When an appointed client disappears, can the lawyer advocate for the outcome the facts seem to support, or must the lawyer move to withdraw?

Plain-English summary

A lawyer is appointed at an initial non-secure custody hearing to represent a mother in a dependency proceeding brought by the department of social services concerning her child. The mother is present at appointment but says little about her position, then she and the father disappear. Because no parent is available to care for the child, the facts appear to support an adjudication of dependency under the Juvenile Code, G.S. 7B-101(9). The question is whether the lawyer may advocate for that adjudication.

The opinion concludes the lawyer may not. Under Rule 1.2(a), a lawyer must abide by the client's decisions about the objectives of representation, and comment [1] gives the client ultimate authority to determine the purposes of the representation. With the client absent and her objectives unknown, the lawyer may not substitute his own objectives even if the facts seem to support a particular position.

The opinion holds that the lawyer is required to move to withdraw when the client has disappeared and her litigation objectives are unknown, citing RPC 223, but only after using reasonable diligence to locate the client without success. If the motion to withdraw is denied, the lawyer may participate only to the limited extent consistent with the missing client's known objectives and the court's appointment order; the lawyer may not advocate any particular position or outcome and has no duty to file an appeal.

In practice

Under this opinion, as the North Carolina rule stood at the time, a lawyer cannot fill the gap left by a vanished client by choosing the objectives himself, because Rule 1.2(a) assigns that choice to the client. The opinion sets a sequence: diligent efforts to locate the client, then a motion to withdraw, and, if that fails, participation limited to the client's known objectives without advocating an outcome. The opinion frames the holding around the appointed-counsel posture and the absence of any expressed client objective.

Common questions

Q: Can an appointed lawyer advocate for the result the facts support when the client has disappeared?

A: No. The opinion concludes that under Rule 1.2(a) the lawyer may not substitute his own objectives for the absent client's, even if the facts appear to support a particular position such as an adjudication of dependency.

Q: What must the lawyer do when the client cannot be found?

A: The opinion holds the lawyer must use reasonable diligence to locate the client and, if unsuccessful, move to withdraw, citing RPC 223.

Q: What if the court denies the motion to withdraw?

A: The opinion concludes the lawyer may then participate only to the limited extent consistent with the client's known objectives and the appointment order, may not advocate any particular outcome, and has no duty to file an appeal.

Background and rules framework

The opinion interprets Rule 1.2(a) of the North Carolina Rules of Professional Conduct (scope of representation, the state counterpart to Model Rule 1.2) and its comment [1], together with the withdrawal duty addressed in prior opinion RPC 223 (the area governed by Model Rule 1.16). It applies those rules to a dependency proceeding under the Juvenile Code, G.S. 7B-101(9), where appointed counsel's client has disappeared.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 (scope of representation and allocation of authority)
• N.C. Rule 1.2(a) and comment [1]
• Model Rule 1.16 (declining or terminating representation)

Statutes:

• N.C. Gen. Stat. 7B-101(9) (definition of "dependent juvenile")

Other opinions cited:

• RPC 223: motion to withdraw when the client has disappeared

See also

• NC State Bar 2010 FEO 1: Defending a Missing Insured
• ABA Formal Op. 96-403: Insured Objecting to Settlement

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2003-formal-ethics-opinion-16/

Original opinion text

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

Inquiry:

At an initial non-secure custody proceeding, Attorney is appointed by the court to represent Mother who is a respondent in a proceeding brought by the local department of social services to determine whether Mother's minor son is an abused, neglected, or dependent juvenile. Another lawyer is appointed to represent Father. Although Mother is present at the time of the appointment, she and Father subsequently disappear. At the time of the appointment, Attorney had minimal conversation with Mother and he does not know what position she would take in the proceedings.

"Dependent juvenile" is defined in the Juvenile Code, G.S. 7B-101(9), as "[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement."

Attorney knows that the parents are missing and, therefore, there is no parent responsible for the son's care. May Attorney advocate for an adjudication of dependency in the proceeding?

Opinion:

No. As stated in Rule 1.2(a) of the Rules of Professional Conduct, "…a lawyer shall abide by a client's decisions concerning the objectives of representation…." Comment [1] adds that the rule "confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations." If the client is not present to give instructions to the lawyer as to the objectives of the representation, the lawyer may not substitute his own objectives even if the facts appear to support a particular position.

A lawyer is required to make a motion to withdraw when the client has disappeared and the lawyer is ignorant of the client's objectives for the litigation. RPC 223. Such a motion is appropriate only after the lawyer has used reasonable diligence to locate the client but is unsuccessful. Id.

If Attorney's motion to withdraw is denied, Attorney may participate in the proceedings to the limited extent that such participation is consistent with the known objectives of the missing client and the court's order of appointment. However, Attorney may not advocate for any particular position or outcome in the proceeding and Attorney does not have a duty to file an appeal.