Texas Bar Journal • January 2024
Cessation of Practice and Succession Planning
What lawyers need to know to prepare for an exit or the unexpected.
Written by Dean Schaffer
Two trends fuel the State Bar of Texas’ emphasis on succession planning: (1) As a body, bar membership is aging; and (2) Demand persists to address situations in which lawyers have died or are “otherwise absent” from practice.
THE GRAYING OF THE PROFESSION
The chart above compares demographics by age for bar classes 1995 and 2022. The data shows significant gains in all age groups, except for lawyers aged 30 and under. Based on years of accrued data, it’s fair to say the gateway for the youngest of lawyers has narrowed. Senior lawyers are on the climb. Unlike 1995, thousands of lawyers now practice well into their seventies. The bar reached a watershed event in 2022, when, for the first time, the number of lawyers aged over 75 approximated the number aged 30 and under. If age is a factor and you’re thinking about transitions, you can benefit from a succession plan. Whether you are moving up or out, the bar assembled resources that attorneys of any age can use in the succession planning process. Materials are available online at texasbar.com/succession.
CESSATION OF PRACTICE PROCEDURE
Cessation of practice is regulated at Part 13 of the Texas Rules of Disciplinary Procedure, or TRDP. In extraordinary circumstances—in which active matters are pending, no lawyer is handling matters with client consent, and clients are at risk—any interested person may request that a court assume jurisdiction over the lawyer’s practice. The petition must be verified and filed in district court, or, if the attorney has died, in statutory probate court. Venue rests in the countyof the attorney’s residence.1 If court supervision proves necessary, the court assumes jurisdiction and appoints one or more Texas-licensed attorneys to serve as custodians of the practice. The appointment order delineates the powers and responsibilities of the custodians. Court-appointed custodians are protected from liability, except for intentional misconduct and gross negligence.2
Under TRDP 13.04, lawyers may enter agreements for custodianship, appointing their own custodian-attorneys, with the same limitation of liability. However, if the custodian steps (or stumbles) into representation of a client, “the lawyer’s role as custodian terminates, and the lawyer’s actions are subject to the Texas Disciplinary Rules of Professional Conduct regarding the client-lawyer relationship.3
For additional guidance, access the primer on cessation of practice procedure at https://blog.texasbarpractice.com/law-practice- management/cessation-of-practice-procedure#wrapping-up.
DEAN SCHAFFER administers the State Bar’s cessation of practice program and assists the State Bar Law Practice Management Committee. He joined bar staff in 2017 after 29 years in general litigation, trials, appeals, and outside general counseling.