The Cobbler’s Children

By James Dimos

Many of us have heard the old adage about the cobbler’s children having no shoes. As a reminder, it teaches that professionals or artisans may become so absorbed in their work for others that they neglect using their skills for themselves or those closest to them. Recent studies suggest that more than half of Americans do not have a will. I suspect that our profession probably mirrors the national statistics more than we would like to admit. While the choice of having a will is up to the lawyer and his family, there is another type of planning that a lawyer should undertake no matter what—planning for your clients should you no longer be able to serve them.

As a lawyer in a large firm, I have a natural backup system, though in many ways it is the same as any other lawyer’s—a diligent legal assistant available, as well as technology to monitor dates. However, I also have attorney colleagues down the hall or on another floor that could step in and continue to represent my client should I become incapable of continuing my representation. For those who lack such bench strength, one of the most effective ways to plan for this contingency is through the use of the Attorney Surrogate rule. Adopted in 2008, section 27 of the Indiana Supreme Court’s Admission and Discipline Rule 23 provides that an attorney can designate an “Attorney Surrogate.”

In a nut shell, the attorney surrogate is another member in good standing of the Indiana bar who is authorized to step into your existing client relationships should you die, disappear, become disable, or are disbarred or suspended without making provision for the transition of your clients to other representation. If you are in a “fiduciary entity” (a partnership, LLC, P.C. or LLP) with another licensed member of the Indiana bar in good standing, you must designate your firm as your attorney surrogate. If you practice solely as an employee of another lawyer or are employed by an organization that is not engaged in the private practice of law, the surrogate rule does not apply to you. Otherwise, you can designate an attorney surrogate at the time you complete your annual registration pursuant to Ind. Admission and Discipline Rule 2(b), as long as the designated attorney surrogate has agreed in writing to serve in that role. If you do not designated an attorney surrogate, then a senior judge or other suitable member of the bar in good standing is deemed, by rule, to be your attorney surrogate.

Upon occurrence of one of the qualifying events, any interested person can file a verified petition with a court of competition jurisdiction notifying it of the event and requesting the appointment of an attorney surrogate. The court must then hold a hearing within ten days determine if it is appropriate to appoint an attorney surrogate and, if so, make the appointment. Once the attorney surrogate is appointed, she can undertake such tasks as reviewing and examining the attorney’s files; contacting the attorney’s clients to advise them to seek new representation, make referrals, or undertake the representation (with the client’s consent) herself; obtain extensions of time or file necessary pleadings to protect the clients’ interests until new counsel is obtained; take possession of trust accounts and undertake any necessary transactions; and, deliver files and other property to clients.

In order to give the attorney surrogate sufficient time to investigate and handle the matters now entrusted to her, statutes of limitation, deadlines, time limits or return dates are extended automatically for 120 days from the date of the filing of the petition, if it would otherwise expire on or after the date of filing of the petition and before the extended date. The rule also provides the attorney surrogate with immunity (absent intentional wrongdoing) from civil liability for all actions and omissions of the attorney surrogate acting under the rule. Upon completion of her work, the attorney surrogate must file a final report with the Court and may also seek reimbursement for time and expenses (to be paid by the lawyer or his estate) for service as the surrogate. The ISBA has a comprehensive handbook, with forms, that explains the attorney surrogate rule in detail.  Click here to access this handbook. .

As the time for annual registration with the Supreme Court is upon us, take this opportunity to identify and designate an attorney surrogate. It will allow you to know who will be stepping into your practice should you become unavailable to continue it. More importantly, selecting a competent attorney surrogate will provide your clients with appropriate protection—which is what we are all sworn to provide.