Wisconsin Lawyer: Ethics: Duties Owed to Vanished Client:

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    Ethics: Duties Owed to Vanished Client

    Even if your client has disappeared as through a magician’s vanishing chamber, you still must zealously represent the client’s interest. You also must take reasonable steps to locate the client. Simply waving a magic wand is not one of them.

    Dean R. Dietrich

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 6, June 2009

    Question

    I have filed suit for a personal injury claim on behalf of a client but now I am unable to get in contact with the client. What must I do?

    Answer

    Your obligation of representation of your client continues until it is determined that the client is unreachable and cannot be contacted by any reasonable means of communication. Generally, you have a duty to zealously represent a client and avoid any prejudice that could arise to him or her. Under SCR 20:1.3, you have a duty to diligently represent your client and as stated in the comment to this rule, a lawyer “may not intentionally prejudice or damage [a] client … during the course of the professional representation.” Thus, you must take all reasonable steps to attempt to locate your client as part of your duty of representation.

    Some of the reasonable efforts that you could undertake to attempt to locate your client include:

    • Examining public records that might contain a location or address, such as motor vehicle records, voting records, Social Security information, or marriage and divorce records;
    • Requesting information from the Postal Service or telephone company and other utility companies regarding updated addresses and telephone numbers;
    • Contacting the client’s relatives, friends, present or former employers, and coworkers using available information;
    • Using Google or other electronic search vehicles to find contact information;
    • Retaining the services of a “locate service” or private investigator to undertake a search for the client; and
    • Publishing a search notice in local newspapers or on electronic communication services.

    If steps need to be taken regarding the pending litigation, you have the implied authority to take action under SCR 20:1.2 and SCR 20:1.6, including seeking an agreement from opposing counsel for a continuance to give you more time to exercise these reasonable efforts to locate your client.

    Dean 
Dietrich

    Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    A more difficult question arises if a lawsuit has not been commenced but the statute of limitation is nearing expiration. Your decision as to whether to commence suit so as to toll the statute of limitation must be based on the specific circumstances of the situation. See State Bar Ethics Opinion E-96-2 for additional guidance. A decision to file a lawsuit on behalf of a client who cannot be located will clearly depend on the exact fact situation and a determination of whether the claim is meritorious.

    An attorney should take reasonable steps at the start of representation to minimize the potential for losing the ability to communicate with a client. It is a good practice to immediately collect identifying information from the client such as the client’s full name, Social Security number, and date of birth. Also ask for the names and addresses of other persons who could assist the attorney in reaching the client if there is a communication problem. The attorney also may provide in the letter of engagement that the client is obligated to promptly notify the attorney of any change in address.

    Conclusion

    An attorney must take reasonable steps to locate a client who has failed to respond when contacted by the attorney at the last known address or phone number. After exercising reasonable measures to attempt to locate the client, the attorney may be required, as part of the lawyer’s duty of candor to the tribunal in pending litigation, to disclose the fact that the client is not communicating. The attorney also must take reasonable steps to locate the client before considering the option of withdrawing from representation under SCR 20:1.16. The decision to withdraw from representation should be the last resort and undertaken only after the lawyer has exercised all reasonable efforts to locate the client, including publishing notice online and in newspapers.




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