It’s never easy to handle an emergency when it comes to someone’s health, on a personal or professional level.
But some early planning can help, especially when it comes to knowing who will take over the workload.
Giving this some thought before an emergency, and having someone there to actually do work when needed, can also help an individual focus on getting better.
While a Carmel attorney and Marion Superior master commissioner both said they never planned on getting cancer, both said they were extremely grateful for the immeasurable support they’ve received from the legal community.
Stephenie Jocham of Jocham Harden Dimick Jackson was diagnosed earlier this year with sarcoma in her leg and recently learned the cancer had spread to her lungs. Master Commissioner Mary Ann G. Oldham was diagnosed with breast cancer in August. Both have undergone surgeries and other treatments.
For Oldham, she has been able to work with attorneys, judges, and court staff to cover for her when needed. Jocham has also
had many attorneys and other members of the legal community offer their help – including attorneys outside of the nine-attorney
firm she manages.
By knowing someone is there to get the work done, both agree it has helped them focus on doing what they need to do to get and stay healthy.
While Oldham and Jocham have had support systems in place because they work in offices with others who understand their work and can easily step in when needed, this isn’t always easy for solo attorneys who face emergencies.
Terry Harrell, executive director of the Judges and Lawyers Assistance Program, said JLAP does receive calls when an attorney faces serious illness or death, but JLAP doesn’t provide this assistance as a service so it is up to the attorneys to plan ahead.
However, Harrell strongly encourages all attorneys to have a surrogate attorney in case of emergency, and the program can
provide resources to help attorneys cope with these situations.
To help attorneys give this some serious thought, a rule went into effect in early 2008 that requires solo practitioners in Indiana to assign a surrogate attorney in case of emergency due to a medical condition, disability, death, or disbarment.
To determine best practices for following the rule, attorney R. William Jonas, while still president of the Indiana State Bar Association, appointed a committee.
The results of that committee’s work will be discussed and shared at the ISBA’s Solo and Small Firm Conference June 3-5 in Merrillville, and the committee will publish a booklet of its findings. The committee also had submitted its suggestions to the Indiana Supreme Court’s Rules Committee.
One of the members of that committee, Barbara Williams of Williams Law in Evansville, along with Rochester attorney Ted Waggoner of the four-attorney firm Peterson Waggoner, will discuss the rule and the committee’s findings at the conference.
Williams said she got involved with the committee partly because of her personal experience as a surrogate.
In late 2008, Williams and another attorney agreed to be each other’s surrogates. Six weeks later, her surrogate committed suicide.
At the time they made their agreement, she didn’t think she would need to do anything about it any time soon. She agreed to be his surrogate because she knew their practices were compatible and they respected each other as colleagues.
Looking back, even though it’s been emotionally difficult to deal with his loss, she said she felt privileged and honored that he chose her. She doesn’t regret the work she has done to help shut down his business.
But because of her experience, she noticed that beyond requiring solo attorneys to designate a surrogate, the rule “didn’t give much direction, so I had to figure it out as I went along.”
Waggoner said while he wasn’t in a situation that fell under the rule, he also had been helping close a colleague’s practice in a situation similar to what a surrogate would do and noticed similar issues.
One thing the committee looked at was if there was a way for the surrogate attorney to be reimbursed for expenses that he may incur, as the rule states the assets of the attorney who goes through the emergency can be used to pay for the time and effort of the surrogate attorney.
However, Waggoner said, “those who’ve done this say it turns out that they were unsuccessful at getting paid, but they do the work anyway. It gets done, but there are out-of-pocket expenses that someone has to pay.”
Another issue was how to handle continuances and statutes of limitation in open cases to give enough time for the surrogate attorney or another lawyer to get up to speed after he takes over the client’s file.
The committee is also proposing that senior judges or semi-retired attorneys might be a good resource to help inventory and distribute files, especially if the attorney who can’t handle cases didn’t assign a surrogate or if the surrogate is unable to help or is overwhelmed by the emergency.
While Waggoner agreed it’s important to have a surrogate, he also suggested attorneys should consider a number of things – whether they are asking another attorney or they are the one being asked.
If an attorney is the one being asked, Waggoner suggested considering three things: how busy is the attorney, and how does that compare to the potential surrogate’s volume of work; what kind of filing system does the attorney have, and how organized is the attorney; and does the attorney have a plan in place to cover expenses, such as a small life-insurance policy to cover the cost of closing the office.
For attorneys seeking surrogates, he suggested they make sure their office could be easily closed if necessary. This includes keeping notes on movement in cases, and a file system that is organized and easy to navigate for someone else.
He also suggested that attorneys who are looking for surrogates “take a good look at the person and ask, ‘Is this someone I’d refer clients to?’ Even if the person can’t take on many new cases, consider if the person will be able to solve a client’s crisis of having someone no longer available, whether they’re dead, disabled, or disbarred.”
He added that if the attorney asking or being asked has “lousy client relationships,” it’s probably not a good fit. And finally, “find someone compatible with your style and skills.”
And for the attorneys who find themselves in an emergency?
Jocham and Oldham both recommended having a point person, and to know that the legal community has been and will be supportive to those who need it.
Oldham thanked Commissioner Deb Shook for communicating on her behalf. Jocham said she has a point person for her office, a point person for her family, and a point person for her friends.
“It helps you stay strong when you have so many people pulling for you,” Jocham said. She’s learned how to let go and delegate, even though she misses her normal work routine, particularly mediations.
“I would tell people: go have fun. We’re all going to die some day, that’s a given,” Oldham said. “Think about what you’ll reflect on at that moment. I don’t think it’s going to be about a case. You may reflect on how you were able to help people in what you did, but it will be the happy memories of time with family and friends.”•