Succession Planning Obligations
An unexpected event that interrupts a lawyer’s ability to practice also creates a grave risk of prejudice to clients. What is a lawyer’s obligation, if any, to prepare for our eventual retirement or unplanned inability to continue practicing? Lawyers are responsible to protect their clients’ interests, which includes an event that prevents lawyers from practicing, whether on a temporary or permanent basis.
The specifics of that responsibility varies by state. For example, California – by ethics opinion – establishes lawyers’ obligations to engage in an assessment of whether their practice requires a succession plan to
protect their clients’ interests.
California Formal Opinion 2024-209 explains:
Lawyers have an ethical obligation to protect their clients’ interests throughout the representation, including in the event they are unable to continue practicing law on a temporary or permanent basis. The duty applies to all lawyers, regardless of firm size. To meet these obligations, lawyers must engage in an assessment of whether their professional responsibility obligations, including, but not limited to, the duties of competence, diligence, and communication, require a succession plan. Factors to be considered in this assessment include, but are not limited to, firm size, practice area coverage, the nature of the practice, and the lawyer’s age and health. Depending on this assessment, a lawyer may be required to take reasonable steps to plan for an interruption or cessation of practice, including engaging in formal succession planning, since a lawyer is unable to anticipate an inability to practice law.
Because requirements vary, you should consult your jurisdiction’s rules, ethics opinions, and case law. The American Bar Association maintains a very useful page on this topic. Here you will find a fifty-state survey
listing every state’s attorney succession requirements. Some states have no rule at all, some recommend succession planning by comment to Rule 1.3 or bar opinion, while in other states, succession planning is
mandatory. See, e.g., ABA Formal Opinion 369; Arizona Ethics Op. 04-05; Maine Bd of Overseers Ethics Op. 143; Oregon Ethics Op. 2005-129.
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