Attorneys face unique challenges when planning their estates that extend beyond typical personal asset considerations. The Rules of Professional Conduct establish ongoing duties to clients that continue even after an attorney's death or incapacity, requiring careful succession planning to protect client interests. As Arizona Ethics Opinion 04-05 notes, attorneys must safeguard client property “with the care required of a professional fiduciary,” an obligation that extends to planning for circumstances where the attorney can no longer personally fulfill these duties.
This article explores the essential components of attorney estate planning, focusing on business succession planning, the role of successor attorneys, ethical handling of files, and malpractice insurance considerations for both firm-affiliated and solo practitioners.
Succession Planning Options
The ethical rules governing attorney conduct, particularly Rules 1.1 (Competence) and 1.3 (Diligence), implicitly require attorneys to ensure client matters won't be neglected in the event of the attorney's death or incapacity. ABA Formal Opinion 92-369 emphasizes that without proper planning, “important client matters, such as court dates, statutes of limitations, or document filings, could be neglected until the clients discover that their lawyer has died.” Several options exist for establishing this succession plan.
For Attorneys Affiliated with a Firm
Attorneys practicing within established firms benefit from existing infrastructure that can absorb ongoing client matters in the event of death or incapacity. Nevertheless, these attorneys should not assume that firm membership alone constitutes adequate succession planning. Law firm partners should review partnership agreement provisions regarding death or incapacity, ensuring these provisions align with their personal estate plans. Buy-sell agreements and valuation methods should be clearly established to avoid disputes between the firm and the deceased partner's estate.
For Solo Practitioners
Solo practitioners face unique challenges in succession planning. They have no built-in succession mechanism and bear complete responsibility for all client matters. As noted in ABA Formal Opinion 92-369, solo practitioners often personally guarantee leases and other obligations, creating potential complications for their estates. Their direct client relationships without institutional support make transition planning especially important to preserve client confidence and continuity of representation.
Arizona Ethics Opinion 04-05 identifies several options for solo practitioners planning for succession. One approach is entering a formal agreement with another attorney to assume responsibility for the practice. This agreement should clearly specify the scope of authority and obligations of the successor attorney. Another option is granting another attorney a contingent power of attorney, which becomes effective only upon incapacity. Some attorneys include provisions in their wills for handling the practice, directing executors to engage qualified counsel to manage the transition. Others make arrangements for someone to seek appointment of a conservator in accordance with state court rules. Arizona Ethics Opinion 04-05 notes that from an ethical perspective, “a lawyer should choose a means that is not only legally effective, but also fair to, and expeditious for, the clients.”
Regardless of the mechanism chosen, the succession plan should be formalized in writing and regularly updated as the practice evolves. The designated successor should be familiar with the practice area and capable of evaluating ongoing matters for time-sensitive issues. The successor should also have a clear understanding of compensation arrangements during the transition period.
Role of the Successor Attorney
Ethics Rules 1.4 (Communication), 1.15 (Safeguarding Property), and 1.16 (Declining or Terminating Representation) establish the framework for a successor attorney's responsibilities. The successor's primary duties include notifying clients, reviewing files for urgent matters, and protecting client property, all while maintaining appropriate confidentiality under Rule 1.6.
For Attorneys Affiliated with a Firm
When an attorney practicing within a firm dies, the firm must designate someone to handle the transition of the deceased attorney's matters. This designee should coordinate with firm management to identify all active matters handled by the deceased attorney. The firm should promptly notify clients of the attorney's death or incapacity, typically through a formal letter that expresses condolences while giving the client the opportunity to continue representation with the firm (assuming there is another attorney able to assist them) or offering the return of their client file.
The designated attorney should have access to the deceased attorney's calendar, deadline tracking systems, and case management software to identify imminent deadlines or court appearances. Attorneys should ensure that their personal notes and work product are organized in a manner consistent with firm protocols, making any transition more manageable for colleagues.
For Solo Practitioners
For solo practitioners, the successor attorney's role is more comprehensive, as they must essentially step into the practice without the support of an existing firm structure. ABA Formal Opinion 92-369 advises that the successor “must review the client files carefully to determine which files need immediate attention; failure to do so would leave the clients in the same position as if their attorney died without any plan to protect their interests.”
The designated successor should have detailed instructions on accessing the office, file systems, practice management software, accounting records, and trust accounts. Solo practitioners should prepare a comprehensive practice dossier containing login credentials for digital systems, contact information for support staff, lease information, utilities, insurance policies, and banking relationships. This dossier should be regularly updated and its location made known to the successor attorney and personal representatives.
Client notification should follow a prepared template letter. The successor must make reasonable efforts to contact all clients promptly, explaining the situation and outlining options for representation going forward. For active matters with imminent deadlines, phone contact may be necessary in addition to formal written notice. The successor should establish a systematic process for file review, prioritizing matters with upcoming statutes of limitations, filing deadlines, or scheduled court appearances.
Handling Client Files and Property
Ethics Rule 1.15 establishes an attorney's obligations regarding client files and property, requiring appropriate safeguarding and eventual return to clients. These obligations continue beyond the attorney's death or incapacity, requiring clear advance planning.
For Attorneys Affiliated with a Firm
Attorneys practicing within firms benefit from established file management systems that can facilitate transitions after death or incapacity. Nevertheless, attorneys affiliated with a law firm should ensure their matters are properly documented in the firm's system with clear file naming conventions and organizational structures. Attorneys located at a firm should document any unique client arrangements or special handling instructions that might not be evident from the standard file.
Firm management should have protocols in place for handling files of deceased attorneys, including procedures for identifying clients with property in the firm's possession. The firm's records retention policy should address how to handle closed files of deceased attorneys, balancing storage costs against potential future needs.
For Solo Practitioners
Solo practitioners must create systems for cataloging and maintaining client files and property. The successor attorney must be able to identify which files are active and which contain client property requiring safekeeping or return. As ABA Formal Opinion 92-369 notes, a lawyer "should not destroy or discard items that clearly or probably belong to the client. Such items include those furnished to the lawyer by or in behalf of the client, and original documents."
Solo practitioners should maintain an updated inventory of active files with clear notations regarding status, upcoming deadlines, and client property held. This inventory should be accessible to the successor attorney and should include information about closed file storage locations. The succession plan should include clear instructions regarding file retention periods and destruction protocols that comply with applicable ethics opinions.
For client funds held in trust accounts, the succession plan must include provisions for proper disposition. The successor attorney will need authority to access trust accounts, which may require advance planning with the financial institution.
Malpractice Insurance Considerations
Legal malpractice insurance operates on a claims-made basis, creating unique considerations for estate planning.
For Attorneys Affiliated with a Firm
Attorneys practicing at established firms should not assume the firm will automatically bear responsibility for malpractice claims following their death or incapacity. Depending on the specific situation, the deceased attorney's estate may still be named in a lawsuit. If there is any concern about the longevity of the firm, securing personal tail coverage—formally known as an extended reporting endorsement (ERE)—becomes essential.
Attorneys affiliated with a firm should review the firm's malpractice policy to understand how death or incapacity of a partner or associate is addressed. Some policies automatically provide a limited extended reporting period for deceased attorneys, while others require affirmative steps to secure this protection. The attorney should document in their estate plan whether the firm's coverage is likely to be sufficient or whether personal tail coverage should be purchased.
For Solo Practitioners
For solo practitioners, tail coverage is a critical component of estate planning. Since many legal malpractice policies operate on a claims-made basis, coverage exists only when a policy is in place both when the alleged error occurs and when the claim is reported. This creates significant vulnerability when an attorney passes away unexpectedly.
Without proper tail coverage, the attorney's estate could remain exposed to potential malpractice claims that could substantially impact heirs and beneficiaries. In Arizona, the statute of limitations for creditors to submit a claim against a deceased person is two years unless potential creditors were properly notified in accordance with Title 14. If a solo practitioner attorney is unable to practice due to accident or inability, the risk is much higher as incapacity can last for many, many years, and he can still be named in a lawsuit. If a solo practitioner attorney is unable to practice due to incapacity, maintaining some sort of tail coverage is essential.
Solo practitioners should consider whether a tail coverage policy makes sense and document clear instructions in their estate plans regarding the acquisition of tail coverage, including the procedure for purchasing an ERE in the name of the estate, funding sources for premiums, and designated individuals responsible for securing this protection. This documentation should be readily accessible to executors, trustees, and family members, as timely action following the attorney's death or incapacity is crucial for maintaining protection. The policy limits on the tail coverage will likely be those that were in place on the last active policy.
Conclusion
Comprehensive estate planning for attorneys requires attention to the unique ethical obligations of the profession that continue beyond death. By developing thorough succession plans, attorneys demonstrate the same care and diligence for their own practices that they provide to clients throughout their careers.
about the author
Sarah Clifford is a shareholder at Gallagher & Kennedy in Phoenix. She advises individuals, families, and business owners with their estate plans to help manage and preserve wealth and assets. Her experience includes probate and trust administration and working with business owners on business succession planning.