Law Practice Management, 0521 COBJ, Vol. 50, No. 5 Pg. 10
| Author | BY JOSHUA B. ZUGISH |
| Position | Vol. 50, 5 [Page 10] |
Expect the Unexpected
Disaster and Succession Planning for Lawyers
BY JOSHUA B. ZUGISH
In Colorado, many have experienced significant weather, natural disasters, illness, and social events that have personal and professional impacts. The past year has certainly reminded us of the power of unforeseen risks as the state endured the pandemic, another harsh fire season, social unrest, and severe weather. Through February 2021, Colorado experienced over 424,000 COVID-19 cases and 6,000 deaths.[1] In 2020 alone, Colorado was the subject of five FEMA disaster declarations related to wildfires.2 Denver businesses suffered millions in disruptions and damage surrounding protest activities,3 while mountain communities like Estes Park had major evacuations and disruptions from fires. In addition, recent weather and corresponding utility issues in Texas serve as a stark reminder that our daily routines can be severely disrupted in the blink of an eye. Such events highlight the importance of taking time for disaster and succession planning to help protect law practices and ensure client needs are met in response to unforeseen events.
Disaster and succession planning helps mitigate risks to law practices and clients, provides a competitive advantage in overcoming the negative effects of unforeseen events, and promotes ongoing practice viability. It also ensures that ethical obligations to clients remain intact despite the range of adversities law practices may grapple with. For example, the American Bar Association (ABA) has specifically opined that lawyers have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruption, and keep clients informed about how to contact the lawyers or successor counsel.4 Similarly, the commentary to Colorado Rule of Professional Conduct (Colo. RPC) 1.3 explains:
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.5
So, where to start? The Colorado Supreme Court and the ABA offer planning resources and forms to efficiently guide you through disaster and succession planning.6 These are excellent resources to consult when developing or updating your plans.
When starting the planning process, it may be beneficial to frame your thoughts around two overarching goals: (1) preserving the physical safety of yourself, employees, and clients; and (2) ensuring essential client and business records may be accessed to resume or transfer practice operations. With those goals in mind, consider potential risks and how they may impact your current operations. For example, if a tornado destroys your office, are you able to access backup copies of essential records, communicate with your clients, and perform work in an alternate location for an extended period? If a large gathering or protest limits access to your office for a few days, are you able to adjust and meet pending deadlines or secure extensions so your clients are not prejudiced? If you are severely injured in an accident, do you have a stand-by attorney who knows how to access your files and can respond to your clients’ needs while you are absent? To address these concerns, consider the planning steps below.
1. Determine Who’s Responsible for Creating and...
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