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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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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