Academic journal article Defense Counsel Journal

Succession Plans! Be Prepared for the Unexpected

Academic journal article Defense Counsel Journal

Succession Plans! Be Prepared for the Unexpected

Article excerpt

"Old age takes away from us what we have inherited and gives us what we have earned."

--Gerald Brenan

I have now spent 14 years in this profession of law, a profession I deeply love and respect. It is my sincere hope and desire that I continue in good health and that I maintain my legal abilities well into the future. I have always seen myself as a person who would practice law into my later years and would be happy retiring from this earth, and the profession, if the retirement came while making an impassioned closing argument. Rarely, if ever, have I stopped to consider the implications that may flow from such a departure.

If most of you are like me, you rarely acknowledge your mortality or the fact that at some point in the future you will be forced to relinquish your grip on the profession that you have made your life's work. Whether you like it or not, one day each of us will be forced to give up our voluminous case loads, put behind our grueling schedules and confront the fact that the practice of law will continue even without our invaluable contributions.

Of course, our exiting the practice does not bring to a close the obligations that we owe to our partners, our firms and our clients. Stop and ask yourself, if your law practice came to a sudden and unexpected end today, what would be the impact on clients, family and colleagues? Who would take over the handling of your cases? Who would be the individual responsible for closing down your practice? Would someone be able to locate your client/contact lists? Would someone be able to locate your calendar? Would someone be able to locate a list of all your files? We, as responsible lawyers, need to have a succession plan (1) in place to respond to these inquiries and more.

These are questions no attorney, including myself, wants to confront or take the time to deal with at any stage of our career, particularly in our most productive years. Who wants to have to consider and deal with issues regarding the end of one's career while we are still at our peak level of performance? We have the rest of our career, and our life, to deal with such mundane and non-billable issues, don't we'?

In a perfect world, the necessity of a well-thought succession plan may not be as significant or pose any potential liability. However, in a perfect world, an attorney will spend many years building a law practice, retire, and thereafter, remain available to his colleagues and prepared to answer any and all questions that may arise as a result of his former representation. Unfortunately, the "perfect world" scenario is not where the majority of problems arise and is not what this article addresses. Outside of the perfect world, where Murphy's Law rules, significant liability can result from a failure to have a carefully planned succession plan. This becomes even more likely when the lawyer's exodus is brought about by sudden death or other debilitating condition. The impact and potential liability resulting from a sudden departure can be lessened, or conversely, greatly magnified, depending on whether the attorney had the forethought and then took the time to plan for the unexpected.

It was a situation such as this that sparked my interest in this subject matter. Nearly a year ago, one of my more senior colleagues and friends was suddenly taken away without warning in a freak accident at the age of 58. At the time of his death, this gentleman was an accomplished triathlete, was the picture of health and was the most unlikely person to die at a premature age. Thus, it goes without saying, nobody knows the hour or the day that we will cease practicing law and we need to be prepared for that contingency, both for our colleagues and our clients. Our law firm felt the sting of his untimely death on both a personal and professional level. Fortunately, however, because of our recordkeeping and file management, my law firm was able to navigate the void left by my colleague's departure without issue. …

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