California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MAY 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - May 1999
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News
Lending compassion to a difficult situation
Legal specialist exam set Aug. 29
Board to meet June 25-26
Domestic violence group seeking volunteers
Northern California legal services board to fill five vacancies
Court statistics report now available on CD
For Y2K advice, link through bar's web site
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Trials Digest
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Opinion
Hear the cries this time
A single letter, a big increase
Train time at the ABA
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From the President - Door to justice must be open
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Letters to the Editor
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Legal Tech - Litigation library great for attorneys out of office
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New Products & Services
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MCLE Self-Study
The Disabled Practitioner
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - What to do when a client goes missing
Attorney charged with exposing clients to deportation
Attorney Discipline
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Public Comment

ETHICS BYTE

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What to do when a client goes missing
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"I just received a deposition notice for my client in a case that has been dormant for a few months. When I tried to notify her, I discovered that she had moved. I've tried, but can't locate her. What do I do?"

According to the State Bar's competence office, which staffs the ethics hotline, this is a dilemma attorneys face with some frequency.

When a client goes missing, an attorney must take steps to avoid foreseeable prejudice to the client. In ethics opinion 1989-111, the bar's Committee on Professional Responsibility and Conduct (COPRAC) addresses four issues: 1) the authority of the attorney to continue to work on behalf of the client; 2) withdrawal from employment; 3) reasonable efforts to locate the client; and 4) the propriety of disclosure to the opposing counsel and the court.

According to COPRAC, the implied authority of the attorney permits him or her to act in procedural matters without consulting the client, and to bind the client as long as the client's cause of action or defense is not impaired or destroyed. However, without the express consent of the client, an attorney cannot enter into a settlement agreement, endorse a client's name on a check or dismiss a cause of action.

COPRAC cites rule 3-700 of the California Rules of Professional Conduct ("Termination of Employ-ment") when addressing the withdrawal question. If a client has made representation unreasonably difficult, the attorney may withdraw from employment as long as he or she takes reasonable steps to avoid foreseeable prejudice.

However, the attorney must provide "due notice" to the client, including a written statement of withdrawal, information concerning relevant statutes of limitation and time limits for filing documents, and any available legal referral services and the procedures for self-representation. Although delivery of the notice may be impossible, the attorney should document all steps taken to locate the client and give notice.

If the attorney possesses any client funds, they must be maintained in the client trust account.

A reasonable amount of time and expense must be incurred in efforts to find a missing client. COPRAC suggests searches ranging from an examination of various public records to hiring a private investigator. Because all cases are different, the attorney must evaluate what methods of search are reasonable to locate a client.

COPRAC cites Business & Professions Code 6068(d) and (e) to address the propriety of disclosing the disappearance of the client to opposing counsel and the court. Section 6068(d) states the duty not to mislead a judge or judicial officer by an article or false statement of fact of law. Section 6068(e) states the duty to maintain a client's confidences and secrets inviolate.

While the disclosure that a client is missing could be detrimental to the client's interest, concealing material information is as misleading as overtly false statements. In reconciling these duties, COPRAC concludes that the attorney is under no obligation to inform opposing counsel that the client cannot be located, but that the attorney may reveal such information as may be necessary to formulate a basis for a motion to withdraw.

Attorneys facing ethical dilemmas may obtain advice from the State Bar's ethics hotline, 1-800/2-ETHICS.