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PROTECTING YOUR CLIENTS IF THE UNTHINKABLE HAPPENS

We know that no attorney likes to think about events that might abruptly change our lives and the lives of our families and clients. Nevertheless, accidents, illnesses, and untimely deaths occur. Those events often necessitate that an attorney must abruptly stop practicing law.

You have clients who depend upon you. You have clients with court dates tomorrow. You have clients with unfinished cases and documents. If the unthinkable happens, where will your clients turn? Who will help them navigate the path to finding new counsel, who will ask the court for a continuance on behalf of the client or assist the client in retrieving a file?

The advisability of having a succession plan is discussed in Comment [5] to Ohio Prof. Cond. Rule 1.3. Indeed, termination of representation requires that the attorney “. . . take steps, to the extent reasonably practicable, to protect a client’s interest.” Prof. Cond. R. 1.16(d). While there is no law or rule in effect in Ohio that requires an attorney to participate in a Succession Registry (the Registry), nevertheless, all attorneys, whether a member of a law firm or a solo practitioner, have an ethical obligation to consider the immediate impact that such an unfortunate event will have upon their clients. Every attorney should consider putting a plan in place to protect those clients. Our Registry can be that plan.

Your profile on the TBA’s website, allows for the designation of your practice successor. By updating your profile and completing that section, you can provide the name, address, email address and best phone number of the designated successor. The designation allows you the ability to protect your clients and assist your office and family in the event of your death or disability. The designated attorney can provide the immediate assistance that your clients will need if you are no longer there to help.

Being the designated attorney is a short-term opportunity to give back to our profession. A designated attorney has been given the chance to make an immediate and positive difference in the lives of clients and family members under the most unfortunate circumstances. As always, the clients have the right to select different counsel.

Ohio’s attorneys are encouraged to put this stopgap plan in place today. Do not wait another minute to be the attorney who rests easy knowing that you have designated another attorney as the person that your clients can turn to in their time of need.

1.    THE REGISTRY HAS SOME LIMITATIONS

The Registry is a source of information. The Registry does not operate to transfer a client’s legal representation from one attorney to another. The Registry does not convey responsibility for a client’s representation to the designated attorney or to any other attorney.

The Registry does not give the designated attorney the authority to: (1) wind down a law practice; (2) provide clients with a final accounting of fees and expenses; (3) collect fees; (4) access client trust account funds or other bank accounts; or, (5) liquidate or sell a law practice. Arrangements for payment of fees or expenses incurred by the designated attorney are not identified by the Registry and may be part of a separately negotiated agreement between the parties.

2.      THE REGISTERING ATTORNEY

After registering, you should also complete at least the following tasks:

  • Discuss the Registry and the role of the Designated Attorney with your staff;
  • Discuss the role of the Designated Attorney with your family and estate representative(s);
  • Give your clients notice of this registration with the TBA; and,
  • Within 30 days of any changes to the information on the form, including the identity of the Designated Attorney, notify the TBA.

3.      THE DESIGNATED ATTORNEY

By consenting to serve and in conjunction with Ohio Prof. Cond. Rule 1.3, Comment [5], a Designated Attorney agrees that in the event of the contingencies described herein, his/her responsibilities are generally limited to the following:

  • Contacting the clients of the Registering Attorney;
  • Obtaining instructions from the clients on transferring files;
  • Obtaining extensions of time in litigation matters where necessary; and,
  • Providing notice to relevant persons and entities regarding the status of the Registering Attorney’s law practice.
  • If necessary, abide and facilitate the client’s selection of different counsel.

4.      ADDITIONAL RECOMMENDATIONS

  • That  you add language to your fee agreements and/or letters of engagement for new clients that in the event of your incapacity or death, the client contact the Toledo Bar Association, 311 N. Superior St., Toledo, OH 43604, (419) 242- 9363, for information regarding the Designated Attorney; and,
  • That you send a letter to all current clients that in the event of your incapacity or death, the client should contact Toledo Bar Association, 311 N. Superior St., Toledo, OH 43604, (419) 242- 9363, for information regarding the Designated Attorney.

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