Why Solo Attorneys Should Never View Succession Planning as Optional
By Mark Bassingthwaighte
The two most common excuses I ’ ve heard over the years for not having a succession plan in place are these . It ’ s either “ my plan is to die at my desk ,” which isn ’ t a plan at all , or “ I just haven ’ t been able to find the time ,” which almost always means they know it should be done but it ’ s never going to happen . If either excuse rings true for you , now ’ s the time to start for two reasons .
First , if you happen to be a solo , you really don ’ t want to leave the headache of having to wind up the practice and trying to figure out what to do with all your closed files to an unsuspecting non-lawyer spouse . In fact , to this day I still get the occasional call from someone who finds themselves in this very situation . One commonality these callers all have is significant distress and anger over being left with a mess they are ill prepared to handle , and which , unfortunately , can all too easily lead to unintended consequences .
Here ’ s one example of how the failure to plan can end badly . Most attorneys know full well that client property shouldn ’ t be destroyed prematurely or haphazardly ; but of course , non-lawyer spouses often haven ’ t a clue . Also understand that even if they did , nonlawyer spouses aren ’ t bound by the rules of professional conduct . The end result is sometimes all closed files are promptly destroyed because the grieving spouse doesn ’ t know what else to do . Then , after doing so , the spouse comes to learn one of those destroyed files is needed to properly defend against a claim of malpractice . Making matters worse , the spouse also eventually learns there is no insurance coverage in place because she didn ’ t know that at the time of passing , she had to contact the malpractice carrier in order to purchase tail coverage . The unintended consequence is the deceased attorney ’ s estate may end up not being what everyone was counting on it being .
Second , Rule 1.3 of the ABA Model Rules of Professional Conduct addresses diligence . The rule reads , “ A lawyer shall act with reasonable diligence and promptness in representing a client .” This means attorneys are to act with commitment , dedication , and where appropriate , even zealous advocacy ; workloads are to be reasonable so all matters can be resolved competently ; and that procrastination is an enemy that is to be avoided at all costs . Yet an attorney ’ s obligations don ’ t end there . There is an obligation to prevent neglect of a client matter post attorney death or disability . Comment 5 to this rule goes on to state , “ To prevent neglect of client matters in the event of a sole practitioner ’ s death or disability , 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 if there is a need for immediate protective action .”
Given all I have seen and experienced as a risk manager over the years , I personally have trouble coming up with a set of circumstances where I would feel comfortable saying no such plan would be required for a solo . The only question for me is how to get there .
Okay , so what do I need to do to create a succession plan ?
The most important detail to take care of when planning for your death or disability is designating a successor . This attorney will need to agree to be responsible for administering the winding down of your practice . Again , it ’ s important to remember the purpose here is not to try to find someone who is willing to come in and take over your entire practice . It ’ s about finding someone willing to step in and take the lead in winding down your practice . Keep this distinction in mind because it can help when it comes to trying to find someone willing to take on this important responsibility .
That said , should the unexpected ever happen , this person will need to be able to make rapid decisions and , for a brief period of time , take on some of the responsibilities of an additional practice . This means your designated attorney should be someone who is competent , experienced , and displays the utmost professionalism because this person must be able to be expeditious about notifying clients , conducting file review , taking any necessary protective actions , and transitioning files to other attorneys . Your designated attorney should also be someone who is quite familiar with your
ALPS Risk Manager Mark Bassingthwaighte , Esq . Since 1998 , he has been a risk manager with ALPS , the nation ’ s largest direct writer of professional liability insurance for lawyers . In his tenure with the company , Mr . Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management , ethics , and technology . Mr . Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association , where he currently sits on the ABA Center for Professional Responsibility ’ s Conference Planning Committee . He received his J . D . from Drake University Law School .
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