I don’t say this often. This article is a keeper. Tuck a copy away, or scan it in and put it into a folder where you can find it later. Some day you, your successor, or one of your partners will be grateful for this information.
As many readers know, I have been on the soapbox about planning for retirement, succession, and surrogacy for almost two decades. Don’t despair if you’ve missed one of my seminars on these topics, because I am still being regularly booked for presentations around the state. If you want me to present one of these topics in your county, simply make a request to your county bar’s executive director or one of your bar’s officers. They can take care of the rest.
I deal with issues related to deceased and incapacitated attorneys on a regular basis through the PBA Law Practice Management hotline. Therefore, I have been exposed to just about every odd and often sad circumstance one can imagine. And although I have never dealt with the missing-attorney scenario, I have heard quite a few horror stories in that area from an ally at the Disciplinary Board.
Let’s start with something I say frequently at the beginning of seminars on these topics. It always draws a laugh. But it’s a sad laugh. I have been in the legal industry for more than four decades. I have been with PBA for 25 years. In all this time I have never encountered or heard of an attorney who has failed to die, eventually. I have personally been privileged to meet attorneys still actively practicing into their upper 90s. And I’m sure there have been some to make it over 100 while hobbling into the office. But eventually, you will die. That’s a fact.
Every attorney who practices law has moral and ethical obligations to make preparations for the unspeakable, uncomfortable inevitability of our death or disability. If you practice in a firm setting, others will pick up the pieces, but you have a responsibility to them to facilitate their ability to do so quickly to protect your clients.
If you have your own practice you have additional responsibilities to designate a surrogate and document your practice so they can execute your wishes while still serving their own clients. And remember, not all of us are blessed with long lives. Few of us get adequate or sometimes any warning when the clock is running out. So it’s past time to continue kicking this can down the street for most of you.
A couple of years ago, I served as a panelist for a webinar by the Disciplinary Board on retirement planning. I was stunned by the opening segment, which strongly emphasized to attorneys that they had to actually do certain things to officially stop practicing law, such as change their attorney registration, close their practice and provide public notice and more. It was emphasized several times, “you can’t just walk away.” I was stunned that it had to be said!
Despite that, just this week I handled one hotline call where an attorney had done just that; walked away. In another instance last week, a gravely ill attorney had requested that two solos agree to be his surrogate. They went to the hospital and signed the necessary agreement and executed a power of attorney (POA). They knew what his wishes were.
They were authorized to close his practice and get active clients to new attorneys. But when he died shortly thereafter, they didn’t know how to proceed, because the POA was no longer valid. And to further complicate matters, he had a partner who he had lost track of when that partner became ill. He was alive, and was still technically “active,” and so how could the surrogates close the practice and send out proper notices unless he agreed and authorized them as well? It wasn’t a walk in the park, especially if that partner didn’t want to go into retirement status.
So, first, if you’re a solo attorney, be sure to execute a surrogacy plan. The PBA Solo & Small Firm Section created the Surrogacy Planning Toolkit, which covers everything, soup to nuts, and supplies you with fill-in-the-blank templates, too. You can find the toolkit in the Solo & Small Firm Section’s area of the PBA website, and also in the Law Practice Management Section. It’s behind the member curtain, so you need your login ID and password. PBA members can also just email a request for it, or any other resource, to lawpractice@pabar.org. Be sure to include your county, full name, and member ID in your request.
If you’re a solo and don’t have a surrogacy plan, the court will appoint a conservator if something happens to you. The job of the conservator is to tend to the needs of your clients ASAP. They will bring a truck to your office and remove the active client files. They will contact clients and get them moved to a suitable attorney. They will refund to the client any funds held in your trust account.
What the conservator will not do is pay any attention to your practice as a business. They don’t pay bills, bill clients, collect outstanding debts, pay your staff or address any other business aspects of your practice. If you’re temporarily disabled and unable to speak for yourself, you will return to a mountain of debt and no active clients. Your practice will have zero sale value. If you die, your family will get any life insurance, but the practice itself will languish and lose any value to your heirs.
Bottom line? You don’t want a conservator appointed. Talk to some of the attorneys around the state who have had one appointed for them while incapacitated. Nothing but sad tales. Talk to some of the attorneys who have been court-appointed as a conservator. It’s eye opening. The only way to avoid appointment of a conservator for a solo attorney is to have a surrogacy plan in place. Do it. Do it now!
So, back to the title, and the point of this article. Here’s what my contact at the Disciplinary Board tells me you should do when you become aware that an attorney has died, become incapacitated or is missing. First, try to ascertain whether a surrogacy agreement has been executed and, if so, contact the designated surrogate attorney. The surrogate should then contact Renee Weber at the Disciplinary Board of the Supreme Court of Pennsylvania, at 717-783-0990. The surrogate should also access the Handbook for Conservators. It provides the surrogate with everything needed, including ethical guidance and various forms, in a concise 87 pages. The guide is located at: https://www.padisciplinaryboard.org/for–attorneys/successorship.
If information regarding a surrogate is not available or not applicable, contact Suzanne Price or Dana Belella at the Attorney Registration office of the Disciplinary Board, at 717-231-3380. In the event of death, be prepared to provide known details, including date, time, and location of death. They will do the rest.
If you’ve agreed to be a surrogate, you will probably want to familiarize yourself now with the Handbook for Conservators referenced above. In addition to all the duties of a conservator, as a surrogate you will probably have agreed to sell or close the practice, which entails additional work on the business side. I have great resources, including checklists for those eventualities.
A version of this article originally appeared in the March 18, 2024 issue of the Pennsylvania Bar News.
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