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LawBiz® TIPS – Week of March 1, 2016

Succession Planning: Bar Association and Court Input

Bar associations have joined the conversation about succession planning and its necessity.

ABA's Commentary 5 on Model Rule of Professional Conduct 1.3 (“Diligence”), for example, states thus:

To prevent neglect of client matters when the lawyer dies or if he or she becomes disabled, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action.

The ethical implications of failing to plan for a practice's future when the lawyer retires or dies are so severe that some state bar associations are also now taking action to “protect” the public. For example, the State Bar of California considered a requirement in 2010 for lawyers to have an “estate plan for the law practice” providing for succession in the event of a lawyer's death or disability. While the bar declined to act then, the issue may return for reconsideration in another form. However, even without this provision, the rules already command the lawyer to protect clients' interests, even after the lawyer's death.

As another example, in 2007 the Indiana Supreme Court approved Rule 23, which encourages solo lawyers making their annual registration with the state bar to designate another lawyer to act as an “attorney surrogate” in the event of death or disability.

Consider the Maine Board of Overseers of the Bar, too, which has prepared a special handbook for receivers of the practice of a disabled, missing, or deceased attorney. The handbook quotes Maine Professional Ethics Commission Opinion No. 143: “It is obvious that the solo practitioner should adopt a plan in advance. . . . It is obviously too late to wait until death or disability to let unprepared successors deal with an impossible situation. Spontaneous improvisation when the crisis occurs is unacceptable.”

If you need assistance in making plans for your firm, contact a legal coach today at 800-837-5880.



Succession Planning: Bar Association and Court Input

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