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The VI Bar Herald
      The Source for VI Legal Info       OnePaper Community Edition       December 10th, 2018      
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Succession Planning for Solo & Small Firm Practitioners
by Robert W. Martin Jr.
ALPS Risk Management Report

     Although retirement may seem like an elusive concept to you, in fact it could happen. Though we don't like to think about it, some attorneys do die prematurely, as well. Coverage after death for pro bono work is, by the way, a policy enhancement which ALPS is currently examining.
     Just as you would be sure to advise your business clients who own their own businesses to plan for retirement and premature death, you should do the same for the benefit of yourself and your family. It is not difficult or expensive to do so. Here are just two quick and easy suggestions.
     1. Client Files
     We get many telephone calls from surviving non-attorney spouses inquiring about what to do with their recently deceased spouse's client files. We tell them everything in the file except the "attorney work product" belongs to the client. (Florida is the only exception where the entire file belongs to the attorney.) They should discuss with the attorney who is handling their attorney/spouse's estate (hopefully there is a will) about the best way to contact former and current clients in order to determine what the clients want done with their files. Usually, the current clients' files are not an issue and we trust that those folks are easily contacted. Of course, it is not up to the "contacting" attorney to take over those files; the client must decide who will continue the representation.
     The more problematic issue involves closed files. Since they remain the property of the client (except for the "work product"), they cannot be destroyed without the permission of the client. Additionally, there are some valid reasons to not destroy closed files for a period of time because of continuing liability of the attorney and/or their estate.
     Do yourself a favor! Decide how long to keep a particular file on the day you close it. Then send clients a closing letter informing them, among other things, that unless you hear from them within 30 days of the date of the closing letter, you will assume that they want you to destroy their file for them at that chosen date in the future. We recommend, by the way, that seven to ten years is the appropriate time to keep most files but, of course, there are many exceptions and you should check to see if there are any applicable Rules in your jurisdiction.
     A recent Ethics Opinion of the Kansas Bar (98-05; 6/14/98) underlined the importance of obtaining the client's permission to destroy his/her file at the appropriate time. Otherwise, the file becomes "abandoned property" and subject to the Unclaimed Property Act (a uniform Act applicable in many states). That opinion states "[P]rivileged information must remain in the lawyer's file. Unprivileged documents can be disposed of per the Unclaimed Property Act and this opinion." Earlier in the opinion it states "the entire [client] file, properly redacted, could be turned over to the [State of Kansas] Treasurer's Office, relieving the attorney and firm of storing old abandoned files, a perennial problem with any lawyer who practices for any length of time." Such a suggestion will, I am sure, be popular with your State Treasurer's Office! I suggest that you avoid even thinking about that suggestion by heeding the significant advice in the opinion and as noted above to seek agreement from clients as to what they want you to do with their "property."
     On the day you close the file decide whether a longer time frame is mandated or desirable. By the way, we do not see any malpractice avoidance advantage in destroying files versus keeping them all for 40 or 50 years. If you have the room and the inclination, no problem. However, unless you get elected President or achieve some other form of notoriety, your files will get destroyed shortly after your death. While you are able to do so, take all appropriate steps to make sure files are destroyed properly (whenever it is done) and not in a way that will add to your liability or that of your estate. Inform your spouse what he/she should do with the closed files in the event of your death and make sure that he/she, along with the attorney chosen by you to close down your office in the event of premature death or disability, knows your system. Please be sure to have such a succession attorney in place!
     2. Your Malpractice Policy
     When you die, retire or change firms, it is very important for you, or someone on your behalf, to contact ALPS. It is very important that your spouse and executor/executrix know about the existence of your malpractice policy. It is also important that they fully understand the need to contact us so that we can ensure that your estate has appropriate coverage in the event of a claim being made after your death. Just as you no doubt would tell your client to make sure their spouse knows some fundamental information about life insurance and casualty insurance policies as well as the identity of the relevant insurance agents, you should do the same.
     Similarly, when it comes time to retire, call us. Unless you "retire completely from the practice of law," there may be a need to continue to keep your policy in force to ensure you have coverage for any claims made against you. Remember, all legal malpractice policies are written on a "claims made" basis so just because you had a policy in place at the time of the alleged negligence, such does not necessarily mean you will be covered when the claim is made. Thus you need to fully understand "tail coverage" and the options available to you when you retire or change firms. The purpose of this article is not to tell you what options you will have available because your individual circumstances will vary. At the time of your retirement or a firm move, there may be different options offered by ALPS than there are today. Instead, the intention here is much more simplistic; we want to remind you of the importance of contacting ALPS.

Board of Governors Adopts Grievance Form
   The Board of Governors of the Virgin Islands has adopted a new Grievance Form to expedite the filing of complaints against attorneys. Tom Bolt, President of the Bar Association, commended the members of the Bar's Professional Ethics and Grievance Committee for their work in bringing this project to fruition.
Click here for More...
What is the Standard of Care in Determining Legal Malpractice
   ALPS claims statistics show that one of the reasons why plaintiffs' personal injury attorneys are the number one source of malpractice claims is that allegedly they occasionally settle suits without their clients' consent.
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Succession Planning for Solo & Small Firm Practitioners
   Recently several Virgin Islands solo practioners' untimely deaths created havoc for the respective attorneys' clients. Succession planning could have alleviated much of the confusion. ALPS Risk Manager Bob explains steps that attorneys can take now to assist their clients.
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Current Rules Requiring Truthfulness and Honesty in Lawyering
   The ABA Model Rules of Professional Conduct require truthfulness and honesty in lawyering. VIBA presents a compilation of same.
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Opinion of Professional Ethics & Grievance Committee
   The St. Croix Committee of the Bar's Professional Ethics & Grievance Committee has issued the following opinion.
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