Everybody loses clients, but what if you literally lose a client?
Losing track of a client can be more distressing than losing the client’s business. Lawyers have a duty to protect the legal rights of even those clients they can’t find. When they go missing, you may find yourself in an ethical minefield as you go about searching for them.
“If an attorney is having trouble contacting a client, the attorney should make all reasonable efforts to locate the client,” according to the Washington State Bar newsletter. “If contacting the client is not possible, the attorney should keep records documenting all efforts to give notice, including efforts to contact the client by mail, phone, and email.”
Sleuthing Tips for Lawyers
Here are some ideas to help find missing clients:
1. Electronics. Short of using a tracking device, an attorney may use electronic means for keeping in touch with clients. Intake should include mobile numbers, email, and social media accounts to help find clients who’ve disappeared. Next-of-kin information can help, too.
2. Investigation. If the horse is already out of the barn, you can try to gumshoe it. Private investigators will charge hundreds to run a search, but many self-serve websites can scour public records for a minimal fee. The information may not always be accurate or current, but then again you might find your client died.
3. Withdrawal. If all else fails, it’s probably time to get out. Rule of Professional Responsibility 1.6 provides various grounds for withdrawing from representation. A primary concern is whether “withdrawal can be accomplished without material adverse effect on the interests of the client.”
Continuing Your Duties for a Lost Client
In the meantime, attorneys must continue to safeguard their missing client’s interests. They can do so through implied authority for some matters, but not others.
“If these efforts have proved fruitless, by virtue of the representation the attorney has implied authority from the client to act for the client in procedural matters, such as seeking an agreement from opposing counsel for a continuance or to toll the statute of limitations,” wrote Linda G. Bauer as an assistant bar counsel with the Massachusetts Board of Bar Overseers.
“An attorney also has implied authority to file a complaint on behalf of a missing client in order to toll the statute of limitations, provided the attorney has conducted sufficient investigation to have a reasonable belief that the client’s suit is not frivolous.”
However, the attorney cannot settle a case or dismiss a cause of action without the client’s consent. The lawyer also may not endorse a check with the client’s name, or — and here’s the rub (as Shakespeare also wrote) — pay himself or herself a fee without the client’s approval.
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