Oklahoma Bar Journal
Law Practice Transition: Preparing a Practice for Sale or Retirement
By Claude E. Ducloux
To quote Thomas Jefferson, “the Laws of Nature and of Nature’s God” shall dictate that every lawyer will stop practicing law at some point. Clearly, it will be best if that event was occasioned by thoughtful planning and a smooth transition or a calculated termination of practice.
But most of us are frail humans, burdened by work, doubt and a studied avoidance of our mortal limits. The following factors and evasions all work in a suspicious conspiracy to block us from doing what our brilliant legal minds tell us is prudent, thoughtful and caring for those who are affected by our lives and careers.
THE PSYCHOLOGY OF PRACTICING LAW
Most of us proudly declare that we are attorneys at law. Even though society enjoys demeaning the profession and its demands, we still take pride in the accomplishment that rendered licensure.
So the primacy of our concerns in practice turns to churning out the work, billing and collecting. Although many lawyers acknowledge their inevitable decline and demise, our fears and superstitions prevent us from addressing or formulating a plan. If we do, some of us suspect we shall hasten that inevitability.
I AM NOT PLANNING TO DIE
Yes, of course. You’ll be the one lawyer who lives forever. Good on you. Don’t plan to retire or transition. People will admire your inestimable work ethic, right? Wrong. Judges will be calling the bar association, asking someone to involuntarily take away your license. Your secretary will have to help you to the restroom, and curiously, they are not thrilled with those chores. Your trust account will bounce, and many people will spend hours curing your many oversights, all on your nickel. You will, indeed, get your name in the bar journal, but for the wrong reasons.
Strategy: Check with a medical expert as to the likelihood of immortality. Then, regale in your good health, retire and enjoy it.
As we discuss this, know that I speak from experience. I have had to close down two lawyers’ practices: one after a sudden death and another when the lawyer (now deceased) contracted Parkinson’s disease and became permanently disabled. Both times it was difficult and eye-opening, with many unexpected issues from office leases, canceling multi-year contracts with book or research technology providers and multiple client issues, ranging from the unhappy to the unreachable.
Listen to me well and think about your own practices and what could happen if that driver who is busy texting their opinion of that latest Sooner game doesn’t see you in the crosswalk. (Spoiler alert: Moving vehicles usually prevail over pedestrians.)
ENCOURAGING THE UNWILLING
Most importantly, those of us who work with older attorneys or who are familiar with the visible decline of our colleagues need to encourage and intervene when it becomes clear the lawyer is not competently practicing or is unable to practice due to infirmity. Solicit other friends and colleagues. I have never had a family member resent such a call, asking if there is anything I might do. They are usually aware of the issue.
FULL RETIREMENT VERSUS PART-TIME PRACTICE
One wise lawyer offered this assessment of being a part-time lawyer: “There is really no such thing as practicing part time unless you are working for a government or third party or doing ‘piece work’ like mediation, and you do not go to the courthouse.”
I agree, as the demands of litigation practice are typically all-consuming and unpredictable. Undoubtedly, running your own office part time is inevitably a losing endeavor as the costs and inconveniences outweigh the benefit (or even the satisfaction).
If, however, you perform discrete legal services like mediation, arbitration or simple briefing, a part-time practice could work, assuming there is a market for you and not just those services. Here are three strategies:
1) First, assess how often you are now being requested to perform the services you believe you can perform part time. If there is little market for you now, realize that market demand is highly unlikely to grow in a part-time environment.
2) Secondly, consider what support you will need to perform your part-time practice and do that math. It makes no sense to engage in a practice that barely breaks even.
3) Third, consider if there is a third party, company or agency in the market for your skills. That is a nice way to wind down while still enjoying applying your legal skills and knowledge.
FINAL COMMENTS ON THE JOYS OF RETIREMENT
All too often, we hear about the ineffable desire of older lawyers to continue practicing law. Sidebar stories in law journals always feature lawyers who often are practicing far beyond their “sell by” date, and their dedication is treated with admiration. But those stories, in fact, are somewhat antithetical to my experience as a writer, practitioner and CLE speaker. Many older lawyers are not staying up to date with the law and technology, leading to problems in practice, calls from judges to the relevant bar associations and obvious prejudice to too many client matters.
During the past seven years, I have participated in many programs on the process of retirement. In each of these programs, I moderate a panel of retired lawyers, expounding on the way they planned for and accomplished their respective withdrawals from the practice of law. It will come as no surprise to you readers that “big firm” lawyers with partners and obvious support to fill in their vacancies always had the easiest time. Solo lawyers had the most difficulty negotiating their exit.
Nevertheless, in nine interviews, I ended with this seminal question: “Do you miss the practice of law?” Hand to my heart, I have yet to have a retired lawyer say, “Yes.” Most of them will say expected comments like, “I sometimes miss seeing my old friends,” but they make it clear that they do not miss practicing and the stress that comes with it.
I will end where I started. None of us will live or practice forever. I hope every one of us will have both the luck and wisdom to leave the practice with the same optimism and confidence that brought us to these wonderful and important careers those many years ago.
WHAT TO DO WHEN YOUR BOSS OR RELATIVE IS NO LONGER ABLE TO PRACTICE LAW: A CHECKLIST FOR STAFF AND FAMILY MEMBERS
When an attorney is, with or without warning, unable to practice law and is a sole practitioner, what to do with the attorney’s law practice can be bewildering to the attorney’s staff, if there is any staff, and devastating to the family. This checklist is intended as a guideline to help the incapacitated or deceased attorney’s staff and/or family close the attorney’s practice.
- First, remember that although it may seem an impossible task to close an attorney’s office, it has been done by others, including those without any legal experience, and it can be done by you.
- For the remaining staff, if there is any way you can afford it, please consider staying around to help close the practice. Some staff may agree to help close the practice while looking for another job, helping a few hours here and there. The family will be very grateful.
- For the family member left with the attorney’s practice, try to get the attorney’s staff to stay with you for at least a month to help close the This will probably work fine if you can afford to pay the staff and are willing to provide a good reference. Make sure you are flexible about allowing the staff to interview for new jobs.
- If an attorney friend offers to help, a family member or staff person should contact the clients and ask for the clients’ permission for the attorney friend to contact them. With permission to contact the clients, the attorney friend is not engaging in solicitation by contacting the clients.
- If no one has stepped forward to help and you feel that you need help, consider contacting a law section or a local bar association the incapacitated or deceased attorney was associated with. In the past, law sections such as the local Family Law Section or the local bar association have had members help close an attorney’s
- If it is left to you to close the practice, start by checking the attorney’s calendars to look for case deadlines.
- Search the attorney’s office to look for documents that need to be filed.
- Open and review all unopened mail, especially certified mail, and file it.
- Review electronic sources to ensure the client file is complete and up to Review the firm’s electronic records for client-related material, including such things as email communications, instant messages or other documents generated during the course of the case, especially those communications that indicate pending deadlines.
- Look for an office procedure manual. Determine whether anyone has access to a list of clients with active files.
- Review active client files to determine which cases need to be dealt with first.
- Make sure that any case with a statute of limitations running or that is set for hearing or trial is handled Look for cases with discovery settings. It is important to handle these cases immediately not only to protect clients’ interests but to prevent malpractice lawsuits against the attorney’s estate.
- Contact the client for matters that are urgent or set for the near future. Give the client the contact information for the court so the client can reset any pending deadlines as necessary.
- Contact courts and opposing counsel immediately for files that require court appearances or have discovery pending.
- Send clients who have active files a letter explaining that the law office is being closed and instructing them to retain a new attorney. Inform the clients about time limitations and time frames important to their cases.
- If the client wishes for the file to be sent to new counsel, have the client sign an authorization for the original file to be released to the new attorney.
- If the client wants to pick up their file, inform the client of days and times when they can pick up their original file.
- The law firm may want to keep a copy of the file. If so, the file should be copied at the law firm’s expense.
- Try to ensure that a phone number is available for the clients to either speak with someone about their file or so they can leave a message.
- Other client property should be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
ABOUT THE AUTHOR
Claude E. Ducloux is a nationally recognized CLE speaker and writer who focuses on ethics, office management and trial and practice skills. He is licensed in Texas, California and Colorado and has had an active trial and appellate practice for more than 45 years. During his career, Mr. Ducloux has received the State Bar of Texas’ highest awards for CLE, legal ethics, professionalism, pro bono and public service, and he has written more than 150 articles on ethics, law office management and practice skills. He is now the national CLE director for LawPay in Austin, Texas, and serves as a Supreme Court appointee on the Texas Committee on Disciplinary Rules.
Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 4 (April 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.