2022 SBNM Member Appreciation Week

Welcome to our first ever Member Appreciation Week!

We are excited to bring you a week long series of programming, resources, prizes and free CLE. Monday-Thursday will be electronic newsletters delivered directly to your inbox and each day will have a different theme.

For Membership Monday, we want to focus on you, our members!

We exist because of and for you so we wanted to turn the spotlight on you and provide some professional development resources, prizes and features.

In this eNewsletter, you will find an agenda for the remainder of the week, letter from the State Bar President, an article from the Professional Development Program, an SBNM is Hear episode and raffle items to enter for!

State Bar of New Mexico

We hope you enjoy this week of programming!

Overview of Member Appreciation Week

❱ Technology Tuesday

eNewsletter will focus on technology in the practice. We’ll have highlights from the Professional Development Program, Member Benefits program and podcast features!

❱ Wellness Wednesday

eNewsletter that will include an article from the Judges and Lawyers Assistance Program, Legal Well Being in Action podcast, #fit2practice event and well-being raffle prizes!

❱ Throwback Thursday

eNewsletter that will include an article from the Equity in Justice Program, Senior Lawyers Oral History highlights and recognition of our 25- and 50-year attorneys!

❱ Fiesta Friday

Join us for a FREE CLE presentation and social hour! The CLE presentation will by available in person and via webcast. The State Bar Center will host up to 150 in-person attendees. All are welcome to attend the post-presentation reception!

The Tech Never Stops

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2.0 EP

legal issues

speaker Stuart Teicher (“the CLE

State Bar of New Mexico

A message fromState Bar President Carolyn Wolf

DEAR COLLEAGUES,

Now that we are about to enter fall, and with some important accomplishments both behind and ahead of us, it’s a good time to reflect on both ends. First, the 2022 Annual Meeting was held from Aug. 11-13 at the Hyatt Regency Tamaya Resort and Spa in Bernalillo, New Mexico. The event was a resounding success, with nearly 400 attendees at the event. During the Annual Meeting, nationally recognized speakers, including Desmond Meade, discussed restoration of rights, diversity, equity and inclusion, cannabis law and other topics of importance to us. We are grateful for the hospitality that the Hyatt Regency Tamaya Resort and Spa showed Annual Meeting attendees.

This year is not over yet. The State Bar of New Mexico will sponsor Member Appreciation Week, Oct. 17-21, which will celebrate and recognize the thousands of attorneys, judges, and paralegals who comprise the State Bar of New Mexico’s collective membership.

From Oct. 17-20, members will be sent electronic newsletters with helpful and inspiring articles from the Professional Development Program, Lawyers Assistance Program, and the Equity in Justice Program, with each day having a different theme. One of the newsletters will also recognize the State Bar of New Mexico’s 25 and 50-year practicing attorneys, and there will a be exciting prizes offered throughout the week. Finally, the celebration week will conclude on Friday, Oct. 21 from 2-4 p.m. with a free online or in-person CLE presentation followed by a reception. For more information, visit www.sbnm.org/22memberappreciation.

We look forward to connecting with you by celebrating your membership and service within the state of New Mexico’s legal community!

Sincerely, Carolyn Wolf President, State Bar of New Mexico

SUCCESSION PLANNING

Frequently Asked Questions

Lawyers face many challenges every day: client demands, constant deadline pressure, the stress of operating a business and practicing law. Most find it rewarding. Most also plan on retiring some day. And most, like every other person, are at risk for an unplanned event such as an injury, illness, incapacitation, disability or death, which makes it temporarily or permanently impossible to continue in practice of law. An interruption or cessation of practice, voluntary or otherwise, carries with it a substantial risk that clients will be abandoned by their lawyer in the middle of the clients’ matters. It also creates a risk that colleagues, staff, friends and family will be left scrambling to make sense of the lawyer’s practice at a time of great personal stress.

For the last several years, jurisdictions across the United States have been discussing ways to address the need for every lawyer to take affirmative steps to plan for an unexpected interruption or cessation of practice. In New Mexico, the New Mexico Supreme Court enacted a mandatory succession planning rule. Below are some of the most frequently asked questions pertaining to the new Rule.

Question: I’ve heard about mandatory succession planning; what is the Rule and when does it become effective?

Answer: Effective Oct. 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.

Question: I am an actively licensed attorney in the state of New Mexico, but I don’t have cases or clients and/or I am retired. In fact, I don’t even live in the state! Am I exempt?

Answer: 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.

Question: What must the plan include?

Answer: 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.

Question: But I work for the District Attorney (the Public Defender) (in-house for BigCo) (as a hearing officer for the District Court) and I don’t have traditional client lists, trust accounts, or some/all of the other items set forth in the Rule. How do I comply?

Answer: 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”, “the Chief Deputy”, the “Head Admin Officer” or whomever coordinates the response when a lawyer leaves.

Question: Can I choose more than one lawyer to be my Assisting Lawyer?

Answer: 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.”

Question: What are the Assisting Lawyer’s responsibilities?

Answer: 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.”

Question: But what are those “steps” my Assisting Lawyer should take? Does the Assisting Lawyer work my cases, does he/she distribute them; what exactly happens? In other words, what should my plan look like?

Answer: 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.”

Question: What about my IOLTA (lawyer trust account)? How will someone get access to that, or should they?

Answer: 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.

Question: Who must I notify that I have a succession plan?

Answer: 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).

Question: Do I file my plan somewhere?

Answer: 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.

Question: Where can I learn more?

Answer: For more information listen to the podcast available HERE, and visit the State Bar website which contains an EXAMPLE SUCCESSION PLANNING CHECKLIST to help get you started.

Endnotes

1 The information contained herein is provided to members of the State Bar of New Mexico for informational purposes only and is not intended to be exhaustive or applicable to all circumstances. Further it is not intended to, nor does it constitute legal advice to a lawyer or law firm, nor does the use of this information establish any type of attorney-client relationship between employees of the State Bar of New Mexico and any person or entity. The information contained herein is not a substitute for independent analysis and research by a lawyer or law firm. Each lawyer and law firm are responsible for their own compliance with applicable rules and laws and should consider seek appropriate counsel for advice.

Need More Information on Mandatory Succession Planning?

Check out and/or revisit episodes from our SBNM is Hear podcast on mandatory succession planning! This quick 25-minute episode to listen to on-the-go and is for informational purposes.

SEASON 3: HEAR ABOUT MANDATORY SUCCESSION PLANNING

You’ve heard about it. You may have read about it. And you probably have questions about it. Well, it is time to hear about mandatory succession planning or Rule 16-119, which is effective Oct. 1, 2022.

Bill Slease of the Professional Development Program and Anne Taylor of the New Mexico Disciplinary Board will fill you in on what the rule is, what to do and some questions they’ve received thus far. A quick 25-minute listen will hopefully go a long way for you.

The Professional Development Program has a variety of resources, including a checklist, for you as you develop your own succession plan. Make sure to visit their website at www.sbnm.org/pdp Hosts: William D. Slease, State Bar of New Mexico; Anne Taylor, New Mexico Disciplinary Board

State Bar of New Mexico Member Services

A note from Member Services

To all the leadership of our sections, committees, divisions, commissions and voluntary bars, THANK YOU! Your service to the Bar and community at large is incredible and we are so grateful for you all. Throughout the past three years of challenges and changes, your voluntary service to your colleagues and community at large has been nothing short of remarkable! Between your planning and dedication to meetings, events, publications, awards, lunch and learns, CLEs and so much more, you have taken your own time to give back to us all. This organization would not be what is without you. It's been an honor to work with you all.

Morgan Pettit & Addie Sanchez Member Services Department

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