Living in Arizona provides plenty to cry about. Bright spots are here and there, though, and I am not talking about the sun.
I have been involved for many years with the State Bar of Arizona ethics and discipline system, first as a volunteer judge, then as a drafter of our ethics rules, and, for the past almost 20 years as an attorney representing other attorneys. I also speak often to attorney groups and provide expert testimony. The system with which I have been involved has been a national leader for decades, and that is a big bright spot!
Recently, the Bar formed a Succession Planning Task Force. Why? Just look at the age distribution among Arizona attorneys, as of 3/31/2014:
|Age||No. of Attorneys|
So we have lots of old and “getting old” attorneys. So what? Well, if an attorney dies or becomes disabled, with no one ready to take over, the Bar gets the job. Presently, the Bar stores more than 2000 boxes of client files. Each file may matter to someone; thus, they cannot simply be destroyed. Of course, handling and storage costs money, as does the process of taking over an attorney’s practice. And the age distribution tells us this problem will get bigger over time.
The Succession Planning Task Force issued a report in April 2014 and, in August 2014, its Supplemental Report and Recommendations. The proposed recommendations are excellent, and reflect lots of hard, thoughtful work. In particular, two recommendations are worthy of focus.
First, in its initial report the Task Force recommended a rule that would, effectively, prevent an attorney from retaining original estate planning documents. A bit of a hubbub ensued, and that recommendation has been toned down. Too bad!
Traditionalists in the profession like to keep original estate planning documents because, when the client passes, having the original will increases the likelihood that the client’s family will return for probate and related legal services. Some of us, though, worry about keeping documents. If I have your will do I owe you any duties other than safekeeping? No clear answer on this one. What about safekeeping? If I don’t have a fireproof safe, and my office burns, am I responsible? To whom? If I’m retiring, and I can’t find you to return your will, what do I do? And, what happens when I die?
The better thinking, now, involves placing responsibility for keeping original documents with their owners. That’s my practice!
The second important recommendation involves naming a Successor Counsel. The recommendations provide for every attorney in private practice identifying an attorney who will be responsible for his or her practice. Identification will occur in the annual dues statement.
The reports are a bit dense, and are really written to include and provide support for the recommendations. I am addressing the subject here, despite a mostly lay audience, for several reasons. First, succession planning is really about consumer protection. I’m not part of the State Bar public relations department, but in a world where lawyer-bashing is almost as common as the sun rising in the east, good deeds should be noted.
Second, if you’re an attorney-reader, start preparing for when you won’t be practicing anymore. Succession issues—I deal with them on occasion—are hard on spouses, other loved ones, and clients. I expect the recommendations will be adopted, but even if they never go forward, you owe it to many people to leave neatly!
Third, if you are a client, ask your attorney about succession issues, especially when he or she is elderly or ill. Your matter is yours; don’t be shy about looking out for your interests. It’s a sad but true fact that when your attorney dies in the middle of a matter, you bear the costs. That fact should not prevent you from hiring the right attorney, but it does give you reason to be informed and mindful.
Finally, and this message is for attorneys, practicing law does not, alone, give you the skills to deal with issues like succession. If you have those skills and a plan, great! If not, there are attorneys—me included—who can help.