Ethics Opinion Articles - NC State Bar Journal

Where's Waldo?

By Suzanne Lever

We all know the frustration of misplacing our keys, reading glasses, or (heaven forbid) the television remote. Thankfully, these particular daily crises are usually resolved with a quick look under the couch or in the dog’s bed. A more difficult dilemma arises when what’s missing happens to be your client.

When a client stops communicating with his lawyer, the lawyer has a duty to “take reasonable steps to locate and communicate with the client.” RPC 223. In RPC 223, a lawyer attempting to locate her client called the client, wrote to the client, contacted the client’s last known employer, asked the former employer to forward a letter to the last known address the employer had on file, contacted the client’s health care providers, contacted the medical insurance carrier, and checked the county property listings. The ethics opinion concluded that the lawyer’s efforts to locate her client were more than reasonable.

In 2011, a lawyer has many resources available to assist in locating an errant client. For example, a lawyer may consider:

• Checking email directories

• Utilizing Google, social networking websites, and other search engines specifically designed to locate missing people

• Researching public records including property, tax, voter, marriage, and divorce records

• Writing and phoning the client at all known addresses and telephone numbers—being sure to ask the postal service or telephone company for updated information

• Calling the client’s employer and interviewing coworkers

• Contacting the client’s medical providers

• Contacting family members

• Reviewing the file for leads from documents that may list additional contact information

• Visiting the client’s last known address and interviewing neighbors.

Remember that a lawyer is not required to turn over every leaf to locate a missing client. The ethics opinions require only that the lawyer take “reasonable steps.” What is “reasonable” will depend on the facts particular to each client matter.

Sometimes, however, the lawyer’s reasonable steps will not reveal the location of the wayward client. What actions are permissible/required by the lawyer at that point? Consider the following scenarios.

Scenario One: You are hired by a personal injury client. While you are investigating the matter, the client goes missing. The statute of limitations is fast approaching. May you file a complaint on the missing client’s behalf to stop the running of the statute?

Answer: No. The Ethics Committee previously addressed this scenario in RPC 223. In that opinion, a lawyer has not heard from his client in over a year, and despite the lawyer’s reasonable efforts, the lawyer is unable to locate the client. The opinion states that, under these facts, the client's failure to contact the lawyer within a reasonable time after the lawyer’s last contact with the client must be considered a “constructive discharge.” Because the lawyer had been discharged, he was required to withdraw pursuant to Rule 1.16(a)(3). The opinion concludes that the lawyer may not file a complaint on behalf of the missing client, although filing suit might stop the running of the statute of limitations, because the lawyer cannot know the client’s objectives for the representation. The opinion emphasizes that the determination of the objective of the legal representation is the client's prerogative and that the client has the ultimate authority to determine the purposes to be served by the legal representation.

Hint: One risk manager suggests that if a lawyer has had difficulty contacting a client, and the statute of limitations is approaching, the lawyer should send a “drop dead letter” to the client at all of the client’s last known addresses. The letter should advise the client that if the lawyer does not hear from the client by a certain date, the lawyer will take no further action on the matter. The letter should inform the client that certain time limits apply to the claim and that the client should immediately contact the lawyer or immediately obtain other counsel.

Caveat: A lawyer faced with an impending filing deadline and a missing client should consider whether he has the client’s “implied consent” to file the complaint. Rule 1.2(a) provides that a lawyer “may take such action on behalf of the client as is impliedly authorized to carry out the representation.” The facts in RPC 223 reveal that the lawyer had been hired to represent the client in regard to minor injuries, that he had not heard from the client in a substantial amount of time, and that in the last conversation between the lawyer and the client, the client had expressed plans to see additional health care providers. Under these circumstances, the opinion states that the lawyer cannot know whether the client wanted to proceed with the lawsuit, who the client was prepared to sue, and whether the allegations in the complaint would be accurate. Under a different set of circumstances, a lawyer might reasonably conclude that the client has made clear his objectives for the representation, that filing a complaint is consistent with the objectives, and that the lawyer possesses adequate verified information to prepare and file the complaint.

Scenario Two: You file a complaint on behalf of your client. Your client disappears. The opposing side files a motion to dismiss the action for failure to respond to discovery requests. May you file a voluntary motion to dismiss the action without prejudice to allow the client another year to resurface and re-file the matter?

Answer: No. Pursuant to Rule 1.2(a), a lawyer must abide by a client’s decisions concerning the objectives of the representation. The client has not consented to the dismissal of his lawsuit, and the lawyer does not have the authority to make this decision on the client’s behalf in the absence of express or implied authority. In light of the client’s failure to respond, the lawyer must file a motion to withdraw from the representation. See RPC 223 and 2003 FEO 16.

In 2003 FEO 16, a lawyer was appointed to represent the mother in a proceeding to determine whether her child was abused, neglected, or dependent. At the time of the appointment, the lawyer had minimal contact with the mother and did not know what position she would take in the proceedings. Both parents subsequently disappeared. At issue was whether the lawyer could advocate for an adjudication of dependency in the proceeding. The opinion holds that the lawyer has to file a motion to withdraw, and if the motion is denied, he must refrain from advocating for a particular outcome. Pursuant to 2003 FEO 16, “[i]f the client is not present to give instructions to the lawyer as to the objectives of the representation, the lawyer may not substitute his own objectives even if the facts appear to support a particular position.”

To minimize the prejudice to the client, when the lawyer files the motion to withdraw, the lawyer should also request an extension of time for the client to respond to the discovery.

Caveat: The lawyer should also consider whether he has implied authorization under Rule 1.2(a) to file the voluntary dismissal.

Scenario Three: You negotiate an excellent settlement on behalf of your client that was not previously authorized by the client. You are unable to locate the client to obtain the client’s consent to the settlement. The statute of limitations is fast approaching. May you accept the settlement on the client’s behalf?

Answer: No. Rule 1.2(a)(1) states that a lawyer “shall abide by a client's decision whether to settle a matter.” A lawyer may not circumvent the delegation of authority to the client in Rule 1.2(a)(1) by stating in the retainer agreement that the client confers upon the lawyer the authority to settle the matter without the client’s consent. So, this would also be an appropriate time to send the client a “drop dead letter.”

Scenario Four: You are hired by an insurance company to represent their insured. The insured cannot be located. May you appear on behalf of the insured?

Answer: Maybe. 2010 FEO 1 rules that a lawyer retained by an insurance carrier to represent an insured whose whereabouts are unknown, and with whom the lawyer has no contact, may not appear as the lawyer for the insured absent authorization by law or court order. Certain provisions in the insurance contract may affect the lawyer’s ability to proceed with the representation on behalf of and in the name of the insured in the event contact with the insured is lost. The opinion provides that the lawyer may appear in the lawsuit on behalf of the insured if the insured has authorized the representation. However, if the insured cannot thereafter be located, the lawyer may not mislead the court about the insured’s absence. The opinion also provides that the lawyer may have to file a motion to withdraw if the insured is not present to participate in the representation.

Scenario Five: You are hired by a client in a personal injury matter. During the representation, the client dies. Granted this is a somewhat different situation in that your client is not missing. However, this scenario presents similar issues as to continued representation.

Answer: There are several permutations of this particular scenario. As a matter of agency law, a lawyer’s authority to act for a client terminates when the client dies. However, the lawyer may continue if the estate's personal representative approves continued representation of the client's surviving interests.

First, assume that an action has already been filed on behalf of the deceased client. If the matter is in litigation, the lawyer cannot withdraw without the consent of the court and must continue to represent the interests of the client/estate until the lawyer is released by the court. The lawyer should first determine whether there are plans to open an estate. If the decedent’s family is going to open an estate, the lawyer should obtain the consent of the family to continue the representation until the estate is opened and a personal representative is appointed. If the family consents, the lawyer should notify the court and ask the court whether the lawyer should withdraw or continue the representation until such time as the estate is opened. If the family does not consent to the lawyer’s continued representation, the lawyer should file a motion to withdraw.

The second step is to ask the personal representative, when appointed, if the personal representative would like for the lawyer to continue as the lawyer for the estate in the pending litigation. If not, the lawyer must file a motion to withdraw. If the personal representative consents to the continued representation, the lawyer may need to substitute the estate as the party.

If there are no plans to open an estate and there is litigation pending, the lawyer may determine that it is necessary to have an estate opened and a public administrator appointed. After a public administrator is appointed, the lawyer would take his directions from the public administrator. Alternatively, the lawyer may file a motion to withdraw.

If there is no pending litigation and the family does not plan to open an estate, the lawyer’s authority to act on behalf of the decedent’s interest is circumscribed, and in most instances, the lawyer may not seek to have an estate opened.

If a lawyer does run into any of these scenarios, he should contact his liability or malpractice insurance carrier for their additional risk management advice.

Be Proactive. Like purchasing, or perhaps handcrafting, a “stylish” beaded or macramé lanyard to attach to your reading glasses, there are precautionary steps a lawyer may take to minimize the risk of “misplacing” a client. The lawyer should utilize the client intake form to obtain as much information about the client as possible. At a minimum, a lawyer should obtain the following information from new clients:

• Full name

• Nicknames

• Date of birth

• Addresses—physical and internet

• Telephone numbers

• Social security number (state that providing this information is optional)

• Drivers license number

• Employers’ names, addresses, and phone numbers

• Names of people who will know client’s whereabouts

• Names and numbers of health care providers

The lawyer should emphasize to the client the importance of informing the lawyer of any changes of address, telephone number, or employment. In addition, the lawyer and the client should set up a specific contingency plan for communicating in the event the client’s telephone service is disconnected. For example, have the client acknowledge that if the client’s telephone service is disconnected, the lawyer has the client’s permission to contact a specific relative.

Finally, a simple way to reduce the likelihood of a client's disappearance, while also fulfilling your ethical duties under Rule 1.4, is to maintain regular contact with your client. Sending periodic case updates to a client’s last known address will keep your client informed of the status of his case and you informed of any address changes that need to be investigated. (In the alternative, you could try tying bells on them. Let me know how that works out for you.)

Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.

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