Surrogate Attorneys: Designating a Successor if the Unexpected Happens

Many lawyers envision a Hollywood-style picture-perfect ending to their careers, where they transfer client files to the next generation of attorneys and ride off into the golden sunset of retirement. In a perfect legal world, attorneys would be entitled to conclude their career at a time of their choosing. In reality, however, we know that some lawyers "retire" when something unexpected happens: when the lawyer dies, becomes disabled, or is suspended or disbarred from practice.

The untimely death, disability, or discipline of a lawyer can have significant ramifications for a law firm and for the firm's clients. If an attorney or law firm fails to provide clear procedures about how to handle such an event, the departed attorney's clients may be left in the lurch. At worst, an attorney's sudden death can lead to infighting in a firm, as fellow lawyers try to secure the late attorney's clients and the revenues they represent. But even in law firms operating with a collegial spirit, the unexpected loss of an attorney can cause a mini-crisis, with staff trying to locate deadlines and client files, lawyers scrambling to cover a substantial number of cases previously unknown, and clients worrying that case deadlines are about to be missed.

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 each client, and determine the need for immediate protective action in the event of the death or disability of the sole practitioner. But what about other attorneys, lawyers who do not work alone?

Recognizing the need to address this issue, in 2007 the ABA House of Delegates adopted a recommendation that urged bar associations and courts to develop programs and procedures that would help lawyers plan for "law practice contingencies by designating in advance another lawyer who is willing and able to assume the lawyer's practice or to assist in the transfer of client matters and papers and electronic files."

Several jurisdictions have now adopted "surrogate attorney" rules to address this need. Surrogate attorney rules require or provide contingency plans for attorneys in the event of their death or other disabling event that renders them unable to practice law.

Indiana Rule 27: The Gold Standard

Indiana Admission & Discipline Rule 27 provides perhaps the gold standard for surrogate attorney rules. Indiana Rule 27 allows an attorney to designate a successor lawyer at the time of attorney annual registration, but does not require such a designation. If the registering attorney is practicing in a partnership, professional corporation, LLC, or LLP, the attorney is required to list the corporate entity as the attorney's surrogate. Indiana Admission & Discipline Rule 27(b)(3).

When an attorney then dies, disappears, or becomes disabled or disbarred, a verified petition is filed in the Supreme Court and served upon the designated attorney surrogate. The court may then appoint the attorney surrogate, who may take actions to preserve and continue the law practice of the lawyer no longer practicing. Indiana Rule 27 provides that many pending deadlines will be extended to 120 days from the filing of the verified petition. Rule 27 also provides special guidelines for dealing with client confidences, conflicts of interest, compensation, immunity and certain other directives and protections for the surrogate attorney.

Indiana is not alone in having such a surrogate attorney rule. Florida Rule of Professional Conduct 1-3.8(e), for example, requires each practicing member of the Florida Bar to designate an "inventory attorney." The inventory attorney is responsible for taking action in the event of a lawyer's death, disability, involuntary leave of absence, disappearance, bar delinquency, or discipline. The inventory attorney will inventory the designating lawyer's client files and protect the designating lawyer's clients.

South Carolina Rule of Professional Conduct 1.19(a) meanwhile requires South Carolina lawyers to prepare "detailed succession plans specifying what steps must be taken in the event of their death or disability from practicing law." Rule 1.19(b) indicates in part that:

• A lawyer can designate more than one successor lawyers or law firms;
• A designation plan may set out a fee-sharing arrangement with the successor;
• The client can always seek a different lawyer than the successor; and
• The lawyer designated as the successor lawyer must consent to the designation.

Sometimes an attorney may feel more comfortable designating a successor lawyer who practices outside the firm, perhaps due to the lawyer's experience, skill, or prior business relationship with the departed attorney's clients. Comment 6 to South Carolina Rule 1.19 allows a law firm to designate successor attorneys, and may designate attorneys from outside the firm.

Despite the above examples, most jurisdictions do not require a succession plan. Some, however, require disclosure of information relating to succession planning, or allow a bar member to submit succession information to the bar if the lawyer chooses to do so.

In Illinois, for example, Illinois Supreme Court Rule 756(g)(4) requires active, practicing attorneys to state in their annual registration whether their organization has a written succession plan. Illinois Rule 756(g)(4) does not require that such a plan exist; rather, it simply requires the reporting of whether it exists, and notes that such information will be treated as confidential.

In Missouri, Comment 5 to Missouri Supreme Court Rule 4-1.3 (Diligence) states that the "duty of diligence may require that each practitioner 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." (Emphasis added) Other states have similar language in their rules of professional conduct.

Take Action - for the Sake of Your Clients

Many states, however, have no rules regarding succession planning and surrogate attorneys. If you practice in one of these jurisdictions, you may still wish to take action now to ensure that your clients are in good hands should an untimely and unfortunate event occur that prevents you from practicing law – temporarily or permanently.

First, think of the attorneys you would trust to oversee your cases if you were unable to handle them. You may wish to consider qualities such as experience and skill, but you may also wish to consider stability. Although all lawyers deal with a degree of stress, the attorney designated to manage your matters will likely need to be someone who is able to work well in a stressful situation.

If you are a sole practitioner, you will of course need to look outside your firm to find a surrogate attorney. But even if you work in a firm with other attorneys, you may wish to consider whether the right surrogate is someone outside your firm. If you work in a large firm but are the only attorney handling family law cases, for example, the right surrogate attorney might be someone you know from the courthouse, not your law firm.

Second, reach out to the potential surrogate attorney and explain why you would like the attorney to serve as a surrogate. It will likely be important to explain that the surrogate attorney is under no legal obligation to actually serve as surrogate should a catastrophic event happen to you, but is only agreeing to be the person of first contact should the need arise. In addition, you may wish to remind the potential surrogate that – pursuant to the rules of professional conduct – ultimately it will be your clients' decision as to which attorney will actually represent them.

Third, if your contact agrees to be listed as your surrogate attorney, you may wish to draw up a simple succession plan designating the attorney as your surrogate attorney and providing (a) the contact information of the surrogate attorney; (b) your firm-related passwords and other firm-related information for use by the surrogate; and (c) the steps you wish the surrogate attorney to take in the event of your incapacity or death. For instance, you may wish to include blueprint language to be used when providing notice to your clients of your incapacity or death. If you feel you will need more than one surrogate attorney, make sure your plan addresses which attorney will serve as surrogate attorney for which type of matter or client. You might also wish to specify the amount of compensation the surrogate attorney should receive, if any.

Finally, make sure that your succession plan is kept in a secure place where at least a couple of your most trusted family members or colleagues are able to access it if it is needed. You may wish to keep an extra copy of the succession plan in the same place as your will.

It may be unpleasant to contemplate an unforeseen disability or death, but hopefully you will find that by planning for a surrogate attorney today, you will grant yourself peace of mind for years to come, which may be worth even more than a Hollywood-style ending.