Ethics Counsel on www.OKbar.org

Emergency Checklist in the Event of Death, Incapacity or Disappearance

By Travis Pickens


Firms, associations of lawyers, legal departments and solo practitioners should have a documented procedure in place anticipating the potential for a sudden death, incapacity or disappearance of a lawyer. For solo lawyers, it is particularly important.1

Personal incapacity to practice law is defined in RGDP Rule 10.1 as:

   a)  Suffering from mental or physical illness of such character as to render the person afflicted incapable of managing himself, his affairs or the affairs of others with the integrity and competence requisite for the proper practice of law;

   b)  Active misfeasance or repeated neglect of duty in respect to the affairs of a client, whether in matters pending before a tribunal or in other matters constituting the practice of law; or

   c)  Habitual use of alcoholic beverages or liquids of any alcoholic content, hallucinogens, sedatives, drugs, or other mentally or physically disabling substances of any character whatsoever to any extent which impairs or tends to impair ability to conduct efficiently and properly the affairs undertaken for a client in the practice of law.

In my office, I have learned that the “disappearance” of a lawyer is typically due to a debilitating mental or physical condition that leaves the lawyer either unable or unwilling to respond to letters, emails, telephone calls or any other effort to contact them. It can also mean they have left the state or country in an effort to avoid contact due to personal or legal problems. Sometimes, a lawyer is simply emotionally overwhelmed or deeply depressed, unable to deal with mail, email, telephone calls or even someone knocking on their own residence door.

In firms and legal departments, dealing with the sudden loss or incapacity of a lawyer happens somewhat naturally, the other lawyers and staff generally know what the lawyer was working on, but even then usually not everything. With office sharing lawyers and solo practitioners, it is typically much different and far more difficult. Regardless, a documented plan for every lawyer is a necessity.

This checklist for solos is a tool you may use to create your own plan. Every practice and lawyer is different, but this is a starting place for thinking about how best to protect your clients in the event of your sudden death, incapacity or disappearance. The checklist is available on the OBA website at www.okbar.org/members/EthicsCounsel/EthicsFAQ.

Mr. Pickens is OBA ethics counsel. Have an ethics question? It’s a member benefit and all inquiries are confidential. Contact Mr. Pickens at travisp@okbar.org or 405-416-7055; 800-522-8065.

1. ORPC 1.3 Comment [5].