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.
ILLUSTRATION BY BRADLEY AMBURN
• 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