Legal Ethics Committee
Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
Legal Ethics Hotline Volunteers
David Gavin ... 301-279-2700 ... firstname.lastname@example.org
Sam Shapiro ... 301-340-1333 ... email@example.com
Managing a Missing Client
Attorneys strive to represent their clients’ interests to the best of their ability. When a client disappears, it can put that ability to the test. Recent opinions by ethics committees in New York, Maryland, and the District of Columbia offer useful guidance to lawyers about navigating issues arising from a missing client in various circumstances.
Lawyers have a duty to use reasonable means to find missing clients
One practical principle uniformly applicable across jurisdictions is that a lawyer who has undertaken to represent a client has a duty to try to find him if he goes missing. In Ethics Opinion 359,1 the Ethics Committee for the District of Columbia explained that “reasonable means” include:
• Using available internet technologies and on-line directories;
• Sending a certified letter with return receipt requested to the client’s last known address;
• Contacting friends or relatives of the client;
• Posting a notice in a newspaper of general circulation in the vicinity of the last known address of the client.
In Opinion No. 2006-22,2 the Maryland Ethics Committee stated that “reasonable efforts” may include:
• Examining various public records;
• Requests to the post office;
• Utilization of other information provided by the client that could lead to the client’s whereabouts.
Lawyers may have a duty to act on behalf of a missing client, even without express authority
If the lawyer exhausts the above methods, but is still unable to locate the client, the lawyer may owe a duty to act for the client under certain circumstances.
Protecting a missing client from default under a statute of limitations: In Opinion No. 2006-22, the Maryland committee considered the predicament of a lawyer facing an impending limitations deadline and no client on hand to approve filing suit. In that context, the committee opined that the lawyer has “implied authority” to file suit in order to meet the deadline, with the proviso that the lawyer is satisfied the litigation is meritorious.
The committee was guided by Rule 19-301.2 (formerly Rule 1.2) which provides that a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. The committee viewed the rule as authorizing filing suit so that the client’s interests would not be prejudiced.
After careful review of opinions in other jurisdictions, the committee concluded that the lawyer is not required to file suit. The committee helpfully pointed out that communications between lawyer and client are “not a one-way street, and the client bears some responsibility to keep in contact.”
Allowing a limitations period to expire might require fortitude more easily imagined in theory than mustered in reality - especially given the ease with which a missing client may claim, upon return, that they thought their directive to file suit was clearly understood. Given that, the safe course may be to file suit to protect the claim and move, thereafter, for leave to withdraw. Nonetheless, the lack of a requirement to file suit does mitigate the difficulty of such a decision in the context of a case the lawyer has come to conclude is not meritorious.
Settling the claim of a missing client: The concept of a lawyer’s implicit authority is more complex in other contexts. In Opinion No. 2013-08,3 the Maryland Ethics Committee considered the predicament of a lawyer with an opportunity to make a favorable settlement of two missing clients’ claims.
After reasonably attempting but failing to locate the clients, the lawyer was confronted with the option to settle the claims. The committee opined that Rule 19-301.4 (formerly Rule 1.4) requires a lawyer to secure informed consent of the client about matters important to the representation. In addition, Rule 19-301.2 (Rule 1.2) requires the attorney to consult with the client before settling a matter. The committee concluded that a lawyer’s fiduciary duty under the Rules requires the lawyer to obtain the client’s consent to settle.
The committee considered, hypothetically, a retainer agreement containing a provision authorizing the lawyer to settle without consent under a power of attorney. The committee explained that, even if such a provision existed, it is unclear whether it could be enforced. The committee noted opinions in other jurisdictions holding that such provisions are violative of the rules of professional conduct. The committee concluded that such a term could be enforceable if drafted in terms of a specific, foreseeable absence, but not based on the mere occurrence of an unavailable client.
The committee opined that it did not see why the lawyer could not terminate the representation of the missing clients, provided he complied with Rule 19-301.16.
Protecting the interests of a former client who has defaulted: In Opinion No. 1163,4 the New York Ethics Committee considered the same problem in the context of a missing client who has defaulted on an existing settlement agreement that the lawyer coordinated. The lawyer was faced with a motion before a court based on the client’s failure to make payments.
The committee explained that the lawyer’s obligation depends on whether the previous representation that was the subject of the agreement has been concluded or not. If the prior representation ended and the action before the court had ended, the lawyer may inform the court that the lawyer does not represent the client. If the representation had not concluded or the prior matter before the court remained open, the lawyer must seek permission from the court to withdraw, after using reasonable efforts to locate the client.
The committee stated that whether the representation had ended was a question beyond its jurisdiction.
Protecting missing clients who are due funds from the lawyer: Finally, the District of Columbia Ethics Committee considered the circumstance of a missing client for whom the lawyer was holding money.5 In short, the committee opined that, after failing to locate the client using reasonable methods, the lawyer should presume the funds abandoned. If the circumstances fall within the applicable Act governing unclaimed property, the lawyer must dispose of the funds as directed by the statute.6
Ideally, all clients would stay in touch with their lawyer. These are practical steps available, however, to ethically manage the affairs of the ones who do not.
1DC Ethics Opinion 359: https://tinyurl.com/y5bxskz3.
2MD Ethics Opinion 2006-22: https://tinyurl.com/yy8tvkry.
3MD Ethics Opinion 2013-08: https://tinyurl.com/y5zo5wr6.
4NY Ethics Opinion 1163: https://tinyurl.com/y6tcpt88.
5DC Ethics Opinion 359: https://tinyurl.com/y5bxskz3.
6Maryland Code Commercial Law §17-306 concerns abandoned property held in a fiduciary capacity in Maryland.
Edward Sharkey, Esquire
P. David Gavin, Co-Chair
Allen J. Katz, Co-Chair
Samuel M. Shapiro, Co-Chair