The Risk Manager, Winter 2010
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:
- Rule 1.3, Diligence: You have a duty to carry through to conclusion all matters undertaken for a client unless you withdraw.
- Rule 1.16, Declining or Terminating Representation: Is a missing client a basis for withdrawal and, if so, is the time limitation for filing suit so close in the three scenarios that you have waited too long to give the client adequate notice of withdrawal?
- Rule 3.1, Meritorious Claims and Contentions: May you ever file a suit without knowing whether it is frivolous?
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:
- 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; 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).
Finally, if still in a quandary, call the KBA Ethics Hotline for guidance.