If the statute of limitations is about to expire and the lawyer cannot reach the client to confirm authority, may the lawyer file the lawsuit anyway?

Plain-English summary

A personal injury lawyer agreed to investigate a cruise-ship passenger's fall claim before deciding whether to take the case. After investigating, she found a colorable claim but could not reach the passenger; the statute of limitations is about to expire, and she has an unsigned contingent fee agreement and unanswered questions about problematic facts. The Committee was asked whether she may file suit without the client's confirmed authorization.

The opinion concludes that the lawyer may file the complaint if she reasonably believes the passenger has authorized her to file and is relying on her to do so, or if she believes that failing to file would materially and adversely affect the client's interests. The Committee anchors its analysis in three interrelated issues. First, scope: under Rule 1.2(c) a lawyer may limit representation, and the Committee treats an agreement to investigate without charge as a limited representation, observing that the better practice would have been to memorialize it in a letter. Second, diligence and communication: completing the investigation just before the limitations period expired and contacting the client only at that late date indicate a potential lack of "reasonable diligence and promptness" under Rule 1.3 and fall short of the communication contemplated by Rule 1.4. Third, protection of the client's interest: the lawyer faces filing without express consent or abandoning the matter, and protection of the client's interests is the paramount concern.

The opinion explains that if the lawyer reasonably believes the client authorized the filing, nothing in the rules bars her from proceeding and Rule 1.3 may obligate her to file. Alternatively, if after weighing the Rule 1.16(b) factors she concludes withdrawal is appropriate, she may terminate, but only if it can be accomplished without material adverse effect on the client, and she must take steps under Rule 1.16(d) to protect the client. If failing to file would materially and adversely affect the client's interests, she may file the complaint, drafted to avoid unnecessary disclosure of confidential information, and then withdraw under the rules of court.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer who cannot reach a client as the limitations period closes is not automatically barred from filing. The opinion holds that the decision rests with the lawyer: she may file if she reasonably believes the client authorized the suit and is relying on her, or if not filing would materially and adversely affect the client's interests, and the complaint should be drafted to avoid unnecessary disclosure of confidential information under Rule 1.6. The opinion also frames the situation as one the lawyer could have avoided by memorializing the scope of a limited representation in writing and by communicating during the investigation, and notes that withdrawal under Rule 1.16 is available only when it can be done without material adverse effect on the client.

Common questions

Q: Can a lawyer file a lawsuit without the client's signed authorization?

A: The opinion says yes in these circumstances, if the lawyer reasonably believes the client authorized the filing and is relying on her, or that failing to file would materially and adversely affect the client's interests.

Q: Was investigating a case for free a representation at all?

A: Per the opinion, agreeing to investigate a case without charge is a limited representation under Rule 1.2(c), even without a signed fee agreement, though the Committee says the better practice is to memorialize the limited scope in a letter.

Q: Can the lawyer just withdraw instead of filing?

A: The opinion explains that withdrawal under Rule 1.16 is permitted only if it can be accomplished without material adverse effect on the client; if failing to file would materially harm the client, the lawyer may file and then withdraw under the rules of court.

Q: How does the lawyer protect confidential information when filing?

A: The opinion says the complaint should be drafted so as not to unnecessarily disclose confidential information otherwise protected by Rule 1.6.

Background and rules framework

The opinion interprets several Alaska Rules of Professional Conduct: 1.2(c) (limiting the scope of representation; Model Rule 1.2), 1.3 (diligence; Model Rule 1.3), 1.4 (communication; Model Rule 1.4), and 1.16 (declining or terminating representation; Model Rule 1.16). It notes that Rule 1.5 requires a written fee agreement where the fee exceeds $500 or is contingent, and that Rule 1.16(d) requires steps to protect the client's interest on termination. The opinion distinguishes South Carolina Ethics Opinion 98-07, which allowed a contingent-fee lawyer who could not locate a client to treat the representation as terminated, because there the matter rested on different facts.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.2(c) (limited scope), 1.3 (diligence), 1.4 (communication)
• Alaska RPC 1.16(b), 1.16(d) (declining or terminating representation)
• Alaska RPC 1.5 (written fee agreements), 1.6 (confidentiality)

Other opinions cited:

• South Carolina Ethics Op. 98-07 (lawyer unable to locate client)
• State Bar of Michigan Informal Op. RI-14 (1989)

See also

• CA Op. 1989-111: Withdrawal When Client Has Disappeared
• ABA Formal Op. 96-404: Client Under a Disability
• RI EAP Op. 2005-04: No Attorney-Client Relationship, and No Duty to Answer, Where the Insurer-Assigned Insured Cannot Be Found

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2004-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2004-3
Responsibilities of an Attorney When a Client Cannot be Contacted.
Question Presented
The Committee has been asked whether a lawyer may file a lawsuit
where the statute of limitations is expiring and the client cannot be contacted.
The facts presented are these:
A cruise ship passenger was injured in a fall from the gangway to the
Juneau dock. A year after the injury, and a year before the statute of
limitations expired, the passenger telephoned an Alaska personal injury lawyer
and said he wanted to file a lawsuit. The lawyer interviewed the passenger,
and told him that she would need to conduct an investigation before deciding
whether to take the case.
The lawyer pursued the investigation and decided that the passenger has
a colorable claim. Certain facts indicate comparative negligence, but if liability
is proved damages will be substantial. The lawyer was not in contact with the
passenger during her investigation. Shortly before the statute of limitations
ran, the lawyer sent the passenger a letter with questions about the
problematic facts together with a proposed contingent fee agreement for
signature. The lawyer has tried to reach the passenger by phone several times
without success.
The statute of limitations is about to expire. The lawyer is reluctant to
file suit without the client’s authorization and a signed engagement letter in the
file, and is concerned that she may not do so under the ethical rules. May the
lawyer file a lawsuit under these circumstances?
Conclusion
The Committee concludes that that the lawyer may file the complaint if
the lawyer reasonably believes that the passenger has authorized her to file
suit and is relying on her to do so, or if she believes that failing to file would
materially and adversely affect the client’s interests. See, Alaska Rules of
Professional Conduct 1.3 and 1.16.

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Analysis
There are several closely interrelated ethical issues that led to the
lawyer’s dilemma.
1. No Written Agreement. To start with, there is a lack of certainty
about the scope of representation.
It is not clear whether the client
understands the lawyer limited her activities to an initial investigation. The
client may believe the lawyer is going to file suit if she decides the case has
merit, and may be relying on her to do so. The lawyer, on the other hand,
seems uncertain whether an attorney-client relationship has been established
at all.
There is no written engagement agreement or letter describing the
parties’ understanding.
Alaska Rule of Professional Conduct 1.2(c) allows a lawyer to “limit the
scope of the representation if the limitation is reasonable under the
circumstances and the client consents after consultation.”1 The Committee
believes that, when a lawyer agrees to investigate a case without charge, but
has not agreed to take it, the lawyer has undertaken a limited representation.
Although this type of limited representation is possible without a signed fee
agreement,2 the Committee’s view is that the better practice would have been
for the lawyer to have memorialized what she agreed to do in a letter. 3
2.
Diligence. The next issue relates to Alaska Rule of Professional
Conduct 1.3 (“Diligence”), which states that “[a] lawyer shall act with
reasonable diligence and promptness in representing a client,” and to Rule 1.4
1

Alaska Rule of Professional Conduct 1.2(c), am. SCO 1544 (eff. 10/15/04).

2 Alaska Rule of Professional Conduct 1.5 requires a written fee agreement where the

fee is expected to exceed $500 or where the fee is contingent on the outcome of the
matter.
The most exemplary practice would have been a limited representation agreement
signed by both parties. The Comment to Alaska RPC 1.16 notes, “A lawyer may
withdraw if the client refuses to abide by the terms of an agreement relating to the
representation, such as an agreement concern[ing] fees or court costs or an agreement
limiting the objectives of the representation.” The Committee observes that many
Alaska engagement agreements require the client to remain in contact with the lawyer
as an express condition of continued representation.
A client’s unexplained
disappearance or failure to communicate as agreed will then provide a basis for
withdrawal. A limited representation agreement could have such a provision, which
under these circumstances would have been prudent.

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(“Communication”), which provides that “[a] lawyer shall keep a client
reasonably informed about the status of a matter undertaken on the client’s
behalf ….”
In this instance, the lawyer apparently did not finish her investigation
until the statute of limitations was about to expire.
There may be
circumstances beyond her control that caused the investigation to take this
amount of time. The Committee recognizes that even the most diligent lawyer
can encounter difficulties and delays.
Nonetheless, completion of the
investigation just before the statute expires indicates a potential lack of
“reasonable diligence and promptness.”
Then, at that very late date, the lawyer requested additional information
about the problematic facts and presented a contingency fee agreement for
signature. Contacting the client when the statute of limitations is about to
expire is not conducive to a reasoned discussion of the costs and benefits of
any lawsuit, especially when it appears there are factual issues that might
dissuade the client from proceeding. The Alaska Comment to Rule 1.4 notes
that the “client should have sufficient information to participate intelligently in
decisions concerning the objectives of the representation and the means by
which they are to be pursued, to the extent the client is willing and able to do
so.” Communication as the investigation proceeded would have provided the
client with a better opportunity “to participate intelligently in decisions
concerning the objectives of the representation,” and also might have provided
the lawyer with timely information about whether the client still wanted to file a
lawsuit.
3.
Protection of the client’s interest. Given these circumstances, the
lawyer is faced with either filing a suit without the express consent of the client
or abandoning the matter. Protection of the client’s interests is the paramount
concern. Either course is potentially to the client’s detriment. If the suit is
filed, the client may be exposed to defense fees and costs, and may have
personal medical information disclosed in the public record. If the suit is
abandoned, the claim will be barred.
The scope of representation issue remains central. Comment to Rule 1.3
notes that “[u]nless the [attorney-client] relationship is terminated as provided
in Rule 1.16, a lawyer should carry through to conclusion all matters
undertaken for a client. If a lawyer’s employment is limited to a specific
matter, the relationship terminates when the matter is resolved.” The scope of
the “matters undertaken for [the] client” here is poorly defined. The Committee
cannot say with certainty that the lawyer has “carried through to completion all

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matters undertaken” for this client, nor that the client has acted in such a
manner as to justify termination of representation.4
The lawyer needs to carefully consider her dealings with the client. If the
lawyer reasonably believes that the passenger has authorized her to file suit
and is relying on her to do so, nothing in the ethical rules to bars her from
proceeding. Indeed, she may be obligated to file by Rule 1.3. On the other
hand, if, after considering all the facts and the factors listed in Rule 1.16(b),
the lawyer concludes that withdrawal is appropriate, she may terminate the
representation.5
The second route does not completely resolve her dilemma. Termination
under Rule 1.16 is permitted only if it “can be accomplished without material
adverse effect on the interests of the client …”
When terminating
representation, the lawyer is obligated by Rule 1.16(d) to “take steps to the
extent reasonably practicable to protect a client’s interest, such as giving
reasonable notice to the client….” The Comment to Rule 1.16 emphasizes that
“[e]ven if the lawyer has been unfairly discharged by the client, a lawyer must
take all reasonable steps to mitigate the consequences to the client.”
The lawyer may conclude that terminating representation is appropriate,
but that failing to file would “materially and adversely affect the client’s
interests” within the meaning of Rule 1.16(b). If those are her conclusions, the
lawyer may ethically file a complaint and then proceed to withdraw as counsel
of record in accordance with the rules of court. The complaint should be
drafted so as not to unnecessarily disclose any confidential information
otherwise protected by Rule 1.6.
The decision as to how to proceed must be made by the lawyer. In future
matters, the Committee recommends that the lawyer memorialize her
Rule 1.16(b)(5) provides that a lawyer need not continue representation when “the
representation has been rendered unreasonably difficult by the client.” At least one
other Bar Ethics Committee relied on this rule to conclude that a lawyer hired on a
contingency fee basis in a personal injury matter who is unable to locate her client,
despite diligent efforts to do so, can assume that the representation has been
terminated and is not obligated to file suit on the client’s behalf. South Carolina
That opinion is
Ethics Op. 98-07; http://www.scbar.org/opinions/9807.htm.
distinguishable, since in this instance there is no signed fee agreement, and it is an
open question whether “the representation has been rendered unreasonably difficult
by the client” or by the lawyer herself.
4

Withdrawal under Rule 1.16(b)(4), (5) or (6) is potentially appropriate in these
circumstances.

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agreements with clients in writing, that she make every effort to complete precomplaint investigations promptly, and that she communicate with her clients
as regularly and diligently as circumstances warrant.
Approved by the Alaska Bar Association Ethics Committee on May 6, 2004.
Adopted by the Board of Governors on September 13, 2004.
G:\Ds\COMM\Ethics\OPINIONS\2004-3.doc

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