Do You Have a Law-Practice Succession Plan?

ripThe Louisiana State Bar Association thinks that you should. In June 2015, the LSBA House of Delegates and Board of Governors approved a resolution proposing the adoption of a new Rule 1.19 to be entitled “Succession Planning.” Based on South Carolina Rule of Professional Conduct 1.19 (2013), this rule would provide as follows:

(a) Lawyers should prepare written, detailed succession plans specifying what steps must be taken in the event of their death or disability from practicing law.

(b) As part of any succession plan, a lawyer may arrange for one or more successor lawyers or law firms to assume responsibility for the interests of the lawyer’s clients in the event of death or disability from practicing law. Such designation may set out a fee-sharing arrangement with the successor. Nothing in this rule or the lawyer’s designation shall prevent the client from seeking and retaining a different lawyer or law firm than the successor. The lawyer to be designated must consent to the designation.

(c) A registry shall be maintained by the Louisiana State Bar Association. Each lawyer shall designate any successor lawyer on the lawyer’s annual registration statement.

See LSBA Resolution to Adopt Rule 1.19, LSBA House of Delegates Resolution No. 7, June 2015. The rationale of the rule is presumably the same as that underlying the South Carolina rule: to serve “as an encouragement, especially to sole practitioners, to arrange for the orderly protection of clients.” See S.C. Rule of Prof’l Cond. 1.19, cmt. 1. Any such “succession plan should include:

  • written instructions concerning how and where client information is stored;
  • bank account details, including operating and trust account information;
  • information concerning disposition of closed client files, law office equipment, and payment of current liabilities;
  • instructions to gain access to computer and voicemail passwords; and,
  • information detailing how the successor will be compensated.”

See id. cmt. 2.

This is good policy. It is curious, however, that both the South Carolina rule and the Louisiana proposal use the hortatory language “should prepare” rather than “shall prepare.” Disciplinary standards are ill-suited for nudges and suggestions; they should be reserved for mandatory rules.1 If this principle is important enough to be included in the Louisiana Rules of Professional Conduct, it’s important enough to make mandatory.

  1. Granted, there are a couple of hortatory principles in the current rules. Louisiana Rule 1.5(b) advises that it is “preferable” to put a fee agreement in writing. And Louisiana Rule 6.1 suggests that a lawyer “should aspire” to provide pro bono legal services.
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