The mantra you hear whenever COVID-19 is mentioned is, “Testing, Testing, Testing.” The mantra for solo practitioners in a COVID-19 era should be, “Prepare, Prepare, Prepare.” Although COVID-19 has created one of the most frightening experiences of our lifetime, in some respects, on an individual basis, COVID-19 is no different from any other serious illness that could destroy a solo practitioner’s law practice. However, the scale and potential breath of this recent phenomenon highlights the vulnerability solos have to an illness, disability or even death. Consequently, this is a good time to assess, in broad strokes, how a solo practitioner should prepare for an attack from COVID-19 or, for that matter, any similar danger.
Solo practitioners (“solos”) face problems different from large and small law firms, in part, because of the solos’ office structure or lack thereof. In fact, the type of office structure may drastically affect a solo’s COVID-19 preparations. For instance, some solos are part of a suite of law offices in which suite-mates have no professional connection. In contrast, some suites include suite-mates that have an informal understanding that they will help each other when there is a specific need. There are other lawyers who have no office structure that could serve as a basis for a connection to other lawyers. This could include the use of a virtual or home office. Yet, regardless of the solo’s office structure, solos are at a great professional risk if suddenly overwhelmed by a devastating illness such as COVID-19.
Generally, there are many precautions law firms can and must take to address the ramifications of COVID-19. In fact, on this Blog my colleagues have written numerous articles and presented videos about how lawyers and law firms should address the impact of COVID-19. Although unprepared law firms can be overwhelmed by COVID-19, all law firms, even small firms, typically have some type of back up (i.e., partners, associates, counsel or support staff) that is critical to provide support and coverage when disaster hits. The lack of immediate support is the major and most significant distinction between law firms and solos. This begs the question, what should solos do to make up for a lack of institutional backup?
Identifying a "Caretaker" For Your Practice
First, a solo must find a professional colleague, whether it is a suite-mate, friend or acquaintance, who can be trusted, and is willing to temporarily assist when the solo becomes debilitated. The attorney preferably would be someone who practices in the same field. One potential quid pro quo for recruiting someone is a reciprocal promise. Yet, this may not be necessary if the solo has a prior close relationship with another lawyer that could be the basis for a promise to be a “temporary caretaker.” Of course, there is always the option of paying the helping lawyer a fee for his or her services.
It is best if a family member knows the name and contact information for the appointed lawyer. If for whatever reason, no such person has been chosen, the solo must make sure a responsible family member would know that they have to reach out to another attorney for temporary help. Although the intent is that the temporary caretaker be short term while the solo recovers, this can become complicated because the caretaker might be concerned about possible legal malpractice exposure. However, the goal is only to temporarily “hold down the fort.” This might entail obtaining adjournments until the solo can again manage the practice even from afar (using per diem lawyers if necessary) or speaking to clients about seeking other counsel or formally retaining “Mr. Caretaker” if a transaction is time sensitive.
Parenthetically, there will be some readers that would worry that the temporary caretaker might “steal” clients or hijack their practice. Hopefully, someone can be found who is trustworthy, but holding on to a client or even clients must be deemed a secondary concern when clients’ interests are at risk. Stated another way, losing some clients is a far cry from being sued by multiple clients for failure to handle their matters because of an illness.
Prepare a "Master Memo"
Finding a temporary caretaker is not a solution if the attorney cannot figure out what is going on with the solo’s practice. If the solo is a litigator, what deadlines are there? If the solo is a real estate or transactional lawyer, are there any pending transactions that must be promptly closed? The solution is easy and most lawyers do it regardless of a pandemic: keep a calendar and a “To Do List” with sufficient detail for the caretaker to easily decipher deadlines. A contact list, with client and adversaries’ information, should also be easily accessible. If there are electronic files, and the caretaker can remotely access the solo’s computer, it could make life much easier. If not, thought has to be given to the logistics if the lawyer has to go to the office, particularly in a COVID-19 environment.
Of course, all of this is much easier if the solo has an assistant. The solo should speak to the assistant about the projected arrangements, including working with the caretaker. Yet, in some instances, assistants have only limited information or are not capable of taking charge of administering the practice. Regardless, a solo does not want an assistant engaging in the unauthorized practice of law or taking on responsibilities that should be handled by a lawyer. There should be sufficient money in the solo’s operating account to pay the assistant, in case it is a protracted disability, because that person could be critical to a practice continuing until the solo is ready to again take charge.
There is a helpful shortcut, a “Master Memo” setting out the way to access and utilize the above information that could avoid confusion and reinvention of the wheel. The memo should include: how to access the calendar and To Do List, where to find client and adversary contact information, where all the hard copy current files are if applicable and the password to access your computer remotely (this may be tricky due to trust and security issues).
Appoint a Co-Signatory On The Trust Account
In some practices, the flow of escrow money is critical for clients. Thus, the solo should have a lawyer co-signatory on the account already in place so transactions are not delayed and settlement money is not held up. In fact, it is a good idea to have a co-signatory for the operating account too. Unlike for an escrow account, the co-signatory does not have to be a lawyer. It can be a non-lawyer spouse or adult child, just so there is access. This will also facilitate paying critical bills, such as rent, legal malpractice and the assistant. Collecting fees, the lifeblood of any practice, may be difficult, but the assistant can be instructed on how to proceed with sending bills even if the solo is temporarily unavailable.
Every solo’s practice is different. For instance, can the solo’s assistant handle most of the administrative issues with a small amount of help from a friendly lawyer? Is it practical or feasible to have the temporary caretaker adjourn all deadlines with the intent to reassess the cases in the near future? Is it necessary to point out critical deadlines in which the client will have to immediately retain new counsel to finish an urgent transaction? Each solo will have to prepare based upon their own practice.
This simplified summary is to motivate solos to prepare for the unthinkable. The considerations noted above are part of a much larger plan that is necessary for solos for the long term when contemplating serious health issues, disability and death. The New York State Bar has published a great manual for such situations titled, NYSBA Planning Ahead Guide, How to Establish an Advance Exit Plan to Protect your Clients’ Interests in the Event of your Disability, Retirement or Death (2nd Ed.). Many solos are woefully unprepared for a sudden and serious illness. A little preparation can protect clients, which in turn, protects solos and their families from a COVID-19 nightmare.
The mantra for solo practitioners addressing the COVID-19 era should be, “Prepare, Prepare, Prepare.”