney John Smith to review files and notify clients and take other protective action.

Time devoted to planning for such unfortunate circumstances will bring peace of mind for sole practitioners and great relief for family and friends attempting to close a law practice under difficult conditions. Such a plan could ease the cost of administering the estate of a deceased attorney, and it could make efforts to sell a law practice pursuant to the provisions of Rule 1.17 more feasible.

In addition, the States of Indiana, Florida and Delaware have a rule that requires attorneys to designate a successor. These jurisdictions differ slightly in the details, but the essence of the rule is this - every sole practitioner must state when they register each year whether they have designated a lawyer, or law firm, to review files and records and to communicate with their clients if they become ill or die suddenly. The purpose of the rule is to create a procedure for sole practitioners to prepare for the unfortunate circumstances of death or disability.

A designated successor rule could also inspire bar associations to hold programs on contingency planning. Even lawyers in a law firm setting should review their procedures about disaster contingencies because a partner or associate may become ill or suffer some other misfortune.

Concluding thoughts and
observations

In closing then, we should note that the challenge of an aging population creates difficulties and opportunities for the Bar. We need to develop programs to identify and address age-related impairment issues that seek to balance the need to protect the public with the need to respect a senior attorney who may have had a long and distinguished career with no blemishes until age-related impairments emerged.

Also, the news is not all grim. Many attorneys reaching retirement age may want to continue to serve in a pro bono capacity, and the additional time afforded by retirement may provide just such an opportunity. The Illinois Supreme Court anticipated this phenomenon by amending Rule 756 and allowing pro bono work under special circumstances. Normally, an attorney on inactive or retired status may not practice law, but the amendments to Rule 756(f) and (j) allow an attorney to continue to provide pro bono services under the auspices of a sponsoring entity that is a not-for-profit legal service organization. ■