Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 38

by Mark Bassingthwaighte, Esq.

Succession Planning Really Isn’t Optional
(Particularly for the Solo Attorney)
At ALPS, be it from RISC visits, on applications for insurance, or at CLE events we
continue to find that a significant number
of solo practitioners have yet to take the
step of creating a succession plan. When
working with these attorneys our message
is always the same, if no plan is in place,
now is the time. You really don’t want to
leave the headache of having to deal with
stacks of closed files to an unsuspecting
non-lawyer spouse, and yes, such calls continue to come in. Always remember that
someone paid for the production of every
file you have in your possession and that
someone has an interest in their file. We
all know that client property cannot be destroyed whenever an attorney feels like doing so; but of course, non-lawyer spouses
aren’t bound by our rules, and it happens
because they don’t know what else to do.
Heaven forbid that post attorney death
and after a grieving spouse has had all the
old files destroyed, a certain file is needed
to properly defend against a claim of malpractice. Making matters worse, it turns

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out that there is no insurance in place to
cover the fallout of the claim because no
one knew they had to timely contact the
malpractice carrier in order to purchase tail
coverage after the attorney passed. The
end result is that the deceased attorney’s
estate may now not be what everyone was
counting on it being. The failure to plan can
end badly; but wait, there’s even more.
Rule 1.3 of the ABA Model Rules of Professional Conduct addresses diligence. The
rule reads, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Most attorneys, if not all,
are well aware of this rule. As lawyers, we
are to act with commitment, dedication,
and where appropriate even zealous advocacy. Our workloads are to be reasonable
so that all matters can be resolved competently. Procrastination is an enemy to
be avoided at all costs; for it has led and
will continue to lead to malpractice claims
if and when clients are ever harmed as a result. In the end we are all to strive to deliver
our services in a professional, competent,

THE VERMONT BAR JOURNAL • SPRING 2014

and timely fashion. Yet our obligations do
not end here. There is an obligation to prevent neglect of a client matter post attorney death or disability.
In 2002 the comments to ABA Model
Rule 1.3 were amended with the following
language. Comment 5 now states, “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 if there
is a need for immediate protective action.”
Given all that I have seen and experienced
over my years with ALPS, I personally have
trouble coming up with a set of circumstances where I would feel comfortable
saying no such plan would be required for
a solo. The only question for me is how to
get there.
The most important aspect of planning
for your death or disability is in the desig-

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