Law Practice Continuity Committee Activity in Review

As published in The Senior Lawyer:

Fall 2009, The Senior Lawyer
Law Practice Continuity Committee

Background Information
As of June 1, 2009, the former NYSBA Law Practice Continuity Committee (NYSBA LPCC) was discharged and its mission was assigned to a new LPCC Subcommittee within the NYSBA’s Law Practice Management Committee (NYSBA LPM), Chaired by Gary Muenneke (gmunneke@law.pace.edu). All former members of the NYSBA (LPCC) agreed to serve on the new Subcommittee, but as of this writing, the new Subcommittee does not have a Chair. Prior to the reallocation of the work of the NYSBA LPCC, the NYSBA Senior Lawyers Section (SLS) established its own Law Practice Continuity Committee to pursue objectives similar to those of the former NYSBA LPCC and now those of the new Subcommittee within LPM. The SLS LPCC wishes to coordinate its activities and efforts with those of the new LPCC Subcommittee within the NYSBA LPM, which held a 2009-2010 organizational meeting in New York City in September 2008.

A major work-product of the former Special Committee prepared over a five-year period, and published in 2005, was a volume entitled Planning Ahead: Establish an Advance Exit Plan to Protect Your Client’s Interests in the Event of Your Disability, Retirement or Death. This Planning Ahead Guide contains a broad range of checklists and forms to be used in preparing for and implementing various phases or transitions in the practice of law. The Guide continues to be available as a professional courtesy to all lawyers, members and non-members of the NYSBA, at www.nysba.org/planningahead. The Guide may also be located at the NYSBA Web site under “Sections/Committees,” and then clicking on Senior Lawyers Section or in the Solo or General Practice Section. WARNING: It is recognized that the Guide must be updated from time to time and plans are currently being made to incorporate the New Rules of Professional Conduct that were adopted in New York on April 1, 2009, and to remove existing references to the former Disciplinary Rules mentioned in the Guide.

Another major product of the former NYSBA LPCC was the drafting of proposed Uniform Court Rules outlining procedures for “Caretaker Attorneys” to address situations involving lawyer absence or unavailability in unplanned situations or where there has been no or inadequate advance planning for transition or succession. The proposed Uniform Court Rules were approved by the NYSBA House of Delegates in June 2005, with some minor changes, and were referred to the Administrative Board for consideration. We are informed that no action has been taken to adopt the proposed Uniform Court Rules by the Board or any Appellate Division, although the subject continues to be evaluated by each Judicial Department.

Immediate Past NYSBA President Bernice Leber and current NYSBA President Michael Getnick have been and continue to be actively engaged in efforts with the Administrative Board concerning these matters.

In August, 2007, the Senior Lawyers Division (SLD) of the American Bar Association (ABA), with the cosponsorship of the NYSBA and the Monroe County Bar Association (MCBA), succeeded in gaining approval of Recommendation #105 which established an ABA policy urging courts and Bar Associations to develop, adopt, promote and implement programs and procedures to encourage lawyers to plan for law practice contingencies by voluntarily designating in advance another lawyer who would be willing and able to assume the lawyer’s practice or assist in the transfer of client matters, papers and electronic files in the event of mental or physical disability, death, disappearance or suspensions, or other inability to practice law.

Recently, the Board of Trustees of the MCBA approved a pilot project to establish a Confidential Law Practice Registry that will enable lawyers, members and non-members to designate in advance, at any age, the name of a lawyer who has agreed to assist client’s in the transfer of legal files and matters if and when the client’s lawyer becomes unable to practice law for whatever reason. Details as to the implementation of the MCBA Law Practice Registry program are expected to be published in the near future. They will most likely be available at the MCBA Web site, www.mcba.org, or by contacting Mary Corbitt, MCBA Executive Director, at mcorbitt@mcba.org.

Law Practice Continuity Committee Membership Involvement Needed
We continue to invite and welcome participation from any member of the NYSBA SLS LPCC as we plan ahead. The LPCC will conduct its affairs, primarily, by using electronic means of communication. We will meet in person only locally and informally, other than at Section-wide activities, such as the NYSBA Annual Meeting in New York City, or at the upcoming Fall Meeting in conjunction with the NYSBA Elder Law Section at the Sagamore Hotel on Lake George. The LPCC encourages and supports local Bar Association activities within the broad “Mission” encompassed within the Committee’s charge, and urges all its more than 80 members to join forces with other interested lawyers at the local Bar level.

Please send me your suggestions for Committee projects, publications and activities. Also, please volunteer to identify and develop specific programs which address the purposes of the NYSBA SLS LPCC.

Anthony R. Palermo