Official Procedure Last Change August 20, 2021
- If an attorney is no longer able to represent their clients for reasons such as the death of the attorney or their having been suspended from practicing law, an attorney surrogate may be appointed. The surrogate assumes certain responsibilities related to the clients, including finding replacement counsel if necessary.
- An attorney appointed as surrogate who wants to file pleadings in or obtain information about bankruptcy cases and proceedings must first become an authorized electronic filer, with attorney rights. View instructions on that process
- The surrogate attorney can use a CM/ECF account for surrogate and regular attorney work. A special surrogate account is not needed.
Step-by-step instructions for the surrogacy process
For the purposes of these instructions, the term “Lawyer” refers to the attorney as to whom a surrogate has been appointed in state court. The term “Surrogate” refers to that appointed person. The term “Clerk” refers to the Bankruptcy Clerk or designees.
- After appointment by a state court, the Surrogate files the Notice of Surrogate's Appointment, attaching a copy of the state court order appointing the Surrogate.These must be mailed or hand-delivered to the Clerk’s Office - they cannot be filed electronically.
- The Clerk opens a miscellaneous proceeding which is assigned to the Chief Judge (who may in turn transfer the proceeding to any other Judge) and advises the Surrogate of the miscellaneous proceeding number. The Surrogate can then file electronically in that miscellaneous proceeding. (The Notice of Surrogate's Appointment and the state court order appointing the Surrogate are designated as Doc. No. 1 on the miscellaneous proceeding docket).
- The Surrogate uploads the Order on Notice of Surrogate's Appointment ("Appointment Order") to the miscellaneous proceeding.
- Once the Appointment Order has been entered, the Clerk provides the Surrogate with the list of open cases and proceedings in which the Lawyer had an appearance, appoints the Surrogate (with a docket entry on the case), and edits the attorney record to show the Lawyer as Inactive – Surrogate Appointed and to show the Surrogate as Surrogate. (If the notice filed by the Surrogate says that the Lawyer is deceased or if the Clerk has previously received information of the Lawyer’s death, the Lawyer’s record will be edited to show DECEASED rather than Inactive.) The list of open cases and proceedings will be provided in an Excel spreadsheet format unless the Surrogate requests a different format and the Clerk can comply with that request.
- The Surrogate then sends notice of his/her appointment to each party represented by the Lawyer from the provided list of cases. The notice should provide guidance on retention of the Surrogate, selection of other counsel, or the need to continue without an attorney.
- Within fourteen days of the entry of the Appointment Order, the Surrogate must file a certificate of service within the miscellaneous proceeding which lists all the persons to whom the notice was sent. A copy of the notice must be attached to the Certificate.
- If the Surrogate seeks to represent the clients and has obtained their consent to do so, the Surrogate shall file an Appearance in the bankruptcy case or proceeding. When the Appearance is filed, if the Surrogate indicates that the surrogacy is to be terminated (and they will represent the client), the Surrogate and Inactive - Surrogate Appointed labels are removed from the attorney records on the docket. In response to the Appearance and termination of surrogacy, the Lawyer will be terminated (not deleted) by the Case Administrator assigned to the case.
If the Surrogate will not be representing the clients because:
the Surrogate does not intend to represent the clients;
the clients reject that representation;
the clients hire replacement counsel;
the Surrogate determines a conflict exists and cannot represent the clients, or
the clients fail to respond to the Surrogate’s notice of the need to take affirmative action regarding counsel,
the Surrogate must file a notice of termination as to the Surrogate’s status in the particular case or proceeding using the Notice of Submission event. When that notice of termination is filed, if the Surrogate indicates they will not represent the client(s) and that the surrogacy is to be terminated, the Surrogate is removed from the case automatically and the Inactive - Surrogate Appointed label is removed from the Lawyer's record (thus returning the original attorney as counsel to the debtor(s)).
- When the state court enters an order discharging the Surrogate, he/she must file notice of that discharge in the miscellaneous proceeding within 14 days of its entry. However, if the Surrogate has not been discharged by the state court within six months of the entry of the Appointment Order, he/she must file a status report on or before six months after the date of the Appointment Order's entry, and every six months thereafter, until so discharged. However, if the Surrogate has yet to have been discharged by the state court but reports to this Court that all Bankruptcy Court matters have been concluded, this Court may enter an order excusing further reporting requirements and closing the miscellaneous proceeding. The notice of Surrogate's discharge and status reports are to be filed using the Notice of Submission event.
- Upon the filing of a notice of discharge by the state court or the entry of an order closing the miscellaneous proceedings, the Clerk will terminate the Surrogate (with a separate docket entry), the Surrogate will be removed from the case or proceeding where they have not previously been removed, and the miscellaneous proceeding will be closed.