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.
