Oregon State Bar Bulletin DECEMBER 2012
Vanished Without a Trace:
Ethics Implications of the Missing Client, Part II
By Amber Hollister
Last month’s bar counsel column addressed the ethics implications of dealing with a missing client at the outset of the representation — what to do if your client disappears before you can file a complaint, get authority to settle or complete settlement negotiations.
But what is a lawyer to do when a client vanishes mid-representation, or even after judgment is entered? And what practical steps can a lawyer take to avoid losing contact with clients in the first place?
Responding to the Court’s Questions about a Missing Client
You are appointed to represent a client in a possession of a controlled substance case. When you meet with your client you inform him of an upcoming court date. The morning of the court date, the client’s girlfriend calls your office to say that he cannot appear because he is “strung out.” When you arrive in court and your client is absent, the judge asks you when you last had contact with your client and whether you informed your client of the court date. She then asks why your client is not present in court. How should you respond?
Very carefully. Under such circumstances, you must be candid and truthful with the court, without improperly revealing client confidences. RPC 3.3(a)(1); RPC 1.6.
To navigate this thorny situation, the lawyer must first recognize that the lawyer’s ethical duty of confidentiality is broader than the attorney-client privilege. RPC 1.6; ORS 40.225. Caselaw has established that neither the dates of a meeting with the client, nor the fact that lawyer has informed the client of upcoming court appearances is attorney-client privileged. See State v. Keenan , 307 Or 515 (1989) (information regarding the dates of an attorney’s conferences with a client is not attorney-client privileged even though the content of the communications during the conferences may be); State v. Ogle , 297 Or 84 (1984) (fact that an attorney has notified the client of the court date is not, in itself, privileged information). Moreover, information communicated to the lawyer by a third party typically falls outside the scope of privilege as defined by ORS 40.225.
But this does not end the inquiry. The lawyer must still consider whether the information requested by the court is confidential under RPC 1.6(a). Under RPC 1.0(f), “information relating to the representation of a client” includes attorney-client privileged communications, but also includes information that the client has asked the attorney to keep secret, information that would be embarrassing to the client if disclosed, and information that would likely be detrimental to the client if disclosed.
Under the scenario described, the phone call from client’s girlfriend revealing that client is “strung out” would be protected information because it would likely be detrimental to the client if disclosed. The fact that the lawyer informed the client of the court date may also be considered confidential under RPC 1.6, depending on the circumstances (e.g. if the lawyer knows the information would be detrimental because it would cause the court to enter a bench warrant for failure to appear).
Given this, the lawyer’s best response to the court is for the lawyer to simply state that his obligations under the rules of professional conduct prevent him from answering the court’s question. The lawyer cannot pretend ignorance, as that would violate the lawyer’s duty of candor to the tribunal. RPC 3.3(a)(1). If the court orders the lawyer to reveal the information, RPC 1.6(b)(5) allows the lawyer to reveal client confidences “to the extent the lawyer reasonably believes necessary” to answer the court’s question. This exception likely would not allow the lawyer to disclose that his client is “strung out,” but would allow the lawyer to give date of last contact with his client and whether the lawyer had informed the client of the court date.
Of course, telling the court that your client is missing when he is not is also problematic. In In re Recker , 309 Or 633 (1990), an attorney was suspended for informing the court that a client was missing in order to cover up her own inaction on the case, when she in fact had information about how to reach the client but had not attempted to do so.
Filing an Appellate Brief
You agree to file an appeal of a criminal conviction on behalf of a client, but then lose all contact with the client. Can you file the opening appellate brief? Should you move to withdraw?
If the client has given the lawyer authority to file the appeal but then disappears, the lawyer may file the notice of appeal and appellate brief. RPC 1.2(a); OSB Formal Op No 2005-33. When filing the appeal, the lawyer should be cautious only to advance arguments that are consistent with the known objectives of the client. RPC 1.2(a). The lawyer should also be careful to evaluate whether there has been a “material change in circumstances” since the last contact with the client that would likely change the client’s objectives. See Comment (3) to ABA Model Rule 1.2. The lawyer should also continue efforts to find and communicate with the client. See RPC 1.2(a) and 1.4.
What if the client still does not materialize after the opening brief is filed? If the lawyer continues to be unable to locate the missing client, the lawyer will have to determine whether he has sufficient direction from the client to continue the representation. The lawyer cannot take positions or make decisions about the objectives of the representation without authority from the client. RPC 1.2. Under such circumstances, the lawyer will need to seek the court’s permission to withdraw from the case pursuant to RPC 1.16(c). Until the lawyer seeks and obtains the court’s permission to withdraw, the lawyer must continue to handle the appeal. Cf. State v. Balfour , 311 Or 434 (1991).
Left Holding the Bag
You have successfully settled a case for your client, but when you send a settlement check to the client, your mail is returned unopened. What do you do?
Unsurprisingly, a lawyer’s duty to his or her client continues even after a settlement is reached or judgment is entered. A lawyer has a duty to protect client property in the lawyer’s trust account even after the end of a representation. RPC 1.15-1(a). If a lawyer still has client funds in her possession at the end of a representation, the lawyer must “promptly notify” the client and “promptly deliver” the funds to the client. RPC 1.15-1(d); RPC 1.16(d).
But what if you cannot locate the client? As explained in OSB Formal Op No 2005-48, the lawyer must use “reasonable diligence” to find the missing client. RPC 1.15-1(a). What is reasonable will depend on the particular circumstances, including the amount of money involved.
If the client still cannot be found, the lawyer must continue to hold the funds in trust until either the funds can be delivered to the client, or they are deemed abandoned property subject to the Uniform Disposition of Unclaimed Property Act, ORS 98.302-98.436. Funds held in trust are presumed abandoned unless the client has, within two years after the funds are payable, “increased or decreased the principal, accepted payment of principal or income, corresponded in writing concerning the property, or otherwise indicated an interest as evidenced by a memorandum on file with the (lawyer).” ORS 98.332. This means that if the lawyer is regularly communicating with her client in writing about the funds, but is unable to deliver them, the funds will never be considered abandoned under the Act. Similarly, if the client has written the lawyer in the last two years to indicate an interest in the funds, they are not considered abandoned.
Again, before property is considered abandoned under the Act, the lawyer must exercise “reasonable diligence” to determine the whereabouts of the client, and where possible, to communicate with the client and take necessary steps to prevent abandonment from being presumed.
Once the funds are presumed abandoned, the lawyer must comply with the law by reporting the property to the Department of State Lands and paying the funds to the Oregon State Bar. Abandoned lawyer trust account funds are appropriated to the Legal Services Program established by ORS 9.572, which funds legal services to the poor statewide.
Even after abandoned lawyer trust account funds have been paid to the Oregon State Bar, the lawyer should continue to take steps reasonable under the circumstances to try to locate the client, and must maintain reasonable records sufficient to permit client to make a claim for the return of property for the period permitted by the act.
Practical Steps to Avoid Misplacing Clients
After considering all of the complications that can be created by missing clients, the savvy lawyer is likely to ask, how can I avoid losing contact with clients altogether?
The answer is straightforward: be proactive. First, the lawyer may want to utilize a client intake form to obtain alternate ways to stay in touch. As an example, the lawyer may want to ask the client for:
• Full legal name and any aliases;
• Home and work addresses;
• Email addresses;
• Home, work and mobile tele phone numbers;
• Name of employer;
• Family member contact information; and
• Emergency contact(s)
It may also be prudent to emphasize in the engagement letter and fee agreement how important it is for the client to provide the lawyer with changes of address or other contact information and to outline the lawyer’s rights and options when a client doesn’t respond to communications from the lawyer. A savvy lawyer may also want to obtain the client’s permission, at the outset of the representation, to contact others if the client goes missing.
If a client’s communication becomes spotty, it may make sense for the lawyer to take the initiative to reach out and reestablish contact before the client completely disengages. Sending clients regular updates and utilizing multiple methods of communicating with clients are also good ways to avoid losing contact with clients, while building strong attorney-client relationships.
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 312, or by email at firstname.lastname@example.org.
© 2012 Amber Hollister