While it is common for attorneys to be attentive and readily available for their clients, sometimes the client can be difficult to reach, hard to communicate with, or has seemingly disappeared. It is important to take precautions to avoid a “missing client” situation.
What are your duties when a client goes missing?
Before taking action against the case, the attorney must make reasonable efforts to locate the client. This should include:
- Emailing, sending certified mail at all known addresses of the client.
- Contacting the client’s known friends, family members and employers
- Examining the client’s social media accounts
- Checking public records
- Visiting the client’s known addresses
- Employing a private investigator
It is important to note that the attorney cannot disclose confidential information about the client they are representing. Documenting all attempts to locate the client is pertinent to protect the attorney in case the client alleges that adequate attempts were not made to contact them. If there is a failure to locate the client, the attorney needs to decide what action should be taken while the client is missing.
When to file a complaint
If the client has previously expressed the intention to file a complaint with the attorney, as well as providing adequate supporting facts. The attorney is allowed to file without the client’s presence if the attorney knew of their client’s objectives. Along with filing the complaint, the attorney should file a motion to withdraw. If the attorney has executed the client’s wishes to the extent known of the client’s wishes, the attorney is then not obligated to represent the client anymore. A breakdown in communication allows the attorney to withdraw representation of the client. To do so, the attorney must:
- Send a notice to the client’s last known address informing them of the withdrawal
- Let the client know that they need to seek other counsel
- Warn the client of the consequences
The American Bar Association says that an attorney must, “abide by a client’s decision whether to settle the matter.” In the event of a client disappearing without discussing the settlement prior, the attorney cannot accept the settlement. The only way an attorney can accept a settlement for their client is if:
- The client has left detailed instructions on what to accept
- The attorney has not talked to the client since the client has disappeared
- The case has not materially changed
- The settlement offer is within the client’s range
It is important to note that finalizing the settlement will involve a limited power of attorney that is signed by the client, and states that their attorney to endorse and distribute settlement checks in place of the client, as well as any agreed-upon fees.
At times, an attorney may know where their client is. A common question is when an attorney is obligated to reveal their client’s whereabouts. It can certainly depend on the circumstances, but some helpful answers are:
- It does depend on the circumstances, but if the client knew about the court date, then it is most likely not protected by the attorney-client privilege.
- But, in other cases relating to Rule 1.6 of the ABA, the client’s location should not be disclosed without the client’s consent.
- If the client's absence is excusable OR could embarrass the client, the attorney may not be required to reveal their location.
- If the court orders the clients location, then the attorney must reveal it.
What to do with unclaimed funds
First and foremost, the attorney should try to locate the client. If the attorney cannot locate the client, then the attorney should put the funds in a trust. Keep the funds in the trust until:
- Until enough time passes (is different from state to state, check your state’s unclaimed property statute)
It should be noted that an attorney cannot put a provision in the letter to transfer unclaimed funds to themselves if the client goes missing.
How can I prepare for a disappearing client?
- Collect all relevant information from the client, such as addresses, aliases, employment information, and emergency contacts
- Receiving consent from the client to contact family members, employers or friends to locate the client
- Getting permission from the client to withdraw if the attorney cannot get ahold of the client
- Getting permission from the client to use a reasonable amount of funds to cover expenses associated with trying to locate the client
- Authorizing a set fee for missing court dates or meetings
- Have the client grant power of attorney so that the attorney can sign releases, endorse settlement checks, and deduct fees that the client consented to
These tips should help prevent the wasted time that a disappearing client scenario, as all of them require action before the client could go missing.