N.M. R. Prof'l. Cond. 16-119
N.M. R. Prof'l. Cond. 16-119
Committee commentary.
General Principles
[l] When a lawyer is unexpectedly unable to practice for an extended period of time, the lawyer's clients, staff, and practice are at risk of significant harm. By taking proactive steps to plan for an unexpected interruption in practice, including implementation of a succession plan, a designating lawyer can avert or mitigate such harm. The goal of succession planning is to protect the interests of the designating lawyer's current clients by creating and implementing a succession plan to take effect when the designating lawyer is unable to practice law due to extended incapacity, or the lawyer's disability or death. The incapacity of the designating lawyer may be temporary or permanent.
[2] The level of sophistication of a succession plan should be determined by each designating lawyer's or law firm's circumstance. For example, as part of the succession plan the designating lawyer can arrange for the assisting lawyer to take steps to promptly distribute the client matters, including any trust funds due to the clients, directly to the clients or to other lawyers chosen by the clients. Alternatively, the designating lawyer may draft the plan such that, with the clients' consent, the assisting lawyer will assume responsibility for the interests of the designating lawyer's clients, subject to the right of the clients to retain a different lawyer or law firm other than the assisting lawyer. Some designating lawyers may choose to designate more than one lawyer or a pool of lawyers as the assisting lawyer. These examples are not meant to be exhaustive or exclusive, but rather to suggest that there is great flexibility allowed by the rule in the crafting of the succession plan.
Determining Incapacity
[3] Incapacity or disability may be determined in many ways, including the following:
(1) by a court with competent jurisdiction;
(2) as defined in the succession plan;
(3) as certified by a competent medical professional; or
(4) as otherwise agreed between the designating lawyer and the assisting lawyer.
Role of Assisting Lawyer
[4] Upon reasonable confirmation of the designating lawyer's extended incapacity, disability, or death, the assisting lawyer should take those steps provided for in the succession plan. If the assisting lawyer forms an attorney-client relationship with the designating lawyer's clients, the assisting lawyer will be subject to the existing rules and duties attendant to the attorney-client relationship. Otherwise, this rule is not intended to create liability between the assisting lawyer and either the clients of the designating lawyer or the designating lawyer, absent intentional, willful, or grossly negligent breach of duties by the assisting lawyer.
Notice to Clients
[5] The designating lawyer must notify his or her clients of the existence of the lawyer's succession plan. Preferably this should be done by including the information in the retainer agreement. The designating lawyer should also inform clients that in the event the client learns of the lawyer's extended incapacity, disability, or death, the client may call the State Bar of New Mexico for further information.
Fees
[6] Attorneys' fees, if any, to be paid to the assisting lawyer shall be in accordance with Rules 16-105, 16-115, and 16-504 NMRA.
Other Resources
[7] Numerous resources are available to assist a designating lawyer in engaging in effective succession planning, including those materials available on the State Bar of New Mexico's website under the tab "for Members: Supreme Court Commissions: Succession and Transition Committee." All lawyers are encouraged to avail themselves of these materials.
[Adopted by Supreme Court Order No. 21-8300-029, effective for registration statements 5 submitted under Rule 24-102.1 NMRA on or after October 1, 2022.]