November-December 2013

Issue link: http://ailahub.aila.org/i/214317

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Page 42 of 57

W hat would happen to your clients if you faced an emergency? The issue is not just for practitioners entering their golden years; accidents can befall even "young" attorneys. For example, imagine the impact to your client if you failed to meet a deadline while tending to your emergency. That's why it is critical for solo attorneys to select a backup attorney. Why bother? ILLUSTRATION BY BRADLEY AMBURN SHUTTERSTOCK/THINKSTOCK • Professional responsibility. The American Bar Association (ABA) said that even though an attorney-client relationship might end upon the death of the attorney, the attorney's fiduciary duty survives, making prospective planning vital. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 32-369 (1992). This mandate arises from the duties of competence and diligence. Model Rules of Professional Conduct R. 1.1 and 1.3. • Malpractice insurance. Most malpractice policies require the insured attorney to designate backup. An informal poll of solo practitioners we know suggests that many solos have at most an informal arrangement with another attorney to provide backup. Yet a vague arrangement that another attorney "has your back" is risky. • Liability. It's easy to envision how the unexpected absence of an attorney could greatly prejudice a client. There are numerous instances where a missed deadline could seriously jeopardize an individual's ability to remain in the United States. If the damages could have been avoided by providing a backup attorney, this liability could land on your doorstep or fall to your estate. Consider AILA's Professional Liability Insurance Program. What factors should you consider? Selecting a backup may be the most challenging aspect of this process. Who could competently walk into your law practice and zealously protect your clients' interests? Who knows well enough the area of law that you practice? Our respective immigration practices are similar, so our agreement is limited to covering each other's immigration cases. If your backup attorney handles mostly removal defense, you don't want him or her surprised to find an EB-5 case on his or her plate one morning. You may also want to limit the backup's responsibilities to time-sensitive matters, as in the case of our firm, to make clear the backup doesn't need to start drafting your Ninth Circuit brief just because you're out with a cold for a couple of days. What triggers the backup's involvement? How does a backup know that the other affected attorney is "unavailable" so that he or she needs to intervene? In an ideal world, the affected attorney would call, e-mail, or text the backup to provide advanced notice. But a key goal of our firm's arrangement was to provide coverage for unexpected absences, such as a medical emergency. Our coverage agreement allows the backup attorney to use all evidence and information that can be deemed reasonably reliable, including communications with the affected attorney, his family members, representative, or health care professionals. We included a hold-harmless provision in the event a backup attorney makes a reasonable and good faith, but incorrect determination of unavailability. How does the backup attorney get paid? We agreed that in no event would the total amount charged by the backup attorney exceed the flat fee that we had charged the client for representation. We chose to compensate each other for backup work at an amount that was substantially reduced from our normal hourly fees. The main value to each of us is the reciprocal coverage arrangement itself. We also included provisions for when a backup attorney—with the client's permission, of course—could elect to take over a case, based on having performed a significant amount of the work needed to complete the matter. N OVEMBER/ D ECEMBER 2013 43

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