|"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
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.