Competence & Malpractice · 6-12% of the exam
11.2.2Solo Practitioner Planning Duty (Rule 1.3 Comment)
Why
A sole practitioner's sudden death or incapacity can leave clients without guidance at critical moments in their matters. Comment [5] to Rule 1.3 builds in protection before the emergency, rather than leaving clients to improvise after it occurs.
Plain English
If you practice alone, the duty of diligence may require you to designate another competent lawyer to step in if you die or become disabled. That designation must exist before any crisis arises, and the designated lawyer must be authorized to take three specific protective steps.
Context. Under Comment 5 to Rule 1.3, diligence may require a sole practitioner to prepare a succession plan before any crisis; reducing the plan to writing is prudent practice rather than rule text. Any such plan should exist prospectively, not be assembled after an emergency begins.
Rule 1.3 Comment — Solo Planning
Comment [5]: to prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, designating another competent lawyer to: (1) review client files; (2) notify each client of the lawyer's death or disability; (3) determine whether there is a need for immediate protective action.
Example 1
Ex. 1
Lena had practiced as a sole practitioner for twenty years. She had never designated a successor attorney and maintained no written contingency plan. Lena died suddenly over a weekend. Two clients had responsive pleadings due within the week. A third was scheduled for a deposition the following Monday.
Comment [5] says the duty of diligence may require a sole practitioner to have a plan, and these are the facts it speaks to: Lena practiced alone for twenty years with live matters carrying court deadlines, so there was no one else to step in and nothing to absorb her absence. She had no plan. The hardship her clients now face is the harm the comment aims to prevent, not the reason the duty attached. That no prior emergency arose during her career doesn't answer the question Comment [5] asks. The plan must be in place before the crisis, not constructed after it begins. Start with the twenty years that went fine — that's exactly why the plan looked unnecessary, and exactly what the duty doesn't measure.
Trap
Questions · 1
Q 01ch11-e08
Question 1 of 1 · Rule 1.3
Attorney has practiced alone for eleven years and carries active litigation files with court deadlines. Two years ago Attorney asked a lawyer across the hall to step in if Attorney were to die or become disabled, and that lawyer agreed in a conversation both of them recall the same way. Under the arrangement the second lawyer would review the client files, notify each client of the death or disability, and decide whether anything needed immediate protective action. Nothing about the arrangement was ever written down, and no client was told that it existed. A bar investigator reviewing an unrelated complaint learned of the arrangement and questioned whether an unwritten one was enough. Attorney has never missed a deadline. Is Attorney subject to discipline?
Keys 1 to 4 choose.