The Trusted Adviser
July 2015 | Volume 8 · Number 6

ATG Member Agents: Do You Have a Succession Plan? 

INTRODUCTION BY JOHN G. O'BRIEN, ATG VICE PRESIDENT AND COUNSEL | Each year, ATG welcomes more younger lawyers into the ranks of membership. Their youth, enthusiasm, and tech-savvy nature is a boon to our organization and bodes well for our future. But the fact remains that many of our most active ATG members are in their 50s and 60s. Some older. Until I joined the ATG staff, I was one of them! While we know many of our members have a lot of productive years ahead, some are winding down. Many who are within retirement range have plans in place to transition out of their law practices and already have the people on board who will take over. But some don't. Some lawyers are on their own out there—no partners, no support staff. Their offices are stacked with files, and while they may know where everything is and have their best clients' contact information memorized, if something unexpected happens to the lawyer, who contacts the clients regarding any pending matters? Who even knows what the pending matters are?

I urge you to read this article on succession planning by ARDC Senior Counsel John Cesario. (Originally published in the ISBA's February 2014 Senior Lawyers newsletter, reposted here with permission from the ISBA and the author.) Do your clients, family, and the Bar a favor and put some meaningful time into succession planning.

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Succession Planning
by John R. Cesario

EDITOR'S NOTE: This article originally appeared in the ISBA's February 2014 Senior Lawyers newsletter and is reposted here with permission from the ISBA and the author.


In this article, I will cover two topics that are important to Illinois lawyers who are older than 65, or "senior lawyers":

  • Trends regarding the aging of the legal profession and the challenges those trends will present the bar and the court.
  • A contingency plan every senior lawyer must put into place to assist his or her family and protect clients, if the lawyer should suffer a sudden illness or disability.

The Advent of a Senior Tsunami

Over the next 10-15 years, Illinois will see a significant rise in the number of attorneys over the age of 65 engaged in the practice of law. Some of the numbers show that in 2014, there were about 6,700 attorneys on the Master Roll over age 65, but in 2019 we will have 13,000 lawyers in that category. By 2024, the number will rise to 20,900, and by 2029—29,500.

So, why so many senior lawyers? There are several factors:

  • increase in the number of attorneys over the last 50 years;
  • broad demographic trends about population in general (e.g., the total number of people over 65 will double in 25 years and the proportion of the population over age 65 will grow from 13% to 20%);
  • improvements in medicine and pharmaceuticals over the last 100 years have had the happy consequence of allowing more people to live longer and practice longer.

One of the main challenges with many aging professionals is the fact that many attorneys practice on their own, without adequate support staff. If they suffer from age-related impairments, their clients may suffer from a lack of care and oversight by those attorneys due to these impairments. Without support staff, attention to detail within the law practice may suffer.

Developing appropriate responses to age-related impairments is a priority. While Rule 8.3(a) requires an attorney to report serious misconduct by an attorney, there is little guidance for attorneys or judges faced with an apparently impaired senior attorney who is not engaging in serious misconduct, but whose impairment may present a risk of harm to clients.

In this circumstance, colleagues, clients, or judges may be reluctant to interfere or to act. Additionally, when confronted, an age-impaired attorneys may often deny the allegations or resist efforts to address the problem.

I believe the process used by the Lawyers Assistance Program (LAP) can help a great deal. LAP uses carefully planned and researched interventions to address specific concerns to an attorney who is the subject of the intervention. While LAP predominantly uses its services for problems related to drug or alcohol use, LAP has noted an increase in age-related impairments and has performed interventions for that issue. The LAP model is useful because it is non-adversarial and because LAP has healthcare resources that may be essential to evaluate the extent of any age-related impairment. A traditional disciplinary process may be unwarranted because if the lawyer suffers from age-related impairments there may be no element of willfulness or serious harm like a conversion of estate assets.

Sudden Illness, Disability or other Misfortune

The second topic of concern is the sad circumstance when sudden illness or death creates a crisis for a senior lawyer, and places a burden on family, friends, and clients. While this article is addressed to senior lawyers, such misfortune can strike an attorney at any age. For this reason, all attorneys should have a plan to designate a successor to care for client matters if such a misfortune should occur.

Insights provided by Rule 1.3 and the Duty of Diligence

Rule 1.3 is straightforward: "A lawyer shall act with reasonable diligence and promptness in representing a client."

Comment 5 to that Rule provides that as part of the duty of diligence, each sole practitioner should 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. The Comment then refers to the Illinois Supreme Court Rule regarding Receiverships.

So, if you are a senior lawyer winding down a law practice, or a sole practitioner, you should have a plan to provide a smooth transition in case you should suffer a serious mishap or other misfortune. The best approach is probably to team up with another sole practitioner or small firm to cover for each other if some problem should arise. This will help the attorney and the clients of the attorney.

Topics for a Sole Practitioner to Discuss with a Designated Successor

The following suggests a plan for a sole practitioner or a senior lawyer thinking of reducing the volume of cases in his or her practice, and offers a partial checklist of some things to do.

  1. Provide written instructions to family members or support staff to describe how to generate a list of client names, addresses, and phone numbers.

    Supreme Court Rule 769 is useful and instructive for the above. That Rule is entitled Maintenance of Records, and it provides importance guidance to attorneys. The Rule has two parts, the first requires attorneys to maintain records that identify the name and last known address of each of the attorney's clients and reflects whether the representation of the client is ongoing or concluded. This information is important for good office management because it allows the attorney to list and review all matters that are subject to his duty of care and diligence.

    The second part of Rule 769 provides that an attorney shall maintain all financial records related to the attorney's practice, for a period of not less than seven years, including but not limited to bank statements, time and billing records, checks, check stubs, journals, ledgers, audits, financial statements, tax returns and tax reports.

  2. Provide written instructions about how to locate a calendar or computer program that lists all pending matters and due dates on all cases. The instructions should include passwords or other necessary information. Since ongoing proceedings are time sensitive, they are of the highest priority, and any plan to manage this contingency should focus on this aspect. The plan should therefore focus on identifying the name, title, and case number of any pending litigation matters, and the name, address, and telephone number for the client. This information would allow someone to communicate by phone or mail with clients to inform them that their attorney is not available and direct them to retrieve the file and to speak to another attorney.
  3. Prepare careful instructions about any client trust account or escrow account. These instructions should identify the financial institution where the account is located, the title of the account and the account number. In addition, the attorney should describe where the client trust account records are located in the office to assist the designated attorney in finding all necessary items.
  4. Provide written instructions about how to retrieve messages from the voice mail system and how to change the greeting to the voice mail system. This can be a simple and effective way to alert callers to the sad news and to refer them to a contact person to arrange the return of the file to the clients.
  5. Provice instructions regarding closed files. The instructions should describe where the closed files are stored and how they are organized. The attorney should take care to identify any closed file that may contain an original will, deed, or trust agreement that may require additional care and effort to return to the former client.
  6. Include a reference to the contingency plan in any initial attorney-client agreement with new clients so that are aware of your plan in case of death or serious illness. The statement could be as simple as including a paragraph to note that in case of death or serious illness, the law office has made arrangements for attorney John Smith to review files and notify clients and take other protective action.

Devoting time to planning for such unfortunate circumstances will bring peace of mind for sole practitioners and great relief for family and friends attempting to close a law practice under difficult conditions. Such a plan could ease the cost of administering the estate of a deceased attorney, and it could make efforts to sell a law practice pursuant to the provisions of Rule 1.17 more feasible.

In addition, the States of Indiana, Florida, and Delaware have a rule that requires attorneys to designate a successor. These jurisdictions differ slightly in the details, but the essence of the rule is that when they register each year, every sole practitioner must state whether he or she has designated a lawyer or law firm to review files and records and communicate with their clients if they became ill or died suddenly. The purpose of the rule is to create a procedure for sole practitioners to prepare for the unfortunate circumstances of death or disability.

A designated successor rule could also inspire bar associations to hold programs on contingency planning. Even lawyers in a law firm setting should review their procedures about disaster contingencies because a partner or associate may become ill or suffer some other misfortune.

Concluding Thoughts and Observations

Take heart, the news is not all grim. Many attorneys reaching retirement age wish to continue to serve in a pro bono capacity, and the additional time afforded by retirement may provide just such a release. The Illinois Supreme Court anticipated this phenomenon by amending Rule 756 and allowing pro bono under special circumstances. Normally, an attorney on Inactive or Retired Status may not practice law, but the Amendments to Rule 756(f) and (j) allow an attorney to continue to provide pro bono services under the auspices of a sponsoring entity that is a not-for-profit legal service organization.

In closing, we should note that the challenge of an aging population creates difficulties and opportunities for the practicing bar. We must develop programs to identify and address age-related impairments issues that seek to balance the need to protect the public with the need to respect a more senior attorney who may have had a long and distinguished career with no blemishes until age-related impairments emerged.

[Last update: 7-28-15]

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