Does a Colorado lawyer have an ethical duty to create a succession plan, and what should the plan cover?

Plain-English summary

Opinion 147 addresses a lawyer's ethical obligations, and recommended best practices, for planning ahead for an unexpected event (incapacity, disability, or death) that prevents the lawyer from practicing. The Committee is careful to separate the two: the Rules do not formally call for succession planning, but having a plan "comports with a lawyer's duty of diligence in Colo. RPC 1.3," and Comment [5] to Rule 1.3 expressly provides that, to prevent neglect of client matters on a sole practitioner's death or disability, the duty of diligence may require each sole practitioner to prepare a plan designating another competent lawyer to review files, notify clients, and determine whether immediate protective action is needed. The opinion distinguishes the "planning attorney" who prepares the plan from the "assisting attorney" who carries it out, and it labels many of its recommendations "best practices" that it encourages but that do not themselves establish an ethical duty or legal standard.

The substantive ethical obligations the opinion ties to succession planning flow from existing Rules. Client files must be kept confidential, organized, and (after the event) returned or securely destroyed: the opinion grounds this in Rule 1.6(a)-(c) and 1.9(c), and in Rule 1.16A, which defines a client file, sets a baseline ten-year retention period for private-practice files, and allows earlier destruction on delivery to the client or on signed authorization or proper notice. Client funds and property must be protected through Rule 1.15: quarterly trust-account reconciliation under Rule 1.15C(c), the detailed seven-year recordkeeping requirements of Rule 1.15D, the rule that only a Colorado-licensed lawyer or a person they supervise may sign on a trust account (Rule 1.15C(b)), and the handling of unidentifiable funds under Rule 1.15B(k) (including remittance to COLTAF). The planning attorney's duty to communicate under Rule 1.4(a) supports keeping clients reasonably informed so a transition is smoother.

For the assisting attorney, the opinion explains that once the event occurs the ethical focus shifts to that lawyer: notifying clients, running a conflicts check under Rule 1.7 (with 1.9) before assuming any representation, checking under Rule 4.2 before contacting opposing parties, and complying with Rule 1.5 if retained by a former client of the planning attorney. The opinion notes that designating an assisting attorney in advance lets that lawyer offer to continue the representation without running afoul of the solicitation limits in Rule 7.3, because a prior professional relationship exists. It recommends a written "Agreement to Close Practice" addressing authority, disability determination, trust-account signatory authority, and the assisting attorney's compensation, and it describes the court-supervised inventory-counsel mechanism under C.R.C.P. 244 as a fallback when no formal plan exists.

In practice

Under this opinion, a Colorado lawyer's diligence obligation supports, and for sole practitioners may require, a plan for an unexpected event, but the enforceable content of that obligation comes from the existing Rules the opinion identifies rather than from a freestanding "succession-plan rule." The opinion holds that protecting client interests means keeping client files organized and confidential and returning or destroying them under Rule 1.16A, reconciling and documenting trust funds under Rule 1.15C and 1.15D so an assisting attorney can identify and disburse what is owed, and keeping clients informed under Rule 1.4. It frames the assisting attorney's core duties, conflicts screening under Rules 1.7 and 1.9, compliance with Rule 4.2 and Rule 1.5, as the points where ethical rules bind most directly, and it treats the written Agreement to Close Practice and the use of inventory counsel under C.R.C.P. 244 as the practical vehicles. Many of the opinion's specific steps are expressly identified as encouraged best practices rather than mandatory duties.

Common questions

Q: Do the Colorado Rules require me to have a succession plan?

A: Not formally. The opinion concludes the Rules "do not formally call for succession planning," but that having a plan comports with the duty of diligence in Rule 1.3, and that Comment [5] to Rule 1.3 may require a sole practitioner to prepare such a plan to prevent neglect of client matters.

Q: What client-file rules matter most for a succession plan?

A: Rule 1.16A. The opinion explains it defines the client file, sets a baseline ten-year retention period for private-practice files, and permits earlier destruction if the lawyer delivers the file to the client, obtains signed authorization, or gives proper written notice, all subject to confidentiality duties under Rules 1.6 and 1.9(c).

Q: What must I do about my trust account?

A: The opinion points to Rule 1.15C(c) (reconcile at least quarterly) and Rule 1.15D (keep detailed trust records for seven years) so an assisting attorney can identify owners of funds and make disbursements; it notes only a Colorado-licensed lawyer or a supervised person may be an authorized trust-account signatory under Rule 1.15C(b).

Q: Can the assisting attorney solicit my clients to keep representing them?

A: Yes, where designated in advance. The opinion concludes that because the assisting attorney has a prior professional relationship arising from the plan, offering to continue representation is not barred by the solicitation limits in Rule 7.3, though the client always chooses counsel.

Q: What happens if I never make a plan?

A: The opinion describes the inventory-counsel mechanism in C.R.C.P. 244, under which Attorney Regulation Counsel may seek court appointment of protective counsel to take possession of files and funds, but it notes that mechanism does not cover continuing client representation or administrative wind-up.

Background and rules framework

The opinion interprets Colo. RPC 1.3 (diligence), reading its Comments [1] and [5] as the textual hook for succession planning, together with the family of Rules that govern the underlying duties: Rule 1.16A (client file definition, retention, and destruction), Rule 1.15B, 1.15C, and 1.15D (safekeeping, reconciliation, and recordkeeping of client property and trust accounts), Rule 1.4 (communication), Rule 1.6 and 1.9(c) (confidentiality and former-client duties), Rule 1.7 (conflicts), Rule 4.2 (contact with represented persons), Rule 1.5 (fees), and Rule 7.3 (solicitation). It also relies on Colorado Rule of Civil Procedure 244 for the court-appointed inventory-counsel process and cites ABA Formal Op. 92-369 on a deceased sole practitioner's files.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.3 / Model Rule 1.3 (diligence; Comments [1] and [5])
• Colo. RPC 1.16A (client file definition, retention, and destruction)
• Colo. RPC 1.15B, 1.15C, 1.15D / Model Rule 1.15 (safekeeping property; reconciliation and recordkeeping)
• Colo. RPC 1.4 / Model Rule 1.4 (communication)
• Colo. RPC 1.6 and 1.9(c) / Model Rules 1.6, 1.9 (confidentiality; former clients)
• Colo. RPC 1.7 / Model Rule 1.7 (conflicts of interest)
• Colo. RPC 1.5 / Model Rule 1.5 (fees) and Colo. RPC 7.3 (solicitation)

Court rules:

• C.R.C.P. 244 (appointment and supervision of inventory counsel)
• C.R.C.P. 121 Section 1-26(7) (retention of electronically filed documents)

Other opinions cited:

• ABA Formal Op. 92-369 (1992): disposition of a deceased sole practitioner's client files and property
• CBA Formal Op. 104 (2018): surrender of the file to the client on termination
• CBA Formal Op. 143 (2021): foundations of a fee agreement

See also

• CA COPRAC Op. 2024-209: Succession Planning
• ABA Formal Op. 92-369: Deceased Sole Practitioner's Files
• ABA Formal Op. 482: Ethical Obligations Related to Disasters

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/2023-12-13%20Succession%20Planning%20Opinion_FINAL.pdf