By Daniel J. Siegel
A new proposed Rule of Professional Conduct, if adopted, will mandate that every practicing attorney have a succession plan. New Rule of Professional Conduct 1.20, released for comment on March 4, 2024, is a dramatic change in practice and promises to bring clarity to situations that have been problematic for many years.
The Disciplinary Board of the Supreme Court of Pennsylvania (the “Board”'), which issued the Rule, will take public comment until May 1, 2024. It will then consider the comments and determine whether changes to the proposed Rule are necessary and could release revisions, adopt the new Rule, or choose to take no action. However, some version of the Rule will likely be adopted, making Pennsylvania one of the few states in the country with a disciplinary rule mandating succession planning.
At its core, the Rule will require that every active lawyer in private practice in Pennsylvania have a written succession plan, either alone or as part of a law firm plan, specifying the steps to be taken in the event of the designating lawyer's extended incapacity from practicing law, or the designating lawyer's disability or death.
Minimum requirements of the succession plan: The succession plan should include the following elements: (1) the identity of the lawyer or law firm designated to carry out the terms of the succession plan (the ''assisting lawyer''); (2) the location of information necessary to access the designating lawyer's current list of active clients, client files, and other client information including computer and other relevant passwords; and (3) information on the designating lawyer's trust and operating accounts and corresponding records.
The designating lawyer must notify the assisting lawyer of, and the assisting lawyer must consent to, the designation as an assisting lawyer in writing and the document must be signed by the designating lawyer and the assisting lawyer, or by electronic communication acknowledged by both the designating lawyer and the assisting lawyer. Designating lawyers must also notify their clients of the existence of the succession plan.
Liability of the assisting lawyer: The rule is not intended to create liability between the assisting lawyer and the clients of the designating lawyer, but rather, any such liability is determined by the terms of the agreement between the designating lawyer and the assisting lawyer. If the assisting lawyer forms an attorney-client relationship with the designating lawyer's clients, the assisting lawyer will be subject to the existing rules and duties attendant to the attorney-client relationship.
Commentary and guidance on the rule: The commentary following the rule text provides guidance to practitioners on implementing a succession plan tailored to the lawyer's particular circumstances and offers examples to demonstrate that there can be flexibility in crafting the plan. The commentary also gives guidance to lawyers who practice in firm settings that include other Pennsylvania-admitted lawyers in good standing, that they may designate the firm as the successor. It also reminds lawyers of the obligation to notify clients of the succession plan, preferably by including the information in the engagement or retainer agreement.
Proposed revision to the Disciplinary Board Rule: A revision to the Disciplinary Board Rules would permit the Office of Disciplinary Counsel to ask respondent-attorneys about their compliance with the new rule as part of the process of sending a DB-7 Letter (Request for Statement of Respondent's Position) during ODC's investigation of a matter, as well as request that the respondent-attorney produce the succession plan. This proposed rule change allows Disciplinary Counsel to discuss succession planning requirements with a respondent-attorney and allows for an educational opportunity.
Five takeaways from the document:
The document provides the following key information:
1. The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending amendments to the Rules of Professional Conduct and Disciplinary Board Rules and Procedures to require lawyers in private practice to maintain a written succession plan.
2. The proposed Rule 1.20 would mandate that every active lawyer in private practice in Pennsylvania have a written succession plan specifying the steps to be taken in the event of extended incapacity, disability, or death.
3. The succession plan should include the identity of the assisting lawyer or law firm, the location of necessary information, and details about trust and operating accounts.
4. The designating lawyer must notify the assisting lawyer and obtain their written consent, as well as inform clients of the existence of the succession plan.
5. The proposed amendment also allows the Office of Disciplinary Counsel to inquire about compliance with the succession planning rule during investigations and request the production of the succession plan.
The need for succession planning is well-documented. When attorneys have not had one, the results have often been severe and prejudicial to clients. For example, cases have been dismissed, and clients have not had access to important information. The onus is greater upon solo lawyers than others, but, in practice, those are often the situations with the most need.
We will have to see what feedback is received and if the final Rule changes, but it is safe to say the Disciplinary Board has placed the issue firmly in the minds of all practicing attorneys.
Daniel J. Siegel, a member of the Board of The Philadelphia Lawyer, is the principal of the Law Offices of Daniel J. Siegel, LLC, and chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility. He provides ethical, techno-ethical, and disciplinary guidance and representation, as well as appellate, writing, and trial preparation services to other attorneys. He can be reached at dan@danieljsiegel.com.
