If a California civil defense lawyer has been served with a complaint, the answer is due, and the client has disappeared, what may the lawyer do, and what must the lawyer disclose to the court or to opposing counsel?
State Bar of California COPRAC Formal Opinion 1989-111: Withdrawal When the Client Cannot Be Located
Short answer: The opinion concluded that an attorney whose civil defense client cannot be located must avoid reasonably foreseeable prejudice to the client (including filing an answer where the answer is due), make a reasonably diligent effort both to locate the client and to give actual notice of withdrawal, and preserve the file. The attorney is under no obligation to volunteer the disappearance to opposing counsel, but may not conceal it from the court if asked directly. The attorney may reveal information as necessary to formulate the basis for a motion to withdraw.
Currency note
This opinion was issued in 1989, under the former California Rules of Professional Conduct and before the State Bar of California's adoption of the November 1, 2018 revisions. The opinion interprets former Rule 3-700(A)(2), 3-700(C)(1)(d), and 3-700(D), together with Business and Professions Code section 6068(d) and (e). The substance is now in current California Rules 1.16 (declining and terminating representation) and 1.4 (communication), with candor-to-tribunal obligations in current Rule 3.3. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The committee took up a recurring problem: an attorney retained to represent the defendant in a personal injury action receives a complaint by service, no answer has been filed, the answer is now due, and despite three letters returned unclaimed and several telephone attempts, the client cannot be located. The committee analyzed three sub-issues: the limits on the attorney's authority to act without the client, the obligation and expense of trying to locate the client, and the propriety of disclosing the client's disappearance.
On authority, the committee opined that the attorney's authority derives from the retainer (Bus. & Prof. Code section 6148 requires a written fee contract when costs reasonably foreseeably exceed one thousand dollars) and agency principles (citing Blanton v. Womancare, 38 Cal.3d 396 (1985)). Implied authority allows the attorney to handle procedural matters and bind the client where the client's cause of action or defense is not impaired or destroyed (citing Carrol v. Abbott Labs, 32 Cal.3d 892 (1982); Linsk v. Linsk, 70 Cal.2d 272 (1969)). Without express consent, an attorney cannot settle (citing Bambic v. State Bar, 40 Cal.3d 314 (1985); Sampson v. State Bar, 12 Cal.3d 70 (1974); Bodisco v. State Bar, 58 Cal.2d 495 (1962); LACBA Op. 441 (1987)), endorse a client's name on a check (citing Palomo v. State Bar, 36 Cal.3d 785 (1984)), or dismiss a cause of action (citing Bowden v. Green, 128 Cal.App.3d 65 (1982)). The committee opined that under former Rule 3-700(A)(2)'s mandate to avoid reasonably foreseeable prejudice, the attorney may file an answer to the complaint to avoid prejudice (with a footnote that the attorney must take care that the facts stated in the answer are accurate so as not to mislead the court).
On withdrawal, the committee opined that the attorney has a basis to withdraw under former Rule 3-700(C)(1)(d) (client renders it unreasonably difficult for the member to carry out the employment effectively). Prior to withdrawal, the attorney must comply with Rule 3-700(A). The notice content is well-defined: a written statement of withdrawal, statutes of limitation and time limits, available legal referral services, and self-representation procedures (citing State Bar Op. 1981-61). Where actual notice may be impossible, the search methods used to locate the client should also be considered as methods of providing notice. The attorney should document all steps and preserve the file; any client funds remain in the trust account (citing State Bar Op. 1975-36; Code Civ. Proc. section 1518).
On expense and methods to locate the client, the committee opined that the attorney should not weigh the case's value against the cost of a reasonable search. Potential methods include private investigators, DMV/voter/public/SSA/county records searches, registered mail, and contact with family or friends. The committee opined that each case is unique and the attorney should evaluate what methods would be reasonable.
On disclosure, the committee opined that the attorney owes a duty of confidentiality (Bus. & Prof. Code section 6068(e)) and a duty not to mislead the court (Bus. & Prof. Code section 6068(d)), and that concealment of material information is as misleading as an overtly false statement (citing Griffis v. S.S. Kresge, 150 Cal.App.3d 491 (1984)). Disclosure of the client's disappearance could be detrimental to the client (citing State Bar Ops. 1980-82 and 1983-74). The committee concluded that the attorney is not affirmatively required to inform opposing counsel of the disappearance, but may reveal such information as is necessary to formulate the basis for a motion to withdraw, and may not conceal the disappearance from the court if asked directly.
Common questions
Q: Can the lawyer file an answer without the client's authority when the answer is due?
A: Per the opinion, yes. The committee opined that under former Rule 3-700(A)(2)'s mandate to avoid reasonably foreseeable prejudice, the attorney may file an answer, taking care that the facts stated are accurate to avoid misleading the court.
Q: What is the basis for withdrawal?
A: Per the opinion, former Rule 3-700(C)(1)(d) (client renders the employment unreasonably difficult). The attorney must comply with Rule 3-700(A) before withdrawing.
Q: How much must the lawyer spend to find the client?
A: Per the opinion, a reasonable amount of time and funds to ensure a diligent effort, evaluated case-by-case. The committee opined that the attorney should not weigh the case's value against the cost of the search.
Q: Must the lawyer tell opposing counsel that the client cannot be located?
A: Per the opinion, no. The committee opined that the attorney is under no affirmative obligation to inform opposing counsel of the disappearance.
Q: Can the lawyer conceal the disappearance from the court?
A: Per the opinion, no. The committee opined that concealment of material information is as misleading as an overt false statement, and the attorney cannot conceal the disappearance if asked directly by the court. The attorney may reveal as much as necessary to formulate the basis for a motion to withdraw.
Q: What happens to client funds during a withdrawal?
A: Per the opinion (citing State Bar Op. 1975-36 and Code Civ. Proc. section 1518), client funds remain in the trust account. The attorney should also preserve the file in case the client returns.
Background and rules framework
The opinion interprets former California Rules 3-700(A)(2) (avoiding prejudice on withdrawal), 3-700(C)(1)(d) (permissive withdrawal), and 3-700(D) (file return), together with Business and Professions Code sections 6068(d) (not to mislead a tribunal), 6068(e) (confidentiality), 6147 (written contingency contracts), and 6148 (written fee contracts above one thousand dollars). The substance is now in current California Rules 1.16, 1.4, and 3.3.
Citations and references
Rules of Professional Conduct (former, in effect at time of opinion):
- Former California Rule 3-700(A)(2)
- Former California Rule 3-700(C)(1)(d)
- Former California Rule 3-700(D)
Statutes:
- Cal. Bus. & Prof. Code section 6068(d) and (e)
- Cal. Bus. & Prof. Code sections 6147 and 6148
- Cal. Code Civ. Proc. section 1518
Cases:
- Blanton v. Womancare, 38 Cal.3d 396 (1985), implied authority of counsel
- Carrol v. Abbott Labs, 32 Cal.3d 892 (1982), same
- Linsk v. Linsk, 70 Cal.2d 272 (1969), same
- Bambic v. State Bar, 40 Cal.3d 314 (1985), no settlement authority absent client consent
- Sampson v. State Bar, 12 Cal.3d 70 (1974), same
- Bodisco v. State Bar, 58 Cal.2d 495 (1962), same
- Palomo v. State Bar, 36 Cal.3d 785 (1984), endorsing client checks
- Bowden v. Green, 128 Cal.App.3d 65 (1982), dismissing without authority
- Griffis v. S.S. Kresge, 150 Cal.App.3d 491 (1984), concealment as misleading
Other opinions cited:
- Cal. State Bar Op. 1981-61 (content of withdrawal notice)
- Cal. State Bar Op. 1975-36 (client funds preservation)
- Cal. State Bar Op. 1980-82
- Cal. State Bar Op. 1983-74
- LACBA Op. 441 (1987)
See also
No sibling opinions yet indexed.
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Source HTML: https://www.calbar.org/ethics/Opinions/1989-111.htm
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Ethics Opinions - FORMAL OPINION NO. 1989-111
Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1989-111
ISSUE:
What are the ethical responsibilities of an attorney representing the defendant in a civil action wherein a complaint has been filed and served on the defendant, an answer is now due and the client cannot be located?
DIGEST:
The attorney must avoid foreseeable prejudice to the client. The attorney should make reasonable efforts to locate the client and to provide actual notice to the client in the event the attorney decides to obtain an order of withdrawal as attorney of record. Finally, while the attorney is under no obligation to inform opposing counsel that the client cannot be located, the attorney may not conceal the information if asked directly.
AUTHORITIES INTERPRETED:
Rule 3-700(A)(2) of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6068, subdivisions (d) and (e).
DISCUSSION
An attorney was retained to represent the defendant in a personal injury action. A complaint was filed and served but no answer was filed on behalf of the defendant. The answer is now due and the attorney cannot locate the client. The attorney initiated several telephone calls to the client without successful contact.
The attorney wrote three letters to the client which were mailed to the client's last known address. The letters were returned to the attorney unclaimed, with no forwarding address. Unable to locate or communicate with the client, the attorney seeks to withdraw from the employment.
What are the ethical considerations raised by the contemplated withdrawal from employment? An attorney, whose client appears to have abandoned the case, faces at least three problems: 1) the limitation on the authority of the attorney to act without the consent of the client; 2) the extent to which the attorney should or must incur expense in attempting to locate the client; and 3) the propriety of the attorney disclosing to opposing counsel that the client cannot be located.
Limitation on the Authority of Attorney to Work on Behalf of the Client.
The attorney's authority to act on behalf of the client is derived from two sources; contractually, through the retainer agreement and generally, through the principles of agency. Business and Professions Code section 6148 requires a written fee contract when it is reasonably foreseeable that the cost to the client will exceed one thousand dollars.1 However, the retainer agreement does not provide the attorney with any greater authority to act or bind the client than is specifically set forth in that contractual document.
In accordance with agency theory, the authority of an attorney to bind a client is defined, in part, by those acts of the principal (client) which place the agent (attorney) in a position where the agent appears to have the authority which he claims or exercises. (See Blanton v. Womancare (1985) 38 Cal.3d 396, 406.) The implied authority will allow the attorney to act with regard to procedural matters without consulting the client, and to bind the client, as long as the client's cause of action or defense is not impaired or destroyed. (See Carrol v. Abbott Labs (1982) 32 Cal.3d 892, 898; Linsk v. Linsk (1969) 70 Cal.2d 272, 276.)
However, without the express consent of a client, an attorney cannot enter into a settlement agreement, (see Bambic v. State Bar (1985) 40 Cal.3d 314; Sampson v. State Bar (1974) 12 Cal.3d 70; Bodisco v. State Bar (1962) 58 Cal.2d 495; Los Angeles County Bar Association Ethics Opinion No. 441 (1987)) endorse a client's name on a check, (see Palomo v. State Bar (1984) 36 Cal.3d 785, 793-794) or dismiss a cause of action (see Bowden v. Green (1982) 128 Cal.App.3d 65, 72.) It is clear the attorney is severely limited in the substantive acts the attorney may take on behalf of a client when the client cannot be located.
In assessing what actions the attorney may take on behalf of the client, the attorney should be mindful of Rule of Professional Conduct 3-700(A)(2) which provides, in pertinent part:
. . . . A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (Emphasis supplied.)
The Committee opines that the attorney may file an answer to the complaint to avoid reasonably foreseeable prejudice to the client.2
Withdrawal from Employment.
An attorney may withdraw from employment if the client "renders it unreasonably difficult for the member to carry out the employment effectively." (Rule of Professional Conduct 3-700(C)(1)(d). Under the facts presented, the attorney is severely limited in the ability to act on behalf of the client without the client's express authority. The attorney has a sufficient basis to withdraw under rule 3-700(C). Prior to withdrawal the attorney must comply with Rule of Professional Conduct 3-700(A).
The focus of rule 3-700(A) is to avoid reasonably foreseeable prejudice to the client. Since the attorney cannot impair or destroy the client's cause of action, the attorney should attempt to preserve it without exceeding the attorney's authority. The "due notice" requirement presents a substantial obstacle. The parameters of notice have been defined to include a written statement that the attorney is withdrawing from employment, information concerning the relevant statutes of limitation and time limits for filing documents, and any available legal referral services and the procedures for self representation. (See State Bar Opinion 1981-61.)
Although the content of the notice poses no problem, delivering actual notice to the client may be virtually impossible. The methods of search used to locate a client should be considered by the attorney in the context of giving notice of the attorney's intention to withdraw from employment. The attorney should take care to document all steps taken to give notice to the client.
The attorney should preserve the file in the event the client returns. If the attorney is in possession of any client funds, they must be maintained in the client trust account. (See State Bar Opinion 1975-36; Code of Civil Procedure section 1518.)
The extent to which an attorney should or must incur expense to try to locate the client.
The considerations pertinent to the cost of locating a client are twofold: 1) how much money must or should an attorney spend to locate a client; and 2) who ultimately bears the cost of the search. The attorney should not weigh the value of the client's case or the attorney's desire to withdraw from employment against the costs to conduct a reasonably diligent search to locate the client.
The costs relative to locating a client could include a private investigator, a search of records (D.M.V., voter registration, public records, social security files, and county records) or less expensive methods such as registered mail and telephone contact with the client's family or friends. In all cases the attorney must expend a reasonably amount of time and funds so as to insure that the attorney makes a diligent effort to locate the client.
Since each case is unique, the attorney should evaluate what methods of search would be reasonable to locate the client.
The propriety of the attorney disclosing the disappearance of the client to opposing counsel and the Court.
The attorney has a duty to maintain inviolate the confidence of his client and at every peril to himself to preserve the secrets of his client. (Bus. & Prof. Code, sec. 6068, subd. (e).) The attorney also has a duty not to mislead the judge or a judicial officer by an artifice or false statement of fact or law. (Bus. & Prof. Code, sec. 6068, subd. (d).) The concealment of material information is as misleading as an overtly false statement. (See Griffis v. S.S. Kresge (1984) 150 Cal.App.3d 491, 499.) Disclosure of the inability to locate the client could be detrimental to the clients' interests. (See State Bar Opinions 1980-82 and 1983-74.)
Clearly, the attorney is under no obligation to inform opposing counsel that the client cannot be located. However, the attorney may reveal such information as may be necessary to formulate the basis for a motion to withdraw.
CONCLUSION
Although there is no definitive answer to what the ethical responsibilities of an attorney are when representing a client who cannot be located, it is certain the attorney must make a reasonably diligent effort both to locate the client and to give actual notice to the client should the attorney desire to withdraw from the employment. The attorney must take steps to avoid reasonably foreseeable prejudice to the client and the client's cause of action. Finally, while the attorney is under no obligation to inform opposing counsel that the client cannot be located, the attorney cannot conceal the information if asked directly by the court.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities or any member of the State Bar.
1 Business and Professions Code section 6147 requires contingency fee contracts to be in writing.
2 The attorney who determines to file an answer to the complaint must take care to ensure that the facts are as stated in the answer to avoid misleading the court as to a statement of fact.