Last week, I discussed what lawyers should do if their client dies during representation. So what about if your client goes AWOL?
As an agent of the client, a lawyer can only act via the authority given by the client. If the client is not available to authorize the lawyer, then what should the lawyer do?
Make “Reasonable Efforts” to Locate the Client
When a client disappears, a lawyer must make reasonable efforts to locate client. So what does that mean?
Well, it depends on the specific facts. It may mean doing one or more of the following:
- examining various public records including motor vehicle, voting, social security, or marriage and divorce records
- searching Google, Facebook, or other online tools
- contacting the client’s friends, relatives, or former employers or co-workers for information
- hiring a private investigator to help
“In all cases the attorney must expend a reasonable amount of time and funds so as to insure that the attorney makes a diligent effort to locate the client.” (California).
All efforts made should be documented.
Have a Duty to Look After Client’s Interests
While a client is unreachable, the lawyer has a duty to continue to look after the client’s interests and minimize any prejudice to the client. (e.g., Kentucky). A lawyer has the implied authority to act on low level procedural type matters, like deadline extensions, continuances, and the like. (e.g., Colorado; California) But most major decisions require client approval.
Can a Lawyer File a Lawsuit on behalf of an AWOL Client?
There may be instances where a client, prior to disappearing, gave explicit or implied consent to file a complaint with allegations verified by the attorney. But there may also be instances where a lawyer may not know for sure whether the client wanted to proceed with the lawsuit, who the client was prepared to sue, and whether the allegations in the complaint are accurate.” (North Carolina)
What if the filing of a lawsuit is required to file suit to toll the statute of limitations? Some jurisdictions have concluded that there is no duty to file a lawsuit to toll the statute of limitations if the client’s unavailability had not been caused by the attorney’s neglect. (e.g., Florida). But at least one jurisdiction has opined that an attorney “may file an answer to the complaint to avoid reasonably foreseeable prejudice to the client.” (California).
Can a Lawyer Settle a Case for a Client Who Can’t Be Found?
A lawyer cannot settle or dismiss a case without client’s consent, can’t endorse a check in client’s name, and can’t pay himself without client’s approval. (e.g., Kentucky)
There may be a situation where, prior to the client’s disappearance, the client set specific settlement parameters and authorized the lawyer to settle on his behalf. In that case, a lawyer would have authority to reach a settlement. (Kentucky). But as a practical matter, even if the lawyer has authority to agree to a settlement, the settlement would not likely be concluded because the client is unavailable to sign a release. (Kentucky).
Lawyers generally may not ethically obtain an advance blanket authorization from a client to decide whether to settle a case, and to execute all necessary documents in the client’s name, if the client disappears or the lawyer is otherwise unable to communicate with the client. (e.g., Arizona; ). Such an approach would violate a lawyer’s duty to communicate and abide by the client’s decision about settlement. It would also cause an impermissible conflict whereby the lawyer acquired a proprietary interest in the client’s litigation matter.
If reasonable efforts to locate a client have failed, the lawyer should take steps to withdraw from the representation. (e.g., North Carolina; California) Typically, a client must be given notice of the intent to withdraw, but obviously such notice may not be possible. If that is the case, the lawyer should keep records documenting all the efforts made to locate the client. (e.g., California)
If for some reason the motion to withdraw is denied, the lawyer may participate in the proceedings to the limited extent that such participation is consistent with the known objectives of the missing client, but the lawyer should not advocate for any particular position or outcome in the proceeding. (North Carolina)
Lawyers generally cannot disclose confidential information relating to the representation of a client. In some circumstances, disclosure of a lawyer’s inability to locate a client may harm the client’s interests, but an attorney may “reveal such information as may be necessary to formulate the basis for a motion to withdraw.” (California)
What about Client Files, Funds, and Property?
A lawyer should preserve the client’s file in case the client reappears and should retain all client funds and/or property in trust. (California)
But at some point, the lawyer may need to follow the procedures set out in his or her state’s unclaimed property laws. (Kentucky)
Here are a few tips to minimize the risk that a client will become unreachable:
- At the beginning of the representation, get as much identifying information from the client as possible (full name, social security number, date of birth, etc.)
- Obtain names and addresses of one or more persons who can assist you in reaching the client if a problem develops
- Add a provision to the engagement letter requiring the client to notify the lawyer of any address changes and that failure to do so will give the lawyer the right to withdraw. This may not relieve lawyers of their ethical duties to the client, but it should provide support for a motion to withdraw.
- If a client cannot be found and the statute of limitations is approaching, the lawyer should send a “drop dead letter” to the client via all known communication channels (physical address, email, text, etc). The letter should state that if the lawyer does not hear from the client by a date certain, the lawyer will take no further action on the matter and will move to withdraw. The letter should also inform the client about any statutes of limitations or upcoming deadlines and instruct the client to immediately contact the lawyer or obtain other counsel.