Everyone needs to get away, whether it’s just for a few days or several weeks. The grind can be relentless. During these periods of respite we are able to clear our minds and refresh ourselves both in body and soul. However, there are both pragmatic and ethical challenges to be met in order to grant oneself this time to rejuvenate.
For an attorney with a busy practice, allocating time off is not an easy task. Calendar calls, client demands and a workaholic mentality make it difficult for attorneys to pry themselves away from their offices and leave things in the hands of other competent people. Some breaks are voluntary and by choice: a long needed vacation, or perhaps several days off to take a college-bound child to see universities. However, some time off from work may be involuntary and for unhappy occasions: sickness, accident related injuries, emergency surgery or a death in the family.
Careful planning for your chosen time away from the office should also address ethical considerations. This will enhance the potential for a relaxing and enjoyable vacation. Make a plan and keep it. Plan your voluntary time away well in advance. Thereafter, be disciplined enough to schedule your calendar, court appearances, client meetings and trials around your planned time away. Selfdiscipline regarding scheduling is sometimes difficult due to the demands of individual cases and clients. However, it is important that this block of time that you are going to be away is kept unfettered by appointments that will be difficult to change as you get closer in time to that date. Some attorneys schedule in a buffer day at the beginning of the vacation time to have an extra day to work in peace just in case emergencies arise before you leave. It is also wise to plan an extra day at the end so you can reappear at your practice calm and rested, not right off the plane!
Also, make sure that you and your partners stagger your vacation time so that the office is always managed by the appropriate leadership. In this way, knowledgeable attorneys will always be available to speak with clients and handle emergencies.
Introduce co-counsel. In cases where court appearances must go forward while you are away, make sure a trusted partner, associate or co-counsel will be aware of your absence, and given the file with enough time to prepare adequately and to discuss the case with you. If possible, include this other attorney in some discussion with the client. For instance, it would be disconcerting to a client to attend a deposition or other court proceeding, and upon arrival meet a different attorney for the first time. This might lead to a lack of confidence in your firm and a basic mistrust of how the case is being handled, despite the fact that you know that his or her case will be handled expertly by the attorney that has appeared in your place. At the very least that attorney should make arrangements to speak to the client in advance so that the client is comfortable with his appearance in your place and with the matter moving forward as scheduled. Master technology and use it to your advantage. Avail yourself of the latest technology that can be of great assistance to you in your firm. While out of the office, you may want to use a BlackBerry or other device to keep you updated on your emails and phone messages. Also, using a netbook or laptop and being logged into your own office software, enables you to check in at work if you deem it necessary while lounging at the pool at some vacation hideaway.
Groom your support staff. Make sure that your staff is aware of the exact dates of your vacation. Secretaries, paralegals and receptionists alike can make your life much easier when you are away. As most attorneys know, the secretarial staff probably knows more about the day to day inner workings of your office than the actual attorney who is focusing on the cases at hand. Many items about which clients call, may be handled adequately by your support staff. Allow your staff the opportunity to grow in their positions: show confidence in them and allow them to handle some tasks in servicing your clients. (Of course, within the parameters of ethically acceptable non-legal practice.) Many non-legal questions that clients have need attention immediately and those questions can be answered by your competent support staff, lightening your burden when you arrive back from your vacation. For while you may be refreshed in returning from a well deserved getaway, the burden of coming back to a mountain of work on your desk, some of which could have been handled by support staff, makes you question why you went away in the first place.
When your absence from work is not voluntary, but is instead due to a personal emergency such as an accident, illness, or death of a family member, you have limited opportunity to plan in advance. When that happens, you must be able to deal with the emotional upheaval in your own life as well as adjust your practice on the fly. The voluntary planning you have done for your vacation can be your fall-back position in an emergency. A well-trained, responsible support staff and firm lawyers who have met with your clients – even on a limited basis – will go a long way to help alleviate problems associated with your immediate departure.
Your absence from your practice can lead to some ethical issues which must be dealt with in a prudent and professional manner. Absences from your practice because of your own or family illness can still unintentionally lead to the appearance of neglect of your files. In that case an attorney may face disciplinary and grievance action. This scenario begs the question: When does an extended illness or an absence due to a family emergency act as mitigating circumstances against a client’s claim of neglect of his case? Grievance committees throughout the State of New York have wrestled with this complex issue. Because the attorney is a fiduciary for his client, Second Department courts have been unwilling to completely dismiss charges of misconduct except in unusually well-documented cases where the totality of the circumstances showed the attorney to be honest and concerned about his client but overwhelmed by his own medical or emotional hardships.
For example, in In re Goodman, an attorney faced disciplinary charges and grievances for neglect of legal matters entrusted to him. Despite the testimony of the attorney’s psychiatrist that the conduct was a result of suffering from an “adjustment disorder,” the Appellate Division was not persuaded. The Second Department held that the attorney misconduct was just plain negligence, rooted in his status as a sole practitioner with a heavy case load and busy trial schedule. Despite the attorney’s remorse and compliance with his interim suspension, the Second Department suspended him from the practice of law for three years.1
Similarly, in In re Berkowitz, an attorney was charged with neglect of client matters. The attorney cited as mitigating factors his remorse, the absence of venal intent, and commencement of psychotherapy to combat his depression and emotional turmoil generated by the grave illnesses of his wife and son. Despite those mitigating circumstances and based on the totality of all the others, the Appellate Division, Second Department suspended the attorney from the practice of law for five years.2
In addition, in In re Berkman, an attorney was charged with failing to adequately supervise those lawyers in his firm who were handling particular matters on behalf of clients. The charged attorney cited as mitigating circumstances the illness and eventual demise of his wife, who also acted as office manager for his practice. Even under these circumstances the court determined that he should be suspended for three years.3 In contrast, in In re Easton, the Appellate Division, Second Department was persuaded by the submission of reports and affirmations from the attorney and court appointed psychologists that established that the attorney’s illness was a substantial factor in the behavior pattern which resulted in the grievances filed against him. On that basis, as well as other mitigating and extenuating circumstances, the attorney was only publicly censured.4
Clearly, each individual case stands and falls on its own merit. However, the Second Department courts have shown that they will only be sympathetic to a point, but not to such a degree as to ultimately jeopardize clients’ cases. Therefore, it is essential to have a business structure in place to be relied upon in your time of need.
Anthony J. Emanuel, Esq. is on the Board of Directors of The New York State Trial Lawyers’ Association, President of The Columbian Lawyers’ of Nassau County, Inc., and a Senior Partner in the law firm of Bornstein & Emanuel, P.C. in Garden City, a full service plaintiff’s personal injury law firm that represents parties who have been seriously injured. Mr. Emanuel can be reached at firstname.lastname@example.org.
1. In re Goodman, 904 N.Y.S.2d 455 (App. Div. 2010).
2. In re Berkowitz, 730 N.Y.S.2d 118 (App. Div. 2001).
3. In re Berkman, 863 N.Y.S.2d 701 (App. Div. 2008).
4. In re Easton, 858 N.Y.S.2d 332 (App. Div. 2008).
Nassau County Bar Association ALL Rights Reserved
15th and West Streets | Mineola, NY 11501 | (516) 747 4070 | Fax (516) 747 4147