Starting a Practice and Succession Planning for Lawyers in Greater Nebraska
FRIDAY SEPTEMBER 20, 2019 KEARNEY
THIS PAGE INTENTIONALLY LEFT BLANK
9:00 am
ACCREDITATION for Nebraska2.0 CLE CREDIT HOURS AND 1.0 ETHICS CREDIT
LIVE / REGULAR NE MCLE #178528
Starting a Practice and Succession Planning for
Lawyers in Greater Nebraska
Basics of Star ng a Law Prac ce in Rural Nebraska
Have you considered star ng your own law prac ce? If so, it’s diffi cult to know where and how to start. In this
one-hour CLE, you will learn the basics of star ng your own law prac ce [par cularly in a rural community],
how to manage the business side of the prac ce of law, how to fi nd a mentor, how to get your fi rst cases, and fi nd
out what other resources are available on the topic.
Prac cal and Ethical Succession Planning for Lawyers in Greater Nebraska
This presenta on will discuss applicable Nebraska Ethics Rules (§3-501.4). Nebraska Ethics Advisory Opinions
(12-09; 12-07; and 17-01), and the American Bar Associa on’s Formal Opinion 471, as they relate
to the ethical and prac cal reasons for lawyers and law fi rms to engage in meaningful succession planning,
including successor a orney designa on for solo prac ces.
The discussion is intended to focus on issues specifi c to the demographic of lawyers basing their prac ce in
Greater Nebraska and other rural se ngs.
Topics covered will include: successor selec on, competence, diligence, safekeeping
of fi les and client property, winding down and closing, other kinds of transi ons to a prac ce, and dealing
with the unforeseen absence, disability, or death.
TANA M. FYE
DAN LINDSTROM
10:00 am [ethics]
FREE CLE
PLEASE REGISTER TO ATTEND
6TH ANNUAL Rural Practice Initiative Associate and Summer Clerkship Placement Program
IN PERSON INTERVIEWS
FRIDAY SEPTEMBER 20, 2019K E A R N E Y C O U N T R Y C L U B2800 19th AVENUE KEARNEY
CLERKSHIPINTERVIEWS
9:00 am - 11:00 am 12:00 pm - 5:00 pm
Students par cipa ng in the program can support your fi rm while gaining prac cal experience.
In-person interviews for our clerkship program or full- me employment will take place following the CLE Seminar.
The goal is to provide 15-20 minutes for each interview.
We es mate that each a orney will have the opportunity to interview at least six students in the a ernoon.
A orneys and students will have an addi onal opportunity to meet and converse at a recep on following the formal interview session.
In an eff ort to provide a orneys and law students with an opportunity to experience the prac ce of law in Greater Nebraska, the Nebraska State Bar Associa on is conduc ng its sixth annual Rural Prac ce Ini a ve Program.
SPONSORED BY:
CLE SEMINAR
THIS PAGE INTENTIONALLY LEFT BLANK
FACULTY BIOS
TANA M. FYE Fye Law Offi ce
Tana M. Fye is the principal attorney at Fye Law Office, in Holdrege, Nebraska. She practices predominantly in the areas of juvenile law and criminal defense, but she also handles estate planning, probate, and nonprofit/LLC formations. She graduated from The University of South Dakota School of Law and then clerked for ten judges of the Second Judicial Circuit of South Dakota after graduation and before starting her own law practice. In addition to private practice, Tana spent six years as a Deputy Public Defender in Buffalo County, where she had the opportunity to represent adults and juveniles in felony, misdemeanor, juvenile, and mental health board cases.
DAN LINDSTROM Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O.
Dan Lindstrom is the president and managing shareholder of the Kearney, Nebraska law fi rm of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O. Lindstrom represents clients throughout Nebraska in agriculture and agribusiness, ethanol and biofuels, real estate and water law, business and litigation matters. He has been a member of the NSBA Law Practice Management Section for a number of years and currently chairs the Law Practice Management Committee of the Nebraska Defense Counsel Association.
THIS PAGE INTENTIONALLY LEFT BLANK
Basics of Starting a Law Practice in Rural Nebraska
Tana M. Fye Fye Law Offi ce
THIS PAGE INTENTIONALLY LEFT BLANK
9/19/2019
1
Basics of Starting a Law Practice in Rural NebraskaBasics of Starting a Law Practice in Rural Nebraska
Tana M. Fye, Fye Law OfficeTana M. Fye, Fye Law Office
My BackgroundMy Background
Graduated from The University of South Dakota School of Law 2009
Law Clerk for the 2nd Judicial Circuit, South Dakota 2009-2010
Started Fye Law Office in Rapid City, South Dakota 2010
Relocated to Holdrege, Nebraska and restarted Fye Law Office 2011-Present
Part-Time Deputy Public Defender for Buffalo County 2012-2018
Hired associates and helped to build their practices
Graduated from The University of South Dakota School of Law 2009
Law Clerk for the 2nd Judicial Circuit, South Dakota 2009-2010
Started Fye Law Office in Rapid City, South Dakota 2010
Relocated to Holdrege, Nebraska and restarted Fye Law Office 2011-Present
Part-Time Deputy Public Defender for Buffalo County 2012-2018
Hired associates and helped to build their practices
1
2
9/19/2019
2
Rural Practices vs. Urban PracticesRural Practices vs. Urban Practices
Rural Law PracticeRural Law Practice
Smaller Legal Community Closer relationship with judges Generally more cordial Legal market not generally saturated Expectation that most attorneys will take
court appointed cases Generally higher court appointment rate More difficult to be choosy about types of
cases/specialize earlier in career Travel to other counties to be expected
Smaller Legal Community Closer relationship with judges Generally more cordial Legal market not generally saturated Expectation that most attorneys will take
court appointed cases Generally higher court appointment rate More difficult to be choosy about types of
cases/specialize earlier in career Travel to other counties to be expected
Urban Law PracticeUrban Law Practice
Larger Legal Community More distant relationship with judges Generally more cordial Legal market generally saturated No expectation to take court appointed
cases Generally lower court appointment rate Easier to be choosy about types of
cases/specialize earlier in career Travel to other counties not always
expected
Larger Legal Community More distant relationship with judges Generally more cordial Legal market generally saturated No expectation to take court appointed
cases Generally lower court appointment rate Easier to be choosy about types of
cases/specialize earlier in career Travel to other counties not always
expected
The Business of LawThe Business of Law
Paper files vs. paperless
Hardware and furniture
Software
Billing and Accounting
Insurance
Form of Business
Overhead
Office Space
Paper files vs. paperless
Hardware and furniture
Software
Billing and Accounting
Insurance
Form of Business
Overhead
Office Space
3
4
9/19/2019
3
HardwareHardware
HardwareHardware
Computer (I prefer laptops)
Windows Surface/Chromebook/iPad (maybe)
Portable Printer (if totally paperless)
Laser Printer
Copier
Scanner
Phone
Computer (I prefer laptops)
Windows Surface/Chromebook/iPad (maybe)
Portable Printer (if totally paperless)
Laser Printer
Copier
Scanner
Phone
Desk
Comfortable Office Chair
A couple of chairs for clients
Desk
Comfortable Office Chair
A couple of chairs for clients
5
6
9/19/2019
4
SoftwareSoftware
OneNote
Microsoft Office—Word, Excel/WordPerfect/Google Docs, Sheets, Etc.
Dropbox/Box/Google Drive/Etc.
RingCentral
Clio/Rocketlawyer/Etc.
Google Voice
Harvest (see next slide)
Xero/Quickbooks (see next slide)
OneNote
Microsoft Office—Word, Excel/WordPerfect/Google Docs, Sheets, Etc.
Dropbox/Box/Google Drive/Etc.
RingCentral
Clio/Rocketlawyer/Etc.
Google Voice
Harvest (see next slide)
Xero/Quickbooks (see next slide)
Billing and AccountingBilling and Accounting
Harvest
Xero
Quickbooks Desktop/Online
Harvest
Xero
Quickbooks Desktop/Online
Consistency in Billing Date Range
County Claims
Setting Fees
Retainers
Payment Plans
Collections
Consistency in Billing Date Range
County Claims
Setting Fees
Retainers
Payment Plans
Collections
7
8
9/19/2019
5
InsuranceInsurance
Malpractice Insurance (Minnesota Lawyers Mutual, ALPS)
Liability Insurance (for premises)
Workers Compensation Insurance
Umbrella Insurance
Talk to your insurance agent about your needs
Malpractice Insurance (Minnesota Lawyers Mutual, ALPS)
Liability Insurance (for premises)
Workers Compensation Insurance
Umbrella Insurance
Talk to your insurance agent about your needs
Form of BusinessForm of Business
Sole Proprietorship
Professional Partnership
Professional Corporation
Not just a regular Limited Liability Company
Do you know why?
Sole Proprietorship
Professional Partnership
Professional Corporation
Not just a regular Limited Liability Company
Do you know why?
9
10
9/19/2019
6
OverheadOverhead
KEEP OVERHEAD LOW!!!
Reevaluate your needs and expenses as you go.
KEEP OVERHEAD LOW!!!
Reevaluate your needs and expenses as you go.
Office Space: Rapid City, SDOffice Space: Rapid City, SD
11
12
9/19/2019
7
Office Space: Holdrege #1Office Space: Holdrege #1
Office Space: Holdrege #2Office Space: Holdrege #2
13
14
9/19/2019
8
Office Space: Kearney Satellite OfficeOffice Space: Kearney Satellite Office
Office Space: Holdrege (Currently)Office Space: Holdrege (Currently)
15
16
9/19/2019
9
Office Space: Holdrege (Currently)Office Space: Holdrege (Currently)
Office Space: Holdrege (Currently)Office Space: Holdrege (Currently)
THIS PAGE INTENTIONALLY LEFT BLANK
Practical and Ethical Succession Planning for
Lawyers in Greater Nebraska
Dan Lindstrom Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O.
THIS PAGE INTENTIONALLY LEFT BLANK
Practical & Ethical Succession Planning for Lawyers in Greater Nebraska
Outline by Jacobsen Orr law clerk David Fuxa
For Presentation by Dan Lindstrom at NSBA RPI
September 20, 2019
Contents
I. Introduction 3
II. Designate a Successor 4
Step 1: Find a Buddy 4
1A: Ensure Competency 4
1B: Check for Conflicts 5
1C: Discuss Fees 5
III. Write it Down 6
Step 2: Put it in Writing 6
2A: Detail Contact Information 6
2B: Include Passwords, Access Codes, Keys, etc. 6
2C: Keep it Safe 6
IV. Respect Client Interests 7
Step 3: Let the Client Know 7
3A: Notify the Client of the Plan 7
3B: (Optional) Request Client Consent 7
Step 4: Safeguard Client Property (Files and Fees) 7
V. Maintain the Plan 8
Step 5: Update the Plan 8
Step 6: Stay Organized 8
VI. Conclusion 8
Introduction
As of 2015, around one-third of lawyers had practiced for more than 30 years and one-in-ten
had practiced for more than forty years.Thus, one-third of Nebraska lawyers are at least 55+. Of the
surveyed lawyers, around 25% were solo practitioners, one-third work in firms with fewer than five
people, and almost two-thirds work in firms with less than ten people.
Sole practitioners and any aging lawyer should make a contingency plan to take effect with any
sudden change in their ability to practice law – like death, disability, or sudden retirement. There is no
obligation under the rules to make such a plan, but it is strongly implied. A lawyer is required to “act
with reasonable diligence and promptness in representing a client.”To “prevent neglect . . . the duty of
diligence may require that each sole practitioner 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.”If a plan is not in place at the time of death or disability,
the court “shall appoint a lawyer or lawyers to inventory the files of the [incapacitated lawyer], and take
such action as seems indicated to protect the interests of the [incapacitated lawyer] and his or her
clients.”Under these rules, a lawyer should strongly consider creating a contingency plan to take effect
on the lawyer’s death or disability. The plan does not have to be extensive. At a minimum, the plan
should “include the designation of another lawyer who would have the authority to look over the sole
practitioner’s files and make determinations as to which files needed immediate attention, and provide
for notification to the sole practitioner’s clients of their lawyer’s death [or disability]”. A more
comprehensive plan can further protect client interests by notifying the clients, obtaining client
informed consent, discussing fee arrangements, and staying current.
As with many things, a succession plan is better done early than late and any succession plan is
better than no succession plan. When formulating this plan, “hope is not a strategy.”“In death as in life,
it is better to plan than to leave things to chance.”With procrastination, a senior lawyer “endangers his
hard-earned reputation, plac[es] his clients in jeopardy, and subject[s] himself or his estate to a
malpractice claim in the future.”While succession planning “may reveal some inconvenient truths and
unearth necessary changes . . . it will ultimately benefit the planning attorney in the long run.”“The truth
hurts . . . [but] there is nothing so strong or safe in an emergency of life as the simple truth.”
As discussed below, unlike layperson succession planning, a lawyer must be wary of ethical
obligations and ethical limitations before planning a succession plan. First, in designating a successor
attorney the attorney should consider competency and conflicts of interest. Second, the attorney should
document the plan. Third, the lawyer should consider client interests and autonomy. Fourth, the
attorney should prepare for the transition by getting their house in order and maintaining order. By
following all or some of these guidelines, an attorney can find peace of mind in knowing that his or her
practice will smoothly transition should the unexpected hit.
Designate a Successor
Step 1: Find a Buddy
Ensure the appointed success is willing, competent, and trustworthy.
A named successor is not immediately taking over the practice in the event of a catastrophe.
The successor is agreeing to be the “first contact should the need arise.”A successor is someone who is
available to “step in and protect the clients’ interests if the lawyer is no longer able to do so.This can be
a friend and the agreement can be reciprocal.When picking a successor, some factors to consider are:
competency, trustworthiness, similar skills, and willingness.
1A: Ensure Competency
Under the Nebraska Professional Rules of Conduct, § 3-501.1, a lawyer must competently
represent a client. When seeking a successor, the lawyer should ensure the appointee can competently
handle the immediate matters in a lawyers’ practice. For example, a family law lawyer might not be the
best pick for a tax attorney. Remember, this lawyer will support your clients’ interests during a tense
time of uncertainty. Make sure the appointed lawyer can handle that potentially stressful time.
1B: Check for Conflicts
A successor in a similar, but non-overlapping practice area would minimize conflicts of interests
and other ethical considerations. A lawyer has a duty to protect the confidentiality of client
information.This extends to former clients and for pending matters.The death or disability of the
designating attorney does not trigger representation of the appointed lawyer.In fact, the appointed
lawyer cannot represent transitioning clients if there is a conflict of interest, absent informed
consent.The succeeding attorney will necessarily run a conflicts check on all transitioning clients.If the
appointed attorney has a conflict of interest with the deceased or disabled attorney’s clients, he or she
will be unable to “review confidential information when transferring files.”Although conflicts can be
waived by informed consent, that process is timely and the weeks after a sudden death or disability are
time sensitive. Until the conflicts are resolved the client’s interests are neglected, jeopardizing
immediate concerns such as statutory deadlines. Thus, if possible, the appointed attorney should be an
attorney in a similar but non-overlapping area.
1C: Discuss Fees
By definition, unexpected death or disability cannot be planned. Depending on the designating
attorney’s level of organization, the appointed attorney could be stepping into a chaotic mess.
Organizing the chaos could take a significant amount of time. As a matter of practicality, decency and
respect, it is best to talk about fees before beginning the agreement.In states that require a succession
plan, like South Carolina, the state ethical rules allow for the designation plan to set out a fee-sharing
arrangement.See §3-501.5 for Nebraska fee-sharing rules.
Write it Down
Step 2: Put it in Writing
Once a successor is identified and the successor agrees to the responsibility, get the
arrangement memorialized in writing. The writing should include the successor’s contact information,
cover the scope of the arrangement, provide access information, and outline the steps the appointed
attorney should take in the event of death or disability.
2A: Detail Contact Information
In the event of death or incapacitation, the sooner the appointed attorney is notified, the
better. By including contact information on the agreement, family or friends can more quickly contact
the appointed attorney.
2B: Include Passwords, Access Codes, Keys, etc.
The appointing attorney cannot rely on staff or family to know or find passwords to computers
or software. This information should be provided in the emergency plan to prevent delay.The passwords
and other private access codes can be sealed in the plan until the triggering event kicks the plan into
motion. As such, the written agreement should be stored in a safe place, preferably in the same place as
a will and/or power of attorney document.
2C: Keep it Safe
A succession plan is ineffective if no one knows about it. After reaching agreement with the
successor, the designating attorney should notify staff, family members, and heirs about the succession
plan.The plan should be kept in an accessible location like a lockbox or safe. Preferably, this should be
the same place as a will, power of attorney, or other significant documents that would be accessed in
the event of death or disability.
Respect Client Interests
Step 3: Let the Client Know
3A: Notify the Client of the Plan
With a plan written and ready for disaster, the designating attorney should notify his or her
clients of the existence of the emergency plan. The attorney can do this via an engagement letter,
advising the client that an emergency plan is in place and will be triggered if the attorney dies or
becomes disabled.
3B: (Optional) Request Client Consent
Further, the engagement letter could request approval of the succeeding attorney’s
representation. The succeeding attorney does not automatically represent the clients on death or
disability of the designating attorney. However, the succeeding attorney can represent the clients if the
clients give their informed consent.The client controls the scope of representation and attorney
authority. Thus, through informed consent, the designating attorney and succeeding attorney can
request authority from the designating attorney’s clients requesting permission to implement efficient
steps should the designating attorney die or become disabled.
Step 4: Safeguard Client Property (Files and Fees)
Client property, like trust funds and work product, must be protected in the event of death or
disability. The appointed attorney may need to return this property to the clients.If the emergency plan
does not designate these duties to the appointed attorney, the funds or other property may go into
receivership. In Illinois, the court may appoint an attorney to perform the function of receivership and
the conservator is entitled to payment from the attorney’s assets or estate.The same scheme could be
possible in Nebraska. Poring through old client files could be very time consuming because each file
must be reviewed individually.Thus, planning for this contingency could prevent hassle to family,
friends, and heirs.
Maintain the Plan
Step 5: Update the Plan
A plan is useless if it falls out of date. The succeeding lawyer needs to make a habit of updating
the plan regularly; be it monthly, quarterly, or yearly.For each of those updates, the lawyer should
update passwords, contact information, access codes, and other pertinent information necessary for
access.
Step 6: Stay Organized
Many attorneys operate on a system that works for them. It may be one in which, nothing is
ever lost but that doesn’t mean it is easily found. This “system” could be a nightmare for the succeeding
attorney. Upon death or disability, the succeeding attorney would immediately step in and protect the
client’s immediate interests facing dismissal. If the incapacitated lawyer’s system is illegible,
disorganized, or structure-less, missed deadlines and malpractice claims could result. Although rare,
these malpractice claims could be levied against the lawyer’s estate. The best practice is to get
organized and stay organized.
Conclusion
Disability can happen quickly and without warning. Mortality is a sensitive subject. While we are
hesitant to contemplate disability, incapacity and our own mortality, it is an escapable reality. By
planning for the uncertain, we can bring peace of mind when contemplating our own death or disability.
Just a few small steps now can vastly improve the transition for our colleagues, family, and friends
should something unexpected happen to us. By making a plan, we can protect a legacy built over
decades of hard work.
1
PRACTICAL & ETHICAL SUCCESSION PLANNING
FOR LAWYERS IN GREATER NEBRASKADan LindstromJacobsen, Orr, Lindstrom & Holbrook, PC, LLOKearney, Nebraska
“Life moves pretty fast. If you don’t stop and look around once in awhile, you could miss it” – Ferris Bueller
1
2
2
SUCCESSION PLANNINGTHE WHAT AND THE WHY
A plan to identify, develop and replace an attorney in the event of retirement, death, disability, impairment or incapacity.
Ethical, practical protection of the interests of your firm and your clients. Issues: Avoid missed deadlines, disciplinary and malpractice problems
Avoid unhappy, confused and angry clients
Avoid problems for staff, family members and others left to pick up the pieces
May include preservation of existing client relationships, staff employment.
Sophisticated clients may insist that you have a plan in place as a condition of future engagement to ensure that there is no reduction in level of service
SUCCESSION PLANNINGTHE WHAT AND THE WHY
“Hope” is not an effective plan
A plan is of importance to solos, small firms and large firms.
All members of a firm, including lawyers and staff, should participate in planning.
Some states require a succession plan for solos—most, including Nebraska, do not.
Most of our discussion today will focus on small and solo lawyers.
3
4
3
SUCCESSION PLANNINGTHE WHAT AND THE WHY
SUCCESSION PLANNINGTHE WHAT AND THE WHY
5
6
4
THINGS TO CONSIDER:
While many of us engage in planning for and with our clients, e.g.: Estate Planning Retirement Planning Business Planning Succession Planning
Only about 5% of law firms in the US have a Succession Plan
Nearly 75% of law firms dissolve after the founding partners retire
One law practice management expert says that it takes an average of 5 years for a client relationship to be transferred to another lawyer
7
8
5
LAWYER SCENARIOS:
Solo: Takes over another retiring lawyer’s files: found in the shed in the backyard.
Solo: Associates with another firm in contemplation of slowing down and when satisfied his clients are being properly cared for, takes final steps to transfer clients to the new firm, then fully retires.
Two person firm: “The last one to leave can turn out the lights….”
Four or person firm: No plan. The young lawyers leave in frustration.
10 person firm: Litigation partners plan for gradual withdrawal, then retire on the desired timeline.
Documents: Death/Retirement Buyouts language causes firm to dissolve upon retirement of senior partners.
WHY DON’T LAWYERS PLAN? ONE WORD: DENIAL
Smart and Talented, but also Fearless, Bulletproof, Ego-centric: “Still believe that 20 year old who resides between your ears.”
Lawyers (like Farmers) often do not see an ending to their career
“Retirement” is not in their vocabulary
Don’t know what they’ll do or how to start planning for it
Identity: “Attorney” defines not what they do but who they are
Disability Issues, Impairment Issues and End of Life Issues are often ignored until it is too late….
9
10
6
THE NEBRASKA RULES: COMPETENCY
§ 3-501.1 “A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness, preparation and judgment reasonably necessary for the representation.”
§ 3-501.1 - Comments [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes
in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
11
12
7
THE NEBRASKA RULES: DILIGENCE
§ 3-501.3 “A lawyer shall act with reasonable diligence and promptness in
representing a client.”
§ 3-501.3 comment 5 “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.”
THE NEBRASKA RULES: REPRESENTATION
§ 3-501.2 (a) . . . a lawyer shall abide by a client's decisions concerning the objectives
of representation and . . . shall consult with the client as to the means by which they are to be pursued.
§ 3-501.2 – Comment 1 [1] Paragraph (a) confers upon the client the ultimate authority to
determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations.
13
14
8
THE NEBRASKA RULES: SALE OF PRACTICE
§ 3-501.17 A lawyer or a law firm may sell or purchase a law practice, or an area of
law practice, including good will, if the following conditions are satisfied:
(a) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
(b) The seller gives written notice to each of the seller's clients regarding:
(1) the proposed sale;
(2) the client's right to retain other counsel or to take possession of the file; and
(3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice.
PUT YOURSELF IN THEIR SHOES:
Imagine you are dead. Imagine trying to organize your practice as a newcomer upon the scene:
Would you be able to manage your cases?
Where would you start?
Would you easily find what you need?
Could you get into the computer?
Could you access email?
How would you manage deadlines?
How would you get paid?
15
16
9
WHAT IS AT STAKE?
Failure to plan opens the door to negligence or malpractice claims.
Unexpected death or disability may not be a valid defense in all cases
Malpractice claims could reach into estate or partnership
Sanctions also possible in severe cases
CREATING A PLAN: THE BASICS
1. Find a Peer
2. Write it Down
3. Notify your Clients
4. Safeguard Client Property
5. Update the Plan Regularly
6. Stay Organized
17
18
10
Find a BuddyA designated attorney should be:
• Willing
• Competent
• Limited in Conflicts
• Trustworthy
Discuss FeesHow long would it take you to sort through your current case load?
§ 3-501.5(e) allows for lawyers to divide fees if:
• It is proportional
• The client agrees
• It is reasonable
Discuss a fee arrangement so there are no hard feelings.
19
20
11
WRITE THE PLAN DOWN
Include the designated attorney’s name and contact information
Include your access information like passwords, pass codes, and other instructions for accessing protected information.
Keep it Safe It is recommended that you keep the plan in the same place as your will or
equivalent places
Tell someone! Make sure your family, office staff, and the designated attorney know where you are
keeping the plan.
NOTIFY THE CLIENT
Clients should appreciate that you are planning for contingencies
Let them know the existence of an emergency plan via an engagement letter
Outline what events would trigger the plan and who will step in to take care of their matters
21
22
12
SEEK CLIENT CONSENT (OPTIONAL)
Depending on your practice and your relationship to your appointed attorney, you may want to request client consent for the appointed attorney
Under § 3-501.2, the client has the authority to choose representation
By obtaining client consent, the appointed attorney who steps in would be able to immediately start representing the client on pressing client matters
SAFEGUARD CLIENT PROPERTY
Under § 3-501.15, we have an obligation to safeguard property of clients and third persons. Records of account funds and property held must be held for 5 years after termination of representation.
Client Files: are property of the client and must be returned to the client upon request. See Neb. Ethics Op. 12-09. Create a file closing, retention and destruction policy now.
For more detailed guidance, see ABA Formal Opinion 471.
Trust Account Records: must be kept for 5 years after termination of representation. See Neb. Ethics Op. 12-07.
23
24
13
UPDATE THE PLAN & STAY ORGANIZED
An old plan can become a useless plan
Schedule an update to the plan regularly – monthly, quarterly, etc.
This ensures the purpose of the plan is realized – in the face of the unexpected someone will take care of your clients.
Keep a system that isn’t cryptic so your appointed attorney can easily parse through your case load
THANKS TO:
Minnesota Lawyers Mutual Insurance Co. for supplying to seminar attendees copies of their booklet: “Succession Planning, A Malpractice Insurance Company’s Perspective”
Jacobsen Orr summer law clerk David Fuxa for his valuable assistance in preparing materials for this program.
25
26
NOTES_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
NOTES_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________