Are California lawyers required to have a succession plan, and what duties does an assisting attorney take on?
State Bar of California COPRAC Formal Opinion 2024-209: Succession Planning
Short answer: The opinion concludes that California has no rule expressly mandating a succession plan, but the combined duties of competence, diligence, communication, withdrawal, safekeeping client property, and supervision require every lawyer to assess whether a plan is needed and, where that assessment points to one, to take reasonable steps to develop one.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion concludes that no single California rule explicitly requires a lawyer to adopt a succession plan, but the combined duties of competence (Rule 1.1), diligence (Rule 1.3), communication (Rule 1.4), avoiding foreseeable prejudice on termination (Rule 1.16(d)), safekeeping client funds and property (Rule 1.15), and managerial responsibility (Rule 5.1) impose a duty to take reasonable steps to protect client interests in the event of a lawyer's interruption or cessation of practice. Per the opinion, the duty applies to all lawyers regardless of firm size, and the underlying analysis is fact-specific: the factors the committee identifies are firm size, practice area coverage, nature of the practice, the lawyer's age, and the lawyer's overall health.
The opinion analyzes three scenarios. In Scenario 1, a 30-year sole practitioner with no backup access to calendar, emails, files, or accounts was hospitalized for a month and missed court appearances and discovery deadlines, lost a pending settlement that the offer expired on, could not release IOLTA funds, and could not transfer files. The opinion holds that this conduct breached the duties of competence, diligence, communication, and Rule 1.16's prejudice-avoidance duty because, given firm size and preexisting health issues, the lawyer should have determined a succession plan was needed and arranged for another lawyer or trusted individual to have access to the firm's records in the event of an emergency.
In Scenario 2, the opinion addresses the duties that arise when a lawyer agrees to act as an "assisting attorney" for a colleague's succession plan. The committee declines to opine on every factor that may create an implied attorney-client relationship between the assisting attorney and the predecessor lawyer's clients, but identifies clear communication about the assisting attorney's role as "essential to avoid creating an implied attorney-client relationship where none is intended." Before assuming any representation, the opinion holds the assisting attorney must run conflict checks under Rules 1.7, 1.9, and 1.18, and must satisfy Rule 1.1's competence requirement; in an emergency, the assisting attorney may invoke Rule 1.1(d) to act outside their ordinary skill provided the action is "reasonably necessary in the circumstances."
In Scenario 3, the opinion holds that a managing partner of a multi-office firm has obligations under Rule 5.1(a) to make reasonable efforts to establish internal measures so the firm's lawyers comply with the rules, and that those measures include handling the unexpected unavailability of any lawyer at the firm. The opinion notes that the scenario's facts (a geographically isolated 70-year-old in a specialized field with limited firm-internal backup) heighten the analysis but applies the same Rule 5.1 framework that would apply to any lawyer at the firm.
In practice
Under this opinion, conduct involving a California lawyer who practices without any plan for foreseeable interruption exposes the lawyer to breach of the duties of competence, diligence, communication, and 1.16(d) when an interruption actually occurs and client matters go unhandled. The opinion identifies the assessment of whether a succession plan is needed as itself an obligation; the factors the committee lists are firm size, practice area, age, and health. Where the assessment points to a plan, the opinion holds the lawyer must take "reasonable steps" to develop one.
For an assisting attorney, the opinion identifies four threshold steps before assuming any representation: a conflict check under Rules 1.7, 1.9, and 1.18; satisfying competence under Rule 1.1 (with the Rule 1.1(c) referral option and Rule 1.1(d) emergency allowance available); clear communication with the predecessor's clients about whether the role is administrative or representational to avoid an implied attorney-client relationship; and maintaining confidentiality of information obtained while assisting.
Common questions
Q: Does California require a written succession plan?
A: Per the opinion, no single California rule explicitly requires one. The opinion concludes the combined duties of competence (Rule 1.1), diligence (Rule 1.3), and communication (Rule 1.4) require an assessment of whether a plan is necessary, and where the assessment points to one, "reasonable steps" to develop it.
Q: Does the duty apply only to solos and small firms, or to large firms too?
A: The opinion states the duty "applies to all lawyers, regardless of firm size." Scenario 3 walks through Rule 5.1(a) obligations of the managing partner of a ten-office firm with respect to a 70-year-old lawyer practicing remotely in a specialized field with limited firm-internal backup.
Q: What must an "assisting attorney" do before stepping in for a colleague?
A: The opinion identifies four duties: run conflict checks under Rules 1.7, 1.9, and 1.18 before assuming any representation; confirm competence under Rule 1.1 (with the Rule 1.1(c) referral option and Rule 1.1(d) emergency allowance available); communicate clearly with the predecessor lawyer's clients about whether the role is administrative or representational, to avoid an implied attorney-client relationship; and maintain confidentiality of information obtained while assisting.
Q: If I am unexpectedly hospitalized and miss deadlines, is that itself a rules violation?
A: Scenario 1 holds that a sole practitioner with no backup access to calendar, emails, files, or accounts breached the duties of competence, diligence, and communication because, given firm size and preexisting health issues, a succession plan was required. The opinion frames the breach as the failure to recognize the need for a plan, not the medical event itself.
Q: How does the opinion treat California's Rule 1.3 versus the ABA Model Rule 1.3 Comment [5]?
A: The opinion notes that California's Rule 1.3 does not contain a version of ABA Model Rule 1.3 Comment [5] (which addresses sole-practitioner succession explicitly). The committee treats Comment [5] as instructive comparative guidance rather than binding text; it points to Arizona, Florida, Iowa, Maine, and Michigan as examples of jurisdictions that require a succession plan outside Rule 1.3.
Q: Does the opinion address sale-of-practice issues?
A: Only in passing. The opinion notes that if an assisting-attorney arrangement also involves an agreement to buy the predecessor lawyer's practice upon death, Rule 1.17 (sale of a law practice) applies. The opinion does not analyze Rule 1.17 in detail.
Background and rules framework
The opinion interprets the California Rules of Professional Conduct, specifically Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.7, 1.9, and 1.18 (conflicts: current, former, and prospective clients), 1.15 (safekeeping client funds and property), 1.16 (withdrawal, including 1.16(d)'s duty to avoid reasonably foreseeable prejudice), 1.17 (sale of a law practice), and 5.1 (responsibilities of managerial and supervisory lawyers). The opinion also cites Business and Professions Code sections 6068(e)(1) (duty to maintain confidences) and section 6185 (court-appointed practice administrator when no assisting attorney is in place). The opinion notes California's Rule 1.3 lacks the ABA Model Rule 1.3 Comment [5] dealing with sole-practitioner succession and treats the ABA comment as comparative guidance.
Citations and references
Rules of Professional Conduct:
- California RPC 1.1 (competence)
- California RPC 1.3 (diligence)
- California RPC 1.4 (communication)
- California RPC 1.7, 1.9, 1.18 (conflicts: current, former, prospective clients)
- California RPC 1.15 (safekeeping client funds and property)
- California RPC 1.16, including 1.16(d) (withdrawal and avoiding prejudice)
- California RPC 1.17 (sale of a law practice)
- California RPC 5.1 (managerial and supervisory responsibilities)
- ABA Model Rule 1.3, Comment [5] (sole-practitioner succession), cited as comparative authority
Statutes:
- Cal. Bus. & Prof. Code § 6068, subd. (e)(1) (duty to maintain confidences)
- Cal. Bus. & Prof. Code § 6068, subd. (m) (duty to inform clients of significant developments)
- Cal. Bus. & Prof. Code §§ 6147, 6148 (fee agreements)
- Cal. Bus. & Prof. Code §§ 6180 et seq., 6185, 6190 et seq. (court-appointed practice administrator)
- Cal. Prob. Code §§ 2468, 9764, 17200, subd. (b)(22) & (23) (estate plan references to law practice)
Cases:
- Santa Clara County Counsel Attys. Assn v. Woodside, 7 Cal.4th 525 (Cal. 1994), cited for the duty of loyalty.
- Lister v. State Bar, 51 Cal.3d 1117 (Cal. 1990), cited on implied attorney-client relationships.
- Davis v. State Bar, 33 Cal.3d 231 (Cal. 1983), cited on implied attorney-client relationships.
- Streit v. Covington & Crowe, 82 Cal.App.4th 441 (Cal. Ct. App. 2000), cited on implied attorney-client relationships.
Other opinions cited:
- ABA Formal Opinion 92-369 (1992): sole-practitioner plan to safeguard client interests in the event of death.
- California COPRAC Formal Opinion 2021-206: cited on maintaining the privacy of the lawyer who is the subject of communications about an impairment or unavailability.
- Philadelphia Bar Assoc. Prof. Guidance Committee Opinion 2014-100: role of an assisting attorney.
See also
No sibling opinions yet indexed.
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/CAL_2024-209_Succession_Planning.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2024-209
ISSUE: What are a lawyer's ethical obligations to engage in succession planning?
DIGEST: Lawyers have an ethical obligation to protect their clients' interests
throughout the representation, including in the event they are unable to
continue practicing law on a temporary or permanent basis. The duty
applies to all lawyers, regardless of firm size. To meet these obligations,
lawyers must engage in an assessment of whether their professional
responsibility obligations, including, but not limited to, the duties of
competence, diligence, and communication, require a succession plan.
Factors to be considered in this assessment include, but are not limited
to, firm size, practice area coverage, the nature of the practice, and the
lawyer's age and health. Depending on this assessment, a lawyer may be
required to take reasonable steps to plan for an interruption or cessation
of practice, including engaging in formal succession planning, since a
lawyer is unable to anticipate an inability to practice law.
AUTHORITIES
INTERPRETED: Rules 1.1, 1.3, 1.4, 1.7, 1.9, 1.15, 1.16, 1.18, and 5.1 of the Rules of
Professional Conduct of the State Bar of California.
Business and Professions Code sections 6068, subdivision (e)(1), and
6185.
INTRODUCTION
There is a great risk of prejudice to clients when an unexpected event occurs that renders their
lawyer unable to continue practicing law, or a lawyer's skills and ability gradually decline until
the lawyer is unable to competently represent their clients. This risk applies to all lawyers,
including sole practitioners and lawyers from small firms, who often act as both lawyers and
law firm managers, as well as lawyers of any age practicing at a law firm of any size, who could
be impacted by an unexpected event rendering them unable to practice law.
While no single California rule explicitly requires that a lawyer adopt a succession plan, together
the duties of competence, diligence, and communication impose a duty on lawyers to take
reasonable steps to protect the clients' interests during the course of the representation,
including in the event of a lawyer's sudden inability to continue to practice law. A failure to
properly plan or prepare for both anticipated and unexpected departures from a lawyer's
practice may expose clients to significant damage or prejudice.
Succession planning for law firms and lawyers encompasses a variety of issues. At its heart,
assessing whether a lawyer needs a succession plan forces a lawyer to consider what will
happen to their clients if the lawyer is unable to continue to practice law and to develop a
strategy for how such an event will be handled, and by whom, to protect clients' interests. In
many instances, the results of this assessment will require a lawyer to engage in succession
planning, which includes arranging in advance for how client matters will be timely handled in
the lawyer's absence, how client files will be protected and returned to clients, and how funds
and property belonging to clients will be returned to them, among other things.
Succession plans also provide a roadmap allowing for the gradual transition of client work and
management roles over a period of time to preserve long-term client relationships, and can
create opportunities for emerging talent and an orderly transition of new leadership. However,
law firms also need to consider succession planning as an important client protective measure
and make reasonable efforts to ensure that the firm has policies and procedures in place
designed to protect clients if a lawyer at the firm becomes unable to continue practicing law.
STATEMENT OF FACTS
-
Lawyer A is a sole practitioner who has a general litigation practice consisting mostly of
representing plaintiffs in personal injury matters. Lawyer A has been a sole practitioner
for almost 30 years and shares office space with a group of other sole practitioners and
small firms. Lawyer A has no dedicated support staff, instead sharing a group of rotating
assistants and paralegals with other colleagues to assist with pleadings and court filings.
Lawyer A handles the firm's management and operations exclusively; no one else has
access to Lawyer A's calendar, emails, client files, law firm bank accounts, or financial
information. Lawyer A seldom takes vacations, and when they do, Lawyer A simply puts
an out-of-office message on their email and voicemail and serves a Notice of
Unavailability on opposing counsel.Recently, Lawyer A had some health complications and was hospitalized for over a
month. Eventually, Lawyer A's suitemates learned of Lawyer A's condition and
instructed some of the shared support staff to advise any of Lawyer A's clients who
showed up at the office that Lawyer A was in the hospital. But no one had access to
client lists, files, emails, voicemail messages, or any financial information, so the shared
staff could not assist Lawyer A's clients any further. When Lawyer A returned to the
office, some of the issues that emerged during their hospitalization included: missed
court appearances and discovery deadlines, motion deadlines had passed, failure to
finalize a settlement agreement for a client that rendered the offer withdrawn, failure
to respond to client demands to receive much-needed settlement funds held in Lawyer
A's IOLTA account, and failure to respond to client's request for a file transfer to new
counsel. -
Lawyer B is a sole practitioner who was asked by Lawyer C to be an assisting attorney
as part of Lawyer C's succession plan. Lawyer B and Lawyer C are both sole practitioners
who represent clients in the same general jurisdictions and practice trust and estates
planning and litigation. Lawyer C has been practicing for about 20 years longer than
Lawyer B, so Lawyer C may also be interested in retiring soon. Lawyer B wants to know
what ethical obligations are implicated by agreeing to be an Assisting Attorney for
Lawyer C. -
Law Firm Manager is the managing partner of Law Firm, a large firm with ten offices
throughout California. Law Firm Manager is reviewing Law Firm's policies and
procedures with outside ethics counsel to determine how Law Firm could engage in
succession planning. Law Firm Manager is particularly concerned with one of Law Firm's
smaller offices, a 5-person satellite office out of which Lawyer D is based, although
Lawyer D works primarily remotely. Lawyer D is 70 years old and is only one of two
lawyers at the entire firm who practices in a particular specialized field; no other lawyer
in Law Firm's 5-person satellite office practices in that specialized field.DISCUSSION AND ANALYSIS
I. Ethical Duties Implicated for All Lawyers and Law Firms
A lawyer who does not properly plan or prepare for both anticipated and unexpected
departures from the practice of law may expose clients to significant damage or prejudice. The
duties of competence, diligence, and communication obligate lawyers to take reasonable steps
to protect the clients' interests during the course of the representation. This would include
taking affirmative steps to assess the need for a succession plan in the event of an interruption
or cessation of practice, voluntary or otherwise, particularly for those practicing as sole
practitioners or in a small firm setting. (See ABA Formal Opn. No. 92-369 (1992) p. 2 ["As a
precaution to safeguard client interests, the sole practitioner should have a plan in place that
will ensure insofar as is reasonably practicable that client matters will not be neglected in the
event of the sole practitioner's death."].) Factors to be considered in such an assessment
include, but are not limited to, the lawyer's firm size, their practice area, the number of other
lawyers in their firm in that practice area, and the nature of their practice, as well as age,
proximity to retirement, and overall health.
A. Duty of Competence
Lawyers must provide legal services with "competence," which means that they must "apply
the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for
the performance of such service." (Rule 1.1(b).) "Attorney competence includes anticipating
events or circumstances that may adversely affect client representation, including the gradual
or sudden inability to provide competent legal services. By planning ahead for the orderly
disposition of their law practice, a lawyer can ensure that clients will continue to be
represented without significant interruption in the event the lawyer dies or becomes
incapacitated." (Tuft et al, Cal. Practice Guide: Professional Responsibility (The Rutter Group
2019) Ch. 6-A Sources of Duty of Competence [citing ABA Model Rule 1.3, Cmt. [5]].)
B. Duty of Diligence
Rule 1.3(a) provides that a "lawyer shall not intentionally, repeatedly, recklessly or with gross
negligence fail to act with reasonable diligence in representing a client." "Reasonable diligence"
means that "a lawyer acts with commitment and dedication to the interests of the client and
does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer." (Rule
1.3(b).) It is reasonable to conclude that "reasonable diligence," as defined, includes making
sure that client interests are protected in the event of a lawyer's inability or unavailability to
practice law, and failure to do so may be viewed as reckless or gross negligence. Important
client matters, such as court dates, statutes of limitations, or document filings, would be
neglected, and harm or prejudice to clients may result if the lawyer does not plan for these
types of events.
C. Duty of Loyalty
The duty of loyalty requires that the lawyer act in the client's interest and to "protect [the]
client in every possible way." (Santa Clara County Counsel Attys. Assn v. Woodside (1994) 7
Cal.4th 525, 548 [28 Cal.Rptr.2d 617].) The American Bar Association's Standing Committee on
Ethics and Professional Responsibility concluded that a lawyer should "have a plan in place
which could protect clients' interests in the event of the lawyer's death," based, in part, on a
lawyer's fiduciary duties to inform clients when closing a law practice or partnership
dissolution. (See ABA Formal Opn. No. 92-369 (1992) pp. 23.)
D. Duty to Communicate
A lawyer's duty to communicate with clients includes the duty to "keep the client reasonably
informed about significant developments relating to the representation" and to "explain a
matter to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation." (Rule 1.4(a)(3) and 1.4(b).) If a lawyer knows that they may be
unable to practice law for an extended period of time, that is likely a significant development
relating to the representation, the lawyer's ability to represent the client goes to the heart of
the attorney-client relationship. Thus, the lawyer would have a duty to communicate
circumstances like imminent retirement or unavailability to practice law if material to the
representation.
For the same reasons, the duty to communicate is also implicated when a lawyer unexpectedly
becomes temporarily or permanently unable to practice law. Ideally, either another lawyer at
the law firm or an assisting attorney should communicate with clients about the impact this
event will have on their matter and how things can and should be handled going forward.
E. Duty to Avoid Reasonably Foreseeable Prejudice when Terminating a
Representation
Rule 1.16(d) requires a lawyer to take "reasonable steps to avoid reasonably foreseeable
prejudice to the rights of the client, such as giving the client sufficient notice to permit the
client to retain other counsel" in the event the lawyer terminates a client representation. This
rule highlights the very real concern about avoiding prejudice to a client when a lawyer abruptly
ends a representation, which may result in insufficient time for the client to find replacement
counsel and missed deadlines, among other issues. A lawyer's death or incapacity will
effectively terminate the attorney-client relationship and a lawyer should plan for that event,
knowing that such an event may be reasonably foreseeable in certain circumstances may
require the lawyer to take reasonable steps to prevent this type of prejudice, such as
developing a succession plan. (See rule 1.16(a)(3) & (b)(8).) Arranging for an assisting attorney
or another designated lawyer at the law firm to step in and aid the lawyer's clients helps to
safeguard client interests.
F. Safekeeping Funds and Property of Clients
Lawyers have a duty to safeguard client funds and property under rule 1.15. If a lawyer is
unable to continue practicing law permanently or for an extended period of time, a client may
be unable to retrieve funds and property without significant delay and as they are entitled to
under rule 1.15. Such a delay is likely to prejudice the client's ability to access funds or
property, or to find new counsel who will take on the client's matter.
G. Duty to Supervise and Ensure Rule Compliance
Rule 5.1 requires managerial and supervisory lawyers to make reasonable efforts to ensure the
law firm has measures in place for all lawyers to comply with the rules. This includes
implementing measures necessary to comply with the duty to manage the law firm and
supervise attorneys. Rule 5.1 is typically understood to be relevant to the supervision of junior
associates; however, the duty to supervise may also become necessary for any lawyer if there is
a declining ability to competently represent their clients or to comply with their other ethical
obligations. (See Cal. Formal Ethics Opn. No. 2021-206.)
II. Analysis of Factual Scenarios
A. Scenario 1: Failure to Plan Results in Ethical Breaches
In Scenario 1, Lawyer A did not have a plan in place to protect clients in the event
circumstances rendered Lawyer A unable to practice law. As a result, Lawyer A's health
complications caused them to breach certain duties to clients and prejudice their clients'
interests, including rules 1.1 [competence], 1.3 [diligence], 1.4 [communication], and 1.16
[withdrawal]. (Compare ABA Formal Opn. No. 92-369 (1992), p. 2 ["As a precaution to
safeguard client interests, the sole practitioner should have a plan in place that will ensure
insofar as is reasonably practicable that client matters will not be neglected in the event of the
sole practitioner's death."].)
Lawyer A typically handled being out of the office by setting up an out-of-office message on
their email and voicemail and serving a Notice of Unavailability on opposing counsel. However,
Lawyer A's typical practice did not account for unexpected absences, like Lawyer A's recent
medical event. As a result, no clients or opposing counsel were notified of Lawyer A's condition
or whereabouts, deadlines were missed, and client obligations were ignored, violating Lawyer
A's duty of competence and duty to communicate to their clients.
Here, based on the firm size, nature of the practice, and preexisting health issues, Lawyer A
should have determined that there was a need for a succession plan and arranged for another
lawyer or trusted individual to have access to Lawyer A's calendar, emails, client files, and
banking or financial information in the event of an emergency. Alternatively, Lawyer A could
have prepared a list of important passwords and access codes to be shared by a close family
member with another lawyer only in the event of an emergency. Ultimately, Lawyer A
breached their obligations to their clients, including the duties of competence, diligence, and
communication, by failing to recognize the need for a succession plan.
There are many approaches to succession planning that could help protect the clients' interests
in the event Lawyer A was unable to practice law temporarily or permanently. Here, Lawyer A
had no plan in place for this type of event, which exposed clients to considerable risk of harm.
B. Scenario 2: Ethical Duties Implicated for Assisting Lawyers
In Scenario 2, Lawyer B was asked to take on the role of an assisting attorney as part of Lawyer
C's succession plan and wants to understand what ethical duties are implicated.
1. The Existence of an Attorney-Client Relationship Between Lawyer B and
Lawyer C's Clients
If Lawyer B agrees to be Lawyer C's assisting attorney, and depending on the unexpected event,
Lawyer B may need to access Lawyer C's calendar; review upcoming deadlines; communicate
with clients, the court, and opposing counsel about Lawyer C; and obtain any necessary
extensions. Some issues for Lawyer C and Lawyer B to consider when developing the succession
plan include:
(1) How and when will the succession plan be implemented?
(2) What are Lawyer C and Lawyer B's responsibilities, and what if Lawyer C is
unavailable or deceased when the succession plan must be implemented?
(3) What advisors, support, or other resources will Lawyer B need, and are those
resources in place?
Even if there is a succession plan between Lawyer B and C, Lawyer B may not automatically
establish an attorney-client relationship with Lawyer C's clients. Before undertaking an
attorney-client relationship with any of Lawyer C's clients, Lawyer B must undertake a conflict
check and comply with rules 1.7 [conflicts: current clients], 1.9 [conflicts: former clients], and
1.18 [conflicts: prospective clients]. (See section II.B.3, infra.) Under most circumstances, there
should be a written fee agreement between Lawyer B and Lawyer C's clients if Lawyer B will
represent these clients going forward. (See Bus. & Prof. Code, §§ 6147 & 6148.) However, there
may be circumstances in which the attorney-client relationship can be implied from the
conduct of the parties. (See Lister v. State Bar (1990) 51 Cal.3d 1117 [275 Cal.Rptr. 802]; Davis
v. State Bar (1983) 33 Cal.3d 231 [188 Cal.Rptr. 441]; Streit v. Covington & Crowe (2000) 82
Cal.App.4th 441 [98 Cal.Rptr.2d 193].) Whether an attorney-client relationship would form
between Lawyer B and Lawyer C's clients would depend in large part on what arrangements
were made between Lawyer B, Lawyer C, and Lawyer C's clients in advance on this issue, what
each client's understanding of Lawyer B's role is, and if any client would choose to have Lawyer
B represent them going forward, among other factors. (See Tuft et al, Cal. Practice Guide:
Professional Responsibility (The Rutter Group 2019) Ch. 3-B Formation of Relationship, § 3:43,
for discussion of factors used to determine attorney-client relationship generally.)
Here, we do not opine on all the factors that may be used to determine whether an implied
attorney-client relationship may be formed between Lawyer B and Lawyer C's clients under
certain circumstances. However, clear communication with Lawyer C's clients about exactly
what role Lawyer B will be undertaking, whether purely administrative or as counsel on a
temporary or permanent basis, is essential to avoid creating an implied attorney-client
relationship where none is intended. In the event of a death or permanent incapacity, Lawyer
B's actions are usually dictated by whether Lawyer B has been asked to close Lawyer C's
practice or if there is an agreement that Lawyer B will continue to operate the law firm and
service Lawyer C's clients subject to each client's consent. Clear communication about Lawyer
B's role is will be critical for helping clients understand the scope of their relationship with
Lawyer B during this time to assist clients in making informed decisions about their future
representation.
2. Duty of Competence
Before considering whether Lawyer B could permanently take on the representation of any of
Lawyer C's clients, Lawyer B would need to have the necessary competence to handle the
representation. (Rule 1.1.) Specifically, Lawyer B would need to have the skill, support, time,
and resources necessary to handle each matter. (Ibid.)
Here, because Lawyer B and Lawyer C both represent clients in the same general jurisdictions
and practice trust and estates planning and litigation, Lawyer B is a good match to assist Lawyer
C under these circumstances because Lawyer B will likely have the requisite competence to
take on the representations. If not, Lawyer B can either acquire sufficient knowledge before
performance is required, refer the matter to a competent lawyer (rule 1.1(c)), or continue to
assist in the termination of the representation on behalf of Lawyer C. However, in an
emergency, Lawyer B is permitted to "give advice or assistance in a matter in which the lawyer
does not have the skill ordinarily required" as long as it is limited to what is "reasonably
necessary in the circumstances." (Rule 1.1(d).)
3. Conflicts of Interest and Confidentiality
Before assuming the representation of any of Lawyer C's clients on a temporary or permanent
basis, Lawyer B must also analyze whether any potential representations would implicate
conflicts with respect to any of Lawyer B's current, former, or prospective clients. (Rules 1.7,
1.9, and 1.18.) If it was anticipated that Lawyer B would take over Lawyer C's practice, it might
be reasonable to try to clear conflicts in advance of any event that would necessitate Lawyer C
being unable to practice law. Otherwise, as part of Lawyer C's succession plan, Lawyer C could
maintain a list of active clients with contact information and provide Lawyer B with information
on how to access this list and any related conflicts database if it becomes necessary to do so.
Even if Lawyer B's role as assisting attorney is limited to administratively helping close
Lawyer C's office, Lawyer B will nonetheless be interacting with Lawyer C's clients and may
need to obtain information related to those clients and the clients' matters as part of this
process. In doing so, Lawyer B should be mindful of the duties of confidentiality to Lawyer C's
clients, and how acquiring information that is protected by Business and Professions Code
section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter may also
give rise to conflicts of interest for Lawyer B.
4. Duty to Communicate
If Lawyer C is unable to continue practicing law permanently or for an extended period of time,
that information is likely a "significant development relating to the representation" of which
Lawyer C's clients must be kept "reasonably informed." (Rule 1.4(a)(3).) While this rule
implicates Lawyer C's duties to clients, Lawyer B, as the assisting attorney, has agreed to assist
Lawyer C in fulfilling obligations to clients in the event that Lawyer C is unable to do so.
To facilitate Lawyer B's role, Lawyer C's succession plan should include specific details on how
to contact clients and access current deadlines, calendars, law firm bank accounts, client trust
accounts, financial records (including trust account written ledgers and account journals), and
client files and property. Any other information that Lawyer C can provide to Lawyer B about
the law firm and how it is organized will likely further assist Lawyer B in protecting the clients'
interests.
5. Other Duties
The duty to safeguard client funds and property under rule 1.15 and the duty to avoid
reasonably foreseeable prejudice when terminating a representation under rule 1.16(d) are
also duties that belong to Lawyer C. Still, Lawyer B will be instrumental in assisting with fulfilling
these obligations. Again, providing Lawyer B with proper access to banking and financial
information, client contact information, and client files will be essential to fulfilling these
obligations.
C. Scenario 3: Law Firm's Duty to Plan
In Scenario 3, Law Firm Manager must "make reasonable efforts" to ensure that Law Firm has
implemented "measures giving reasonable assurance" that all lawyers in Law Firm comply with
the rules and the State Bar Act. (Rule 5.1(a).) Rule 5.1(a) "requires lawyers with managerial
authority within a law firm to make reasonable efforts to establish internal policies and
procedures designed" for the firm's lawyers to comply with the Rules of Professional Conduct
and the State Bar Act. (Rule 5.1, Cmt. [1].)
Here, Law Firm Manager's review of Law Firm's policies and procedures to determine whether
they adequately protect the clients' interests in the event any lawyer at the firm becomes
unable to continue practicing law is an important step to comply with rule 5.1.
The scenario involving Lawyer D presents some heightened risks for Law Firm and its clients
given that Lawyer D is isolated both geographically and in terms of Lawyer D's practice area.
Lawyer D is also a 70-year-old, which places Lawyer D at a higher risk for developing health-
related complications. It is not known whether the other lawyer who practices in the same field
as Lawyer D regularly coordinates and connects with Lawyer D on client matters or if anyone
else at Law Firm does, or can, supervise Lawyer D's work. Regular supervision of Law Firm's
lawyers to assess compliance with duties of competence and diligence, regardless of the
lawyer's age, is also an important aspect of rule 5.1.
Some of the issues that a managerial or supervisory lawyer should consider and analyze with
respect to Lawyer D, as well as all of its lawyers, are:
(1) If necessary, could someone else at Law Firm handle the clients and matters that
the lawyer is handling?
(2) Could Law Firm access the entirety of that lawyer's client files and other needed
data?
(3) How would Law Firm communicate unexpected events and Law Firm's plan for
handling client matters to clients as soon as possible?
(4) What is a reasonable approach to supervising the work of Lawyer D or other
lawyers at Law Firm who are similarly situated to determine whether the lawyer
maintains sufficient competence as required by rule 1.1?
If Law Firm does not have a plan for addressing such circumstances, the managerial or
supervisory lawyer must assess whether one is ethically required to protect client interests.
Whether Law Firm has implemented policies giving reasonable assurance that Law Firm has
complied with the rules protecting clients in these instances in accordance with the
requirements for managing and supervisorial lawyers under Rule 5.1 will likely be a fact-
intensive inquiry.
CONCLUSION
Succession planning is an important consideration to ensure that lawyers fulfill their ethical
obligations when they are unable to continue practicing law, either temporarily or
permanently. An attorney must assess whether a succession plan is necessary to protect their
client's interests and prevent the risk of harm or prejudice to clients that may otherwise occur
when a lawyer is unable to practice law. Based on this evaluation, a lawyer may need to take
reasonable measures to prepare for a disruption or termination of their legal practice, including
undertaking formal succession planning.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of
the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of
California, its Board of Trustees, any persons, or tribunals charged with regulatory
responsibilities, or any licensee of the State Bar.