WHEREAS, the failure of attorneys to plan for client protection in the event of an emergency is an issue that the Philadelphia Bar Association knows creates serious problems for clients, the attorney’s loved ones, and the bench and bar alike; and

WHEREAS, despite the ubiquitous reality of this risk, the Pennsylvania Rules of Professional Conduct (the “Rules”) do not expressly mandate emergency planning by attorneys; and

WHEREAS, updates to the Rules are necessary to mandate emergency planning to protect client interests in the event of an attorney’s death, disability, a sudden emergency, or other unexpected event; and

WHEREAS, pursuant to a Notice of Proposed Rulemaking published in the Pennsylvania Bulletin on March 2, 2024 (54 Pa. B. 1041), the Disciplinary Board proposed that the Supreme Court add new Rule 1.20 (the “Rule”) to the Pennsylvania Rules of Professional Conduct, and an addition to Disciplinary Board Rule § 87.7; and

WHEREAS, the new Rule proposed by the Disciplinary Board would mandate each individual lawyer in private practice have a specified succession plan, irrespective of whether their law firm already has succession plans, and require the lawyer’s succession plan include at a minimum: (1) the identity of the lawyer or law firm designated to carry out the terms of the succession plan (known as the ''assisting lawyer''); (2) the location of information necessary to access the designating lawyer's current list of active clients, client files, and other client information including computer and other relevant passwords; and (3) information on the designating lawyer's trust and operating accounts and corresponding records; and

WHEREAS, the Philadelphia Bar Association agrees with the Report and Recommendation of the Pennsylvania Bar Association’s Legal Ethics and Professional Responsibility Committee which has been adopted by the Pennsylvania Bar Association that the “one size fits all” solution proposed by the Disciplinary Board is problematic, overly specific, and would result in a disparate burden on small firms and solo practitioners, while not meaningfully protecting client interests overall; and

WHEREAS, the Philadelphia Bar Association supports the Report and Recommendation of the Pennsylvania Bar Association’s Legal Ethics and Professional Responsibility Committee in full which recommends the Rule be amended, inter alia, to:

• Distinguish between “Planned Succession or Retirement” and “Emergency Planning”;
• Encourage “Planned Succession or Retirement,” and mandate “Emergency Planning”;
• Avoid a “one size fits all” mandate for Emergency Planning recognizing the disparate impact of such a mandate on solo practitioners, smaller firms, attorneys in smaller counties, and Pennsylvania lawyers, even solo practitioners, with national and international practices;
• Implement a Rule of Disciplinary Enforcement in the Disability Section that would allow a Petition to be filed with a President Judge in the event of death, disability, a sudden emergency, or other unexpected event to request a stay for not less than 30 days to allow for the transition of clients to a new attorney, and that courts be encouraged to grant such Petitions;
• Provide suggested changes to Rule of Professional Conduct 1.6(f) and Comment 28 to that Rule;
• Provide suggested language for a new Rule of Professional Conduct 1.20, which includes the ability of Bar Associations and Courts to assist lawyers in Emergency Planning; and

WHEREAS, the Philadelphia Bar Association further recommends that the Rule recognize that it is sufficient for a law firm to have a plan for emergency client protection that covers all lawyers employed by the firm.

NOW THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association opposes the Rule and addition in their current forms and urges the Disciplinary Board to make changes to proposed new Rule 1.20 and Board Rule § 87.7 consistent with the recommendations above, and publish revised proposed rules in a Pennsylvania Bulletin notice inviting comments for a period no less than for an original proposed rulemaking before approving a recommendation to the Supreme Court; and, should the proposal be approved in its current form by the Disciplinary Board, urge that the Pennsylvania Supreme Court reject the proposal.

BE IT FURTHER RESOLVED that the Chancellor or the Chancellor’s designee shall communicate the position of this Association to the members of the Disciplinary Board, the Supreme Court of Pennsylvania, the legal community, the media and the public, and to take such other action in furtherance of this resolution as may be deemed necessary to effectuate these resolutions.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: June 17, 2024