In answering this question consider these three scenarios:
Scenario 1: The client has not given you authority to file suit and you do not have enough information to file a complaint on the client’s behalf.
Scenario 2: The client has given you authority to file suit and you have enough information to file a complaint.
Scenario 3: The client has given you authority to file suit, but you do not have enough information to file a complaint.
Kentucky Rules of Professional Conduct to consider are:
There is no known Kentucky authority on the litigation problem of a missing client and a statute of limitations about to run. Nebraska Ethics Advisory Opinion for Lawyers No. 08-03 is a good review of what other states have done with this issue and offers these possible answers to the three scenarios:
Scenario 1: You should not file suit since the client had rendered representation unreasonably difficult.
Scenario 2: You should file suit, but then move to withdraw after the suit is filed if unable to communicate with the client.
Scenario 3: You cannot file suit without adequate information. You may, however, have an obligation to ascertain the facts necessary to file suit. You should use due diligence in locating the missing facts so that you could follow the client’s instructions and file suit.
In the Nebraska opinion it was observed of other state ethics opinions that “Each ethics opinion appears to struggle with the issue and for most, the conclusion is fact sensitive.” The opinion then goes on to cite Maryland for this general rule:
In Maryland, it is up to the attorney whether or not to file suit. Maryland Opinion 2006-22 (2006) concludes that if an attorney cannot locate his client despite diligent searches and attempts at contact and the statute of limitations is about to run, the attorney may, but is not required to, file suit. If unable to locate the client after filing suit, the lawyer may withdraw if still unable to contact his client.
Risk manage the problem of missing clients by client intake procedures that obtain the following information:
Cover in the letter of engagement:
What constitutes a diligent effort in attempting to locate a missing client is fact specific. Some of the steps that can be taken are:
Finally, if still in a quandary, call the KBA Ethics Hotline for guidance.