Most attorney malpractice insurers require a backup attorney or they will not issue a policy for a solo practitioner. Frequently the solo attorney will ask why this is a requirement and some even get mad refusing to go with an insurer that requires this.
The attorney protests that that they do not need a backup attorney as they do not have court appearances to be covered or filing deadlines. If the attorney is ill or out for a few days it is not big deal. So why won’t the malpractice insurance carrier just waive that requirement? The malpractice carrier requiring this is really a blessing. It forces the attorney to deal with the unthinkable.
About once a quarter we get a call from a solo attorney’s staff that the attorney is incapacitated and they are at a loss as to what they are supposed to do. The last call that I took the paralegal called and stated that the attorney has been in the hospital for a month and likely will be there for another couple of months. This in of itself is a terrible situation for all involved.
It is important for a solo attorney to remember that they are running a small business. They may have employees that need to be paid. Bills and all of the mundane reporting that businesses need to do to meet local, state and federal requirements continue regardless. In addition, they may have dependents and clients that that depend on them.
Beyond that, an attorney’s obligations to clients and the courts are not terminated due to retirement, incapacity or even death. Not all issues to an attorney’s incapacity are related to old age. The world is unpredictable. Attorneys need to have plans in place to meet these unpredictable events before they happen. This begins with having a backup attorney designated to cover.
In addition, as the boomer generation continues to get older, succession-planning becomes even more important. Failure to plan for a successful transitioning of open matters, including a process for designating a backup attorney to address deadlines and court appearances, and more could lead to a malpractice claim.
The last thing in the world that the conscientious attorney wants is having staff and dependents struggling to deal with not only the loss of the attorney, but suddenly being thrust into the business of the law firm, clients and court obligations without preparation or a plan.