CBA Ethics Committee, 0916 COBJ, Vol. 45, No. 9
| Author | Cobar Host, J. |
Cobar Host, J.
Formal Opinion 128: Ethical Duties of Lawyer Who Cannot Contact Client, Approved October 17, 2015; New Ethics Opinion 101: Unbundling/Limited Scope Representation, Approved May 21, 2016
Formal Opinion 128: Ethical Duties of Lawyer Who Cannot Contact Client, Approved October 17, 2015
Introduction and Scope
The problem of the “missing client” arises when the lawyer does not know where the client is or when the client is not responding to the lawyer’s communications. Many situations exist in which a lawyer retained to represent a client in a civil matter cannot initiate or maintain contact with that client. Perhaps the client retained the lawyer to pursue a lawsuit but then vanished during discovery or settlement discussions. A client may go missing between a lawyer’s initial meeting with the client and the expiration of the statute of limitations for the client’s claim, requiring the lawyer to consider whether to timely file a complaint to protect the client’s interests.
Alternatively, the lawyer might have been retained by the client’s insurance company to defend the client/insured in a lawsuit, but the lawyer cannot locate and communicate with the client in formulating a defense.1 This typically occurs pursuant to insurance policies in which the insured gives the insurer the right and duty to defend the insured against liability claims that the policy may cover. However, the lawyer may have difficulty locating the insured after receiving the referral. This scenario has become more common in Colorado since the enactment of CRS § 42-7-414, which requires a purchaser of a motor vehicle liability policy to designate an insurance carrier as the agent for service of process in the event that the insured cannot be located. Since this statute permits substitute service on the insurer for service on the insured, the fact that the defendant has gone missing does not prevent the lawsuit from moving forward. The “missing client” problem raises the following ethical questions: What happens if the lawyer is unable to make contact with a client in time to satisfy the deadline to file a pleading or otherwise act? May the lawyer undertake the representation on behalf of a missing client, and if so, what actions may the lawyer take on the client’s behalf? This opinion outlines the lawyer’s ethical duties and limitations in these situations.
In considering these questions, the Colorado Bar Association Ethics Committee (Committee) recognizes that other jurisdictions have reached divergent conclusions on issues involving missing clients. Compare N.C. State Bar Formal Ethics Op. 1, “Representation of Insurance Carrier after Insured Disappears” (2010) (concluding that a lawyer retained by an automobile insurance carrier to defend its missing insured in a negligence action may not file pleadings or appear in court on the insured’s behalf) and Utah State Bar Ethics Advisory Op. 04-01a (2004) (Utah Op. 04-01a) (opining that a lawyer representing an employer may not also represent a missing former employee because “the lawyer cannot receive any direction regarding the objectives of the representation” from the missing former employee and “the lawyer runs the risk of acting in contravention of the desires of the former employee.”), with State Bar of Cal. Standing Comm. on Prof. Resp. and Conduct Formal Op. 1989-111, “What are the ethical responsibilities of an attorney representing the defendant in a civil action wherein a complaint has been filed and served on the defendant, an answer is now due and the client cannot be located?” (1989) (Cal. Op. 1989-111) (opining that “the attorney may file an answer to the complaint to avoid reasonably foreseeable prejudice” to a client who goes missing after a complaint is filed) and Ky. Bar Ass’n Ethics Op. E-433, “Ethical obligations of a lawyer who is unable to locate a client in a civil matter” (2012) (Ky. Op. E-433) (concluding that the lawyer may answer or file an “appropriate pleading to protect the client’s interests” in certain “rare situations in which, prior to disappearing, the client expressly or impliedly authorized the filing of a claim or an answer, and provided the lawyer with sufficient information to do so”). The Committee believes that opinions allowing a lawyer to minimize prejudice to the client by taking actions to protect the client’s interests represent the better approach. The Committee notes, however, that there may be circumstances when the lawyer cannot take such actions without implicating other ethical considerations or when acting without conferring with the client would prejudice the client. In all circumstances, a lawyer must balance various ethical factors, including the duties of diligence, communication, and confidentiality to the client; the duty of candor toward a tribunal; and the duty not to make a false statement of material fact to third parties.
This opinion does not address the limitations that may arise in the insurance defense context with regard to the lawyer’s ability to inform the insurer of difficulties in locating the client. An insured client who fails to stay in contact with the retained lawyer may violate the cooperation clause typically found in liability insurance policies. See CBA Formal Op. 91 (discussing the lawyer’s ability to inform the insurer of information that may affect the client’s insurance coverage). This opinion does not address representation in criminal matters.
Syllabus
When the lawyer’s client is missing from the outset of the engagement or has gone missing since the representation began, the lawyer must take reasonable steps to locate the client and, whenever possible, seek continuances of court deadlines while continuing efforts to contact the client. If the lawyer concludes that a lawyer-client relationship exists, the lawyer may ethically undertake the representation and take such action as may be necessary in order to prevent immediate prejudice to the client’s interest. If, however, the litigation continues and the client cannot be located despite a diligent search, the lawyer ultimately may be required to withdraw from the representation.
Analysis
I. Creation of the lawyer-client relationship
Before undertaking the representation of a missing client, the lawyer must make a threshold determination of whether, in the lawyer’s professional judgment, a lawyer-client relationship exists.
“[F]or purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists . . . . Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.” Colorado Rules of Professional Conduct (Colo. RPC) Preamble, cmt. [17].
Although the existence of a lawyer-client relationship is a substantive legal issue, there are ethical considerations as well. First, the client must consent to the representation. “An attorney-client relationship is one of agency and arises only when the parties have given their consent, either express or implied, to its formation.” Comm. on Prof’l Ethics and Grievances of Virgin Islands Bar Ass’n v. Johnson, 447 F.2d 169, 174 (3d Cir. 1971). “The lawyer may not ethically represent a vanished former employee unless the lawyer has an existing attorney-client relationship or the former employee agreed to the representation at the company’s expense prior to vanishing . . . .” Utah Op. 04-01a. Second, if the insurance company will be paying the lawyer’s fees, the client must consent to this arrangement. “A lawyer shall not accept compensation for representing a client from one other than the client unless . . . the client gives informed consent . . . .” Colo. RPC 1.8(f).
In the insurance defense context, the matter of consent must be evaluated in light of the language of the insurance contract. “The formation of a relationship between an attorney and his or her client is based upon contract, which may be either express or implied by the conduct of the parties.” Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1311 (Colo. App. 1998). The terms of the contract may delegate to the insurer permission to form the relationship. “[T]he insurance company can, on behalf of the insured, formulate the requisite attorney-client relationship between the defense counsel and the insured until such time as the insured manifests such action by word or deed as to disavow the attorney-client relationship. The consent of the insured to the establishment of the attorney/client relationship in this manner is implied by the insurance policy which has language to the effect that ‘We will defend at our expense, with attorneys of our choice, any suit against the insured.’” Penn. Bar Ass’n Ethics Op. 97-123 (1997). Alternatively, the insured’s consent may be inferred from the decision to purchase the policy in the first instance. See Hornberger v. Wendel, 764 N.W.2d 371, 376 (Minn. App. 2009) (holding that insurer’s retention of defense counsel pursuant to a liability insurance policy created a lawyer-client relationship as a matter of law); Burke v. Lewis, 122 P.3d 533, 542-43 (Utah 2005) (holding that “appointment of counsel” for a missing defendant “was the best means of effectuating a just process and a fair result and that [the missing client’s] consent to such representation could be fairly implied” from the circumstances and his purchase of a malpractice insurance policy). See also Colo. RPC 1.0, cmt. [7] (“In general, a lawyer may not assume consent from a client’s or other person’s silence. Consent may be inferred, however, from the...
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