It ain’t over til the fat lady sings

 By Gerald Lecovin, QC

Succession implies retirement and retirement brings with it a series of obligations that must be planned for. These can be divided roughly into three parts: obligations to the Law Society, to your clients, and to yourself.

Graeme Keirstead has written on the problems involved when one fails to make arrangements for someone to take over one’s practice and forces the Law Society to step in. The Law Society also mandates that files must be kept for a period of time – at least 10 years to cover the Limitation Act. Different types of files, e.g. those involving minors and those where continuing obligations are involved, may require longer custodianship than others. For the former, I would suggest 10 years past the child becoming an adult. For the latter, 10 years after that which is to be performed in a contract or agreement, has been performed. Wills of course, must be kept forever in a fire proof container. My thought is that when the client dies, the file should be kept until the completion of the probate process. Frequently a former client has made a new Will with another lawyer, unbeknownst to you. The only answer I can think of for this is to check periodically with Vital Statistics to see if your client has died. However, these problems may be covered in the article: The Law Society > Practice Resources > Closed Files: Retention and Disposition. Some lawyers have avoided file retention problems by inserting in the solicitor-client agreement signed at the outset of the relationship, a clause permitting the lawyer to destroy the client’s file within X days of it not being removed by the client after notification. I do not know whether this clause has been tested in the courts. Other lawyers just take their remaining files home, keep them in their basement, and inform the Law Society should an enquiry be made.

Once you have arranged for someone to hold these files for you, inform the Law Society of the name of that person. Active files have to be turned over to other lawyers, and preferably, not a week before a trial is to take place. Company offices have to be transferred and the Registrar of Companies notified, and filings made. Unless a sole practitioner is able to sell his/her practice to someone who will take over these obligations, he/she must see to them him/herself. Inform the Law Society of your intention to cease practice. It is nicer than being struck off the rolls for failure to pay dues.

In firms, the matter of custody of files and change of registered offices is not a problem. Transition of clients, payment out of capital and financial planning has usually been planned for well in advance. 

As to one’s obligation to oneself, some people have developed other interests over the years and merely expand their participation in them after retirement. Others, whose sole life has been the law, find themselves with nothing to do. The Lawyer Assistance Program has developed seminars and workshops geared to assist those about to retire, retiring or already retired, called “Refirement.” But these cannot help with financial preparation for retirement, which must start early on. 

Absent pension plans available in the corporate and public sectors, lawyers must start early, putting away money in their RRSPs. The large earning years usually coincide with the period after the family has been educated and sent off. It is during that period that a large amount can and should be set aside for retirement purposes.

While most of us have our social circle outside of the law, we spend a great deal of time with other lawyers and are loath to give up the camaraderie engendered thereby. Unlike universities, we have no alumni organization. However, the Senior Lawyers Section of the CBABC meets several times a year for dinner, lectures, and social intercourse and is open to former lawyers.

I have tried to point out that some planning for retirement must be done many years in advance. I myself made mine 46 years ago when I begat Mark Lecovin, my junior partner and successor. 

See also: The Law Society > Practice Resources > Succession Planning > Guide to Closing Your Practice.
 

Gerald Lecovin, QC of Gerald J Lecovin & Company.

This article was published in the November 2011 issue of BarTalk. © 2011 The Canadian Bar Association. All rights reserved.