Planning Attorney Materials

Disclaimer

The information provided is designed to merely serve as suggestions/recommendations for the effective closure of an existing law practice and to assist those tasked with such responsibility to ensure a smooth transaction and protect one’s clients’ interests. Any material presented does not establish, report or create the standard of care for attorneys and is not a complete analysis of the topic. All sample forms must be viewed simply as such and all those relying upon the same must realize that all attorneys’ practices are unique and that the documents will require editing to conform to the practice that is closing. Neither the Kentucky Bar Association nor any preparers of these documents assume any responsibility and/or liability in connection with the utilization of the direction/guidance and/or forms provided.

Definitions

Throughout the forms and documents provided, specific words are used repeatedly, which warrant definition or explanation. Contained below is a list of terms and their ordinary meaning.

Affected Attorney

This is the attorney who for whatever reason, whether that be death, disbarment, suspension, impairment, or retirement, will no longer be engaged in the practice of law, and whose practice, clients, and possibly former clients will be affected. This attorney is sometimes referred to as the planning attorney, impacted attorney or disabled attorney.

Assisting Attorney

This is the attorney, licensed in the Commonwealth of Kentucky, who has consented to assist in the closing of the law practice of the affected attorney, whether that consent be by oral or written agreement.

Special Commissioner

This is the attorney, licensed in the Commonwealth of Kentucky, who has been appointed pursuant to SCR 3.395, by a Court of competent jurisdiction, generally the Circuit Court of the county where the affected attorney’s principal office is/was located to assist in closing out the law practice of the affected attorney.

Frequently Asked Questions

The following questions and answers are attempted to guide the Planning Attorney and Assisting Attorney in dealing with various issues that could present themselves during the preplanning stage. It does not provide for every situation but simply attempts to cover those most frequently asked questions pertaining to the usual arrangement between the Planning Attorney and the Assisting Attorney.

1. How can the Planning Attorney make arrangements to give the Assisting Attorney access to all necessary financial accounts?
   If you decide to allow your Assisting Attorney to be an authorized signer, you must decide if you want to give the Assisting Attorney (1) access only during a specific time period, (2) when a specific event occurs; or, (3) access all the time. All steps necessary to effectuate this arrangement should be discussed with the appropriate financial institution where the Planning Attorney’s accounts are located. Get written confirmation that the bank will honor your authorizing document no matter the situation. Additionally, it should be clearly delineated in the initial documentation and agreement entered into between the Planning Attorney and the Assisting Attorney.

2. If the access is going to be contingent, whom should I allow to hold on to the vesting document?
   You may want to have someone (such as your spouse, family member, personal representative, etc.) hold the document until the contingency occurs. This can be documented in the agreement signed between yourself and the Assisting Attorney. When the event occurs, the individual would provide the Assisting Attorney with the power of attorney or vesting document allowing the necessary access. Again, this is largely contingent on the specific terms in your agreement and should be clearly delineated and discussed. Additionally, you should insure that whatever arrangement you make is satisfactory with your individual financial institution.

3. If the authorization occurs on a contingent basis or a specific time period, how does one determine when this event or period begins?
   This will be largely based on the specific terms and requirements in the agreement between the parties. For example, the agreement may authorize the Assisting Attorney to sign on your accounts only after obtaining a letter from your regular, treating physician that you are disabled or incapacitated. Likewise, it may also specifically authorize access only during a period of your vacation. Any way the parties choose to rectify should be clearly defined in the agreement, and the terms should be specific to allow the financial institution to make an easy determination whether the terms are met.

4. If I authorize my Assisting Attorney as a signer on all my financial accounts, is the Assisting Attorney still permitted to be counsel for me?
   Although this generally works out fine, the arrangement may result in a conflict of fiduciary interests. As an authorized signer on the Planning Attorney’s accounts, the Assisting Attorney would have a duty to properly account for the funds belonging to the former clients of the Planning Attorney. To avoid this potential conflict of fiduciary interests, the most conservative approach is to EITHER be an authorized signer OR to represent the Planning Attorney on issues related to the closure of the practice. However, it is possible to do both, but extreme care should be taken by all parties to insure that any and all ethical obligations and rules of professional conduct are followed to limit any possibility of liability as a result.

5. Once my plan is in place, do I need to inform my current clients and future clients? If so, what and how do I do this?
   Yes, it is crucial that once you have entered into an agreement with an Assisting Attorney, you inform your current clients and future clients of its existence. It is not necessary to inform each of them of the specific terms contained in the agreement just its existence and the identity of the person named as the Assisting Attorney. The easiest way to do this is to include the information in your fee agreements and engagement letters. This provides clients with information about your arrangement.

6. Do I, the Planning Attorney, have malpractice coverage if and when I am no longer practicing law?
   Most malpractice policies include an automatic short extended reporting period of 60 to 90 days, providing the opportunity to report known or potential malpractice claims when a policy ends and will not be renewed. Additionally, most malpractice policies provide an option to purchase extended reporting period endorsement for longer periods of time. These endorsements do not provide ongoing coverage for new errors, but they will provide the opportunity to lock in coverage under the expiring policy for errors surfacing after the end of the policy, but within the extended reporting endorsement timeframe. This may pose a significant conflict for the Assisting Attorney, unless a provision exists in the agreement between the attorneys that allows the Assisting Attorney to alert former clients in this circumstance because otherwise the former clients will not know of the error within the applicable reporting period and any endorsements covering same. The best protection for the Planning Attorney is to have an agreement with the Assisting Attorney that requires (1) a specific time period for the purchase of extended coverage after departure including a requirement to verify its existence with the Planning Attorney, and (2) a source of funds available to the Assisting Attorney to adequately pay for the extended coverage after the Planning Attorney’s departure.

7. What other steps should I take other than the execution of an agreement with my Assisting Attorney to insure a smooth closure of my office?
   There are a significant number of steps necessary to effectuate a smooth transition and this information does not claim to list them all. However, some necessary and needed steps include (1) making sure that your office procedures manual explains how to produce a list of client names and addresses for open files, (2) keeping all deadlines and follow-up dates on your calendaring system, (3) thoroughly documenting client files, (4) keeping your time and billing records up-to-date, (5) familiarizing your Assisting Attorney with your office systems, (6) renewing your written agreement with the Assisting Attorney each year, and (7) Adding/verifying your Assisting Attorney’s contact information on your KBA Member Profile by logging in to the KBA website and editing/viewing your information.

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Checklist

Checklist for Kentucky Lawyers Planning to Proctect Clients' Interests in the Event of the Lawyer's Death, Disability, Impairment or Incapacity

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Forms

Contract with Assisting Attorney

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Limited Power of Attorney

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Will Provisions

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Law Office List of Contacts

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Checklist

Checklist for Planning Attorney Closing Own Office

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Forms

Notification to Client of Intent to Close Law Practice

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Acknowledgement of Receipt of Client File

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Client Request/Authorization to Transfer Client File

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Client Request for File

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Intra-Office File Closing Tracking Chart

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