What can a lawyer do when the client is missing or won't respond, and a court deadline is approaching?

Plain-English summary

Opinion 128 addresses the "missing client" problem in civil matters: the client retains the lawyer but then vanishes or stops responding, sometimes with a deadline (a statute of limitations, an answer date, a discovery response) approaching. It arises both when a client disappears during a representation and when an insurer retains a lawyer to defend an insured the lawyer cannot locate. The Committee surveys conflicting authority from other states and adopts the view that a lawyer should be allowed to minimize prejudice to the client by taking protective action, while cautioning that doing so can implicate other duties (candor to the tribunal, no false statements to third parties) and that in some situations acting without the client would itself prejudice the client.

The opinion first frames the threshold question: does a lawyer-client relationship exist? That is a substantive legal question, but it has ethical dimensions, the client must have consented (expressly or impliedly), and in the insurance-defense context consent to the representation and to the insurer's third-party payment under Rule 1.8(f) may be implied from the insurance contract or the purchase of the policy. The opinion stresses that even when the insurer retains and pays the lawyer, the client is the insured, not the carrier, and the lawyer owes the insured the duties of diligence (Rule 1.3), loyalty, and communication (Rule 1.4). It emphasizes good intake practice: gathering multiple ways to reach the client, advising the client to stay in contact, and obtaining advance authorization (for example to file before a limitations deadline or to settle within a set range) under Rule 1.2 Comment [3].

On what actions are permissible, the Committee says the guiding principle is avoiding prejudice to the client to the extent feasible. A lawyer with a lawyer-client relationship may file pleadings or briefs (for example to avoid a limitations bar or a default) where the client authorized the action, expressly or impliedly, and the lawyer has enough information to proceed in good faith under Rule 3.1, but the pleading must not imply the client participated in preparing it (Rule 3.3), and the lawyer must not make false statements about the client's availability (Rules 3.3, 4.1). Settlement generally requires the client's authorization (Rule 1.2(a)); the opinion notes a narrow insurance exception where the policy gives the insurer the right to settle and several conditions are met. The lawyer must also avoid action requiring a consent the absent client cannot give, such as waiving a concurrent conflict (so the opinion advises against jointly defending an employer and an absent former employee). Finally, if a diligent, documented search fails and the representation cannot continue without the client, the lawyer may be required to withdraw under Rule 1.16, taking steps to protect the client's interests, attempting to notify the client, and disclosing to the court only the minimum necessary to support withdrawal.

In practice

The opinion holds that, under the Colorado rules as they stood at the time of the opinion, a lawyer who cannot reach a client must make reasonable, well-documented efforts to locate the client and seek continuances, and may use a reasonable amount of the client's funds to do so. Per the opinion, where a lawyer-client relationship exists, the lawyer may take protective action that the client authorized (expressly or impliedly) and for which the lawyer has sufficient information, principally to avoid a limitations bar or a default, but may not imply the client participated, may not make false statements about the client's availability, and generally may not settle without authorization. The opinion identifies the insurance-defense context as one where consent and settlement authority may flow from the insurance contract, and it concludes that when continued representation becomes impossible without the client, the lawyer should withdraw under Rule 1.16(d) while minimizing prejudice and revealing only the minimum information necessary.

Common questions

Q: My client vanished and the statute of limitations is about to run. Can I file the complaint?

A: Potentially, yes. The opinion concludes a lawyer with a lawyer-client relationship may file to avoid a limitations bar if the client authorized the action (expressly or impliedly) and the lawyer has enough information to proceed in good faith, but the filing must not imply the client participated.

Q: An insurer hired me to defend an insured I can't find. Who is my client?

A: The insured. The opinion reaffirms that in the tripartite relationship the lawyer's client is the insured, not the carrier, and consent to the representation and to the insurer's payment may be implied from the insurance contract.

Q: Can I settle the case while my client is missing?

A: Generally no. The opinion concludes settlement requires the client's authorization under Rule 1.2(a); it recognizes only a narrow exception where an insurance policy gives the insurer the right to settle and specified conditions are met.

Q: When do I have to withdraw?

A: When a diligent, documented search fails and the representation cannot continue without the client. The opinion concludes the lawyer may then be required to withdraw under Rule 1.16, while protecting the client's interests and disclosing only the minimum needed.

Background and rules framework

The opinion interprets the lawyer's duties of diligence (Rule 1.3), communication (Rule 1.4), and allocation of authority and advance authorization (Rule 1.2, including Comment [3]), together with Rule 1.8(f) (third-party payment in insurance defense), Rule 1.7 (conflicts the absent client cannot waive), Rule 1.16(b) and (d) (withdrawal and protecting the client), and Rules 3.1, 3.3, and 4.1 (good-faith basis, candor to the tribunal, and truthfulness to third parties). It relies on the Committee's Formal Opinions 91 (insurer-retained defense counsel) and 95 (funds of missing clients) and surveys out-of-state authority.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.3 / Model Rule 1.3 (diligence)
• Colo. RPC 1.4 / Model Rule 1.4 (communication)
• Colo. RPC 1.2(a) and Comment [3] / Model Rule 1.2 (client decisions; advance authorization)
• Colo. RPC 1.16(b), (d) / Model Rule 1.16 (withdrawal; protecting the client's interests)
• Colo. RPC 1.8(f), 1.7, 3.1, 3.3, 4.1 (third-party payment; conflicts; good-faith basis; candor; truthfulness)

Cases:

• People v. Silvola, 915 P.2d 1281 (Colo. 1996), discipline for purporting to represent an absent client for an extended period
• Burke v. Lewis, 122 P.3d 533 (Utah 2005), implied consent to representation of a missing insured

Other opinions cited:

• CBA Formal Op. 91 (insurer-retained defense counsel); CBA Formal Op. 95 (funds of missing clients)
• Cal. Op. 1989-111; Ky. Op. E-433; Utah Op. 04-01a; N.C. State Bar FEO 1 (2010); Alaska Ops. 2004-3 and 2011-4; Or. Formal Op. 2005-33

See also

• CA Bar Op. 2002-160: Missing Client, Settlement Authority, and Fees
• NY State Bar Op. 1163: Duty When Unable to Locate a Missing Client
• IL Bar Op. 03-04: The Missing Client

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/FormalEthicsOpinion_128.pdf