What must you do if your client suddenly drops off the face of the earth?

In this month’s Oregon State Bar Bulletin, Deputy General Counsel Amber Hollister gives the following recommendations:

Search for the missing client using one of (or all) of the following approaches:

• Mailing, e-mailing and telephoning a client at all known addresses and telephone numbers.
• Utilizing web search services such as Google and social networking sites to locate additional contact information.
• Researching public records such as property, tax, voter, marriage and court records and reviewing the client file for alternate contact information.
• Visiting (or sending a staff member to visit) the client’s home or place of employment.
• Contacting the client’s family members, co-workers, employer or medical providers.
• Hiring a private investigator to search for the client, particularly where stakes are high or large sums of money are involved.

I would add:

1. Look for red flags. Clients who move frequently, change jobs often, or have no friends or family in the community are more likely to fall out of touch.
2. Always collect the names, addresses, telephone numbers, and e-mail addresses of at least two emergency contacts from every client. The Professional Liability Fund New Client Information Sheet provides a convenient way to do this. For a sample form, visit the PLF Web site > Practice Aids and Forms > File Management > New Client Information Sheet.  Get additional names and contact information if the situation warrants.
3. Stress to clients the importance of keeping in touch with your office at all times. Some law offices add language to their fee agreement or engagement letters giving the responsible attorney the right to withdraw if the client fails to cooperate in the client’s case. This can include requiring the client to keep a current address and telephone number on file with the lawyer’s office at all times.
4. 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.
5. Take extra precautions with impaired clients. One solution may be to learn the names and numbers of the other professionals with whom your client has regular contact.  (Case workers, social workers, psychologists, and physicians are examples.)  Get your client’s authorization to establish and maintain contact with these professionals.
6. Recognize that certain practice areas such as criminal law involve clients who are more likely to move without notifying you.
7. If you decide to withdraw from representation, read and comply with the  applicable disciplinary and court rules.
8. If it’s too late and your client has already disappeared, conduct as thorough a search as possible. Take all the steps described above by Ms. Hollister, then working from the information on your intake sheet, call the client’s workplace and emergency contacts.  If you decide to visit your client’s last known address, consider talking to the neighbors. Run a DMV search or skip trace.  Follow this rule of thumb:  apply the same level of diligence in searching for your client as you would in locating and serving the opposing party in your case.

Accepting Settlement Offers

Can you accept a counteroffer for an amount less than your demand if you cannot reach your client?  Does it matter if the counteroffer is only open for a short time and you believe the amount is reasonable?  The answers are “no” and “no.”  Ms. Hollister explains:

RPC 1.2(a) provides that it must always be the client’s decision whether or not to settle a matter. Because the lawyer is the client’s agent, the lawyer cannot act without authority from the client. OSB Formal Op No 2005-33. Even if an attorney believes that a settlement offer is eminently reasonable, she is not allowed to supplant the decision of the client. Instead, the lawyer must diligently attempt to communicate the settlement offer to the client while it is still open. RPC 1.3; 1.4. If the lawyer is unable to communicate with the client, the lawyer must reply that she is without authority to accept the offer. Alternatively, the lawyer could seek additional time within which to respond to the offer.

(This answer assumes the client has not previously given the lawyer authority to settle her case for a lesser amount or within a specified range.)

Filing a Complaint to Beat the Statute of Limitations

In this instance, you are ethically permitted to file a complaint to preserve the client’s claim assuming you made “reasonably diligent efforts to contact the client and you have sufficient information to support the filing of a complaint. RPC 1.4; RPC 3.1.”  This is also the correct result from a malpractice avoidance standpoint.  You can then seek to withdraw, provided you “…make a reasonably diligent effort to notify the missing client of the pending withdrawal, and take all reasonably practicable steps to protect the client’s interests. RPC 1.16(d).”  If you find yourself in this situation, contact the Professional Liability Fund and ask to speak to one of the on-call claims attorneys.

Informing Opposing Counsel

Should you tell opposing counsel you have lost contact with your client?  There is no easy answer.  You must balance your duty of confidentiality against the competing obligation to avoid materially misleading the other side.  “Similarly, the lawyer would likely have an obligation to reveal the fact a client is missing if the lawyer believes that opposing party is or may be relying on his previous incorrect assertions or assertions that are no longer true.”

If the fact that a client is missing is confidential information that cannot be disclosed, “the lawyer will need to seek to withdraw without disclosing the client’s status as missing, even if that will leave opposing counsel with a misunderstanding of the facts. RPC 1.16(a); see e.g. OSB Ethics Op No 2005-34 (an attorney whose client commits what the attorney knows to be perjury must ask the client to correct the perjury and, if the client refuses, seek leave of the court to withdraw without disclosing the client’s perjury).”

Stay tuned for Part II in next month’s Bar Counsel column.

All Rights Reserved 2012 Beverly Michaelis