Succession planning is a crucial facet of any law firm. As accomplished attorneys approach retirement or an attorney faces a sudden change in the ability to continue to practice law, having a well-conceived plan in place safeguards the continuity of the attorney’s practice and sustains client confidence.
In a law firm setting, succession planning comprises identifying and preparing future partners within the firm to smoothly transition to key players when current partners retire or leave the firm. It embodies both the allocation of management duties, as well as the assignment of clients, firm operations, and firm culture.
Succession planning is equally relevant to a solo practitioner as an attorney may unexpectedly become disabled, disappear, or die. A solo practitioner should have a written list of actions to explain what should happen to clients’ cases, identify a replacement to step in, outline office workings, financial handling of operating accounts, future earnings, and client trust funds.
Succession planning also relates to the clients, personnel, and family of the attorney. An attorney’s family needs protection from avoidable financial injury and being encumbered with the burden of taking over the attorney’s law practice. What happens to the clients and staff when an attorney has an accident and has to hospitalized for an extended period of time?
Common Challenges in Succession Planning
Succession planning is a part of an attorney’s duty of diligence. Title 5 O.S. 2021 Ch.1, App. 3-1, Rule 1.3 provides as follows: “A lawyer shall act with reasonable diligence and promptness in representing a client. Comment 5 further provides: “[5] 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 whether there is a need for immediate protective actions. . . .”
However, law firms can encounter numerous challenges when it comes to succession planning. Clients often choose a law firm or attorney based on the reputation and skill of individual attorneys, making it challenging to relocate clients smoothly. Retention of associates is another challenge that makes it extremely important to develop a mentorship program within the firm.
For solo attorneys who have worked alone for years, having another attorney join the practice or take over client affairs generates dissension. So, there is not another attorney to step in if needed. Developing relationships with attorneys, who practice in the same areas of law, is important to have a replacement attorney in a solo attorney’s succession plan.
Helpful Focus Points of Succession Planning
Effective succession planning can be broken down to these four key focus points:
- Early identification of potential replacement attorneys
- Mentorship
- Client transition plans
- Preservation and transfer of office operations
Consequences of Not Planning Ahead
The failure to focus on succession planning adequately can have harsh ramifications for firms and solo practitioners. In State ex rel. Okla. Bar Ass’n v. Silvernail, 2022 OK 68, 522 P.3d 464, an attorney who was convicted of assault and battery with a deadly weapon and sentenced to two and one-half years in prison failed to take any action to cease his practice of law. While in jail awaiting his formal sentencing, he had more than 60 ongoing cases and he attempted to continue to represent his clients from his prison cell. He did not permit his files to be shared with fellow attorneys who had agreed to assist with obtaining continuances on pending matters. He requested his brother, who had no legal experience, take over the day-to-day workings of his firm. Additionally, he had conferences with and about client affairs on the prison telephone which was monitored by jail personnel. The Oklahoma Supreme Court disbarred Mr. Silvernail and specifically addressed the fact Mr. Silvernail was not acting in his client’s best interests and was placing his own financial interests first.
Without a clear succession plan, firms and solo practitioners compromise their clients, associates, personnel, knowledge of office procedures, and potential financial uncertainty. In addition, attorneys may encounter legal malpractice claims and bar disciplinary actions if clients’ matters are improperly handled or neglected, which will survive despite an attorney’s death or incapacity. By implementing a thorough succession plan, attorneys can mitigate these legal and ethical exposures, thereby protecting their clients, partners, associates, personnel and their families.
Author
Alison has worked at OAMIC since 2008. She received her J.D. degree from the University of Oklahoma College of Law in 1985, where she was a member of Phi Delta Phi. She was a law clerk with the Oklahoma Supreme Court and the Court of Civil Appeals. Alison has also taught legal research and writing as well as appellate advocacy as an adjunct professor at Oklahoma City University. Before joining OAMIC, she worked at several law firms and served as a solo practitioner. Alison is a past-recipient of the OBA President’s Award, the Mona Salyer Lambird Spotlight Award and the Sovereignty Symposium Award.