Designated Attorney

What to do as a Designated Attorney for a Lawyer who has a Sudden Health Crisis

This portion of the portal deals only with a situation when a lawyer suffers a “sudden health crisis” and does not have a sudden health crisis emergency plan in place. Designated/Successor Attorney designees should follow the steps below to work through the succession plan process. The suddenly disabled lawyer will be referred to as “the Disabled Lawyer.”

A separate section of this portal addresses creating a sudden health crisis succession plan. However, that information may be helpful even if the lawyer has a sudden health crisis emergency or succession plan in place because it will supplement that plan.

Step One

Many lawyers have designated a successor attorney as part of their registration with the State Bar of Georgia. Just contact the Bar at 404-527-8700 to check whether a particular Disabled Lawyer has designated a successor. If you are not willing or able to handle the duties described herein, the Bar may be able to help you with finding a volunteer lawyer to serve as Designated/Successor Attorney. Whether you are closing the Disabled Lawyer’s practice as a Designated Attorney, friend of the family or Bar volunteer, you should contact the Office of the General Counsel at the State Bar of Georgia to discuss whether it is appropriate for the Bar to file a Petition for Appointment of Receiver in your situation. Although the Bar’s receivership process is more formal and procedurally cumbersome than is required in most situations, it does provide support and protections for the Designated Attorney that may be needed in some cases.

Step Two

If the Disabled Lawyer does not have a sudden health crisis succession plan, you should immediately review the checklist found here. The purpose of this information is to supplement the checklist and give you context for executing the items listed on it.

Step Three

After reviewing the checklist, you should create an action plan on the Disabled Lawyer’s behalf. In doing so, you should keep several different groups of people in mind. The first group is composed of the Disabled Lawyer’s clients. The second group is composed of the Disabled Lawyer’s family and estate. The third group is the Disabled Lawyer’s staff. 

Step Four

With regard to the Disabled Lawyer’s clients, the law creates specific duties that the lawyer owes to his or her clients to safeguard their interests. You must carry out the Disabled Lawyer’s duties to his or her clients when considering the sudden health crisis that the Disabled Lawyer has suffered. 

• The first and most essential duty that the Disabled Lawyer owes to his or her clients is to immediately check for looming deadlines and upcoming court hearings on cases or other matters being handled by the Disabled Lawyer. Hopefully, the Disabled Lawyer maintained a list of active cases/matters/clients. This list should be consulted first. If the Disabled Lawyer used practice management software, this information generally can be readily obtained from the practice management software. However, if the Disabled Lawyer did not use practice management software and does not otherwise have a list of cases/matters/clients, the two next best sources of information on deadlines and upcoming court hearings, other than the lawyer himself or herself, will be the Disabled Lawyer’s staff, if any, and the Disabled Lawyer’s calendar. 
• Another good and practical source of information about potential looming deadlines and upcoming court hearings for the Disabled Lawyer will be the case files in the Disabled Lawyer’s office, recently opened files on the Disabled Lawyer’s computer, and even materials sitting on the Disabled Lawyer’s desk. In addition, be sure to check the Disabled Lawyer’s incoming emails, outgoing (or “sent”) emails as well as “snail” mail (through the U.S. Postal Service) that may have recently come in and not yet been processed or that may come in in the near future. Remember also to check answering machines, voicemails and even handwritten post-it notes that may be affixed in and around the Disabled Lawyer’s computer, or paper calendar if there is one. 
• In dealing with looming deadlines and court hearings, the most immediate deadlines and hearings should be dealt with first, and you should seek an extension of the deadline or the hearing date. Most lawyers are willing to agree to a continuance for imminent hearings or deadlines when they hear that opposing counsel has suffered a sudden health crisis. An email or call to a lawyer on the other side of a case should be sufficient for this purpose. If the opposing lawyer is unavailable or unwilling to grant an extension of time, then reach out to the judge before whom the case or matter is pending, being careful to notify the other side as required by the rules barring ex parte communications with the court. 
• You should confirm extensions of time in writing. Typically, an email sent to opposing counsel and/or the court will suffice in this regard.
• Deadlines that are farther out than one week, but less than one month, should be grouped together, as well as deadlines that are more than one month but less than six months in the future. 
• Examples of client-related deadlines that are very important are (1) court dates, hearings and trials; (2) statutes of limitations; and (3) deadlines for responses to lawsuits or discovery requests in pending cases, as well as other items in the litigation and non-litigation context. The Disabled Lawyer’s staff and calendar notes should go a long way to helping you determine what the deadlines are and which are the most important. 
• While it may be possible to “fix” or repair some missed deadlines after the fact, certain deadlines, such as a statute of limitations, generally cannot be extended and cannot be “fixed” after the fact. If such a deadline is missed, then the client’s rights may be irrevocably harmed or even extinguished. The (generally two-year) statute of limitations in a personal injury case is just one example of such a hard deadline where missing it can impact or end a client’s claim. This fact underscores the need to move quickly to ascertain deadlines and transfer client files to new attorneys as quickly as possible.
• As part of the process of obtaining extensions of deadlines and postponement of hearings (where possible), you should notify all courts where the Disabled Lawyer practices (including appellate courts and federal courts) as well as opposing counsel, of the lawyer’s disability. Lawyers may suffer from the reputation of being difficult and uncooperative, but the vast majority of them will cooperate when they learn opposing counsel has suffered a sudden health crisis and virtually all judges will do so.

Download Proposed Letter to Courts and Judges

(Remember that any correspondence to a court where the Disabled Lawyer has a pending case must be copied to the opposing lawyer.)

Step Five

The next task is to notify the clients of the Disabled Lawyer’s disability and arrange for the return of client files either to the clients themselves or to new lawyers the clients may select. 

Download Sample Letter to Clients

• In notifying clients of what has occurred with the Disabled Lawyer, extreme care must be taken. In most cases, the client has come to the Disabled Lawyer to help the client with a difficult and stressful situation. The client often views the Disabled Lawyer as his or her lifeline, and if the Disabled Lawyer suffers a sudden health crisis, the client can feel abandoned and adrift.
• The notification to the clients should go out as soon as possible to give the clients as much peace of mind as possible. Your sample letter to clients should emphasize that the client is free to use the Designated Successor lawyer or any other lawyer to whomever the client may choose to transfer the file. Your sample letter to clients should also make it clear that the client does not need to pay any outstanding bill to the Disabled Lawyer before being able to retrieve the file.

Step Six

Another critically important function that you can help the Disabled Lawyer’s firm with is collecting money owed the Disabled Lawyer, as well as refunding any money that the Disabled Lawyer may have been paid but not yet earned at the time of his or her death or incapacity. The related issue is to ensure that the Disabled Lawyer’s bills are timely sent out for all services that have been rendered, but not yet been billed by the Disabled Lawyer before his or her health crisis. This is another reason why it’s very important to keep employees of the Disabled Lawyer happy and working for several weeks (at a minimum) beyond the beginning of the Disabled Lawyer’s health crisis. 

• Send out bills to current clients quickly after the Disabled Lawyer’s sudden health crisis, but no more than 30 days after the onset of the health crisis. It is well recognized among lawyers that the longer the time passes between the rendition of services and the request for payment for those services from the client, the less likely the client is to pay the bills and not dispute or ignore them.
• In matters that the Disabled Lawyer was handling on retainer or with a flat fee, the client may be entitled to a refund for work that was not completed before the lawyer’s health crisis. The Disabled Lawyer’s staff and/or the new lawyer should be consulted as to whether any of such funds need to be refunded to the client, passed on to the new lawyer or kept by the Disabled Lawyer’s firm.
• For cases handled on contingency, the Disabled Lawyer’s staff, any new lawyer and perhaps others should be consulted to determine what amount, if any, the Disabled Lawyer’s firm should receive from any contingency fee cases that have not yet been resolved.

Step Seven

With regard to the Disabled Lawyer’s family and estate, if the Disabled Lawyer has died or become unable to manage his or her affairs, you should consider contacting a probate lawyer. The probate lawyer can help you take steps to close the Disabled Lawyer’s practice from a business perspective and perhaps even begin the process of selling the practice, if possible. The Disabled Lawyer’s practice will likely be considered an asset of the Disabled Lawyer’s probate estate. 

• If the Disabled Lawyer had a will, you will need to contact the executor named in the Disabled Lawyer’s will. If the Disabled Lawyer did not have a will, you need to contact the person most likely to serve as the administrator of the Disabled Lawyer’s estate. If the Disabled Lawyer was married, the administrator is likely going to be his or her spouse. If the lawyer was not married, it’s likely to be another close relative such as a child, a sibling or a close friend. 
• If you are the person named in the Disabled Lawyer’s will as executor of the Disabled Lawyer’s estate, or if you are the person most likely to serve as the administrator of the Disabled Lawyer’s estate if he or she had no will, you are best advised to immediately locate and retain a good probate lawyer in the county where the Disabled Lawyer resided at the time of his or her death. The probate lawyer will help you handle many things related to the Disabled Lawyers law firm as well as other issues related to the Disabled Lawyers estate, including other assets and debts. A further discussion is outside the scope of this guide.
• A probate lawyer may be necessary in the event that the Disabled Lawyer has passed away, but the probate lawyer may also be able to help you get a guardianship or conservatorship or both on behalf of the Disabled Lawyer to enable you to act on his or her behalf. In addition, if the Disabled Lawyer had a financial power of attorney, it should be consulted for handling the Disabled Lawyer’s financial affairs if he or she is disabled.

Step Eight

With regard to the Disabled Lawyer’s staff, one of the next most important issues to be dealt with is paying the Disabled Lawyer’s bills. This includes paying the staff. Care must be taken in handling the staff in a situation like this. No matter how loyal employees may be, once they determine that the Disabled Lawyer may not be coming back to work for an extended period, or perhaps not at all, the natural inclination is for the staff to begin looking for other employment. Some may not even show up for work without giving notice. That’s why it’s critically important to reassure the staff that they will continue to be paid for a certain period of time to adequately transition the Disabled Lawyer’s practice to another lawyer or lawyers. Depending on financial circumstances, the most knowledgeable staff member(s) should be assured of at least three months’ pay to ensure that he or she will remain available and accessible to answer all necessary questions about the status of pending cases and help them with the transition of the clients’ files to new lawyers. In addition, mortgage/rent and utilities as well as other services the lawyer has subscribed to such as case management software must continue to be paid until the Disabled Lawyer’s practice can be closed out. 

Conclusion

To summarize, your obligation on behalf of the Disabled Lawyer is to preserve claims or defenses of the Disabled Lawyer’s clients. This is done by protecting the Disabled Lawyer’s clients from missing any impending deadlines and working to transition the Disabled Lawyer’s client files back to the clients or to new lawyers as quickly as possible. In addition, you need to expeditiously collect all monies owed to the Disabled Lawyer’s firm as well as to refund or move to the new lawyers any other funds which were on deposit in the Disabled Lawyer’s escrow account on behalf of existing clients.

Finally, to assist you in these activities, you need to reassure the office staff, especially the one or two people with the most knowledge of the workings of the firm and the clients, that they will be compensated for a reasonable period of time after the Disabled Lawyer’s sudden health crisis to help you in the transitioning.