The missing client: an ethical quagmire.

• Author: Jarvis, Robert M.
• Position: Missing persons - Cover story

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According to the FBI, every day 1,860 Americans --including 141 Floridians--are reported missing. (1) While most are quickly found, at the end of 2011, the FBI had 85,158 active missing person files. (2) Of course, the actual numbers are greater, for not everyone who goes missing is reported.

When a client disappears, a lawyer is confronted with a host of perplexing ethical questions. Can he or she simply mark the file "closed," or must the lawyer make an attempt to find the client (and if so, how much of an attempt)? What about any property the lawyer was holding for the client? Likewise, what are the lawyer's duties to the court, opposing counsel, and third parties? And what happens if the client eventually reappears? This article explores these and related questions under Florida law.

Florida Statutes

Persons who have not been heard from and cannot be located are known as "absentees." (3) After a certain period, an absentee can be declared "legally dead." Absentees who reappear (at whatever time) are commonly referred to as "returnees."

In antiquity, there was a presumption that life continued. As such, in the absence of proof to the contrary, a person was presumed to be alive until his or her 100th birthday. (4) Because of the hardships created by this presumption, England's parliament passed two statutes in the 17th century that, respectively, allowed missing spouses and missing life tenants to be declared legally dead after the passage of seven years. (5) In 1805, Lord Ellenborough relied on these statutes to hold that any person who had been missing for seven years could be declared legally dead. (6) The Florida Supreme Court recognized this presumption in 1857. (7)

By statute, Florida has now reduced the waiting period to five years. (8) Further shortening is permitted if the absentee was exposed to a specific peril (9) or evidence establishes an earlier date of death. (10) When a person has gone missing but has not yet been declared legally dead, Florida law permits a conservator to be appointed to attend to the absentee's property. (11) Such conservators have the same powers as guardians under Ch. 744. (12) Once a person is declared legally dead, his or her estate is probated in the usual manner. (13)

Florida Constitution

The Florida Constitution contains a specific provision dealing with absentees. In June 1955, Palm Beach Circuit Judge Curtis Chillingworth disappeared from his home and could not be located. (14) One month later, Gov. LeRoy Collins asked the Florida Supreme Court if he had the power to appoint a replacement. It held he did not, (15) but after a year, relented due to the growing backlog of cases in Judge Chillingworth's court. (16) To deal with such situations, the Florida Constitution now deems an office vacant when the incumbent has been missing without explanation for 60 consecutive days. (17)

Florida Ethics Rules

Rule 4-1.2(a) of the Florida Rules of Professional Conduct (FRPC) requires lawyers to abide by their client's decisions (unless doing so would violate the FRPC or the law), while Rule 4-1.4 obligates lawyers to communicate with their clients in a prompt fashion. In addition, Rule 4-1.3 requires a lawyer to pursue a client's matter with diligence.

Clearly, a lawyer cannot comply with any of these provisions when a client disappears.

Based on these three rules, it would seem that a lawyer has no choice but to terminate his or her representation of a missing client pursuant to Rule 4-1.16(a)(1), which states that a lawyer must withdraw if "the representation will result in [a] violation of the Rules of Professional Conduct or law."

Even if a lawyer concludes that withdrawal is not mandated by Rule 4-1.16(a)(1), Rules 4-1.16(b)(3)-(5) permit the lawyer to terminate the representation if the client fails to pay the lawyer's bills; circumstances have made it impossible for the lawyer to continue; or "other good cause for withdrawal exists." While the first of these reasons may or may not exist (depending on what financial arrangements the client made before his or her disappearance), the second and third reasons will almost surely exist whenever a client goes missing.

Regardless of which ground is used, a lawyer must be mindful of Rule 4-1.16(d), which states, "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest[.]" Ordinarily, this rule poses no special problems because the client simply hires another lawyer. But in the case of an absentee, this solution is obviously out of the question. As a result, the lawyer must do what is reasonable under the circumstances.

Of course, if the lawyer is handling a matter in court and the client disappears, the lawyer must seek permission to withdraw. When such permission is denied, Rule 4-1.16(c) requires the lawyer to remain in the case.

If a lawyer is able to withdraw from representation because of a client's disappearance, the absentee becomes, ipso facto, a former client. The lawyer must then abide by the strictures of Rule 4-1.9, meaning that he or she must avoid prejudicing his or her former client, either by accepting new work that is directly adverse to the absentee or using confidential information against his or her interests.

This, of course, sets up an interesting question: What if the absentee later returns? Is he or she still a client? Assuming that the lawyer sent a termination letter to his or her last known address, or took similar steps at the time of withdrawal (as outlined in Rule 4-1.16(d)), it is probable that the returnee will be deemed a former client and not a current client, even if he or she insists otherwise.

Suppose, however, that a lawyer does not want to terminate the representation. Is there a way to remain in the case? The answer is clearly "yes" if there is someone else who can act for the client, as in the case of a corporation whose president goes missing. In such situations, Rule 4-1.13(a) makes it clear that the corporation is the client and the lawyer does not represent its officers, directors, employees, or shareholders. Because the corporation is still functioning, the president's disappearance makes no difference from an ethical standpoint.

Of course, if the client is an individual and, as a result, Rule 4-1.13 does not apply, the lawyer can arguably...