Recently, a lawyer let me know that she’d updated her succession plan after reading a question in the #fiveforfriday quiz. I don’t have kids, but if I did, the lawyer’s note made me feel like I imagine I would after my kid scored his or her first basket. It was a proud moment for bar counsel.
Speaking of first baskets, one of the first baskets I ever scored came as a 5th grader playing for the Warriors in the SB Rec League. Much like current Golden State Warriors Steph Curry & Kevin Durant, I too wore sneakers when I played basketball. Unlike them, I scored the aforementioned basket in the wrong hoop. That’s right. In the first game of the season, I grabbed the opening tip, sped down the court, and banked it in with perfect form — only to give the other team a 2-0 lead. At the end of the first quarter, we’d cut it to 2-1 as a result of foul shot I made in the correct basket. As my Dad loves to tell anyone who may or may not care, “At the quarter, Michael had all the points!”
My coach had not successfully planned for what to do if the ball bounced to me off the opening tip. Proof positive that no detail is too unimportant.
Which gets me back to succession plans.
Rule 1.3 requires lawyers to provide clients with diligent representation. I used the question that eventually prompted the lawyer to update her succession plan to call attention to Comment  to Rule 1.3.
- “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 . . . that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”
I’m not positive, but I think the language in the Comment can be traced back to ABA Formal Opinion 92-369. The opinion, which is here, outlines the duty to prepare a succession plan, as well as the duties of the successor lawyer.
For those of you interested in creating a succession plan, one of the best resources I’ve found is the Washington State Bar Association’s handbook Planning Ahead: A Guide to Protecting Your Clients’ Interests In The Event of Your Disability Or Death. Check it out.
And, here are some practical tips, based on situations I’ve encountered as both disciplinary and bar counsel:
- After creating a succession plan, make sure someone knows where it is.
- Update it if the successor lawyer dies, retires, or moves.
- Include directions for someone to find a list of the passwords for your computers, devices, electronic calendaring system, e-mail, and voice mail.
- Update the list as you change your passwords.
- Meet with your financial institution to discuss who will be authorized to make trust account disbursements.
My 5th grade coach’s failure to make sure I knew which basket to shoot at was excusable. A lawyer’s failure to plan to protect clients’ interests in the event of the lawyer’s unexpected unavailability is not.
Lawyers often advise clients to plan. We need to take our own advice.
Remember, planning to plan is not a plan.