Lawyers must ensure that their files are overseen by a lawyer at all times. While another lawyer may “babysit” your files while you are on vacation, what would you do if an unexpected event caused an extended absence from your office?
Think about developing a relationship with another lawyer with expertise in the area of law you practise, to provide coverage for each other when needed.
It is critical to understand that when you are absent from work, suffer from long-term illness, or decide to retire, it is a matter that goes beyond your personal life. It affects your practice and more importantly, your clients. In light of this, you should plan for how your business will operate in the event of both a short-term and long-term absence, as opposed to retiring or winding up your practice.
- Arranging for a lawyer to act as a contact in your absence. Remember that you need to consider that conflicts could arise with respect to this lawyer and have a back-up plan if that lawyer cannot cover particular files. Think of someone you trust and who is unlikely to be conflicted out. A lawyer who shares space with you may be clear of conflicts but another lawyer whose practice is more similar to your practice and you believe is unlikely to have conflicts may be a better choice—it is up to you to assess who the best person is for the situation.
- Ensuring that your voicemail and email auto-reply are updated and provide information such as:
- who to contact if the matter is urgent,
- when you plan to return and
- whether you will be checking and responding to messages while away (don't say you will if you won't), etc.
- Arranging for a lawyer to oversee your practice and ensuring that he or she is able to contact you.
- Applying for approval to have another lawyer—not necessarily part of your firm— or in unusual cases a non-lawyer authorized to sign trust cheques during your absence. See Rules of the Law Society of Alberta, Rule 119.22(2). This approval is only effective for the time period specified (up to six months) and that you would have to re-apply for authorization after this period expires. You can apply in advance for Law Society approval to cover unanticipated absences. Note that if you are in a space-sharing or association of independent practitioners, you are considered to be a law firm for the purposes of the Law Society’s Trust Safety program and do not need to seek approval in order for one of the space sharing or association lawyers to sign cheques on your behalf.
- Signing an Enduring Power of Attorney naming the alternate lawyer which is triggered by the start of any absence from your office (you would have to define the circumstances which trigger it). This would mitigate the risk that a period of incapacity greater than six months can cause. As an ordinary Power of Attorney does not survive the incapacity of the grantor, you should use an Enduring Power of Attorney that states that it remains in effect notwithstanding the incapacity of the grantor.
- Ensuring that your firm has a Responsible Lawyer who is an active member of the Law Society at all times. To address the risk that you might not be an active member (due to a medical emergency, for example), you can apply to have another lawyer designated as an Alternate Responsible Lawyer (Rule 119.3). Unlike authorizing another lawyer to sign cheques on your behalf which is only effective for up to six months, the approval of an Alternate Responsible Lawyer can extend indefinitely.
- Addressing how the Attorney or the Alternate Responsible Lawyer will access your files and computer systems. Ensure that passwords and account information is recorded in a secure place. If you use your computers for personal communications or documents, develop a system such as a different password pr a protected “login” ID, to safeguard your personal information.
- Contacting opposing counsel on files to let them know you will be away and who they can contact in your absence. This is a matter of professional courtesy and ensures that there is no gap in your clients' representation. It may also minimize the likelihood that you receive applications or other time-sensitive documents from opposing counsel while you are away.
Note: if you choose to have an alternate signatory on your trust account, as the Responsible Lawyer, you are still responsible for:
- all transactions completed by your alternate signatory,
- any trust account shortfalls that may occur,
- reviewing files that were worked on during your absence and verifying that the transactions have been completed in an appropriate manner and
- notifying the Law Society, as soon as possible, if any trust account issues are identified
the Annual Report is submitted to the Law Society by the March 31 Due Date –
Note: Failure to submit the Annual Report by the Due Date will result in Late
Filing Fees being applied to the Law Firm. Should the Annual Report remain
outstanding and/or the Late Filing Fees remain unpaid 90 days after the Due
Date, the Responsible Lawyer will be subject to Administrative Suspension.