The Ohio Board of Professional Conduct has released its Ethics Guide on Succession Planning.
The second in a series of guides produced by the board, the guide outlines steps that a lawyer should take to protect the interests of his or clients in the event of the lawyer’s “death, disability, disappearance or discipline.”
“The failure to plan adequately for the unexpected can result in harm to clients and in confusion and hardship for the lawyer’s family, staff and professional colleagues,” the guide states. “Developing a succession plan in advance ensures the orderly transfer of a client’s affairs and file to a new lawyer, as well as the return of moneys held in trust, and satisfies the lawyer’s ethical obligation to provide competent and diligent representation.”
The ethics guide is meant to serve as a preventative tool to assist the Ohio bar in developing a succession plan and charts a path for attorneys to facilitate the transition of open client matters.
The guide also notes that the Ohio Rules of Professional Conduct do not specifically mandate that a lawyer create a succession plan but that several rules, “read in conjunction with their related comments, strongly suggest that a succession plan is necessary to protect clients from the adverse consequences arising from a lawyer’s death or disability.”
A succession plan, the board noted, can be viewed as a continuation of a lawyer’s duty to competent and diligent representation.
“In fact, Comment 5 to Rule of Professional Conduct 1.3 addresses the steps a lawyer should undertake to prevent the neglect of client matters,” the guide states.
According to the comment, the duty of diligence may require that an attorney prepare a plan that designates another attorney to review client files, notify clients of the lawyer’s death or disability and determine whether there is a need for immediate protective action.
“Although representation normally will terminate when the lawyer is no longer able to adequately represent the client, the lawyer’s fiduciary obligations of loyalty and confidentiality continue beyond the termination of the agency relationship,” the guide states.
According to the guide, the core elements of a succession plan will include a written agreement with the designated successor lawyer, information regarding the status of open client matters, a copy of the practice’s client file retention plan, details concerning operating and trust accounts and the location of log-in and password information for computers, mobile devices and other electronic and cloud-based systems.
“A review and discussion about the succession plan and its contents should be undertaken at least once a year with those persons responsible for implementing and carrying out the succession plan,” the guide states.
The board also offers information on how to designate a successor lawyer, advising that he or she be “someone the affected lawyers knows and trusts” as well as someone who practices in the same field or specialty.
“A suitable candidate may be someone with whom the affected lawyer has co-counseled or to whom the affected lawyer has referred matters,” the guide states.
Also addressed within the guide is client notification of the succession plan, for which lawyers are advised to obtain advanced written consent from each client to the limited representation by the successor.
In the event of the death or disability of an attorney, the successor must promptly contact each client and notify them of the incapacity of their lawyer. However, in some cases that require immediate action, like a scheduled hearing, the successor lawyer may prepare for attending the hearing before any formal notification is initiated.
Other topics covered in the guide include managing potential conflicts, financial matters affected by succession and the preparation of an office procedure manual.
According to the Ohio Supreme Court’s news service, by publishing the guide, the Board of Professional Conduct “joins other state lawyer regulatory bodies nationwide in educating lawyers about the need to adequately plan for death or disability.”
Last year, the board published an ethics guide on client file retention. Upcoming guides will address lawyers leaving law firms and attorney transitions to the bench.