R PRACTICE MANAGEMENT BOOKLET SERIES Succession Planning and Sale of a Law Practice A Malpractice Insurance Company s Perspective Authors: Timothy J. Gephart Todd C. Scott Editorial Board: Eric T. Cooperstein Linda J. Hay Charles E. Lundberg Vincent A. Thomas
PRACTICE MANAGEMENT BOOKLET SERIES Succession Planning and Sale of a Law Practice A Malpractice Insurance Company s Perspective PUBLISHED BY: Minnesota Lawyers Mutual 333 South Seventh Street Suite 2200 Minneapolis, MN 55402 www.mlmins.com Phone: (800) 422-1370 Fax: (800) 305-1510 MLM s Risk Management Resource Center HelpLine 855-692-5146 (Toll Free) Are you a policyholder with questions about the retention of old files, the development of a conflict of interest checking system or the purchase of digital equipment? Call MLM s toll free HelpLine at (855) 692-5146 to receive informal advice and information regarding practice management resources and emerging technology.
THE SERIES Authors Timothy J. Gephart and Todd C. Scott Booklet Series Managing Editor Jayne M. Harris, Vice President of Business Development Booklet Series Creative Designer Karen J. L. Scholtz, Business Development Coordinator MLM s Law Practice Management Series was developed by Jayne M. Harris, Vice President of Business Development, to assist lawyers in assessing, maintaining and enhancing their quality of service and reducing their risk of malpractice. The booklets are based on best practices comprised of a compilation of information by ethics and malpractice experts over the years. To ensure quality, an Editorial Board of highly respected and authoritative leaders has been created. The Editorial Board influences the creation of the overall series, and provides advice and guidance on malpractice trends and what should be communicated on a range of issues. MLM s Law Practice Management Booklet Series is available to MLM insureds in electronic form on www.mlmins.com. Lawyers may download some or all the component parts in the following booklets for their personal use appropriate to individual needs: File Retention Ethical Considerations & Malpractice Prevention in Client Communications Succession Planning and the Sale of Practice The Basic of Client Files and Paperless Office Systems Avoiding Conflicts of Interest No part of the booklet series may be transcribed or reproduced without the prior written consent of Minnesota Lawyers Mutual. Discounts are available for booklets ordered in bulk. Special considerations is given to state and local bars, CLE programs, and other barrelated organizations. Inquire with Jayne Harris at jharris@mlmins.com. Disclaimer This booklet includes techniques which are designed to minimize the likelihood of being sued for professional liability. The material presented does not establish, report, or create the standard of care for lawyers. The material is not a complete analysis of any of the topics covered, and readers should conduct their own appropriate legal research. Nothing contained in this information is to be considered as a rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication and any forms herein are intended for educational and informational purposes only, and readers are always encouraged to make independent decisions based on their state law and ethics opinions. No part of this publication may be transcribed, reproduced, stored in any retrieval system or translated into any language or computer language in any form or by any means, mechanical, electronic, magnetic, optical, chemical, manual, or otherwise, without the prior written consent of Minnesota Lawyers Mutual. 2015 by Minnesota Lawyers Mutual (MLM). All rights reserved. Publication Date: 2008; Revised: May 2015 i
EDITORIAL BOARD Eric T. Cooperstein, Eric T. Cooperstein Ethics Consulting & Representation Mr. Cooperstein has a solo practice devoted to ethics consulting and representation, a product of his work as a former Senior Assistant Director of the Office of Lawyers Professional Responsibility, where he worked from 1995 to 2001. Mr. Cooperstein defends lawyers against ethics complaints, provides advice and expert opinions and represents lawyers in fee disputes and law firm break-ups. He is also a frequent writer and speaker on ethics and law practice issues. Mr. Cooperstein is chair of the Rules of Professional Conduct Committee for the Minnesota State Bar Association, a member of the Association of Professional Responsibility Lawyers, and served from 2007 to 2008 on the Supreme Court Advisory Committee to Review the Lawyer Discipline Process. Mr. Cooperstein joined the executive committee of the Hennepin County Bar Association in 2010 and will serve as its president in 2013-2014. Linda J. Hay, Alholm, Monahan, Klauke, Hay & Oldenburg, LLC Ms. Hay is a shareholder in the firm of Alholm, Monahan, Klauke, Hay & Oldenburg, LLC. Ms. Hay actively defends professional liability cases. She has tried numerous cases to successful verdict and has also handled numerous appeals in this area. Ms. Hay regularly presents seminars on risk and claim management of professional liability cases and regularly publishes in the field as well. Ms. Hay is a member of the Board of Directors of the Illinois Association of Defense Trial Counsel, and was editor-in-chief of the IDC Quarterly, the legal journal of the Illinois Defense Bar, in 2005-2006. Charles E. Lundberg, Bassford Remele Mr. Lundberg has been a member of Bassford Remele for more than 30 years, practicing primarily as a lawyer s lawyer advising attorneys and law firms on matters involving legal malpractice, legal ethics and other areas of the law of lawyering. He served for 12 years on the Minnesota Lawyers Professional Responsibility Board, including six years as board chair. He also has been recognized as one of the leading appellate attorneys in Minnesota and elected as a Fellow in the American Academy of Appellate Lawyers an invitation-only group of outstanding lawyers whose practice focuses substantially on appeals. Mr. Lundberg has been named a Top 100 Super Lawyer; Top 10 Appellate Super Lawyer; and a Leading American Attorney; and one of the Best Lawyers in America in the fields of Appellate Law and Legal Malpractice Law. He also teaches a class in Legal Malpractice Law at the University of St. Thomas Law School. Vincent A. Thomas, Gustavus Adolphus College Mr. Thomas serves as a member of Minnesota Lawyers Mutual s Board of Directors. He previously served as a member of the Minnesota Lawyers Board of Professional Responsibility for eight years, the last four as vice-chair. Mr. Thomas practiced law for nine years at Briggs and Morgan in the areas of public finance and municipal law. He left Briggs and Morgan in 1995 to become the Assistant Dean of Students, and an Adjunct Professor of Law at Hamline University School of Law. He taught Professional Responsibility at Hamline from 1996-2005. In 2006, Mr. Thomas joined the University of St. Thomas School of Law administration and served UST as assistant dean for Student and Multicultural Affairs and Adjunct Professor of Law for four years. Mr. Thomas currently serves as the Internship Program Director for Gustavus Adolphus College in St. Peter, Minnesota, and as a volunteer mentor at the Hamline University School of Law. ii
ABOUT MINNESOTA LAWYERS MUTUAL Founded in 1982 by members of the Minnesota State Bar Association, Minnesota Lawyers Mutual Insurance Company (MLM) provides professional liability insurance and risk management services for the legal community. MLM is committed to being an efficient, accountable and permanent practice management resource. Additionally, we have returned a dividend to policyholders every year since 1987. If you are searching for a stable provider of legal malpractice insurance and useful practice management information, Minnesota Lawyers Mutual is the resource you need. Visit our web site at www.mlmins.com or call us at (800) 422-1370 to learn more. Minnesota Lawyers Mutual Board Members 2015 Paul M. Ablan - President/CEO, Minneapolis, MN R. Bertram Greener - Chair, Minneapolis, MN Steven G. Brady - Stillwater, MN Ted Collins - St. Paul, MN Roger Frommelt - Minneapolis, MN Harold Goldner - Blue Bell, PA Joan Hackel - St. Paul, MN Elisabeth S. Reynoldson - Osceola, IA David Stowman - Detroit Lakes, MN Vince Thomas - Minneapolis, MN John Bowden - Minneapolis, MN Roger Fellows - Brooklyn Park, MN Andrea Geraghty - Pittsburgh, PA Robert A. Guzy - Columbia Hgts, MN A. Patrick Leighton - Inver Grove Hgts, MN Clinton A. Schroeder - Minneapolis, MN Ronald L. Seeger - Rochester, MN iii
PREFACE There are literally hundreds of books and articles covering just about every aspect of law practice management. So, why write another one? And, why should you read it? Minnesota Lawyers Mutual has been in the risk management business for 30 years and we ve seen plenty of well-planned, well-crafted and wonderfully maintained risk management materials. Unfortunately, we've also "paid the price" in instances where an insured attorney simply wasn t familiar with a particular risk management concept or didn t know "where to go" to find that information. So, Minnesota Lawyers Mutual has developed a Law Practice Management Booklet Series written from the perspective of an errors and omissions insurance company. Our goal is to provide a single source of accurate, practical information and best practices for everything from conflict of interest, to client communications, to law office technology, with the additional commitment to keep it current and accessible. By compiling all this information into checklists, avoidance tips and examples, we've turned a mountain of material into convenient, easyto-scan, simple-to-use "chunks" of information organized by topic. In addition, you'll find reasonably detailed real-life experiences to ponder. Using the tools in this book will help you "cover all the bases" from a risk management perspective. Use the checklists and tips as guidelines, not requirements set in stone. At the same time, understand that each of the items is included in this book for a particular reason. Hopefully, you'll be able to match your needs with our material and in doing so, avoid potential malpractice claims. iv
TABLE OF CONTENTS Introduction Part 1: Succession Planning Case Study: A Lawyer Suffering from Alzheimer s...5 Death and Disability of a Lawyer...6 Your Ethical Responsibilities...7 Avoiding Malpractice and Sanctions...8 Developing a Succession Plan...8 Keeping Things Clean and Easy...9 Part 2: Sale of a Law Practice Introduction...10 Closing Down the Shop...11 Researching Your Sale...16 Practice Advice for Selling Your Practice...18 Determining the Value of Your Law Practice...19 Working Out a Deal...22 After the Deal is Done...24 Other Resources...27 Appendices Appendix I: ABA Model Rule 1.17 Sale of a Law Practice...28 Appendix II: Checklist for Closing a Law Practice...29 Appendix III: Letter to Advise that Lawyer is Closing Office...30 Appendix IV: Authorization for Transfer of Client File...32 Appendix V: File Destruction Authorization Form...33 Appendix VI: Personnel & Office Matters Checklist...34 Appendix VII: Law Firm Inventory Checklist...35 Appendix VIII: Case File Closing Form...36 v
INTRODUCTION As the number of attorneys leaving the practice of law grows, firms must know how to handle the transition. Recently, an attorney from St. Paul, Minnesota received a call that he had been hoping for. As an experienced attorney practicing in the area of worker s compensation for many years, he was well-qualified for a position in a state agency that oversees the worker s compensation area. When the call finally came, the attorney was pleased to accept a new office with State of Minnesota, and by choosing to take on a new career, he became one of many baby boomer attorneys who will soon be leaving the full-time practice of law. The attorney s decision signifies the start of a new aspiration for him to apply his understanding of an area of law to serve the public good. It also means he will have to navigate his way through the many considerations that come into play when a long-standing law practice transitions to new ownership. Consultants who work with attorneys to develop retirement plans would classify the attorney s transition as part of a new career developmental stage called the renewal stage that is emerging for individuals in their mid-50s. Rather than winding down and seeking relaxation, baby boomers are learning new skills and competencies and are looking for more personal fulfillment as well as new challenges in the coming years. While some attorneys look forward to a preretirement career, several studies show that attorneys are becoming more hesitant to leave the practice of law as they approach retirement age. Attorneys who do not plan to lead a new career path late in life indicate strong feelings of reluctance about retirement. Consider the following: The Facts Thirty percent of Oregon attorneys surveyed plan to continue working part-time after the age of 65, and 12% do not plan to ever retire. When asked, At what age do you plan to leave the active practice of law? more than half of Minnesota attorneys surveyed - 52% say retirement for them is some age beyond 65, and 10% reported that retirement awaits them beyond age 75. 1
INTRODUCTION More firms are imposing mandatory retirement policies to ensure turnovers at the shareholder level. In a national survey, 38% of law firms required mandatory retirement as a part of their documented retirement policy, with a mandatory retirement age ranging from 65 to 72. Postponing Retirement Lawyers who are not planning a new career path are expressing many reasons for postponing retirement. Most say their primary reason for continuing the practice of law beyond traditional retirement age is that they simply enjoy being a lawyer and they seek the stimulation and sense of satisfaction their work provides. For some attorneys, postponing retirement is not necessarily motivated out of their love for the practice of law. The Oregon survey reported that, due to economic concerns, only 36% of Oregon lawyers surveyed under the age of 50 are very optimistic about retirement years, and almost 25%, do not feel optimistic about their retirement years, and are either not looking forward to them or are looking forward to them with mixed feelings. Retirement Policies Complicating attorneys retirement options are the various mandatory retirement policies that many firms have put into place. The trend to establish a mandatory retirement age seems to lie primarily with larger firms. Among the firms with documented retirement policies, 57% of firms with 100 or more lawyers have mandatory retirement provisions, while only 13% of firms with 10 or fewer lawyers do. Mandatory retirement policies can also lead to conflict among law firms and their retiring partners. Sometimes attorneys will decide to go to work for competing firms after reaching a firm s mandatory retirement age. Mandatory retirement policies usually do not run afoul of antidiscrimination laws because partners are considered owners and not employees of the firm. All of this may change because of an age discrimination lawsuit filed on behalf of 32 older former partners of the firm Sidley Austin who were demoted or forced to retire. The Equal Employment Opportunity Commission brought the lawsuit in federal court in Chicago after alleging that the legal profession has become like a business, and firing lawyers because of their age is a violation of 2
INTRODUCTION federal law. The suit was settled in 2007, and as part of the settlement, the firm agreed to refrain from maintaining a policy that requires partners to retire at a certain age. Aging Population Some find the practice of dismissing older lawyers ironic since it is projected that, before the end of the next decade, educated professionals will be leaving the workforce in the largest numbers the United States has ever seen. This virtual brain drain of the country s workforce could leave some areas short of good, skilled and qualified workers. About 76 million people were born in the United States between 1946 and 1964 the period generally referred to as the baby boom era. But only 46 million more are coming along in Generation X, which follows the boomers. If traditional retirement ages hold true, between 2008 and 2020, tens of millions of people will leave the workforce potentially leaving a void in the available labor pool that sustains the economy. Attorney Market The U.S. Department of Labor, Bureau of Labor Statistics doesn t see the projected decline in the U.S. workforce as an event that will lead to a shortage of available legal services. The bureau reports that employment of lawyers is expected to increase 9 to 17 percent for lawyers through 2014, which is a pace described as average. Labor Force For lawyers staying in the workforce beyond their typical retirement age, the choice of practice area could affect whether there will be a steady demand for work. The Department of Labor, Bureau of Statistics also predicts that in the next decade there will be an increasing demand for legal services in such areas as health care, intellectual property, venture capital, energy, elder, antitrust, and environmental law. What could temper this growth is whether businesses will limit legal expenses by increasing use of large accounting firms and paralegals to perform various legal functions. There are many reasons as a lawyer you may be choosing to leave the practice of law. The data on some of the trends in the legal profession 3
INTRODUCTION is illuminating. The rest of this booklet is designed to help you through whatever transition is in your future. It is also meant to assist your firm in the unfortunate case that your transition is sudden and unexpected. Todd C. Scott Vice President of Risk Management 4
SUCCESSION PLANNING A Lawyer Suffering From Alzheimer s The staff thought they were doing exactly the right thing. After all, it was the least they could do for the lawyer who had employed them and had been a friend to them and their families for nearly 20 years. They had enough collective experience to shepherd the open cases in need of attention through the system. They were not taking on any new cases. They knew most, if not all of the clients, and they were the ones who had always drafted the documents, reviewed and summarized medical records, and at times even helped draft motions. Granted, the lawyer always reviewed and signed the work, but they were the ones who did the work, and it was very seldom any changes were made by the lawyer. No one had ever discussed with the staff what to do should the lawyer become incapacitated. Alzheimer s disease had been gradually robbing the lawyer of his ability to perform his job. But it progressed slowly, and the subtle changes went unnoticed until it was too late. Then came the malpractice claim. The most common method of reporting legal malpractice claims is for the involved lawyer to phone or write his or her professional liability insurance carrier and relay the facts giving rise to the claim. In the case involving the incapacitated lawyer, the claim was reported by the client s new attorney. That attorney contacted the carrier after repeated attempts to speak with the client s former lawyer failed. His many calls to the lawyer s office were not returned. The only person he ever spoke with was the lawyer s office manager. The claim attorney assigned to investigate the case met with the same treatment. The client and the client s new attorney finally grew impatient with the claim attorney s inability to complete the investigation, and they sued the case out. The claim attorney was actually relieved when suit was filed, believing that although a lawyer might ignore inquiries from a disgruntled client and a representative of the insurance company, the lawyer certainly would cooperate fully in his own defense an incorrect assumption in this case. The defense lawyer met with the same resistance and lack of cooperation as the others. 5
SUCCESSION PLANNING Plaintiff s interrogatories were sent to the lawyer, and draft answers were sent back to the defense lawyer. The draft answers were incomplete and mostly unresponsive. The defense lawyer again contacted the office, insisting that he speak with his client, as the answers to interrogatories were inadequate. The office manager, who had been the defense lawyer s only contact, stated she knew the answers were adequate, because she was the one who had drafted them. At that point, the defense lawyer decided that he would make a trip to his client s office and not leave until he met personally with the lawyer. When he arrived at the client s office he was finally advised of the situation regarding the lawyer s illness. A guardian was eventually appointed, the lawyer s file was produced, and once a small amount of discovery was completed, the case was dismissed. Had the lawyer in the story above implemented and documented a succession plan, the staff would have known exactly what to do. The client and the client s new attorney would have known who to go to for answers to their questions. Most likely, no lawsuit would have been commenced, sparing the lawyer and client the issues associated with being involved in litigation. It is difficult to discuss the Sale of a Law Practice without some discussion of succession planning. Therefore, Part 1 of the Succession Planning and Sale of a Law Practice booklet highlights general responsibilities with regards to succession planning, with a case study example. MLM s Law Practice Management Booklet Planning for an Unexpected Disaster: A Lawyer s Death or Disability provides more in-depth analysis and guidance, with sample documents and forms. Death and Disability of a Lawyer The ethical and malpractice implications of a legal career that is suddenly over due to a lawyer s death or disability can be catastrophic. Although no one wants to think about dying or becoming disabled to a point where working is impossible, planning for such an eventuality is an ethical requirement for lawyers. 6
SUCCESSION PLANNING In 1992, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 92-369. That opinion states that the death of a sole practitioner could have a serious effect on the sole practitioner s clients. Important client matters, such as court dates, statutes of limitations, or document filings, could be neglected until the clients discover that their lawyer has died. As a precaution to safeguard client interests, ABA Formal Opinion 92-369 states that the sole practitioner should have a plan in place that will ensure insofar as is reasonably practicable that client matters will not be neglected in the event of the sole practitioner s death. Your Ethical Responsibilities Having a succession plan should be seen as an ordinary response to a lawyer s most basic ethical responsibilities. ABA Model Rule 1.1, the very first rule, describes competence as preparation necessary for [client] representation. When read in conjunction with ABA Model Rule 1.3 on diligence, it would indicate that a lawyer should diligently prepare for the client s representation under all circumstances. The Comment to ABA Model Rule 1.3 specifically addresses the lawyer s responsibility to prepare for death or disability. It states: To prevent neglect of client matters in the event of a sole Practitioner s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer s death or disability, and determine whether there is a need for immediate protective action. 7
SUCCESSION PLANNING Avoiding Malpractice and Sanctions Failing to develop and implement a plan to protect clients interests in the event of death or disability, not only raises ethical issues but can so can result in increased exposure to malpractice. Missed deadlines and failing to complete tasks in a timely matter will certainly lead to claims. The same problems that lead to those missteps can also lead to a failure to timely pay insurance premiums, leaving the lawyer uninsured. Ironically, the death of an attorney may not always shield that professional from disciplinary matters. There are many examples where lawyers have been disciplined for the neglect of client matters owing to the ill health or personal problems of the lawyer. In rare cases, even deceased lawyers have been sanctioned. Lawyers who have failed to make preparations to protect their client s interests in the event of the lawyer s death or disability are sometimes sanctioned, both in the hope of encouraging other lawyers to make such preparations, and to restore confidence in the bar, though the sanctions would obviously have no deterrent effect on deceased lawyers. Developing a Succession Plan Because of the ethical obligations to clients, and the potential for malpractice exposure, the time to develop and implement a plan is now. It is important for an attorney to make a thorough review of applicable state ethical rules and opinions regarding succession planning. There may be specific guidance on an appropriate way to make a succession plan for your particular jurisdiction. Many states have adopted the language from the ABA Model Rules, which are also instructive for creating an appropriate plan. You may find the ethics opinions from most state bar associations or disiplinary boards. The Buddy System Many state and local ethics opinions on succession planning suggest that the first step in the planning process is to find someone, preferably an attorney, to close your practice in the event of your death or disability. It is a good idea to enter into a reciprocal agreement with another attorney that you know well, where each attorney agrees to 8
SUCCESSION PLANNING take on the role of assisting the other s firm in the event that the lawyer suffers from a catastrophic illness or death. Local bar associations can also be a source for locating an assisting attorney. In some remote locations, finding a qualified attorney who could usher through your incomplete case files in the event you become incapacitated may not always be an easy thing. By being active in your local bar association, you will greatly increase your odds of meeting a competent attorney who may be willing to engage in an agreement to oversee each other s needs during a time of emergency. The agreement between the lawyers should be memorialized and should document detailed information about the arrangement, including the scope of the assisting attorney s duties. Trust account issues also must be addressed in the agreement. Care should be taken to insure compliance with the rules regarding the handling of trust funds. Clients should be made aware of the plan. Once arrangements with the assisting attorney have been finalized, an attorney may want to consider inserting a paragraph in the retainer agreement that includes information about the succession plan. Remember, when arranging a succession plan, the assisting attorney could be conflicted out of representing some of your clients. The conflict issue is crucial to understand, especially in view of the fact that the assisting attorney will most likely have to review confidential information when transferring files. Therefore, the assisting attorney should be instructed to perform a thorough conflicts check of all the files they will be handling at the time the succession plan is put into action. Keeping Things Clean and Easy If you would no longer be able to show up to work due to an unfortunate sudden illness would an attorney taking over your matters be able to navigate through your current open files? An important step to carrying out a successful succession plan is making sure your client matters are continuously maintained in a way that is neat and presentable. (Not to mention the fact that keeping things like your client files neat orderly could prevent a host of other potential malpractice hazards from occurring.) 9
SUCCESSION PLANNING Here is a checklist of general responsibilities a lawyer should maintain to ensure a smooth transition if your practice should ever have to change hands unexpectedly: Succession Planning: Taking Care of the Basics Make sure your office procedural manual is detailed and it explains how to produce a client list; Calendar all important dates diligently; Thoroughly document all client files; Keep your time and billing records up-to-date; Familiarize the assisting attorney with your office and update the attorney when necessary; Renew your written agreement with the assisting attorney annually; Do not keep any of your client s original documents. An office with solid procedures set out in a document that is regularly updated will not only be able to undergo a smooth transition should the death or disability of the attorney occur, it also will be a better risk in terms of malpractice exposure. The key to avoiding the problems associated with an unexpected disability or the death of an attorney is to have a plan. Start devising your plan now. It s never too early. Introduction For the firms of 10 lawyers or less which make up 70% of the law practices in the nation, retirement planning often involves selling off the law practice. Preparing the firm for transitions involving attorney retirement can mean many different things depending on the size and ownership structure of the firm. Selling a law practice is not allowed in every jurisdiction, so firm owners need to determine whether their state has adopted a rule similar to Model Rule 1.17 Sale of Law Practice of the ABA Model Rules of Professional Conduct. (Refer to Appendix I for the rule.) 10
SUCCESSING PLANNING Some states that have adopted variations of ABA Model Rule 1.17. For example, most state ethics rules that allow for the sale of a law practice forbid the purchasing attorney from increasing the fees charged to the clients, while other states may allow an increase in the fees charged to the former firm s clients after a certain period of time has elapsed. Whether a lawyer can sell just a portion of their law practice is another issue that varies among states. Very few states currently allow a partial sale of a law practice but this option may become more widely available because a partial sale is sometimes a practical alternative for an attorney who wishes to wind down their practice and get away from practice areas that occupy a significant amount of time. There are many difficult tasks associated with selling a law practice that can be very time consuming and may require years of planning. Among them is determining the true value of the firm and creating a proper agreement between the buyer and the seller. Author and lecturer Edward Poll addresses these matters in his book, Selling Your Law Practice: The Profitable Exit Strategy. He identifies key factors for determining a sale price for the firm, such as the nature of the law practice, how long the firm has been in existence, and the firm s history of earnings. Working with a business valuation expert is crucial for making sure you get a fair price for your law practice. Selling a law practice is not like selling a car it s more like the sale of a house. Employing experts with the formulas and tools for determining the right price could save a seller thousands of dollars in the end. Closing Down the Shop For the many owners of small law firms that simply see retirement as locking the door one last time, there are a few considerations they want to make before taking that final step. First among them is to sit down and plan ahead for the closing of the firm. The employees should be made aware of the decision to close the firm early on in the process because you will need them to assist you with the transition, and they will want to start making their own plans. The following is a checklist to Closing a Law Firm: 11
SALE OF A LAW PRACTICE Finalize as many files as possible. Checklist for Closing a Law Practice Write to clients with active files, advising them that you are unable to continue representing them and that they need to retian new counsel. Your letter should inform them about time limitations and time frames important to their cases. The letter should explain how and where they can pick up copies of their files and should give a time deadline for doing this. For cases that have pending court dates, depositions, or hearings, discuss with the clients how to proceed. Where appropriate, request extensions, continuances, and resetting of hearing dates. Send written confirmations of these extensions, continuances, and resets to opposing counsel and to your client. For cases before administrative bodies and courts, obtain the client s permission to submit a motion and order to withdraw as attorney of record. In cases where the client has chosen a new attorney, be certain that a Substitution of Counsel if filed. Pick an appropriate date and check to see if all cases either have a Motion and Order allowing your withdrawal as counsel or a Substitution of Counsel filed with the court. Makes copies of files for clients. Retain your original files. All clients should either pick up their files (and sign a receipt acknowledging that they received them) or sign an authorization for you to release the files to their new attorneys. If a client is picking up a file, original documents should be returned to the client and copies should be kept in your file. All clients should be told where their closed files will be stored and whom they should contact in order to retrieve them. Obtain all clients permission to destroy the files after approximately 10 years or acceptable guidelines as set out in your local jurisdiction. If a closed file is to be stored by another attorney, get the client s permission to allow the attorney to store the file for you and provide the client with the attorney s name, address and phone number. If you are a sole practitioner, ask the telephone company for a new phone number to be given out when your old number is called. 12
SALE OF A LAW PRACTICE Checklist for Closing a Law Practice (continued) This eliminates the problem created when clients call your phone number, get a recording stating that the number is disconnected, and do not know where else to turn for information. Call the membership department at your local Bar Association and update all membership records as to status and contact information. Create a timeline, preferably one that begins at least 24-months in advance of the firm s closing. Building a timeline allows the firm to adequately plan and prioritize each step toward closing, permitting enough time between steps as necessary for the protection of the clients, as well as, the firm employees. Here are a few other matters a firm needs to consider when closing the practice for good: Notification to the Clients Notifying the clients of the firm s closure is the same process as any other matter where a lawyer may be withdrawing as the attorney of record. Clients should be notified of the impending change and informed of their options for directing their file to a lawyer of their choice, or taking physical custody of their file. The notice letter to the client can also be part of a marketing effort to inform the client that the practice has been sold to another lawyer who will be happy to take on their legal matter where the departing lawyer has left off. Such agreements between attorneys increase the likelihood that a client will navigate safely through the transition period and remain a happy, satisfied consumer of legal services. A letter to your client informing them of a pending sale should include the following: EXAMPLE A state the law practice is closing and the attorney will be unable to represent the client. A recommendation that the client immediately hires another attorney to handle their cases. Optional: A recommendation on who the client should consider hiring to take over their matter. If necessary: A statement about pending deadlines and time limitations. A letter advising a client that their lawyer is closing an office can be found at the end of the booklet (Appendix III). 13
SALE OF A LAW PRACTICE Preserving Client Files Lawyers selling a law practice have the advantage of transferring custodianship of the client files to the attorney purchasing the law practice after the clients have individually authorized such a transfer and have indicated approval. Simply shutting down your law practice without transferring ownership does not relieve you of the duty to maintain your old client files. You should properly store old client files for at least 10 years after the matters have reached conclusion. In recent years, many more options have become available for lawyers who wish to scan and store digital images of their client files. Consult with a file storage service to find out more about the cost of transferring client files to digital images. Your client needs to be informed as to what will be the status of their file after the close of the practice: EXAMPLE Advise the client in writing as to their options for stage or transfer of their client file. Have your client authorize in writing whether their client file can be transferred to another attorney. Provide the client with an option to collect their closed file if it is to be destroyed. A sample of an Authorization for Transfer of a Client File, File Destruction Form, and Case File Closing Form can be found at the end of the booklet (Appendices III, IV, VII). Preserving Books & Records States that have adopted ABA Model Rule 1.15 require attorneys to save general and trust account records for at least 6 years following the end of the taxable year to which they relate. Electronic data from systems like QuickBooks can be more readily preserved on CD-ROM or DVD disk. Just remember to save multiple copies of the backup, and to try to preserve a disk copy of the software application the data came from. Hanging onto old software may become necessary if you are ever required to view and print accounting data that was burned onto disk years ago. A Guide to Using QuickBooks for Trust Accounts is available to policyholders at Practice Assets at www.practiceassets.com. 14