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Practice interrupted

|Written By Beth Marlin for Law Times

Shocked by the events of Sept. 11, 2001, managers of some of Canada'sbiggest law firms—the ones in the office towers that dominate Toronto's skyline—have collaborated on disaster recovery plans that includesharing office space with friendly firms in the event of anoffice-closing catastrophe.

The big power outage of 2002—the one that so rudely left many Ontario firms literally in the dark—caused them to revisit their disaster recovery strategies. To a lesser extent, the SARS scare, in which at least one firm found itself beset by rumours that an office member might have been exposed to the highly contagious virus, frightening staff and prompting some to consider booking time off work, raised a whole other scenario that needed to be planned for.

While most lawyers need not fear a plane crashing into their office tower or another catastrophic disaster, says Daniel E. Pinnington, director of practicePRO, all lawyers should develop a contingency plan for the likely event of a practice interruption sometime during their career—even if only caused by a sudden illness or other personal trauma.

The Lawyers' Professional Indemnity Company, which has a stake in lawyers' avoiding crisis, is eager to help and has posted a disaster recovery booklet online at wwww. practicepro.ca/disasterbooklet.

"The practicePRO disaster booklet has 10 scenarios that I think strike pretty close to home with a lot of people," says Pinnington. "Where all the computers were stolen overnight; the office burned down; if you had a heart attack tonight and couldn't go to the office for a while; if your main staff person up and left or disappeared tomorrow, what would happen?"

Lawyers can perform a personal risk assessment using a spreadsheet posted under "practice aids" on LAWPRO's practice advisory Web site, www.practicepro.ca. However, for most lawyers, health issues or family emergencies top the list of practice-interrupting events.

"A plane flying into your building is extremely catastrophic, but very unlikely. A personal health issue is probably far more likely," Pinnington says, adding a sudden heart attack—even if the lawyer fully recovers and returns to full practice—can be devastating to the practice of a sole practitioner who hasn't arranged in advance for another lawyer to pick up ongoing work.

"Especially at a solo or small firm, but even at a very large firm, your personal issues can have a big impact on your firm," Pinnington warns.

He advises lawyers to make arrangements with a friendly colleague to pick up each other's ongoing files in the event of a practice interruption.

"It's just a good idea from both your client's point of view and your obligation to serve your client, as well as your survivors, whether it's your spouse or in a small practice it's your partners, to have that kind of contingency plan in place. Relatively little work and planning can save a lot of people a lot of grief," notes Pinnington, who says the Law Society of Upper Canada otherwise steps in to manage ongoing files and trust accounts if a lawyer has become incapacitated.

"[LSUC has] the authority to come in and take over. They do have a practice-management guideline on wrapping up a practice."

The law society strongly advises practitioners to have contingency plans in place for winding up or covering their practice in the event of death, disability, and business interruptions. Its Web site (www.lsuc.on.ca/services) offers some advice on steps to take now to preserve your practice while facilitating the least

difficult transition of your practice to another lawyer in the event of crisis. They include disability and business-interruption insurance and naming a lawyer as co-executor of your estate.

"We don't see a huge number of claims where somebody had health or other issues and has ceased practising. We do see claims from time to time, probably in cases where court dates were upcoming or more likely limitation periods were missed," says Pinnington.

He says such cases can be avoided if lawyers ensure that their contact list and a tickler system or well-annotated calendar cataloguing all upcoming filings, limitation periods, or court dates, and so on is easily accessible to others when necessary. Always have backup computer files, stored elsewhere.

While Pinnington says he doesn't have statistics on how many lawyers face practice interruptions each year, he suspects it happens often.

"It's not something people run around and broadcast," he says.

One large Bay Street firm was faced with a flooded computer server room caused by an errant sprinkler system a few floors up, Pinnington says. And in a single weekend, several law firms in Nepean, Ont., were broken into and had their computers stolen, along with one firm's back-up tapes, which were conveniently (for the thieves) left on top of the swiped computer. A Hamilton, Ont., firm's computer system was hit by the Melissa virus and had lawyer-client correspondence sent out to everyone on one lawyer's contact list. Oops. . .

There's always something, it seems, that even the best-laid plans can't foresee.

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