Executive Director’s Message by Karen A. Gould Succession Planning Benefi ts Your Clients and Your Profession The Virginia State Bar Discipline Department is increasingly encountering situations in which law-yers have died or are otherwise unable to continue their representation of clients. Sometimes these situations in-volve personal crises: health, fi nancial or otherwise. Unfortunately, and sadly, lawyer suicides do occur, leaving matters pending. Virginia is not alone in this regard. These same situations are occurring in other states and, as a result, many regulatory bars now have succession planning tools for their members. These are not mandatory rules requiring an exit strategy from the practice of law, but rather rules that require a designation of a succes-sor to take over an attorney’s fi les who will notify the clients and assist them in securing replacement counsel in the event the lawyer is incapacitated. The VSB Standing Committee on Lawyer Discipline will be studying suc-cession planning this year to determine whether it should recommend such a rule for adoption to Council, the bar’s governing body, and the Supreme Court of Virginia. The issue from the client’s per-spective is simple: When a client hires a lawyer, the expectation is that the lawyer will fi nish the representation. If a lawyer is unable to do so, because he or she becomes incapacitated or re-tires, what happens to a client’s matter if the lawyer does not have a plan in place to protect the client? If the lawyer is a solo or small fi rm practitioner, isn’t it the lawyer’s duty to have such a plan in place? Comment [5] to Virginia Rule of Professional Conduct 1.3 states: “A lawyer should plan for client protec-tion in the event of the lawyer’s death, disability, impairment, or incapac-ity. The plan should be in writing and should designate a responsible attorney capable of making, and who has agreed to make, arrangements for the protection of client interests in the event of the lawyer’s death, impair-ment, or incapacity.” (Emphasis add-ed.) In addition, Rule of Professional Conduct 1.1 states that “[a] lawyer shall provide competent representa-tion to a client.” Competent represen-tation should include a plan to fi nish the representation, even in the event of death, disability, or incapacity. Because client confi dentiality may have been a concern regarding this type of planning in the past, the Supreme Court of Virginia amend-ed Rule of Professional Conduct 1.6, effective January 1, 2004, to add subparagraph (4) to paragraph 1.6 (b), which provides: “(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal... (4) Such infor-mation reasonably necessary to protect a client’s interests in the event of the representing lawyer’s death, disability, incapacity or incompetence….” This rule allows the designated successor to have access to confi dential information of clients represented by the deceased or impaired lawyer. The VSB urges all solo and small fi rm lawyers to have a contingency plan in place to protect your clients’ interests in the event of the lawyer’s death, disability, incapacity or in-competence. A VSB webpage entitled: “Planning Ahead: Protecting Your Client’s Interests in the Event of Your Disability or Death” 1 has a plethora of suggestions for you to use to protect your clients (www.vsb.org/site/ publications/planning-ahead). There are step-by-step plans to create a spe-cial power of attorney, an agreement with another lawyer regarding your law practice, and a last will and testa-ment provision to appoint an executor for the practice. Downloadable forms are available at the end of the webpage. If a lawyer has no arrangements for someone to take over the fi les, the Virginia State Bar may have to utilize Va. Code § 54.1-3900.01 to seek the appointment of a receiver by a circuit court judge to take control of and inventory the lawyer’s practice, and to take the necessary actions directed by the statute to protect the clients’ interests. If an attorney has a contin-gency plan in place, the appointment of a receiver and the resulting costs to the VSB can be avoided. Receivership costs to the VSB can be quite high, impacting the Bar’s budget in a costly and negative manner. For example, the VSB receivership budget from July 1, 2018, to June 30, 2019, was $225,000. As of July 1, 2019, there are currently fi ve open receiver-ships. A sixth receivership was closed in early June 2019. One complicated receivership has incurred $101,924.33 in costs to date and is expected to incur more before it is closed. Don’t put your clients or your family in the position of having no idea how to recover from your death, disability or incapacity. Please plan ahead. Endnotes: 1 Many thanks to the VSB’s Ethics Department for its work on the sugges-tions and resources provided on this webpage. 10 VIRGINIA LAWYER | August 2019 | Vol. 68 www.vsb.org