Alvin Toffler observed that “change is the process by which the future invades our lives. The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn, and relearn.” Succession planning at many law firms often follows this course. There are certain demographic realities rippling across American society that will force change upon lawyers and their firms. They will need to unlearn and relearn specific crucial methods for maintaining success.

I work with several law firm leaders struggling to prepare for this inevitable outcome. How will they transition accountability for important client relationships? When will their next generation of lawyers replace the revenue lost when highly productive partners retire or die? Where will the new leaders of the law firm come from? None of these questions is necessarily more important than the others. However, all must be addressed by law firms.

This article is most relevant for law firms in which the lawyers want the firm and its clients to transition from one generation to the next. Often, senior lawyers at these firms do not want to completely retire; they might just want to reduce participating in daily activities. Large firms often have a mandatory retirement age and succession requirements already in place. Small firms and sole practitioners might simply plan to fold when the lawyers retire from their practices. Succession planning is important and relevant for all lawyers but is most pressing when generational demographics, firm economics, and client needs dictate immediate action.

Future Shock: Why Should We Care?

Recent U.S. census data show that in 2012, an average of 4.6 adults turned age 65 each minute. By 2020, that will be 8 per minute. We also know that in 2012, more than 50 percent of the available work force was over age 40. By 2020, more than 50 percent of the available work force will be over age 55. This means that the available work force between ages 35 and 55 will decline by 5.7 percent. Law firms and lawyers in the United States are aging rapidly. In general, many law firms face a potential 20 percent decrease in the number of partner/client relationships.

Succession planning work usually begins with examining a firm’s specific demographic trends in conjunction with revenues generated by each individual attorney. We frequently see a potential 20 to 40 percent decline in revenue within the next five years as older partners retire, become disabled, or die.

Despite these common trends and facts, few law firms have formal succession plans in place. Many senior partners do not want to retire or transition client matters to other lawyers. And, many lawyers regard succession planning as an awkward and difficult subject to deal with.

Knowledge Succession

Succession planning requires a transfer of knowledge to younger lawyers who are the firm’s future. During their careers, lawyers create, use, and store vast amounts of information. Examples include details about key clients, the core values of the firm’s culture, the firm’s practices, and important historical details. Without effective knowledge transfer, research may be duplicated and documents created from scratch when models already exist. This is a missed opportunity not only to improve efficiency but also to create the advantage of using best practices. Many clients expect such knowledge transfer to already be in place and are not willing to pay for duplicate work product created in an inefficient manner.

Often law firms may appear to be a collection of individual practices. However, success can increase exponentially if there is a culture of willingly sharing information. At many law firms, older lawyers leave without transferring valuable information that includes both knowledge and experience. The value might be lost if effective methods to transfer knowledge are not expanded beyond the occasional one-on-one teaching moment.

Mentoring for Knowledge Transfer

Having an active mentoring program in place is an integral piece of an effective succession plan. Mentoring has always played a prominent role in the legal profession. There was a time when many lawyers welcomed opportunities to have a leisurely lunch and share their experiences with a colleague or to invite a new lawyer to occupy the second chair during a trial, strictly for educational purposes. Lawyers are more likely to succeed when they learn from the experiences of others. Unfortunately, these learning opportunities have been dramatically reduced by the economic pressures now dominating the practice of law. The often conflicting demands of work and external commitments also result in even fewer opportunities for getting together.

Today, mentoring is more about active learning. Mentors do not merely convey knowledge and information. They hand down the true art and science of the practice of law. Without a mentor, such knowledge often can only be acquired through trial and error. Creating effective learning through mentoring requires a dynamic and two-way relationship that involves critical reflection and full involvement by both participants. The mentee needs to be proactive, helping direct the relationship and specifically define what is expected. The mentor often functions more as a facilitator, suggesting opportunities for the other lawyer to take hold of on his or her own. The mentor should always be prepared to honestly evaluate the mentee’s plans and encourage him or her to set “stretch goals” that push the mentee outside his or her comfort zone.

Both the mentee and the mentor must put significant effort into the relationship. This means scheduled meetings are a priority. It also means that both parties come prepared to discuss specific topics. In addition, the mentor should be available to consult with the mentee as needed. Mentor and mentee no longer must be geographically close, thanks to improved communication methods such as email and Skype. However, face-to-face mentoring is more effective than long-distance mentoring.

Client Succession

Effective succession planning requires law firms to generate new client relationships and revenue to replace what is lost with the departure of a productive partner. This is true no matter the size of your firm. The best place to look for revenue growth is among existing clients, because you already have a relationship with them. They know you and your firm, they like working with you and the firm, and above all, they trust your advice and your judgment. Consider creating teams of lawyers from the various practice areas within the firm to serve clients and to cross-sell their services to existing clients.

Managing client succession can be a challenge. Many law firm partners rarely fear that one of their colleagues will do a poor job for one of their clients. However, they do fear losing control of the client relationship. Every client has specific and often unique traits, which the client’s lawyer has taken great effort to address as their relationship has developed. The risk of interference with this personal relationship and the business that flows from it when another lawyer is introduced to the client can be problematic. Successful client succession activities, therefore, require a high degree of both detail and trust.

Client Development is a Contact Sport

Creating new client relationships is a process requiring focus and consistent follow through. Younger lawyers will need to make time for face-to-face client development activities. This may require training and personal coaching. They will need to regularly schedule breakfast, lunch, coffee, and social events with potential referral sources, friends, contacts, and business associates. These activities should be part of every lawyer’s calendar each week. In this way, client development will become a habit.

When asked about the best method for getting new clients, successful lawyers offer a variety of answers, including marketing, networking, public service, referrals, and just doing good work. Every lawyer should find the method that works best for him or her. Successful lawyers also know that client development and growth is not an accident. These lawyers make the choice to position themselves with potential clients and have learned how to ask for their business.

Carefully assess the financial contribution to the firm of a retiring partner, including personal productivity and marketing ability. If the lawyer played a significant part in the firm’s business development, there will be an obvious effect if the partner does not maintain a relationship with the firm. It may even be necessary to work out an of-counsel arrangement, at least temporarily, for the specific purpose of transferring that lawyer’s relationships to other lawyers at the law firm.

Client succession can be accomplished with team selling, expanded client development activities, and even the managed transition of a specific lawyer’s practice. Regardless of the methods used, a law firm creates a competitive advantage by proactively encouraging the succession of clients from older to younger lawyers.

The Ethical Duty of Succession Planning

Although no one wants to think about dying or becoming disabled to a point at which working is impossible, planning for such a possibility is an ethical requirement for lawyers. Even in the most comprehensive and orderly succession plan, certain specific obligations of the lawyer must be addressed.

In 1992, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 92-369. This opinion states, in part, “The death of a sole practitioner could have serious effects on the sole practitioner’s clients.… 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. As a precaution to safeguard client interests, the sole practitioner should have a plan in place that will ensure insofar as is reasonably practicable that client matters will not be neglected in the event of the sole practitioner’s death” (emphasis added).

When a lawyer is part of a law firm, there is an assumption that the other lawyers in the firm will step in to handle these matters. Therefore, creating a succession plan becomes an ethical obligation to safeguard client interests.

In Wisconsin, for example, SCR 20:1.1, Competence, states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The duty of competent representation suggests, at a minimum, that the attorney prepare for the possibility of his or her death or disability by ensuring that someone will step in to avert the client prejudice that could occur if telephones go unanswered, mail goes unopened, or deadlines pass without attention. 

Further guidance comes from SCR 20:1.3, Diligence: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Commentary 4 explains that “[u]nless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters for a client.” Taken literally, to “carry through to conclusion all matters for a client,” the attorney should anticipate and address clients’ needs upon his or her death or disability. Commentary 5 now makes it very clear that “[t]o prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a succession plan in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

Within SCR 20:1.6, Confidentiality of Information, commentary 16 provides that “[a] lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” This means that arrangements should be made before an attorney’s death or disability to create a succession plan to keep client information confidential. 

At any law firm, the firm policy manual or employee training process should address confidentiality during emergency situations. If not addressed, in the perhaps challenging period that would follow the death or disability of the attorney, client confidentiality might be breached by staff members who believe that the circumstances are extraordinary and that it might be permissible to disclose client information in a way contrary to the normally established procedures.

The ethical obligations of succession planning for lawyers are extended to nonlawyers by SCR 20:5.3 (b), Responsibilities Regarding Non-lawyer Assistants. Commentary 2 confirms that “lawyers with managerial authority within a law firm [are required] to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that non-lawyers in the firm will act in a way compatible with the Rules of Professional Conduct.”

Leadership Succession

Effective succession planning usually requires developing future leaders within the law firm. Leadership development gives law firms a competitive advantage. This is because successful law firm leaders typically also are the role models of the firm’s cultural values. Every law firm has a unique culture created by the shared values of the firm’s lawyers. These shared values are demonstrated through behaviors that are deemed appropriate and acceptable for creating success at the law firm. The values then become internalized, part of daily routines. The values also help define the expectations of those lawyers who choose to embrace the firm’s unique culture.

Law firm leaders need specific skills to be truly effective in their role. These leaders must understand their firm’s finances and must be strategic thinkers to address increased competition. In other words, law firm leaders must understand their markets and their firm’s place in them. Effective law firm leaders also need excellent interpersonal and communication skills, including both the courage to make tough decisions and the patience to try and reach consensus. In addition, effective law firm leaders have a keen sense of humor. This is significant because lawyers frequently take themselves too seriously, and creating a positive culture often requires emphasizing the positive things happening all around us.

Creating a succession plan does not prepare any lawyer to assume a management role within a law firm. Only experience makes lawyers ready for their future contribution. Depending on the structure of the specific law firm, there are different ways to transition management responsibilities. Look beyond a potential successor’s legal expertise and client roster to determine whether that person is able to create a vision and inspire others. The best candidates often are those who bring a variety of skills to the table.

Assigning specific tasks to future leaders will test their ability to organize and handle projects. Next-generation firm leaders should understand and be involved in any financial decisions for the firm, such as renewing the premises lease and managing the line of credit and compensation of lawyers and nonlawyer employees. Involving young lawyers in recruiting other lawyers to the firm allows them to make a contribution. If the firm has a formal mentoring program, require participation by future leaders. As a mentor, the lawyer becomes responsible for organizing and coordinating the work of others as well as assisting in their assessment and formal evaluation.

Obstacles to Getting Started

Most lawyers recognize the need for effective succession planning. However, getting started is a common problem. Stanford University professors Jeffrey Pfeffer and Robert I. Sutton examined this dilemma in their book, The Knowing-Doing Gap: How Smart Companies Turn Knowledge Into Action. They suggest that organizations frequently fall into a knowing-doing gap because doing something actually requires doing something. It means tackling the hard work of making something happen. It is much easier and safer to sit around and have intellectual conversations and never actually implement anything. Lawyers and law firms have a natural propensity to favor analysis over action. Specific issues often emerge that need to be overcome to close the knowing-doing gap at law firms, including the following:

The Straight-Talk Trap. Lawyers are trained to critically analyze everything around them. In meetings on any subject, the more critical the lawyer is, the smarter he or she may appear to be. Any initiative, including succession planning, can be picked apart. Therefore, the planning process may best be started by a committee or managing partner, often working with an outside resource. Together, these lawyers gather the research, design options, and are accountable for executing the plan. Attempting to create an effective succession plan by consensus frequently waters down any plan to the lowest common denominator.

Substituting Memory for Thinking. Lawyers are trained to value precedent, and if the firm has been successful over the years, implementing any change can be difficult. The usual phrases are “If it’s not broken, don’t fix it” and “We’ve always done it this way.” Often, the subject of succession planning is difficult to address. It may force people to consider uncomfortable options or decisions. Therefore, initial attempts to discuss the subject might be rejected.

Fear May Prevent Acting on Knowledge. Lawyers are also often risk adverse. Everyone knows they must do something about succession but many would prefer not to address that reality. The first step is to analyze the law firm’s demographics and anticipate potential retirements in the coming three to five years. Identify critical client relationships, law firm leaders, and staff members who require immediate succession planning. Determine which specialties are core business areas, and include any effect the retirement of staff supporting these areas will have on the firm.

Internal Competition May Turn Friends into Enemies. Lawyers are most often independent-minded high achievers. They value autonomy. Effective succession planning may change the leadership dynamics at the firm and among the lawyers. Objective formulas and billable hour quotas may measure only hard data and not illustrate the complete picture. This can be compounded by the firm’s reward structure and compensation system. Individual value is often based on revenue generation and billable hours, with little consideration given for the extra time and effort involved in knowledge transfer, client development, and management leadership. For succession planning to produce positive results, all the lawyers within the firm may have to consider changes to their measurement systems and governance models.

Generational Conflicts

As George Orwell observed, “Each generation imagines itself to be more intelligent than the one that went before it and wiser than the one that comes after it.” Currently there are four generations working together in most law firms. They are commonly referred to as the “Traditionalists,” the “Baby Boomers,” the “Gen-Xers,” and the “Millennials” (or “Gen-Yers”). The boundaries between generations are not specifically defined or rigid, and not every individual follows the same route as others in his or her generation. However, each generation does have in common certain economic, social, political, and demographic events that usually shape the perceptions and values of individuals who experienced them.

Resolving generational conflicts requires recognizing the differences, reconciling shared values, and learning techniques to achieve common goals. The Traditionalists in the firm are expecting written memoranda and direct, specific requests for work that needs to be done. The Baby Boomers do not like to work independently, and they expect to have meetings at any time and any place, including scheduling last-minute events, whether day or night. Gen-Xers value work/life balance and do not want to hear about projects when they are not at work. They prefer not to be called at home and will use technology to handle work and client matters. The Millennials would like no meetings at all. They prefer to communicate using technologies such as voice mail, email, and texting.

Effective succession planning requires overcoming these differences, improving communication, and gaining a deeper understanding of shared values. Traditionalists and Baby Boomers should welcome an opportunity to actively help with and direct knowledge transfer. Both Gen-Xers and Millennials should understand there is nothing wrong with asking for help developing a career. Traditionalists and Baby Boomers could check voice and email messages more frequently and try to respond promptly to requests for information. Gen-Xers and Millennials could switch from instant messaging and emails to face-to-face communication or at least use the phone more.

Traditionalists and Baby Boomers should delegate challenging work as well as boring and routine assignments. This requires extra effort to give timely and useful guidance. Gen Xers should understand this kind of feedback is not instantaneous and may have to be requested. Millennials should accept criticism, avoid excuses, and improve their listening skills.

Diversity for Competitive Advantage

Effective succession planning at law firms must incorporate diversity initiatives for the simple reason that the marketplace in general for clients is becoming increasingly diverse. In 1980, 20 percent of the U.S. population was classified as being part of a minority group. By 2010, that had increased to 33 percent, and by 2040 it will be more than 50 percent. Today women occupy approximately half of all managerial and professional positions in the United States, including 37 percent of management jobs and 60 percent of accounting and auditing roles. They also make up 41 percent of positions with authority to make purchasing decisions.

These demographic statistics illustrate that the client base for many lawyers and law firms is evolving. As women decision makers emerge among clients, their decisions about which lawyers and law firms to retain might follow a gender-based process that male partners might not be aware of. Most women who are senior executives today have experienced sex-based inequity and are sensitized to the subtle signals that go along with it. They bring knowledge of new ways of interacting from their accumulated experience. This will most likely require a deeper understanding by lawyers and their law firms of these gender dynamics and perhaps an adjustment to current and future client relationships.

As law firms address succession planning, they also must incorporate advancement of diverse partners and leaders if they hope to keep pace with changes among the clients they serve. Activities that may once have been considered as pro forma human-resources-department-imposed “sensitivity training” will become a vital business development tool for future success.

Making Succession Planning a Reality

Succession planning is rapidly moving from a strategic objective to a competitive necessity. Firms that have created their own succession plans are more effective when transitioning the management roles within the firm. Key client relationships can also be maintained. These activities allow firms to minimize the dramatic revenue loss that frequently accompanies any transition of productive partners out of the firm.

Commencing the succession planning discussions is difficult. It will require changes and adoption of new paradigms of success. An effective succession plan must include knowledge transfer, client development, and leadership transition as well as competitive adjustments for the market impact of diversity and value migration. However, enlightened trial and error outperforms the planning of flawless intellects. A knowledge advantage means nothing unless the firm also has an action advantage. Lawyers should be proactive and plan now for the inevitable effect of demographics and time on their practices, their clients, and their law firms.