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.
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.
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.
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.
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.•