Legal Ethics

The Need To Succeed

Succession planning is a task that many, if not all, leaders find joyless but necessary.

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We all worry about failing: failing our clients, our employers, our employees, our friends, our families, and, of course, bringing up the rear, ourselves. But most of us are lucky enough that our failures are not splashed all over the news, social media, or whatever other source. In most cases, our failures are pretty much private, limited to only a few people on a need-to-know basis. So, imagine what it must be like when a failure is public, and not just a little failure, but a jumbo-sized one. One of the most recent and public ones being the sacking of Disney CEO Bob Chapek and replacing him with the former CEO, Bob Iger.

The print edition headline in the Wall Street Journal story said it best: “Bob Iger is back to fix his big failure at Disney.” He’s going to have to hustle to develop a successor to lead the company as the board of directors gave him two years, not a long time, given the years he spent as Disney CEO and had road tested possible successors. Iger had recommended Chapek and the board concurred.

Succession planning is a task that many, if not all, leaders find joyless but necessary. There’s competition, jockeying, and figuring out whether to promote from within or look for fresh talent outside the firm or organization. There’s no right answer. Many staff feel that hiring from within signals confidence in the current organization and those who are capable to lead it. Collateral damage from that approach is that many talented people who are passed over take a hike and go elsewhere. Other staff feels that hiring from within is “same old, same old,” and that the organization needs fresh ideas and new leadership, regardless of how painful the transitions may be. Chapek was essentially a Disney “lifer,” and his time as CEO was short-lived, due, at least in part, to his purported mishandling of several highly visible situations.

So, what’s a law firm or in-house general counsel to do? How to approach succession planning? What’s the best way to ensure both a smooth transition and that those who remain continue to feel that they matter?

What are some of the obstacles to succession planning? How to avoid the ostrich in the sand approach? Think about these:

The first is fear. It can be tricky (and a potential legal issue, e.g., the Age Discrimination in Employment Act) when you ask senior lawyers about retirement plans. No one likes to think that they are getting too old to practice, but the question should be asked. It’s impossible to plan otherwise. No surprises, please, especially departure surprises with the client’s book of business trailing behind. Who starts that conversation and when?

Next: “too busy to plan.” If succession planning interferes with billable hours, do you think that anyone will be willing to take the time out from busy practices to do what needs to be done? That’s why it’s important to take the nonbillable time to do just that. The job of a leadership team (“there’s no ‘I’ in team”) is to lead.

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A corollary to “too busy to plan” is “too selfish to plan.” It’s “all about me,” and so being involved in discussions about what may be best going forward is not something some partners care anything about. And if they don’t like the succession plan, they’ll leave. So much for firm loyalty. (Is that now an oxymoron?)

Focus on client needs and expectations. Who best can lead the firm or the in-house department going forward while servicing current needs and anticipating future ones?

If it’s too hard to say the words “succession planning,” would it make sense to include it as part of strategic planning? Everyone, whether in a firm or in-house, has a personal stake in that.

Using outside consultants? Opinions vary widely. While some think that consultants walk on water, others could cheerfully drown them all. The point is to start thinking about all of this now. The last thing anyone wants is to fill a gaping hole in leadership prompted by an untimely diagnosis or death. Then what?

And now here’s an epic leadership fail. Samuel Bankman-Fried, aka SBF, he of the apology road tour, is now officially in his world of hurt as he sits in a Bahamian jail, facing a criminal indictment from the US Attorney’s Office in New York’s Southern District charging him with multiple criminal counts. How many lawyers previously suggested that he stifle himself? He couldn’t do it. SBF may well be this decade’s poster boy for Ponzi schemes, although the decade has just begun.

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One lesson that a criminal procedure class teaches is that a confession is not sufficient to prove the elements of the crime. The cop-out can only be used to prove identification, the “I did it” moment that everyone used to wait for on television. SBF has apologized for what happened, although he didn’t say he knew what happened. What kind of defense(s) will he use? The “just a kid taken advantage of by others” probably won’t play. FTX is probably only the first of the cryptocurrency dominoes to fall. They won’t be too big to fail.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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