State Bar of Arizona Ethics Opinions

01-08: Withdrawal from Representation; Missing Clients; Communication with Client
9/2001

When a client moves and fails to communicate with his lawyer, the lawyer may withdraw from the representation if the lawyer uses reasonable efforts to: 1) locate the client to inform him of the withdrawal; and 2) protect the client's interests upon withdrawal, including maintaining client confidences and safeguarding client property. [ERs 1.4, 1.6, 1.15, 1.16(b)]

FACTS[1]

 

The inquiring attorney was engaged to represent a client in a personal injury matter.  The lawyer's only consultation with the client took place in a store operated by the client's friend.  At that time, the parties signed a contingent fee agreement.  The lawyer gathered the facts, including the name of the client's doctor.  The lawyer did not have any medical record release forms with him at the time the meeting took place but promised to send them to the client.  Once the client returned the signed releases to the lawyer, the plan was for the lawyer to obtain the client's medical records, prepare a claim, then forward the claim to the alleged tortfeasor along with a settlement demand.  Although the lawyer and client discussed the possibility of filing a lawsuit if the claim was rejected, no direction was given to the lawyer to file suit then and there.  The lawyer cannot recall discussing the statute of limitations with this particular client but it is his custom and practice to do so.

 

At the conclusion of the store meeting, the client gave the lawyer his apartment address for correspondence.  Since the client did not have a telephone of his own, the client directed the lawyer to leave telephone messages for the client at the store where the initial consultation took place.

 

Communication with the client broke down soon after the store meeting.  The store refused to accept any more messages for the client.  The lawyer sent form releases to the client but they

were returned unsigned.  The client telephoned the lawyer and, in the lawyer's absence, spoke with the lawyer's legal assistant.  The client told the paralegal that he was being evicted from his apartment and that there would be no way to reach him.  The client promised to reestablish contact with the lawyer but never did.

 

 

The lawyer has not heard anything from the client since then and does not know the client's present whereabouts.  Indeed, the lawyer suspects that the client is indigent and living on the streets.  All correspondence from the lawyer to the apartment address has been returned undelivered.  The lawyer wrote a letter to the client at the apartment address advising the client that the lawyer no longer wished to represent him, but that letter was also returned with the notation, "moved with no forwarding address."  The lawyer tried to learn the client's whereabouts from the client's doctor, but the doctor doesn't know where the client is either.  In the meantime, the doctor will not turn over the client's medical records without a signed release, which the lawyer does not yet have.  The lawyer does not have any client funds or other property.  Litigation has not yet been filed and the statute of limitations will not run for at least one year.

 

QUESTIONS PRESENTED

 

May the lawyer ethically withdraw from representing the client under the circumstances presented in this case?  If so, what ethical duties does the lawyer owe the client upon withdrawal, if any?[2]

 

RELEVANT ETHICAL RULES

 

ER 1.3.            Diligence

 

A lawyer shall act with reasonable diligence and promptness in representing a client.

 

ER 1.4.            Communication

 

            (a)            A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

 

            (b)            A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

 

ER 1.6.            Confidentiality of Information

 

            (a)            A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in

order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).

 

            (b)            A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

 

 

            (c)            A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

 

            (d)            A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

 

ER 1.15.            Safekeeping Property

 

            (a)            A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property.  Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person.  Other property shall be identified as such and appropriately safeguarded.  Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

 

            (b)            Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.  Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

 

            (c)            When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests.  If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

 

ER 1.16.            Declining or Terminating Representation

 

            (a)            Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

 

(1)            the representation will result in violation of the Rules of Professional Conduct or other law;

 

(2)            the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

 

                   (3)            the lawyer is discharged.          

 

(b)            Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client, or if:

 

(1)            the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

 

                   (2)            the client has used the lawyer's services to perpetrate a crime or fraud;

 

(3)            a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

 

(4)            the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

 

(5)            the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;

 

                   (6)            other good cause for withdrawal exists.

 

            (c)            When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

 

            (d)            Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.  The lawyer may retain papers relating to the client to the extent permitted by other law.

 

RELEVANT ARIZONA ETHICS OPINION

 

Ariz. Op. 91-01

 

OPINION

 

ER 1.16 (Declining or Terminating Representation) provides in relevant part:

 

* * * *

 

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client, or if:

 

 

 

 

(5) the representation . . . has been rendered unreasonably difficult by the client;

 

(6) other good cause for withdrawal exists.

 

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

 

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.  The lawyer may retain papers relating to the client to the extent permitted by other law.

 

In Ariz. Op. 80-11 (March 27, 1980), the inquiring attorney represented the plaintiff in a pending personal injury action.  The lawyer tried to convey a settlement offer to his incarcerated client but the letter was returned "refused."  The Committee framed the issue as follows:

 

[W]hat are the ethical obligations of a lawyer who, for reasons beyond his control, is unable to communicate with or secure instructions from his client in a pending action?  His duty would appear to be to protect the interests of his client to the extent that he can reasonably do so and, when the lawyer cannot reasonably carry out his employment effectively, he should relieve himself from those duties by seeking withdrawal . . . taking care to obtain permission of the court where needed . . . and to avoid foreseeable prejudice to the rights of the client (citations omitted).

 

According to the Committee, when the client refuses to communicate with the lawyer, "the lawyer has no choice other than to withdraw."  Nevertheless, before withdrawing, "[t]he lawyer should take care to see that he has exhausted all reasonable possibilities to make communication."

 

The North Carolina State Bar Ethics Committee has taken the position that a client's unexplained disappearance in and of itself is tantamount to a constructive discharge of the attorney by the client.  See North Carolina Op. 223 (January 12, 1996).

 

In a similar contingent fee personal injury case, the ABA Standing Committee on Ethics and Professional Responsibility considered whether a lawyer had a duty to file suit to stop the statute of limitations from running when the client moved without notifying the lawyer.  ABA

 

 

Informal Op. 1467 (August 10, 1981).  The Committee concluded that the lawyer had no such duty so long as the loss of contact was not caused by the lawyer's neglect and so long as the lawyer used reasonable diligence to learn the client's whereabouts.

 

To be sure, a lawyer may not simply abandon a client.  When he accepted this representation, the lawyer undertook, among other things, to act with reasonable diligence and promptness and to keep the client reasonably informed about the status of the matter.  See ERs 1.3 and 1.4.  On the other hand, a lawyer cannot be expected to carry out a representation if the client's acts or omissions make the representation unreasonably difficult.  See ER 1.16(b)(5).

 

Based upon the facts presented by the inquiring attorney, the lawyer's ability to carry out the terms of the representation has been made unreasonably difficult by the client's moving without leaving a forwarding address and by the client's persistent failure to reestablish contact with the lawyer.  The lawyer needs the client's medical records in order to make a claim, yet cannot obtain the necessary releases due to the client's failure to communicate or otherwise cooperate.  Therefore, subject to the lawyer's duty to use reasonable care to protect the client's interests under ER 1.16(d), the lawyer may withdraw from the representation under ER 1.16(b)(5).

 

If the lawyer has not already done so, he should prepare an unequivocal written notice of his intent to withdraw from the representation by a date certain.  The notice should also warn the client that his claims are subject to one or more statutes of limitation, that his right to make any claim in a court of law may be lost if suit is not filed within the time set forth in the applicable statute(s) of limitation.  Finally, the client should be encouraged to obtain other legal representation as quickly as possible.

 

The lawyer should deliver a copy of the notice to the client in care of the store and in care of the client's doctor.  The lawyer should also mail the notice to the client at all known addresses as well as all addresses which may be discovered by the lawyer through the exercise of reasonable diligence.  What constitutes a reasonable effort to find the client depends on the circumstances of each case, including the extent to which the lawyer knows or has access to information which might reveal the client's current whereabouts.  At a minimum, a "reasonable effort" would require the lawyer to write and telephone the client at all known addresses and telephone numbers.  The lawyer should also make reasonable efforts to contact the client through the client's family, friends, or acquaintances either known to the lawyer or who may be discovered by the lawyer through the exercise of reasonable diligence.  The efforts comprising a reasonably diligent search will vary depending upon the circumstances.  Reasonable efforts to locate the client, his family, friends, or acquaintances include reviewing the file, including any medical files or police reports, contacting the client's medical provider(s), checking readily available public information sources such as the telephone directory, and otherwise pursuing any leads reasonably indicated by the circumstances of this particular case.  The Committee encourages lawyers to obtain sufficient contact information from clients at the inception of the representation, such as names and addresses of family members or close friends such that the lawyer may maintain contact with the client, even if the client relocates. 

 

Since no suit has been filed, the lawyer has no duty to obtain the consent of any tribunal before withdrawing.  However, does the lawyer's duty to use reasonable care to protect his client's interests include a duty to file suit on his client's behalf to toll the statute of limitations?  The answer to that question necessarily depends on the facts and circumstances of each case, but based on the facts presented in this case, the answer is no.  By dropping out of sight and by failing to reestablish contact with the lawyer, the client has cast serious doubt upon his intent to file suit and pursue the claim.  In other words, it is no longer clear whether the lawyer has any authority to file suit on the client's behalf, if he ever had such authority to begin with.  See ER 1.2.  Nor is it clear whether there is a sufficient factual basis to file suit.  See ER 3.1.

 

Other duties owed by a lawyer to the client upon withdrawal include the duty to keep the client's confidences pursuant to ER 1.6 and the lawyer's duty to preserve any client property in his possession pursuant to ER 1.15 until the property can be reclaimed by the client or his authorized representative, or until the property is abandoned under state law.  See Ariz. Op. 91-01 (January 15, 1991).

 

CONCLUSION

 

By his acts and omissions, including moving without leaving a forwarding address and otherwise failing to cooperate in the preparation of his own case, the client has rendered the representation unreasonably difficult and the lawyer may withdraw under ER 1.16(b)(5).  Nevertheless, the lawyer must make reasonable efforts to protect the client's interests upon withdrawal by, among other things, unequivocally informing the client of the lawyer's intent to withdraw and using reasonable diligence to locate the client in order to inform the client of the withdrawal.  The lawyer also has a duty under ER 1.6 to keep the client's confidences, and to safeguard any client property as provided in ER 1.15.



[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2001

[2] Legal questions such as the lawyer's professional liability to the client, if any, are beyond the scope of this ethics opinion.