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Close calls, complex cases highlight need for attorney surrogates

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It was a very close call.

The situation began when an attorney walked into the courtroom of Floyd Circuit Judge J. Terrence Cody with a petition for a surrogate attorney and a box of client files. The attorney’s friend had left his solo law practice to seek out-of-state treatment for an illness.
 

cody Cody

A peek inside the files showed some clients were in jail, others had already paid money for services and some had court appearances scheduled. Because these clients had immediate needs and their attorney was essentially unavailable, Cody took the files and started calling local attorneys to enlist their help in taking over the cases.

Recounting the incident, Cody pointed out what he considered the blessing: the absent attorney handled only criminal cases. If the lawyer had a practice that covered a broad spectrum of legal matters, the process of sorting through the files and finding attorneys would have taken much longer, and clients would have been at risk for not getting proper representation.

Consequently, even though Cody circumvented the surrogate attorney process because of the urgency of the situation, he is adamant that surrogate attorneys are vital. The process ensures that clients of a lawyer who is no longer able to practice will be informed and given options instead of left wondering what to do.

“We have spread the gospel about the need for surrogate attorneys,” Cody said.

Enacted in 2008, the attorney surrogate rule in the Indiana Rules for Admission to the Bar and the Discipline of Attorneys spells out the process for designating another member of the bar to take over when a lawyer dies, becomes disabled, is suspended, disbarred or disappears.

At the time Rule 23, Section 27 was created, Indiana was among only a handful of states to have such language. The need for a court to appoint a surrogate arises only a few times each year, but when it does, the rule provides clear guidance on what to do.

Still, as Cody noted, attorneys have to be told about the rule. Five years after the provision took effect, Terry Harrell, executive director of the Indiana Judges and Lawyers Assistance Program, fields a handful of frantic phone calls every year from lawyers not knowing what to do when a colleague cannot continue to practice.


Terry Harrell mug Harrell

Ideally, attorneys in solo practice or in small firms with associates who have no fiduciary authority have a surrogate attorney named. They have a written agreement and add the surrogate attorney’s number to their registration. Then, in the event something happens, the court will not have to find a surrogate.

It is another form of estate planning, but Harrell said attorneys do not know about the rule or about how to name a surrogate because they do not want to contemplate unpleasant events.

“I think for the same reason people don’t have a will, you don’t like to think about it,” Harrell said. “You don’t want to think about not being there to serve your clients.”

Before and after the rule

Following the death of a sole practitioner in South Bend, the complexity of the cases he left behind caused the court to appoint three surrogates. The attorney handled primarily immigration cases, including deportation proceedings and applications for visas and green cards.

Retired Magistrate Judge David Ready was named one of the three under an amendment to the Indiana Administrative Rules that allows senior judges to serve as surrogates. The other two were practicing attorneys who are fluent in Spanish.


ready Ready

With no funds available to keep the deceased attorney’s office open, the trio loaded the files into about 18 Bankers Boxes and took them to the law library in the St. Joseph County Courthouse where the materials would be secure.

Next, the surrogates drafted a letter (one side in English and the other in Spanish) to notify the clients their attorney had died. The clients were also told the times they could come to the courthouse and claim their file.

Ready believes the process worked fairly well, although a few letters were returned and some records still have not been picked up.

Without the surrogates, he does not know what would have happened – maybe the attorney’s wife would have maintained the files in her home or turned them over to the county bar association.

Before the surrogate attorney rule, no formal process existed for protecting clients of an attorney who was no longer able to practice. Ted Waggoner, chair of the Indiana State Bar Association’s Attorney Surrogate Rule Special Committee, said traditionally the spouse might ask a good friend for help and judges would have to do what they thought was best.

The rule not only offers guidance but also includes the key provision of immunity. Absent intentional wrongdoing, the attorney will be protected from civil suits for all actions and omissions taken while a surrogate.

Ready has seen first hand the importance of surrogates, and he often asks attorneys if they have named a surrogate and directs them to read the rule.

“If the (Indiana) Supreme Court has not got around to making the appointment of surrogates mandatory, they probably ought to,” Ready said.

Not an easy job

The range of duties an attorney may undertake as a surrogate include examining the files and records of the law practice; filing notices, motions and pleadings on behalf of the client where jurisdictional time limits are involved; taking possession of all trust accounts and taking appropriate actions; and making referrals for replacement counsel or accepting representation of the client.

Waggoner conceded serving as a surrogate is not easy.

The surrogate may find the law practice in disarray and may have to deal with clients who are likely under strain because they have problems that require the help of a lawyer. On top of this, the surrogate will have obligations to his or her own practice.

Still, Waggoner, managing partner at Peterson Waggoner & Perkins LLP in Rochester, readily gives three reasons for becoming a surrogate attorney: it is the right thing to do; if money is available, the surrogate may get paid for his or her service; and the surrogate may have the opportunity to get new clients.


ted waggoner Waggoner

JLAP, along with the state bar association, will put the surrogate rule in the spotlight at a special CLE. The program, “Ethical Application of the Attorney Surrogate Rule,” will highlight the importance of designating a surrogate, the duties of the surrogate and how the current process for surrogate attorneys can be improved.

The CLE will be from 1 to 4:30 p.m. May 10 on the eighth floor of the Kite Building, 30 S. Meridian St., Indianapolis.

For more information call the ISBA at 317-639-5465.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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