9.11 – Your Coverage and Succession Plan

The Basics

The Annual Report (Form TA-3) submitted by you to the Law Society requires that you confirm that you have a succession plan ready for implementation if you are no longer able to carry on the practice of law due to illness, injury, death, or other cause. It further requires you to provide the location of your succession plan. See Rule 1604.

Think about developing a relationship with another lawyer with expertise in the area of law you practise, to provide coverage for each other when needed.

It is critical to understand that when you are absent from work, suffer from long-term illness, or decide to retire, it is a matter that goes beyond your personal life. It affects your practice and more importantly, your clients. In light of this, you should plan for how your business will operate in the event of both a short-term and long-term absence, as opposed to retiring or winding up your practice.

Some things to consider respecting coverage include:

• Arrange for a lawyer, including one with whom you may have a space-sharing arrangement, to act as a contact in your absence. (Space-sharing is dealt with in the Conflicts module.)
• Ensure that your voicemail and email auto-reply are updated and provide information such as:
  • who to contact if the matter is urgent;
  • when you plan to return;
  • whether you will be checking and responding to messages while away (don’t say you will if you won’t!), etc.
• If you arrange for a lawyer to oversee your practice during your absence, ensure that he or she is able to contact you.
• Your successor should be provided with up-to-date lists of passwords for computers, accounts, etc., or a procedure should be in place to deliver such a list to the successor in the event that the successor must step in to run or wind-down your practice. This is particularly important if you are a sole practitioner without staff.
• It may be necessary to establish a power of attorney with financial institutions to enable the successor to access general accounts as well as trust accounts and have the authority to continue the practice.
• You should contact the financial institution at which your trust and general accounts are held to enquire as to what requirements they have to allow your successor to obtain access to those accounts should it become necessary. For trust accounts, the Law Society requires you to contact your bank to ensure continuing compliance with these requirements every two years.
• You should also consider making provision in your will for the winding down of your practice, and even naming an executor with relevant expertise for that specific purpose.
• If you use your computers for personal communications or documents, develop a system such as a different password-protected “login” ID, to safeguard your personal information.
• Contact opposing counsel on files to let them know you will be away, and who they can contact in your absence. This is a matter of professional courtesy and ensures that there is no gap in your client’s representation. It may also minimize the likelihood that you receive applications, or other time-sensitive documents from opposing counsel while you are away.

Want more information?
See Contingency Planning Guide prepared by the Law Society of Ontario for more relevant information.

General Cautions

Here are some things to consider when making your succession or coverage plan:

• It is essential that you comply with all of the ethical requirements governing the practice of law. You must ensure that your clients’ confidences are protected, and consent has been obtained from your clients in circumstances where someone oversees your practice, or you oversee another lawyer’s practice. Familiarize yourself with your obligations under the Code of Professional Conduct, in particular s. 7.1-3, which require you to report to Law Society:
  • the misappropriation or misapplication of trust funds
  • the abandonment of a law practice,
  • participation in criminal activity related to a lawyer’s practice,
  • conduct that raises a substantial question as to the other lawyer’s honesty and trustworthiness, or competency as a lawyer,
  • conduct that raises substantial question about the lawyer’s capacity to provide professional services, and
  • any situation in which a lawyer’s clients are likely to be materially prejudiced.
• Never sign blank cheques for use during your absence. See Rule 1514(1)(e).
• If funds need to be disbursed from trust during your absence, consider whether to contact the Law Society before you leave to ascertain the applicable rules and put a plan in place to ensure compliance.
• Clients are entitled to expect that you will continue to take care of their legal matters. If something urgent occurs that requires immediate legal action, your clients’ interests need to be preserved even in your absence.
• Create an effective coverage plan and maintain an organized practice so the person stepping into your shoes can deal with matters in a timely and accurate manner.
• Contact the Saskatchewan Lawyers’ Insurance Association (“SLIA”) to fully understand the liability issues surrounding having someone oversee your practice. Recognize that if one lawyer makes a mistake in a file and another perpetuates it and makes matters worse, there may be two lawyers who are liable to the client.
• Make sure that the lawyer you ask to cover for you is not subject to any practice restrictions that could impede his or her ability to manage things in your absence. The Law Society website provides notification of Lawyers with Practice Conditions/Restrictions. If the lawyer you ask to cover for you is simply going to hand files off to other practitioners under the instructions of your clients, then it is not necessary that the lawyer be competent in the areas in which you practice.

Imagine the following:
There is a family emergency, and you are required to leave immediately. You are a sole practitioner without staff, so there is no one to inform about where you will be or when you’ll return. While you are away, a client dies. The Will is stored at your office. The family comes looking for you. They can’t get in touch with you. They contact the Law Society. The Law Society follows up and are unable to locate you, because you were unable to tell anyone where you would be or when you’d return. Due to confidentiality concerns, the Law Society is limited in who they can contact and how much they can disclose about their concerns. Concerned that you have disappeared, are neglecting, or have abandoned your practice, the Law Society applies to the court for an order appointing a trustee to take possession or control of all or part of your property, and to manage your practice (Legal Profession Act, 1990, s. 61(1) and (2)). You return from having dealt with the family emergency, only to find your practice is in the control of a trustee. After a long and embarrassing process, abbreviated here for the sake of making a point, you may find yourself required to pay to the costs of the trustee (The Legal Profession Act, 1990, s.61(2)(d.1)) and conceivably the Law Society fees, expenses, and disbursements incurred in investigating your disappearance and taking over your practice (Legal Profession Act, 1990, s. 61(3)(c)).

Unfortunately, this type of circumstance is not out-of-the-ordinary in Saskatchewan and can be very costly to the practitioner.

If, for whatever reason, you are unable to take care of your practice, contact the Law Society for assistance.