I am sure that some of you (perhaps all of you) wondered whether Elie Mystal had finally spiked my column for good. No such luck, kiddos. I am presently recovering from extensive back surgery (not my idea of a fun time). I tried to keep up with what was happening, but with the anesthesia brain (yes, there is definitely such a thing, at least for me), the drugs (including but not limited to prescribed opioids), and the constant interruptions while confined to a hospital bed (a place populated by efficient and pleasant vampires), it was not just my eyes that were glazed over. As a wise man once said, “You don’t get any rest in a hospital.” So true.
I’ve provided unsolicited advice on any number of topics over the past few years, and so, here’s some more. The subject is one that we don’t want to think about, but shit happens, as it did to me.
What is your contingency plan if you become ill and are unable to work? What are you going to do? How will you keep your practice going? Who will make appearances for you? Who will get the work done? How will you pay your bills?
These are not idle questions. They are questions that can and do bring you up short if you have never given them any thought, and I doubt that many of us have, especially the younger among us, who think and act as if they are invincible. They aren’t; we aren’t. Life can turn on a dime.
Not only do we have to have answers to these questions, we also need to be mindful that we need to make sure that our clients don’t think we’ve abandoned them if we are not responsive to their inquiries. Just pile on a disciplinary complaint to add to your misery at the same time you’re trying to recover so that you can return to work and respond to client inquiries, if someone hasn’t already done so.
How many complaints does a state bar receive about a lawyer’s lack of communication? And how many of those could be prompted by a lawyer’s disability, whether temporary or permanent?
What I am suggesting is a different kind of succession planning, one not for a permanent transition, but for a temporary one, one that covers the time when you are unable to work. You can think — and many do — that it won’t happen to you, but don’t be overconfident. You are not immune. Slipping on a banana peel, a variation of what I did, is easier than you think and leaves you vulnerable, something that we all hate to be.
We are reluctant to let colleagues know that we have workload issues; we are just as reluctant to ask for help on a temporary basis. We fear losing clients, losing work, losing income, but sometimes, we have no choice. For those in solo practice or small firms, benefits do not necessarily include short-term and/or long-term disability insurance.
There is no one right way to handle this situation. Should you continue to work while temporarily disabled? Are you on medication? Are you competent to practice while on drugs? You tell me.
Remember that a state bar’s disciplinary body doesn’t give us a “get out of jail free” card if we screw up while using the “temporarily disabled” excuse.
So, here’s my unsolicited advice (isn’t it always?):
- Have a contingency plan in writing (don’t rely on a drug-addled haze to communicate your plan).
- Give copies of the plan to several colleagues you trust. Hopefully they have some inkling if not more of your practice areas. Don’t ask a transactional lawyer to handle your litigation calendar — and the reverse is equally true. Some subject matter expertise is always a help.
- Even if it pains you financially and personally, don’t go back to work until drugs are out of your system, and whatever anesthesia brain you may have had is gone. As a dinosaur, the effects of anesthesia can linger for some time and the cognitive effects are not to be dismissed.
- Have a “rainy day” fund available. It may not be much, but every little bit helps for those copays and deductibles.
As for me, I get sprung out of my back brace in less than five weeks, but I am not taking any mediations right now. I think that to do so would be a disservice to the attorneys and clients who hire me to resolve cases. I’m not patting myself on the back for what I have decided. It’s a desire to limit reputational risk, and what I think is the right thing for me to do. It may not be the same for you. Anyway, patting myself on the back is not something that I can easily do these days.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.