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Effective October 1, 2022, Rule 16-119, NMRA (available HERE) requires that all actively licensed attorneys in New Mexico have a written succession plan, either individually or as part of a law firm or agency/entity plan.
Rule 16-119 NMRA applies to all attorneys actively licensed in New Mexico, including those in private practice, whether a solo practitioner or practicing with others, those who work for a Federal, State, or local public agency, those who work as in-house counsel, those who are licensed in New Mexico but live in another state and rarely, if ever, represent a New Mexico based client, and those who are “retired” and not taking on new matter but who, nevertheless, continue to keep their New Mexico law license active.
Rule 16-119 NMRA requires the plan to be in writing and that it include the identity of the assisting lawyer, and information on how the assisting lawyer accesses current client case lists, client files, computer and other passwords, and bank account and billing information, including IOLTA records and information.
A public agency/entity and an in-house lawyer might only represent one client and/or not have traditional client lists, case files, IOLTAs, etc. But the lawyers in such agencies and companies are still working for someone/something, and still have active matters on which they are the lead attorney. Those lawyers likely keep information on projects/matters on which they are working, and likely have paper and electronic files. Presumably the organization, agency/entity already has or can draft written guidelines/policies to use if a lawyer voluntarily leaves employment. This is no different; just add incapacity and death to the existing plan. Someone, whether the CEO, the District Attorney, the Chief Deputy, the District Defender, etc. will gather the files or existing matters on which the lawyer was working, redistribute the work, access computers with IT’s help, and otherwise make sure the departing lawyer’s matters are handled going forward. At license renewal time, the lawyers at the entity/agency should be able to certify that they comply with the Rule because they are part of a “law firm” plan, and they can identify the person responsible for the plan as “the DA” or “the Chief Deputy” or the “Head Admin Officer” or whomever coordinates the response when a lawyer leaves.
Yes. Comment 2 to Rule 16-119 provides that “[s]ome designating lawyers may choose to designate more than one lawyer or a pool of lawyers as the assisting lawyer.”
Comment 4 to Rule 16-119 provides that “[u]pon 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.”
Comment 2 to Rule 16-119 provides that “[t]he 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. . . . 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.”
Whether or how a lawyer should address issues associated with the lawyer’s IOLTA in the event of incapacity or death is complex and involves the Rules of Professional Conduct, the Rules Governing Discipline (specifically Rule 17-204), the Rules pertaining to IOLTA, and the lawyer’s and/or law firm’s own individual circumstances. Rule 16-119 is designed to require that, among other things, at a minimum all lawyers who have an IOLTA maintain complete and up-to-date trust account records and information concerning the location of the trust account so that the Assisting Lawyer can take whatever steps are appropriate and allowed to ultimately account for and return unearned client funds to the clients. Best practices would include lawyers talking with their bank about how IOLTAs are maintained by the bank and what their bank expects if someone other than an authorized signer seeks access to IOLTA funds in the event a lawyer is incapacitated or deceased.
You must notify both the Assisting Lawyer, who must agree in writing or by electronic communication to serve in that role, and your clients.
Specifically, Rule 16-119(B) provides that “[t]he designating lawyer must notify the assisting lawyer of, and the assisting lawyer must consent to, the designation as an assisting lawyer in a writing signed by the designating lawyer and the assisting lawyer, or by electronic communication acknowledged by both the designating lawyer and the assisting lawyer.
Rule 16-119(B) further provides that “[l]awyers must also notify their clients of the existence of the succession plan.” Comment 5 to the Rule states that “[p]referably this [notice] 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.”
Best practice would also be for you to talk with your bank(s), particularly if you intend to use any type of power-of-attorney for access to accounts if you become incapacitated, and for you and your Assisting Attorney to both speak with your respective professional liability insurance carriers to discuss any and all coverage issues for you and your Assisting Attorney(s).
You are not required to file your succession plan. Annually, you will be required to certify compliance with the Rule on your annual registration statement. You should also be able to provide a copy of your plan to the New Mexico Disciplinary Board if requested.