The Risk Manager, Fall 2018
Missing clients are always a serious problem, but never more so than when moving to withdraw from representation of a missing client. Caveman Foods, LLC v. Ann Payne’s Caveman Foods, LLC* is an example of just how difficult withdrawing becomes when the moving party fails to exercise reasonable diligence in locating a missing client.
Baker, in a motion to withdraw from representing the defendant, lost the motion for the first time when the judge determined that he could not verify Baker’s assertion that the defendant had in fact ceased operations and had terminated Baker. The motion was denied without prejudice. Over a year later Baker renewed the motion to withdraw. This time Baker asserted inter alia that the defendant is no longer an active company, has no office, telephone, email or forwarding contact information in the United States. Baker sent notice of the renewed motion to defendant’s registered office in Pennsylvania and to the last known address of one of the defendant’s former representatives.
Initially the Court dryly noted that a simple Internet search revealed that the defendant is, in fact, an active company in Toronto, Canada, operates an actively maintained website that displays products that correspond to those in the lawsuit, and includes numerous press releases by the defendant. Most significant of all, the website lists current mailing addresses, phone numbers, email addresses, and the names and contact information of its representatives. The Court, thus, concluded that Baker had not conducted the minimal inquiry required to verify whether its representations regarding defendant were accurate and once again denied the motion.
In reaching this ruling the Court cited these examples of reasonable diligence:
- The moving party “attempted to notify defendants at their home, office, and cellular phone numbers, sent them faxes and numerous emails, attempted to contact them through their website, and mailed then notice with delivery confirmation and UPS signature requests.”
- The moving party “obtained a comprehensive report of the client’s contact information, had called, emailed, and mailed the client notice with a return receipt requested, used an address obtained through Facebook, contacted the client’s friends and acquaintances, and hired an investigator to locate the client and serve him with a motion to withdraw.”
Risk manage the problem of missing clients by client intake procedures that obtain the following information
- Telephone numbers.
- Names of people who will know where the client will be.
- Social security numbers.
- Drivers license numbers.
- Dates of birth.
- With impaired clients, get the names and numbers of professionals assisting the client with health problems, e.g., health care providers and government agencies working with the impaired client.
Cover in the letter of engagement:
- The client’s continuing requirement to cooperate and communicate with the attorney and to always inform the lawyer of any change in address;
- The requirement that before any suit is filed the client must authorize it in writing;
- That the attorney may expend a reasonable amount of the client’s trust account funds in an effort to locate the client should the client go missing;
- Designation by the client of another beneficiary in the event the client’s whereabouts remain unknown after a diligent effort to locate the client; and
- That the lawyer has the right to withdraw from representation if the lawyer decides the case is without merit.
What constitutes a diligent effort in attempting to locate a missing client is fact specific. Some of the steps that can be taken are:
- Write and telephone the client at all known addresses and telephone numbers.
- Check readily available public information sources such as the telephone directory.
- Attempt to make contact on Google, social networking websites, and through newspaper notices.
- Call the client’s employer.
- Visit last known addresses.
- Talk to family, friends, acquaintances, or neighbors either known to the lawyer or who may be discovered by the lawyer through the exercise of reasonable diligence.
- Review the file for leads from documents such as medical files or police reports.
- Contact the client’s medical provider(s).
Consider this practical advice from Beverly Michaelis, Practice Management Advisor, Oregon State Bar Professional Liability Fund, included in her article I Can’t Find My Client!
- Look for red flags. Clients who move frequently, change jobs often or have no friends or family in the community are likely to fall out of touch. Proceed with caution.
- Listen to your intuition. If your gut sends out a warning flare, turn the case down. Don’t be swayed by pressure from a friend, the amount of fees involved, or the promise of a quick resolution. Such cases are rarely worth the trouble and often result in malpractice claims that could have been avoided.
- If a client becomes unresponsive or difficult to reach, the situation is not likely to improve. Carefully document your efforts to communicate with the client and give strong consideration to withdrawing from representation when the problem first develops.
- Recognize that certain practice areas such as criminal law involve clients who are more likely to move without notifying you.
Finally, if still in a quandary, call the KBA Ethics Hotline for guidance.
*2015 BL 364214, E.D. Cal., Civ. No. 2:12-1112 WBS DAD, 11/4/15