Death. The issue recently crept up in a presentation I gave about virtual law practice. Then, the question that most of us like to avoid came up again on a personal level when in December I needed open surgery myself and in preparation started questioning what would happen to my virtual law office if I weren’t around to handle things.
What happens to a completely virtual law office upon the death of a solo, virtual practitioner?
All lawyers are aware that they need to have some form of succession planning in place. In fact, some would argue that it is unethical practice not to have a plan in place that protects your clients and their property that is entrusted into your care.
ABA Formal Opinion 92-369 provides that “[t]he sole practitioner should have a [succession] plan in place.” For solo practitioners this issue is even more critical because there may not be anyone else involved in the day to day practice that would know how to notify clients of the death of their lawyer or even how to access the client’s files in order to return their property. For a virtual law office that is completely web-based, the other issue is that the law office data is hosted in the cloud. Without some plan in place, how does the SaaS provider know how to proceed?
A sample scenario: An attorney who operates a completely web-based virtual law office dies unexpectedly without a plan in place. The SaaS provider sends the attorney’s invoice for the service each month as usual and then follows up with late notices when it does not receive any payment or response from the attorney. The attorney’s clients are still able to access their secure homepages on the virtual law office, but are not receiving any online responses from the attorney.
A number of things might happen at this point. The SaaS provider may attempt to contact the attorney and failing to do so, contact the attorney’s state bar in search of another way to reach them. The attorney’s clients may reach out to the state bar compelling them to find out what happened to the attorney or making complaints that the attorney is not responding to their requests. If the attorney is involved in any on-going litigation cases or misses any court deadlines, opposing counsel or the court may attempt to contact the attorney and find out what happened from family members. Still, at this point, the client has been unable to receive their data back from the attorney other than what he or she may access online.
From that point, how does the client get their full digital case file back from the virtual law office so that he or she may transfer the matter to another law firm?
Is it the responsibility of the SaaS provider to return the encrypted case file to the clients directly? Or do they return the digital data to the state bar where the attorney was a licensed member? The SaaS provider cannot be expected to maintain the deceased attorney’s virtual law office on their servers without payment for the service indefinitely. What is a fair amount of time for the provider to continue hosting the law office data for free until the practice may be transferred to another attorney or the files given back to the clients?
This issue may be written into the service level agreement of some SaaS providers, but in addition to that it is critical that solos who operate virtual law offices have some plan in place in the event of their death that takes into consideration the digital storage and format of their law office data. If you consider the attorney’s duty to protect a client’s confidential information and to safeguard client property (Model Rule 1.6(a)), then having a plan in place in the event of death is an ethical obligation for the solo virtual law office operator.
Some Potential Solutions:
– Give the SaaS provider a backup contact whether it is another solo practitioner that you work with regularly or another trusted person they can reach out to if they cannot get in touch with you directly. Give them permission to release your username and password to that contact upon receiving notice of your death so that the party may export the necessary law office data. Or give the provider permission to release to that trusted party the entire law office data in encrypted digital format so that the party may return the clients’ property to them outside of the SaaS application.
– Provide the details of your relationship with the SaaS provider and how you communicate with your clients with another trusted attorney or with a close family member. Tell them how to contact the provider in the event of your death. Also, tell them how to contact your web master/web designer so that he or she may post a notice on the virtual law office website near the client portal informing your clients of your death and explaining how their files will be returned to them.
– Write this information into your estate planning and share it with your personal accountant, attorney and trustees. While your clients will have the choice to move their files to another attorney, virtual or otherwise, your executor can work to sell your virtual law practice as part of your estate. Maybe even give the executor a list of potential other virtual attorneys who might be interested in purchasing all or a portion of your virtual law practice. See ABA Model Rule 1.17 “Sale of Law Practice.”
– Ask the SaaS provider if it is possible to post a notice within the client side of the virtual law office that gives the client notice of the death.
I frequently send my online estate planning clients a handout that encourages them make sure someone close to them has their username and passwords to different accounts and that this information is kept in a locked safe for their executor upon the event of their death. Likewise, the solo virtual law office owner needs to be especially careful about having a plan in place that will not leave their online clients and the SaaS provider scrambling to make sure the digital data safely ends up in the care of the right party.