Honouring Your Professional Obligations When Taking a Leave From Practice

Sometimes life requires us to take a break from work. Whether due to pregnancy, caring for family, one’s own medical needs, or a desire to take some time to regroup, many lawyers will need or want to take a leave from practice at some point in their careers.

While you can step away from practice, you cannot step away from your professional obligations. Fortunately, with some thought and planning, you can ensure you comply with your duties even when you’re out of office and not checking your work email.

This column outlines some (non-exhaustive) practical tips for lawyers on how to honour your professional obligations when taking a leave of absence—whatever the reason.

1. Plan, plan, plan (as much as you can)

If you know approximately when you will need to step away from work, start planning for your leave well in advance. I recommend making a detailed chart listing all your files, their current status, next steps, who is going to have carriage of the file while you are away, and the status of their transition (e.g. client informed, client connected with new counsel, transition memo complete, etc.).

Prepare drafts of transition messages to clients and opposing counsel, transition memos to the lawyer assuming carriage of each file, and your out-of-office message ahead of time. It will not be easy to squeeze this in, but it will take longer than you expect, and you do not want to be scrambling to get your act together on your last day.

A personal anecdote: I did all of the above in planning for my maternity leave—but was still caught off guard when I went into labour a few weeks early. I’m embarrassed to admit that I found myself sending transition emails from the hospital’s triage room, but I’m proud that it did not take very long and I was able to fully disconnect before the baby arrived; I had already notified my clients of my upcoming leave, drafted the various transition emails I needed to send out, and prepared the files to be transferred to covering counsel. In short, by planning ahead I was able to properly transition notwithstanding an abrupt and premature start to my leave. You can’t plan for everything—but the more you plan, the better off you and your clients will be.[1]

2. Provide reasonable notice

Rule 3.7-1 provides that a lawyer shall not withdraw from representation except for good cause and with reasonable notice to the client. Taking a leave of absence from practice for medical or family reasons will generally constitute good cause—but you still need to ensure that clients are not blindsided by your departure and are comfortable with any transition.

Reasonable notice will depend on the circumstances, but you should leave time for the client to think about how they wish to proceed in your absence; to communicate with the lawyer covering the file (whether someone you arrange or someone else your client selects); and for the new lawyer to get up to speed before any substantive next steps need to be taken.

Bear in mind the following Commentary to the Rules of Professional Conduct: “the governing principle is that the lawyer should protect the client’s interests to the best of the lawyer’s ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.”

3. Find lawyers you trust to cover your files

Although this is easier said than done, especially for sole practitioners, it is entirely possible to find competent and trusted colleagues to look after your client matters while you step away. Start asking around early. Don’t forget to be mindful of your clients’ confidential information when doing so; you might gauge colleagues’ interest and availability by describing the nature of the file and what will generally be required, then obtain the client’s consent to share their information after the lawyer expresses a willingness to help.

Make time to ensure a smooth transition: discuss the likely trajectory of the file while you are away, note upcoming deliverables and deadlines, and offer any tips you can about managing the client or opposing counsel. When time permits, it’s useful to provide a transition memo—even if just an email or one-page document that hits the highlights.

If you are able, it can be helpful to ensure that lawyers covering your matters have your personal contact info so they can reach you if necessary. Personally, I found it gave me peace of mind to know that clients and opposing counsel couldn’t reach me while on leave, but if I was truly needed for something my trusted colleagues could and would reach out.

4. Recommend a coverage plan

It is always better to approach clients with a solution rather than a problem. If possible, when you notify your clients of your upcoming leave, offer a plan for carriage of their file while you will be away. (This is also in service of the governing principle of protecting the client’s interest and minimizing prejudice resulting from your departure.)

Note: your clients are not obliged to accept your plan, and may choose to retain someone else if you are going to be unavailable. The client has the right to terminate the solicitor-client relationship at will, and the choice of counsel is theirs. As a practical matter, however, if your client is satisfied with your representation and you approach them recommending that a trusted colleague cover for you for a few months, they will likely accept your recommendation and look forward to your continued representation upon your return.

5. Communicate about when you won’t communicate

Lawyers have a duty to communicate with clients “at all relevant stages in a timely and effective manner”, and to “answer with reasonable promptness all professional letters and communications from other legal practitioners that require an answer”.

This does not mean you need to be responding to emails while on leave—but you do need to ensure inquiries directed to you will be addressed.

Before going on leave, for every file, connect your client and all other parties’ counsel to the lawyer who will be covering for you. This is also an opportunity to ensure all involved have a written record of when you will be unreachable and who can help them in the meantime.

6. Draft a useful out-of-office reply

A generic out-of-office message is not a particularly helpful response to a substantive inquiry. But if you have informed the clients and other counsel to whom you owe duties about your leave in writing, your out-of-office reply can redirect them to that correspondence. (There will inevitably be folks who, despite your notice, will forget you were going on leave and reach out to you anyway.)

To offer a personal example, before taking parental leave I sent all my transition emails connecting clients and opposing counsel to covering counsel on the same day, then included the following paragraph in my out-of-office reply:

If you are a client or opposing counsel, please search your inbox for an email dated [date] with “Maternity leave” in the subject line, which confirms who has assumed coverage of your matter while I am out of office and provides their contact information. That lawyer will be pleased to assist you, and can contact me directly should it become necessary.

7. Arrange for access to funds in trust

Funds held in your trust account belong to the client—meaning they should be able to access their funds within a reasonable time upon request, even if you are on leave.

If you are the sole signing authority on your trust account, you have a few options: (i) add another licensee you trust as a signing authority so they can handle trust disbursements (in accordance with all Rules and By-Laws) in your absence; (ii) transfer client trust funds to the lawyer covering a file in your absence (with the client’s consent and direction); (iii) return trust funds to the client before you go on leave, or (iv) remain sufficiently accessible to deal with trust transactions while on leave. Whatever your approach, you should create an avenue for your clients to retrieve any funds held in trust without undue hassle or delay.

8. Update your status with the Law Society

Lawyers have various reporting obligations to the Law Society, including a duty to keep them informed of changes in contact information and practice status (in Ontario, reporting obligations are set out in detail in By-Law 8). If you will not be practising law for a time, or if you will not be accessible via your business contact information, you need to let the Law Society know promptly. Keep in mind that when you change to non-practising status you may also be able to reduce your annual Law Society fees and/or E&O insurance premiums.

9. Ensure the Law Society knows how to reach you

Rule 7.1-1 provides that “A lawyer shall reply promptly and completely to any communication from the Law Society in which a response is requested.” You may be called upon to respond to a complaint while on leave—and failure to respond to the Law Society in such instances can (and frequently does) result in disciplinary action, regardless of the merits of the underlying complaint.

If you are not regularly checking your work email, you should ensure the Law Society has your personal email and phone number as your primary contact info, just in case.

10. Create a backup plan for an abrupt or unexpected leave

Sometimes circumstances are beyond our control and you might need to step away on short notice. In Ontario, the Law Society now requires licensees to have a contingency plan—essentially, you must ensure there is another licensee who is ready and willing to liaise with clients and the LSO to manage your affairs (including returning funds in trust to clients) if you cannot.

If you haven’t found this person or given them what they will need to step in if something unexpected happens, put this on your to-do list now.

___________

[1] Sole practitioners planning on taking a maternity leave: please feel free to reach out to me directly and I would be happy to share my templates to help get you started.