Posted 10/8/2018 12:00 am
Updated 2 weeks ago
When Little Rock attorney Robert Brandon Holitik died at the age of 50, he did so unexpectedly and without a succession plan for his solo law practice.
Holitik’s death in May sent two of his newest clients scrambling to get their retainer money back.
Holitik had put the clients’ money in his client trust account, where he was the only one who could withdraw money, and now his case highlights the problem of attorneys who die without a succession plan to deal with their practices.
“There was no planning that we can tell,” said Stark Ligon, executive director of the Arkansas Supreme Court Office of the Committee on Professional Conduct.
The clients needed their money back to hire new lawyers.
Ligon filed what he called a friendly lawsuit involving the Bank of Little Rock in order to be appointed a limited receiver of the trust account to access the money at the bank and distribute it to clients. One of the clients was owed $2,500 and the other $5,000. The remaining $2,400 in the trust account will go to the Arkansas Access to Justice Foundation, which helps provide access to justice in civil cases for all Arkansans.
Holitik didn’t have many active cases to deal with, Ligon said.
Every year, Ligon said, a number of solo practitioners leave the practice of law unexpectedly and without a succession plan. “Solo practitioners need to plan now for what’s going to happen if all of a sudden they are not around,” he said.
While an Arkansas attorney is not required to have a succession plan in place, that might change.
The Arkansas Bar Association has a special task force looking into succession plan practices, Ligon said.
He said nothing has been decided yet, but the task force has gathered information from other states, some of which require attorneys to have those plans in place.
While there might not be a requirement, “certainly, every solo practitioner would be well advised to have such a plan,” Howard Brill, the renowned University of Arkansas School of Law professor, told Arkansas Business.
Without a plan, their clients could be harmed by missed deadlines and answers not being filed, leading to the dismissal of lawsuits, he said.
In addition, attorneys who don’t have succession plans open their estates to being sued for malpractice, said Brill, who was the law school’s first Vincent Foster Professor of Legal Ethics & Professional Responsibility. A claim against the estate would be based on professional negligence, since a reasonably competent solo practitioner will have a succession plan in place, he said.
Brill said a succession plan should be in writing and name an attorney who will assist in notifying clients. Also, there should be some money available to hire temporary help, if needed.
The assisting attorney also would have to arrange for client files to be transferred to a new attorney. Brill said the attorney chosen should be one without any conflicts.
In a small town with only three or four attorneys, however, finding a lawyer without a conflict could be difficult, Ligon said. Over the years, those attorneys probably had cases with clients who had been represented by the lawyer who has died.
“And you really don’t want those lawyers who represented opposing parties getting to look through the other side’s confidential files,” Ligon said.
Still, Ligon said, when a solo practitioner dies, other attorneys usually take care of the colleague’s business and clients.
“That pattern gets repeated time and time again,” he said. “It’s always distressing to hear of one of these situations, but it’s encouraging to see that local lawyers appear to step up and take care of it.”