If you practice law, there is one eventuality that should be added to that familiar duo of Death and Taxes. No one talks much about it, but it warrants the same attention to detail. The subject? The end of your practice.
As is the case with its two more familiar rivals for attention, ignoring it will not prove wise.
The fact is that this change will probably be the most significant professional transition of your career — the transition of one’s practice to someone else. Transition drivers include:
- Pursuit of another profession or passion;
- Relocation to a new city
- An unforeseen health circumstance; or the most likely,
A critical part of practice (or firm) management is planning for the future. In its most productive form, strategic planning includes a deep-dive into both short-term and long-term possibilities. And this kind of planning can be the difference between a smooth and profitable transition, and one that resembles disaster.
There are, needless to say, a number of issues to consider. And as is the case with respect to your personal taxes or the distribution of a personal estate, expert counsel can help you avoid pitfalls. leverage every asset, and end up in successful transition.
Some of the most common issues include:
- Defining personal objectives
- Compliance with local bar rules
- Practice valuation
- Finding a buyer
- Negotiating the transaction
- Transitioning client relationships
In this post we’ll explore the first three issues; and we’ll tackle some ideas around the remaining three in the next post.
Defining Personal Objectives
This first and most important step sets the stage for the entire process. It outlines what constitutes success, and sets parameters that will facilitate decision-making. What must be accomplished, and in what time frame? Do you want to completely step away from the practice, or keep one foot in? Do you want the transition to be prompt, or take place over time? Those variables dictate your strategy.
If you want to transition the practice over a period of years the literal sale of the practice is not an option; whereas a sale is an option in most states if you envision a complete separation from the practice.
Compliance With Bar Rules
The ABA provides for the sale of your practice as long as certain conditions are met. In Rule 1.17 sets forth the following conditions:
a) The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, [in the geographic area] [in the jurisdiction] (a jurisdiction may elect either version) in which the practice has been conducted;
(b) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
(c) The seller gives written notice to each of the seller’s clients regarding:
(1) the proposed sale;
(2) the client’s right to retain other counsel or to take possession of the file; and
(3) the fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice.
If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged clients shall not be increased by reason of the sale.
Please note that not all states (including Texas, where we are based) follow Rule 1.17. So check your local bar rules before moving forward.
Whether you literally sell your practice or transition it to a new owner through another means, the practice needs to be valued for fiscal reasons.
Fundamentally this is a matter of determining anything being transferred that is relevant to the generation of future profits. Portions of the practice relevant to valuation include:
- Hard assets
- Soft assets
- Work in process
- Business systems/intellectual property
- Existing clients
- Former clients
- Referral sources of firm
Even though each of the above items can have a significant impact on the valuation of the practice, the most difficult and critical valuation issue is that associated with the goodwill. What future revenue stream is really being transferred based on this often difficult concept?
Transitioning out of practice is best accomplished when handled as a process — one that begins long before the eve of the desired transition.