What if you suddenly became disabled and couldn’t handle your law practice? Or, if you were to die, who would deal with your pending matters? Who has the password for your computer? Who knows where you bank? The Ohio Board of Professional Conduct last week published an ethics guide titled “Succession Planning” that addresses these issues, and it’s worthwhile reading if you practice on your own or in a small firm, in any jurisdiction.
Trendlines point to need for planning
Two trends are converging that underscore the topic of succession preparedness: the predominance of solo and small firms, and the graying of the profession.
- The ABA reports that in 2005, 63% of all private practitioners were in firms of fewer than five people. And 49% practiced on their own. (Seventy-five percent of U.S. lawyers were in private practice in 2005.)
- And we are not getting any younger — in fact, the opposite. The median age of lawyers in 2005 was 49; 13% were over 65 years old. And recent trends are going to increase the proportion of older lawyers: total J.D. enrollment between 2011-12 and 2013-14 decreased by 12%, or by more than 17,000 students. First-year law school enrollment decreased by 29% between 2010 and 2016, and for the 2016-17 school year it remained flat over the previous year.
The Ohio ethics guide notes that “failing to plan for the unexpected can result in harm to clients and in confusion and hardship for the lawyer’s family, staff and professional colleagues.”
Every state’s lawyer conduct rules has some version of Model Rule 1.1 and 1.3, dealing with competence and diligence, and the Ohio guide notes that while having a succession plan is not mandated by the Ohio rules, having a plan “can be viewed as a continuation of a lawyer’s duty of competent and diligent representation.”
Some jurisdictions go further. As of June 2015, the ABA reported that several specifically addressed succession planning in their conduct rules, registration rules or in comments. (A state-by-state chart is here.) For instance, Florida requires the designation of an “inventory attorney,” who can agree to take action in the event of a lawyer’s death or disability. Indiana provides as part of its annual registration process for permissive designation of an “attorney surrogate.” South Carolina’s Rule 1.19, “Succession Planning,” says that lawyers “should prepare written succession plans” in anticipation of their death or disability.
What to do & who can help?
The Ohio guide points to several components of a succession plan, which will help avoid the burden on your family and possible prejudice to your clients if the unexpected happens:
- a written agreement with a designated successor lawyer;
- information on the status and location of open and closed client files;
- details regarding trust accounts, operating accounts and client ledgers;
- location of log-in and password information for office computers, mobile devices, e-mail, voicemail, billing and calendaring systems, online banking, etc.;
- location of accounts payable and receivable information;
- information on leases, insurance, key vendors and other details needed to wind up a law practice, if needed.
Here in Ohio, two city bar associations have specific programs and resources. My hometown bar, the Cleveland Metropolitan Bar Association, has a “What-If Preparedness” program, with a site that links to a wealth of material, including forms. The Columbus Bar Association has a program called the “Advance Succession Registry.” Details are here. The ABA likewise has resources and links, including to jurisdiction-specific materials.
Think about the unthinkable
Thinking about death and disability is never easy — for lawyers or anyone else. But coming to grips with these topics and taking action can put your mind at ease that you have protected your clients and minimized a possible future burden on those you love. That’s worth doing, no matter how difficult.