HOW DO YOU SPELL RELIEF? S-U-R-R-O-G-A-T-E A-T-T-O-R-N-E-Y
Kate Gould, Esq.
November 1, 2022
Reading time: 6 minutes
Attorneys assist clients by helping them plan for the future, including death and disability. Yet many attorneys never plan for the possibility that the unthinkable may happen to them. In the event of an attorney’s disability or death, the consequences can be devastating, not only for the attorney’s family, but also for the firm’s employees and clients. Before you reach into your pocket for that roll of minty tablets, rest assured, there is a solution.
As a solo practitioner, you may already have a backup attorney in place to cover any short term absences, illnesses, or vacations. But what if tragedy unexpectedly strikes? Rather than burdening loved ones or firm employees with handling your practice in your absence, consider formally designating a surrogate attorney – the perfect antidote for that pit in your stomach. Should the unexpected happen, a clearly designated surrogate attorney can provide assurance that deadlines are not missed and that your practice is in good hands.
What is a surrogate attorney?
A surrogate attorney is a successor attorney designated to take action to preserve and handle the law practice of the now deceased or incapacitated attorney. As states continue to develop their own rules with respect to surrogate counsel and succession planning, the ABA provides helpful guidance.
Comment 5 to ABA Model Rule of Professional Conduct 1.3 states that the duty of diligence may require a sole practitioner to designate another attorney to review client files, notify clients, and determine the need for immediate protective action in the event of the death or disability of the sole practitioner.
Practically speaking, the surrogate attorney should be someone who is familiar with your practice areas and that can competently step in and take over your cases for the short term (if not actually retained by your clients.) The attorney should have the capacity and time to effectively run your practice or assist in winding it down. Oftentimes, this can be a reciprocal arrangement between practitioners.
Do I have to have a surrogate attorney?
Like the lawyerly answer to many questions, it depends. Designating a surrogate attorney is not yet required in every state, but several jurisdictions mandate some form of succession planning. So, be sure to check your jurisdiction to ensure compliance. Below are examples of some of the states that have addressed the need for surrogate counsel and succession planning in varying degrees.
This Indiana girl is proud to say the ABA identified Indiana’s Rule as the “gold standard” for attorney surrogate rules.
The rule provides that at the time of completing annual registration, a lawyer may designate a surrogate attorney by specifying the attorney number of the surrogate and certifying that the surrogate has agreed to the designation in a writing in possession of both the lawyer and the surrogate.
In Indiana, when the lawyer dies or becomes incapacitated, a verified petition is filed with the Supreme Court and served upon the designated attorney surrogate. The Court may then appoint the attorney surrogate to continue the deceased or incapacitated lawyer’s practice. Indiana’s Rule is quite comprehensive to the point of actually itemizing certain actions the surrogate attorney may take upon appointment, including taking possession of the files and records of the practice, applying for extensions of time, and notifying clients for purposes of the clients collecting their files and hiring replacement counsel. The Rule further provides that the Court granting the petition for appointment of surrogate counsel has jurisdiction over the closed files of the attorney and may issue orders with respect to the files, including for destruction – alleviating the potential headache of the surrogate attorney and perhaps the lawyer’s heirs as they wind down the practice. The Rule further provides that certain deadlines and statutes of limitation are automatically extended for 120 days from the date of filing the petition.
Florida is one state that mandates designation of a surrogate attorney. Through the state bar registration process, Florida attorneys designate an “inventory attorney” to take over if an attorney dies or becomes incapacitated. The Rule provides that the inventory attorney shall inventory the files of the subject attorney and take such action as seems indicated to protect the interests of clients of the subject attorney.
The California state bar has an Attorney Surrogacy Program which provides a model agreement for the designation of an attorney to step in if a lawyer dies or is incapacitated. In fact, it provides a sample agreement which details the responsibilities of lawyers involved in an “Agreement to Close Law Practice in the Future” for purposes of compliance with California Business and Professions Code Section 6185 and the Probate Code.
South Carolina requires its attorneys to prepare “detailed succession plans specifying what steps must be taken in the event of their death or disability from practicing law.” The Rule contemplates designation of a successor lawyer and even provides that the designation plan may set out a fee-sharing arrangement for the successor attorney.
Illinois requires active, practicing attorneys to state in their annual registration whether their organization has a written succession plan. However, the Rule interestingly does not require a plan exist.
The New York Rule of Professional Conduct regarding diligence (Rule 1.3 and its Comment 5) mirrors the ABA Rule in stating that “to avoid possible prejudice to client interests, a sole practitioner is well advised to prepare a plan that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.” While designation of a successor attorney is not required, it is certainly recommended.
The Texas State Bar urges its attorneys to develop succession plans and even designate a custodian-attorney in advance. Texas practitioners can use the state bar portal to designate a custodian-attorney. The custodian-attorney does not inherit the lawyer’s law practice, but it is anticipated they will serve in a more limited role to wind down the practice. Texas likewise provides that upon notice of the unexpected death of a busy solo practitioner (in the absence of any succession plan), the Office of Chief Disciplinary Counsel or other interested person may petition the Court to assume jurisdiction of the lawyer’s practice. Pursuant to the rules, the Court will appoint a Texas attorney to serve as a custodian-attorney.
How can I set up my surrogate attorney for success?
Quite simply, efficiently running your practice is the best way to prepare your surrogate attorney in the event they will need to step in to fill your shoes. Regardless of the size of your practice, implementing and documenting consistent office procedures and protocols is paramount. By developing a manual or simple training materials that clearly communicate how to use the firm’s calendaring system, the conflicts check procedure, and accounting systems or billing software, the surrogate attorney should be able to seamlessly transition into your practice.
Practically speaking, perhaps most important means to ensure a smooth transition is maintaining an active file list and calendar. The surrogate attorney’s first order of business will likely be reviewing your file list and cross-checking it against the calendar to ensure no court dates or deadlines are missed. Assistants and paralegals may assist with keeping you organized on a day-to-day basis, but they should also be well equipped to assist the surrogate attorney. Quite frankly, your practice – and maybe even your estate – is at risk if your files are poorly documented or incomplete. Develop and implement best practices in terms of organization now – for yourself and your designated surrogate attorney.
With respect to communication, the fee agreement is an effective means to advise clients who they may contact in the event of your death or incapacity. Consider adding a provision to your fee agreement with the surrogate attorney’s name and contact information. Most clients will appreciate the proactive steps you have taken in protecting their interests should you be unable to continue to represent them.
While planning for the possibility of an unforeseen disability or death may make your stomach turn, designating a surrogate attorney can be the perfect remedy (without the chalky aftertaste).
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