PROPOSED FORMAL OPINION INTERIM NO. 20-0002
(Succession Planning)
PUBLIC COMMENT FORM
 
All information submitted is regarded as public record.

Deadline to submit comment is: June 7, 2024, 11:59 p.m.

Background

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with applicable State Bar policy and procedure, the committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).

On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which went into effect on November 1, 2018. Information about the new rules is available here. Proposed Formal Opinion Interim No. 20-0002 interprets the new Rules of Professional Conduct.

Discussion/Proposal

Proposed Formal Opinion Interim No. 20-0002 considers:
What are a lawyer’s ethical obligations to engage in succession planning?
The opinion interprets 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 and Business and Professions Code sections 6068, subdivision (e)(1) and 6185.

The opinion digest states: The risk of prejudice to clients exists when their lawyer is unable to continue practicing law, either temporarily or permanently. This risk applies to all lawyers, including sole practitioners and lawyers from small firms, as well as lawyers practicing at larger firms. The duties of competence and diligence, among others, obligate lawyers to take reasonable steps to protect the clients’ interests during the course of the representation. This includes taking affirmative steps to plan for an interruption or cessation of practice, voluntary, planned, or otherwise. Lawyers who have active caseloads have an ethical obligation to engage in an assessment of whether, based on firm size and nature of their practice, their professional responsibility obligations require a succession plan. Further, depending on that assessment, a lawyer may be required to engage in succession planning, since a lawyer is unable to anticipate an inability to practice law.

At its May 12, 2023, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No. 20-0002 for a 90-day public comment distribution.

Subsequently, at its December 1, 2023, meeting, and in accordance with their procedures, COPRAC revised the opinion in response to public comment and tentatively approved Proposed Formal Opinion Interim No. 20-0002 for a second, 90-day public comment distribution.
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