Oh where, oh where, has my client gone?

You were retained six months ago to represent a client in a personal injury matter. After attempts to negotiate a settlement have failed to bear fruit, you would like to prepare and file a complaint in the matter, but the client has since moved leaving no forwarding address or phone number and you have been unable to contact him. 

The statute of limitations is fast approaching, and you are concerned about whether you can file the complaint to toll the statute.

Discussion

I) ABA and State Bar Opinions; to File or not to File?

ABA Informal Opinion 1467 (1981) addressed the question of whether a lawyer who had been retained to fie suit in a personal injury matter has an obligation to file suit when the client has disappeared. The opinion stated that the lawyer had no such duty unless the loss of contact was caused by the lawyer’s neglect.  

There are several state bar opinions that have addressed the missing client dilemma. Most state bar association ethics opinions analyze the issues implicated under their respective State versions of Rules 1.3 Diligence, 1.4 Communication and 1.16 Declining or Terminating Representation of the ABA Model Rules of Professional Conduct. These opinions are very fact intensive and come to varying conclusions. Some of them state that a lawyer may file suit in order to toll the statute of limitations if the lawyer reasonably believes that the client has authorized the lawyer to file, or if necessary to do so to protect the client’s interests.  They also state that a lawyer must exercise due diligence in an effort to locate the client. Other opinions note that the client who has disappeared has constructively discharged the client. See, Illinois State Bar Association Opinion 03-04 (2004), and North Carolina State Bar Opinion 223 (1996).

Alaska Bar Association Opinion 2004-3 (2004) addressed a situation where a lawyer had an initial conference with a client who was injured on a cruise ship. The lawyer gathered facts about the incident, and stated that he would do a follow up investigation.  Just before the statute of limitations was about to expire, the lawyer realized that he needed further information from the client before he was able to file suit, but was unable to locate him. The Alaska Bar Committee, citing to the Alaska versions of Rules 1.3 and 1.4 and mindful of the fact that the statute was about to expire stated:

…the lawyer may file the complaint if the lawyer reasonably believes that the (client) has authorized her to file suit and is relying on her to do so, or if she believes that failing to file would materially and adversely affect the client’s interests.

Illinois Opinion 03-04 (2004) addressed three different scenarios. In all three, the lawyer was retained by a foreign citizen who subsequently disappeared leaving no forwarding addresses or phone numbers. The lawyer hired a skip tracer to help locate the client but to no avail. In the first scenario, the client did not give the lawyer authorization to file suit, and the lawyer does not have enough information to adequately prepare a complaint. In the second scenario, the client did authorize the lawyer to file a complaint and gave the firm adequate information to file. In the third scenario, the client instructed the lawyer to file suit, but did not give the lawyer adequate information to file.

In the first scenario, the Committee stated that the lawyer should not file since under Rule 1.16 the client had rendered the representation unreasonably difficult. Furthermore, under Rule 1.4 the lawyer was unable to communicate with the client and the client would therefore be unable to make informed decisions concerning the representation.  The committee concluded that the lawyer should withdraw from the representation without filing suit.

Under the second scenario, the Committee concluded that since the client did authorize the lawyer to file suit and the lawyer did have adequate information to file, the lawyer should file, but that it would be permissible of the lawyer to withdraw after the suit had been filed.

Under the third scenario, the Committee concluded that the lawyer may not file the suit without adequate information, but may have an obligation to ascertain the facts necessary so that it could file:

Under this set of facts, it would not be in the client's best interest, and indeed impossible, for Law Firm X to prepare and file a complaint without adequate information. It would need to be determined what information would be essentially required in the particular jurisdiction to file a complaint. For example, at the bare minimum, the name of the defendant would seem to be required. If this information is not obtained by the Law Firm prior to the client's disappearance, even if there is specific authority to file the suit it would not be possible. This appears to be the most dangerous scenario for the Law Firm, and to best protect itself, it should use due diligence in conducting an investigation to find the missing facts so that it may follow the client's instructions and file the lawsuit.

Under circumstances similar to those described under scenario # I in the above Illinois State Bar Opinion, Arizona State Bar Ethics Committee Opinion 2001-08 (2001) determined that the lawyer may withdraw from the representation:

Based upon the facts presented by the inquiring attorney, the lawyer's ability to carry out the terms of the representation has been made unreasonably difficult by the client's moving without leaving a forwarding address and by the client's persistent failure to reestablish contact with the lawyer. The lawyer needs the client's medical records in order to make a claim, yet cannot obtain the necessary releases due to the client's failure to communicate or otherwise cooperate.  Therefore, subject to the lawyer's duty to use reasonable care to protect the client's interests under ER 1.16(d), the lawyer may withdraw from the representation under ER 1.16(b)(5). 

If the lawyer has not already done so, he should prepare an unequivocal written notice of his intent to withdraw from the representation by a date certain. The notice should also warn the client that his claims are subject to one or more statutes of limitation, that his right to make any claim in a court of law may be lost if suit is not filed within the time set forth in the applicable statute(s) of limitation.  Finally, the client should be encouraged to obtain other legal representation as quickly as possible.

The Arizona Committee stated that under the facts as presented, the lawyer had no duty to file suit:

…[D]oes the lawyer's duty to use reasonable care to protect his client's interests include a duty to file suit on his client's behalf to toll the statute of limitations? The answer to that question necessarily depends on the facts and circumstances of each case, but based on the facts presented in this case, the answer is no. By dropping out of sight and by failing to reestablish contact with the lawyer, the client has cast serious doubt upon his intent to file suit and pursue the claim.  In other words, it is no longer clear whether the lawyer has any authority to file suit on the client's behalf, if he ever had such authority to begin with.

See Also, North Carolina Opinion 223 (1996) which stated that a lawyer may not file suit under circumstances where the lawyer does not know whether the client wanted to file suit, who the client was prepared to sue, and whether the allegations in the complaint are accurate, South Carolina Opinion 98-07 (where client has disappeared after initial interview lawyer can assume representation has been terminated and is not obligated to file suit), Maryland Opinion 2006-22 (2006) Lawyer who cannot find client despite skip traces, Internet searches and correspondence sent to various addresses where statute of limitations will expire may but is not required to file suit. If the lawyer still cannot locate the client after filing suit, he may file motion to withdraw.)  Philadelphia Opinion 98-8 (3/98).

Some state bar opinions require the lawyer to file suit. Philadelphia Opinion 94-10 (1994) dealt with the following set of facts:

Your client is a plaintiff who was involved in a personal injury action wherein the cause of action arose on July 3, 1992. Your last contact with your client was sometime in December 1993 or January 1994 at which time you advised your client in a telephone conversation that the third party carrier was denying the client's claim and that it would be necessary to institute suit on the client's behalf. At that time, you suggested to the client that he schedule an appointment to meet with you to discuss the case further and to sign the appropriate verification to attach to plaintiff's complaint. Since that time you have not seen nor heard from the client despite attempts at communication via letter and telephone. The last letters were returned marked "attempted not known", "return to sender", "no such person lives here." You also state that you have written to two other individuals involved in the accident, also without success. Your contacts with the postal service to obtain a forwarding address for the client have also, to date, been unsuccessful. You have also hired an investigator to attempt to locate your client.

Under these facts, the Philadelphia committee determined that the lawyer must file a summons in the matter in order to toll the statute of limitations and that the lawyer should then request an extension of time from opposing counsel, and when all possible extensions have been exhausted, then the lawyer should seek leave from the court to withdraw.

A subsequent Philadelphia Opinion Philadelphia Opinion 98-8 (1998) which dealt with a situation very similar to that discussed in Philadelphia Opinion 94-10 came to a different conclusion. In Opinion 98-8 the Philadelphia Committee stated that the lawyer was not obligated to file suit. The Committee noted its earlier decision in Opinion 94-10 and stated that the chief reason for the differing conclusion was that in 94-10, the lawyer’s last communication with the client was six months ago while in 98-8, the lawyer had lost communication with the client 18 months ago:

…In prior Committee Opinion 94-10, this Committee addressed circumstances very much like those in which you find yourself. That opinion concluded that due diligence as required by Pennsylvania Rule of Professional Conduct Rule 1.3, and competence as required by Rule 1.1 required the inquirer to file a summons on behalf of his missing client. After careful debate, the Committee feels that this situation although similar warrants a different approach because of the fact that should you be unable to find your client prior to the statute running, it will have been 18 months since your last communication with your client, as opposed to the 6 months reflected in the facts of Opinion 94-10.

…The Committee believes that there is no absolute obligation to file a summons and then withdraw as late as possible in order for your conduct in this matter to be ethical. The Committee finds that only you, as the individual with the most information about this client's case can determine, looking at the totality of all the circumstances, whether it is appropriate for you to follow the advice given in Opinion 94-10. It may be that after reviewing all the information you have been able to collect you feel that it is incumbent upon you to continue to look for your client and file a summons to toll the statute of limitations. However, given the length of time that will have passed between her last contact with you and the date the statute of limitations runs, you may also legitimately decide that you have no further obligations to your client.

Other state bar opinions state that the lawyer should file suit to toll the statute. See, Rhode Island Opinion 91-82 (1991) and South Dakota Opinion 92-6 (1992) (lawyer who has been retained to represent client in personal injury matter but who has lost contact the client should file suit before the statute runs unless the retainer agreement requires the client’s authorization to file suit.)

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II) What is “Reasonable Diligence” When
Searching for a Missing Client ?

Most state bar opinions state that when faced with a missing client problem, the lawyer should use due diligence to locate the client.  Some of these opinions provide detailed guidance as to what is meant be the term. See, e.g. the following discussion that appears in Arizona State Bar Opinion 2001-08: 

What constitutes a reasonable effort to find the client depends on the circumstances of each case, including the extent to which the lawyer knows or has access to information which might reveal the client's current whereabouts. At a minimum, a "reasonable effort" would require the lawyer to write and telephone the client at all known addresses and telephone numbers.  The lawyer should also make reasonable efforts to contact the client through the client's family, friends, or acquaintances either known to the lawyer or who may be discovered by the lawyer through the exercise of reasonable diligence. The efforts comprising a reasonably diligent search will vary depending upon the circumstances. Reasonable efforts to locate the client, his family, friends, or acquaintances include reviewing the file, including any medical files or police reports, contacting the client's medical provider(s), checking readily available public information sources such as the telephone directory, and otherwise pursuing any leads reasonably indicated by the circumstances of this particular case. The Committee encourages lawyers to obtain sufficient contact information from clients at the inception of the representation, such as names and addresses of family members or close friends such that the lawyer may maintain contact with the client, even if the client relocates. 

See Also Philadelphia Opinion 98-8 (1998) provides the following guidance:

…The Committee, in discussing your inquiry, wishes to point out that although you have made many efforts to locate your client, perhaps several other things could be done in this endeavor. Since the client had injuries, it was suggested that you contact her treating physician if you have that individual's name. In addition, should you have your client's social security number, there are a number of data bases in which you could legally attempt to locate her. In addition, hospital records to which you might have access could contain the name of a friend or next of kin who might know where your client is.

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III) Can retainer agreement provisions help to prevent or mitigate the problems posed by a missing client? 

Some state bar opinions have addressed the extent to which a lawyer can anticipate and mitigate these types of problems in a retainer agreement. Arizona State Bar Opinion (2006) stated that a lawyer may not include a provision that gives the lawyer blanket authority to settle the case if the client disappears or if the lawyer is unable to communicate with the client. Compare California Formal Ethics Op. 2002-160 (2002) lawyer may settle missing client's cause of action and pay himself out of settlement funds under circumstances where the client has specified the percentage of the claim he will accept and the lawyer believes that settlement is in the client's best interest). 

Iowa State Bar Opinion 99-12 states that a lawyer may ask a client to deposit an amount of money into the lawyer's trust that will serve as a pledge that he will attend court proceedings. If the client fails to appear, the money will go the lawyer for time wasted. See Iowa Opinion. Kansas Opinion 99-05 (1999) and ABA Informal Opinion 1467 (1981) state that a lawyer can include a provision in his retainer agreement that requires the client to keep the lawyer apprised of his address and phone numbers. Under Colorado Opinion 95 (1993) a lawyer may include a provision that states that the remaining balance of the client's funds deposited with the lawyer will go to a designated charity or relative of the client if the client fails to communicate with the lawyer.

IV) Conclusion

When a client goes missing, many sticky ethics issues can emerge involving diligence, competence and communication.  Under some circumstances, the lawyer may be required to withdraw from the representation. For guidance, check the applicable ethics opinions and rules of professional conduct hat have been adopted in your jurisdiction. For your reference, a list of state bar opinions with links to the full text are available on the additional resources page which is located here.

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