Get your law firm’s succession planning out of your lizard brain

Succession planning for your law practice or firm is one of the most significant business planning decisions you can make. If we told you that as a lawyer you would be making huge decisions about your practice with your lawyer lizard brain - that most primitive part of your brain stem that is dominated by instinct or impulse, most often fear, rather than rational thought - you likely would be skeptical. But that's how many lawyers analyze succession planning.

It's not really a surprise why. For busy lawyers, client work comes first. Business planning for your practice, even if it's important, often comes last. And it's not that easy to dedicate significant time to planning for something that you may be conflicted about. Succession planning - for your retirement, death, illness, or incapacity - naturally brings up uncomfortable issues. It also raises issues related to lawyer identity and control. The fear of losing those things can be paralyzing to the analysis.

Lawyer v. Lizard. As lawyers, we tend to think of ourselves, first and foremost, as rational. When we analyze client problems, at least, we bring to bear the discipline and objectivity of dispassionate analysis. That clear thinking allows for ordered solutions for our clients. But when we analyze our own problems the story can be quite different. Many lawyers have difficulty applying that same rational discipline and process to their own business.

Our experience during Covid has only made this worse: it scrambled many long-held law firm assumptions, pushing many lawyers into fear reactions. Firms used to assume that attorneys have to be in the office every day to be productive and successful. They relied on traditional staid business plans that were imagined more than a hundred years ago. Firms also used to focus just on their practices, not on managing their businesses. The winds of change started many years ago, but after several years of intense risks and colossal business disruptions wrought - and accelerated by Covid - many law firms are relying on their lizard brains when challenging business decisions that should instead be processed rationally.

Decisions and Revisions. Many lawyers struggle with succession planning, viewing it as an existential threat or an identity crisis. If being a lawyer is your identity, then the idea of stopping that would, understandably, feel something like dying. The emotions connected to succession planning are important and shouldn't be ignored. Just don't start and end with the emotions.

Start at the Beginning. We follow what you might call the Lewis Carroll approach to law firm succession planning: begin at the beginning, and go on till you come to the end, then stop.

The first step is to recognize that the Rules of Professional Conduct require you to have a succession plan in place. Rules 1.1, 1.3, 1.4, 1.16(d), and Rule 5.1, to name just a few, individually and collectively require lawyers to protect their clients' interests by, among other things, having in place a suitable succession plan for what happens if they are unable, or even unwilling, to practice law.

This is significant because, as lawyers, we're rule-followers. More to the point, any lawyer's rational mind would agree that succession planning is not just a matter of preference, it's required.

The hard part comes next.

Make a Rational Plan. Making a plan should happen in your lawyer brain, not your lizard brain. You move from one to the other by starting with some simple, straightforward questions. It's important to remember that you don't have to solve all of the issues in one day. Your firm wasn't built in a day and your succession plan probably won't be either. But you do have to ground your starting questions in a practical context. This is what activates the lawyer brain and ensures you won't be acting, or failing to act, because of fear.

As with so many law firm business planning questions, it's best to start with what your clients need. If you were unable to practice law tomorrow, what would happen to your clients' matters? What should happen to ensure that clients' interests are protected? Just those two questions will start you on your way to rational analysis.

Incapacity isn't the only type of succession planning that law firm partners need to consider, of course. It's unlikely that you're going to get hit by a bus, hopefully. It is likely that some day you will want or need to retire from the practice of law. Again, start with some simple rational questions. If you want to retire from your firm, what is the best way to go about this? You want to ensure that clients' interests are protected and also maximize the value of your partnership interest. Ensure that your transition to retirement is smooth. Iron out the details related to the timing of your transition and make contingency plans if circumstances change.

This is what a lawyer would recommend for a client analyzing a problem. It's how we manage our clients' issues successfully. You can apply these same skills to your own succession planning, even though it's scary and overwhelming. The lizard brain is useful for many things, but solving complex problems isn't one of them.