May 25 , 2017

With no partner, associate, executor or formal plan to close a lawyer’s practice, the ARDC has been required to step in and seek appointment as receiver of a lawyer’s practice under Supreme Court Rule 776. Since 2012, the ARDC has acted as receiver in 31 instances and has assisted many others in helping wind down a lawyer’s practice. As more lawyers reach retirement age, the risks to clients and stress on ARDC resources will only increase. Only 16% of sole practitioners have a written succession plan in place in the event of their death, illness, disability or unexpected absence from the practice of law. In addition, more than 40% of solos do not carry malpractice insurance. These statistics, combined with the fact that sole practitioners make up nearly 30% of lawyers in private practice, present a concern about protecting clients’ interests in the event a lawyer unexpectedly dies or becomes disabled. In response, the ARDC is taking a proactive approach and recently produced the 30-minute, CLE-accredited webcast, Succession Planning, that will encourage more sole practitioners to create a succession plan which designates a successor lawyer to step in to wind down the practice without the need of a court appointment.

What is a succession plan? A succession plan involves having written instructions designating another lawyer to temporarily assume the responsibilities of a lawyer’s practice and notify clients in the event that the lawyer has become disabled or died. If a lawyer is temporarily disabled, preserving the viability of the practice pending resolution of the disability may be in the lawyer’s economic interest. If the lawyer is permanently disabled or deceased, planning will assist in transfer of the practice to another lawyer. Having a succession plan will effect a smooth transition for clients following death or disability and ease the stress on a lawyer’s family and staff. Having a succession plan in place is essential to every lawyer’s practice to protect client matters and ensure the orderly transition of the practice.

Although not specifically required under the Illinois Rules of Professional Conduct, the Rules contemplate such a plan as inherent in a lawyer’s ethical obligation to act with reasonable diligence and promptness in representing clients, as stated in Comment 5 to Rule 1.3:

To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, 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.