MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-22
Duties on failure to locate client; Statute of limitations
In your inquiry, you provide the following facts. Your law firm undertook representation of an individual with regard to a personal injury claim arising out of an automobile accident. You explained that the claim and damages are fairly minor in nature and that liability has been accepted by the insurance company representing the tort feasor. You have further advised that the statute of limitations runs in a few months and you are unable to locate your client. You have sent a number of letters to the original address provided by your client, conducted internet searches, skip traces and sent correspondence to various addresses. Letters have either been returned as undeliverable or have not come back. Additionally, all known phone contacts have been disconnected or belong to individuals who have no knowledge of your client.
You have inquired that the Committee provide you with its opinion as to the extent of your duties owed to your client and any actions which you need to take in connection with your representation of the individual and the protection of his claim.
The circumstances that you have described in your inquiry present you with the ethical issue of what can be done and what must be done by an attorney whose client is missing. This issue is commonly presented by fast approaching deadlines or significant events which arise during representation, such as the running of a statute of limitations, receipt of a notice for a client’s deposition or deadlines for other discovery requests, scheduling of court proceedings, deadlines for filing notices of appeal, or discussion of settlement offers.
It is the Committee’s view that an attorney must undertake reasonable efforts to locate a missing client. Those efforts may involve examining various public records, requests to the post office, and utilization of other information provided by the client which could lead to the client’s whereabouts. Assuming that such efforts to locate the client are unsuccessful, the Committee’s view is that an attorney has implied authority to file a complaint on behalf of a missing client in order to meet the requisites of the statute of limitations with the proviso that the attorney has satisfied himself or herself that the litigation is meritorious.
Several of the Maryland Lawyers’ Rules of Professional Conduct are relevant to your inquiry. Rule 1.2 is entitled “Scope of Representation and Allocation of Authority Between Client and Lawyer.” Subsection (a) states in pertinent part that a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. In your circumstance, your firm has undertaken representation of an individual to seek recovery on a personal injury claim arising out of an automobile accident. Achieving that result would require either a settlement or litigation. In the absence of your client, you lack any authority to settle his claim. Accordingly, the other available option is litigation.
The Committee views the above provision of Rule 1.2(a) as authorizing an attorney to file suit on behalf of a missing client so that the client’s interests would not be prejudiced. Under Rule 1.3, an attorney may not bring a proceeding unless there is a basis for doing so that is not frivolous. In the circumstances that you have presented to the Committee, you have indicated that liability has been accepted by the insurance company representing the tort feasor.
Review of the question as to whether an attorney is required to file suit to toll the statute of limitations indicates that various jurisdictions have come to different conclusions. In its informal opinion number 1467 issued in 1981, the American Bar Association indicated that an attorney had no duty to file suit to toll the statute unless the client’s unavailability had been caused by the attorney’s own neglect. A contrary result was reached by the Virginia Ethics Committee in an opinion dated June 8, 1988. There, the Committee opined that an attorney should file suit to prevent the statute of limitations from running and prejudicing the client. The Committee also opined that it would not be improper for counsel to file suit to prevent the statute of limitations from running and contemporaneously filing a motion for withdrawal. However, it was of the view that the attorney could simply not close the file without preserving the statute of limitations.
After carefully reviewing and discussing this matter, the Committee is of the view that the appropriate ethical responsibility does not require the filing of a lawsuit under the circumstances presented in your inquiry. In that regard, you have undertaken numerous efforts to locate and discuss the upcoming statute of limitations of your client. Communications between an attorney and a client are not a one-way street, and the client bears some responsibility to keep in contact with his or her attorney.
Nothing in this opinion would preclude you from filing suit if you deem it appropriate to do so while you continue your efforts to locate your client. If you do file suit, and if reasonable efforts to locate your missing client prove unsuccessful, and you comply with Rule 1.16, you may file an appropriate motion with the Court requesting to withdraw your appearance. That procedure will protect your client from the adverse consequences of the statute of limitations without an undue burden on counsel.
Opinions of the Committee may be obtained from the Committee’s website: www.msba.org.
We trust that the forgoing is responsive to your inquiry.
REFERENCES:
- Maryland Lawyers’ Rules of Professional Conduct 1.2
- Maryland Lawyers’ Rules of Professional Conduct 1.2(a)
- Maryland Lawyers’ Rules of Professional Conduct 1.3
- Maryland Lawyers’ Rules of Professional Conduct 1.16