Harrell: Why JLAP cares about the attorney surrogate rule

“Understudies, now they’re a shifty bunch. The substitute teachers of the theater world.” Cosmo Kramer in “The Understudy,” “Seinfeld,” season 6, episode 23.

No actor thinks they need an understudy, just like no attorney ever thinks they will need a surrogate. In truth, the attorney surrogate rule is important to our clients, our reputations as lawyers, and the functioning of our legal system.

The attorney surrogate rule provides a process for protecting our clients in the event we are no longer able to serve them and when we are not in an organization with an internal process for case transition. It is much like a will provides a process when someone dies.

Oversight of the attorney surrogate rule or process is not directly under the supervision of the Judges and Lawyers Assistance Program, or JLAP. However, Rule 31 of the Indiana Admission and Discipline Rules states that JLAP’s purpose includes, among other things, “reducing the potential harm caused by impairment to the individual, the public, the profession, and the legal system.”

Consequently, JLAP has been involved in the development and several efforts to further improve the attorney surrogate rule. Let me share a few scenarios that illustrate how crucial it is that the Indiana legal community has a clear process and that each of us individually has a plan for our clients in the event we are no longer available to serve them.

JLAP’s first experience with these situations occurred long before Indiana had an attorney surrogate rule.

A solo practitioner in a medium-sized town was literally hit by a truck. He had a thriving practice and good health one day and was then in a car versus truck accident and badly injured the next.

His doctors said he would ultimately recover, but it might be as much as a year before he could return to his practice.

A lawyer who was a close friend decided to step in and keep his practice running. This friend assessed the files and found lawyers in the community with the appropriate expertise to take over.

These lawyers each worked on a few cases and when paid, returned the money to the managing friend who used it to pay the injured lawyer’s secretary and keep the physical office open until he returned. The heroes of this story protected the clients, the injured lawyer and his family, and the functioning of our legal system.

Two more cases came to our attention before the attorney surrogate rule was established.

In the first, a magistrate judge called our office and said she suspected that a paralegal was practicing law and that something had happened to the attorney. Her court had not seen or heard from the attorney directly in a long time.

We did some investigation and found that the attorney, a solo practitioner, had end-stage cancer and was in hospice. His paralegal either did not know what to do or was simply trying to keep the office open.

From what we could tell, this was a good lawyer, but now his clients and his reputation were at risk. We found an attorney willing to work with the paralegal to close the practice, but at the time, there was no guidance on how to proceed or any protection for the attorney who stepped in to help.

Thank goodness someone stepped forward to help even without the protection now provided by the attorney surrogate rule.

Another court notified JLAP that clients were reporting that they could not reach their attorney. No one had seen or heard from him. We sent a JLAP volunteer to his office, and he found notes taped to the outside door by clients asking for their files, their wills, or simply, a phone call.

Our volunteer then went to the lawyer’s home and found much the same situation. Notes from the utility company on his front door.

A lawyer was given authority to help the clients this lawyer left behind.

What happened to that lawyer remains a mystery. We have seen this scenario multiple times, and it explains why the current attorney surrogate rule includes “disappeared” as one of the criteria for appointment of an attorney surrogate.

Since the implementation of the attorney surrogate rule there have been success stories. They are generally sad stories but stories that could have been much worse without the assistance of an attorney surrogate.

A solo lawyer identified not one, but two lawyers, to serve as attorney surrogates for his practice. He had given them access to his office and computer and explained his filing system.

He had also told his legal assistant who they were. He did all this just to make sure that if something happened to him, his clients would “be all right.” He then died unexpectedly of a heart attack at 45. His attorney surrogates arrived at his office the next morning and were able to easily identify all his active clients and by noon had sent letters notifying them of the death of their attorney and giving them instructions for how to retrieve their file or contact the attorney surrogates to have their file sent to another attorney.

Clients would be best served if all lawyers had their files this organized and shared that critical information with their attorney surrogates.

Most often the petition to appoint an attorney surrogate is filed by a lawyer who recognizes that another lawyer is ill, missing, or otherwise unable to serve clients. However, we have had lawyers who are struggling with a degenerative disease reach out and ask us to find someone to file a petition appointing an attorney surrogate for them.

The attorney surrogate rule anticipates that the files will be distributed and the practice will be shut down. It does not work well in the type of situation that I started the article with where the lawyer hopes to return to the practice.

I would like to see us create a mechanism for these situations where the lawyer will be out for a significant period but will return. But at a minimum, we must develop our system for safely transferring all the clients to other lawyers when the original lawyer can no longer serve them — for whatever reason.

Any of us, at any age, could be in a car accident, fall ill, or become otherwise unable to serve our clients. Sometimes an attorney is suspended or disbarred for unethical conduct, but often the inability to serve is due to circumstances beyond our control and no one’s fault.

Should we be unable to serve our clients, we all want to be able to use Jelly Roll’s famous words, “I’m not okay, but it’s all gonna be alright.”•

__________

Terry Harrell is the Executive Director of JLAP and proud handler of Samwise, one of the JLAP Therapy dogs.