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California solo practitioners: should you consider the attorney surrogacy program?

aging man representing the need for the attorney surrogacy program in California

None of us likes to think about unpleasantness that may lie ahead in our lives.

Despite that, we all have to face the realities of time. If we’re lucky, that means we just happily get older and continue to do the things we love.

In fact, attorneys may be particularly lucky in this regard – studies show that the number of attorneys who work past the age of 65 (14%) is double that of people in other professions.

Nonetheless, we all risk facing some of life’s more difficult challenges.

For example, one in nine Americans over the age of 65 has Alzheimer’s-related dementia.

Of course, younger people are not immune from the risk of being incapacitated. The Pew Research Center reports that over 40 million Americans live with some form of disability.

For lawyers working in law firms, these statistics may not be too great of a threat to your practice. After all, if something dire happens to you, your partnership agreement likely dictates that another attorney in your firm will jump in and take care of your clients.

But what happens when a solo practitioner is incapacited by dementia or some other disability? Who takes care of their clients?

In California, at least, the answer lies within the state’s attorney surrogacy program.

Doesn’t existing law dictate what happens when a solo practitioner is incapacitated?

This is a valid question.

California’s attorney surrogacy program is, indeed, a workaround for the statutory procedures that kick in when a solo practitioner passes away or is otherwise incapacitated. Therefore, to fully understand the program, we have to first look at that statutory scheme.

Like many laws that regulate attorneys in California, these rules are set forth in the Business and Professions Code.

Specifically, California Business and Professions Code sections 6185 et seq., deal with the cessation of a law practice. In pertinent part, the law allows the court to appoint a “practice administrator” to deal with all of the administrative details of closing a law practice when a licensed attorney dies or becomes disabled.

Among other things, the administrator is charged with things like:

  • Taking control of client trust accounts;
  • Taking control of client files;
  • Notifying clients and courts of the situation;
  • Taking over employment-related responsibilities;
  • Administering accounts receivable to the estate; and, in some cases,
  • Taking over the deceased or incapacitated attorney’s caseload.

 

Obviously, this is an extremely important statutory scheme that is designed to protect clients when their attorney unexpectedly stops practicing law.

Understandably, however, the statute gives many solo practitioners a great deal of heartburn. After all, what if the court appoints someone as practice administrator who the original attorney doesn’t care for? What if there are specific aspects of the solo practitioner’s practice that are not easily understood by most generalists?

You can understand why these questions would keep an attorney awake at night.

Enter the attorney surrogacy program.

What does the attorney surrogacy program do?

In short, California’s attorney surrogacy program allows solo practitioners to plan ahead for their unexpected death or incapacity.

The State Bar provides a template “Agreement to Close Law Practice in the Future.” This agreement allows the solo practitioner to decide ahead of time who will be responsible for all the tasks required to wind up their practice.

Taking the time to negotiate this agreement with a backup attorney gives the solo several distinct benefits.

The first and most obvious benefit is that solo practitioners are completely in control of choosing who will take over their practices (subject to the backup attorney’s agreement, of course).

It also allows the solo lawyer to have complete control over who will be responsible for which parts of the practice. For example, an attorney may appoint one backup to deal with his real estate clients and another to administer his corporate client accounts.

Another benefit is time. Once an “Agreement to Close Law Practice” is in place, the surrogate can get to work on administering the solo practitioner’s practice without delay.

In fact, the template agreement is so thorough that it even includes things like a “General Medical Records Release” that will allow access to an incapacitated attorney’s records without the necessity of court intervention. Absent these sorts of delays, clients will continue to receive quality legal services even in the worst of times.

What about planned exits from the law?

Of course, not every law practice closes due to an unexpected illness, accident, or death. Some attorneys actually plan for their retirement well before they become incapacited.

The attorney surrogacy program is beneficial to them as well.

Specifically, the State Bar provides a detailed set of “Guidelines for Closing or Selling a Law Practice.” This handy guide outlines the questions, procedures, prevailing laws, and administrative tasks that arise whenever a law firm closes. In essence, it is the “go-to Guide” for California attorneys who are planning their retirement.

How does an attorney know when it’s time to stop practicing?

This is a question that each attorney has to answer for themselves.

Sometimes, however, we simply aren’t able to be objective about these sorts of questions. The California State Bar recognizes this and has therefore provided tools for the most critical of situations – dealing with dementia or other cognitive decline.

Specifically, the Bar provides a link to “SAGE,” which is the Self-Administered Gerocognitive Exam offered by Ohio State University.

According to the University, SAGE is “designed to detect early signs of cognitive, memory or thinking impairments. It evaluates your thinking abilities and helps physicians to know how well your brain is working.”

While the test certainly isn’t fun to take, it’s probably something attorneys 60 years and older should schedule themselves to take yearly. Since your doctor needs to score the test, you can schedule it with your annual check-up.

As noted at the outset, no one likes to think about the unpleasantries of aging. Nonetheless, it is important for the sake of your clients and your practices that you do so. Fortunately, the California Bar has provided these useful tools to make the task as easy as possible.

Author

  • Jennifer Anderson practiced business litigation in California from 1999 to 2016. When she’s not writing from her floating cabin on the Columbia River, she can be found hiking or kayaking around the Pacific Northwest.