Every Attorney Should Make a Succession Plan

As COVID fades, we are left with many important lessons. Among them, the need to recognize the importance of having a professional succession plan (professional will) in place in the event an attorney is temporarily or permanently incapacitated. Such a succession plan may also come into play in the event the attorney chooses to retire, or simply dies. Here are some pertinent provisions from the ABA Model Rules of Professional Conduct:

• Rule 1.15. Safekeeping Property: This rule requires lawyers to safeguard client property and to keep complete records of client funds and property. In the event of a lawyer’s incapacity or death, the lawyer’s executor or other representative must take steps to protect client property.
• Rule 1.16 Declining or Terminating Representation: This rule requires attorneys to take steps to protect their clients’ interests when terminating representation. It includes the need to give reasonable notice to the client, returning client property, and refunding any unearned fees.
• Rule 1.17 Sale of Law Practice: This rule allows lawyers to sell their legal practice in the event of retirement, disability or death. However, they must take steps to assure that clients are notified of the sale and that the clients’ interests are protected.
• Rule 1.18 Duties to Prospective Clients: Attorneys must protect the confidentiality of prospective clients and to avoid conflicts of interest. If an attorney becomes incapacitated or dies, they must take steps to ensure that the prospective clients’ confidential information is protected.
• Rule 8.01 Duty to Report: Attorneys must report professional misconduct by other attorneys. If a lawyer becomes incapacitated or dies, and the person handling their files (representative and/or executor, as applicable) finds that the attorney committed malpractice, the representative and/or attorney must report that act to the bar.
• Rule 8.04 Misconduct: Lawyers are prohibited from engaging in certain types of misconduct, including dishonesty, fraud and misrepresentation. If an attorney becomes incapacitated or dies, their representative and/or executor may be required to report professional misconduct the attorney committed during their practice.
• Rule 8.05 Disciplinary Authority: If an attorney becomes incapacitated or dies, their representative and/or executor may be subject to disciplinary action if they fail to take steps to protect client interests.

In addition to these professional cannons, it is important to take practical steps to ensure a smooth transition in the event of incapacity or retirement. Practical steps include:

1. Notifying clients.
2. Assuring client confidentiality in the course of transitioning files.
3. Notifying malpractice carriers and making decisions regarding whether or not to obtain tail coverage. An attorney’s risk of being accused of malpractice extends well beyond their last day of practice. Tail coverage is the insurance policy term that may defend an attorney against claims by former clients.
4. Terminating leases on office rentals.