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Commonwealth of Massachusetts


May 2000

MISSING INACTION:

What To Do When You Can’t Find Your Client

by Linda G. Bauer

Bar Counsel frequently receives calls from attorneys who have lost contact with their clients, and now are faced with an ethical dilemma: what can be done, and what must be done, by an attorney whose client is missing?

Usually these calls are prompted by an impending deadline or key event in the client’s case: the tolling of the applicable statute of limitations, receipt of a notice for the client’s deposition, the filing of a motion to dismiss the client’s case for failure to respond to discovery requests, a pending court date, the deadline for filing a notice of appeal, receipt of a settlement offer, or even receipt of a settlement check. Often the client has been missing for months, if not years.

Reference to the Massachusetts Rules of Professional Conduct can provide some guidance in these circumstances. Clearly the attorney has a duty to zealously represent a client and to avoid foreseeable prejudice to a client. Comment 2 to Rule 1.3 states that a lawyer "may not intentionally prejudice or damage his client during the course of the professional relationship." While the attorney is obligated to seek the lawful objectives of his or her client, Comment 1 to Rule 1.2 clarifies that the lawyer can make certain legal tactical decisions, within the framework of the client’s objectives.

With a deadline fast approaching, and a client who has disappeared, an attorney must undertake all reasonable efforts to locate the client. These efforts can involve examination of various public records including motor vehicle, voting, social security, or marriage and divorce records, as well as requests to the postal service or telephone company for updated address and telephone numbers. The attorney should attempt to contact the client’s friends, relatives, or former employers or co-workers for information. Various data bases can be used legally to attempt to locate the client, although it can help to know the client’s full name or other identifying information. If the client had been injured, his or her treating physician may have information about the client’s whereabouts. Other hospital or medical records available to the attorney may include names of the client’s friends or next of kin. In certain circumstances, a private investigator can be retained to attempt to locate the client.

If these efforts have proved fruitless, by virtue of the representation the attorney has implied authority from the client to act for the client in procedural matters, such as seeking an agreement from opposing counsel for a continuance or to toll the statute of limitations. An attorney also has implied authority to file a complaint on behalf of a missing client in order to toll the statute of limitations, provided the attorney has conducted sufficient investigation to have a reasonable belief that the client’s suit is not frivolous. In this regard, Comment 2 to Rule 3.1 clarifies that a suit is not frivolous merely because the facts have not been fully substantiated at the time the complaint is filed.

A more difficult question is whether the attorney is required to file suit to toll the statute of limitations on behalf of a missing client. The ABA addressed this issue in an informal opinion advising that where an attorney’s reasonable efforts to locate the client had been unsuccessful and the attorney believed there was no reasonable likelihood the client would return, the attorney had no duty to file suit to toll the statute of limitations if the client’s unavailability had not been caused by the attorney's neglect. ABA Informal Opinion 1467 (1981). Other state and local bar associations have concurred with this result. See Florida Bar July 1, 1987 Ethics Opinion, reconsidering Opinion 72-36; Wisconsin State Bar opinion E-96-2 (the obligation to toll the statute has to be determined by the circumstances of the situation); Philadelphia Bar Association Opinion 98-8 (March 1998). Circumstances to consider might include how much time has passed since the attorney’s last communication with the client, the efforts undertaken by the attorney to find the client, the nature of the client’s claim, and the attorney’s expectation that the client will return.

In seeking a postponement of a discovery deadline or the continuance of a hearing due to the absence of a client, an attorney should use care not to make an affirmative misrepresentation to an opposing party or to the court. See Mass. R. Prof. C. 4.1 and 3.3. In some circumstances, the failure to make a disclosure is the equivalent of an affirmative misrepresentation. See Comment 2 to Mass. R. Prof. C. 3.3. However, under Rule 1.6 an attorney has a duty not to disclose confidential information relating to the representation of a client, except when required by law or court order or in other circumstances not relevant to this discussion.

The attorney’s remedy in these circumstances may be to seek to withdraw from the client’s representation. However, here again the attorney may be caught in a web of competing ethical rules. Under Rule 1.16(b)(5), an attorney may seek to withdraw from a client’s representation if the representation "has been rendered unreasonably difficult by the client." On the other hand, the attorney must give notice to the client of the withdrawal, and must seek to avoid prejudice to the client’s case. See Mass. R. Prof. C. 1.2, 1.3, and 1.4. While actual notice may be impossible under the circumstances, the attorney should keep records documenting all efforts to locate and to give notice to the client. In addition, the attorney should preserve the client’s file in case the client returns, and should retain all client funds in a client’s funds account. If court permission is required for withdrawal, the attorney should use care not to disclose more information than is necessary to effect withdrawal from the case, keeping in mind that disclosure of the inability to locate the client can be detrimental to the client’s interests.

The rules are clear that there are some actions an attorney cannot take without the client’s express approval. The attorney cannot settle the case, or dismiss a cause of action without the client’s consent. Mass. R. Prof. C. 1.2(a). The attorney also cannot endorse a check with the client’s name, or pay himself a fee without the client’s approval. Mass. R. Prof. C. 1.15(b), (c).

An attorney can take some steps at the outset of the representation to minimize the risk of these problems developing. It is obviously important to get as much identifying information about the client as possible. The client’s full name, social security number, and date of birth are all critical. It is also a good idea to obtain the names and addresses of one or more persons who can assist you in reaching the client if a problem develops. The attorney should advise the client to report any changes of address promptly, and explain the importance of doing so. A provision can be added to a written employment agreement stating that the client shall promptly notify the attorney of any change of address, and that failure to do so may relieve the attorney of any obligation to continue the case. See ABA Informal Opinion 1467 (1981). Inclusion of this provision may not relieve the attorney of his ethical duties to represent a client competently and to avoid foreseeable harm to the client, but it may provide some support for a later motion to withdraw.

 

Linda G. Bauer is an assistant bar counsel with the Board of Bar Overseers.



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