When the Worst Happens, What Then?

• Jurisdiction: California,United States
• Citation: Vol. 38 No. 4
• Publication year: 2016
• Author: Lynne Yates-Carter and Valerie Houghton
• topic: Business of Law,Bankruptcy and Insolvency,Contracts,Family Law,Insurance Law,Labor Law,Civil Procedure

When the Worst Happens, What Then?

Lynne Yates-Carter and Valerie Houghton

Lynne Yates-Carter has been practicing family law for thirty-nine years and has been a Certified Family Law Specialist since l982. She is a fellow of the American Academy of Matrimonial Lawyers and a past president of its Northern California chapter. She is a former chair of both the California State Bar Family Law Section Executive Committee and Santa Clara County Bar Association Family Law Section. In l989, she was selected as one of California's most respected family law attorneys by the California Lawyer. She has lectured extensively on family law issues. She has served as a special master, discovery referee, arbitrator and expert witness on family law issues.

Valerie Houghton is a marriage/family therapist, a registered nurse, and an attorney-mediator. She has worked with children and families for more than thirty-five years. She pursued her commitment to advocacy and social justice, enrolling in law school, where she earned her J.D. and Public Interest Law Certificate. She holds three licenses in the applicable fields. She maintains a private psychotherapy/family mediation practice in San Jose, California, where she works with families, couples and individuals. Additionally, she maintains a limited forensic practice where she focuses on child custody, parent counseling, family mediation and specialty consultation.

Many attorneys are sole practitioners who often have no disability insurance. When disaster strikes (extended illness, surgeries, family issues requiring substantial time), what can a sole practitioner do?

In 1999, the Legislature adopted a comprehensive statutory scheme specifically intended to manage the practice of disabled or deceased lawyers. The enacted statutes include Probate Code § 2468 (practice administrator-disabled layer's practice), Probate Code § 9764 (practice administrator-deceased lawyer), Probate Code § 17200(b) (22-23) (practice administrator-law practice economic interest transfer to a trustee), and Business and Professions Code § 6185 (practice administrator powers).

Rule of Professional Conduct 3-110(A) says that "(a) member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." Rule 3-110(B) defines "competence in any legal service" for purposes of this rule as "to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service." Complying with Rule 3-110(B) can be difficult for an attorney who is temporarily disabled. Competence is required, which means that an attorney must have both the...