What must a North Carolina lawyer do when a client disappears and cannot be located before the statute of limitations runs, and can the lawyer file suit to protect the claim?

Plain-English summary

The opinion addressed a lawyer who had agreed in 1993 to represent a client on minor injuries from an automobile accident and then lost all contact with her. The lawyer made numerous attempts to reach the client by a variety of methods: phone calls, letters returned without a forwarding address, inquiries to the client's former employer, a treating doctor's office, the defendant's insurer, the client's own insurer, and county property listings. None succeeded. With the statute of limitations set to expire in ten months and no complaint filed, the lawyer's malpractice carrier suggested filing a complaint and then immediately moving to withdraw. The lawyer asked what her ethical responsibility to the client was.

The opinion concluded that when a client stops communicating, the lawyer must take reasonable steps to locate and communicate with the client, and it found this lawyer's efforts to have been more than reasonable. Because the client could still not be located and had made no effort to reestablish contact, the opinion treated the client's failure to contact the lawyer within a reasonable time as a constructive discharge; under Rule 2.8(b)(4), a lawyer who is discharged must withdraw. The opinion further concluded that the lawyer could not file a complaint to stop the limitations period, because the objective of the representation is the client's to set. Citing the Comment to Rule 7.1 that the client has ultimate authority to determine the purposes of the representation, the opinion reasoned that with the client gone the lawyer could not know whether she wanted to sue, whom she meant to sue, or whether the allegations would be accurate, so the lawyer should withdraw without taking further action.

Currency note

This opinion was issued in 1996, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: What must a North Carolina lawyer do first when a client stops responding?

A: Take reasonable steps to locate and communicate with the client. The opinion treated the lawyer's extensive search efforts here, across phone, mail, the former employer, doctors, insurers, and property records, as more than reasonable.

Q: If the client still cannot be found, can the representation simply continue?

A: No. The opinion concluded that a client's failure to make contact within a reasonable time amounts to a constructive discharge, and under Rule 2.8(b)(4) a discharged lawyer must withdraw.

Q: Can the lawyer file the lawsuit to beat the statute of limitations and then withdraw?

A: No. The opinion concluded the lawyer may not file a complaint for a disappeared client, because the objective of the representation is the client's to set and the lawyer cannot know whether the client wanted to sue, whom, or on what allegations.

Background and rules framework

The opinion applied North Carolina's then-current Rule 2.8(b)(4), the mandatory-withdrawal provision requiring a lawyer who is discharged to withdraw, which corresponds to Model Rule 1.16. It also relied on the Comment to Rule 7.1, the provision allocating decision-making authority between lawyer and client, for the principle that the client has ultimate authority to determine the purposes of the representation; that allocation corresponds to Model Rule 1.2.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation; mandatory withdrawal)
• MR 1.2 (scope of representation; client's authority over objectives)
• North Carolina Rule 2.8(b)(4)
• North Carolina Rule 7.1

See also

• NC Ethics Op. RPC 240: limiting representation to a personal injury claim
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-223/

Original opinion text

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

Inquiry:

On July 7, 1993, Attorney A entered into an agreement to represent Client A in regard to minor injuries she sustained in an automobile accident. Attorney A met with Client A on that date and subsequently spoke with her by telephone on a couple of occasions. In these phone conversations, Client A informed Attorney A that she planned to see other health care providers.

Attorney A has not heard from Client A since 1993 although she has tried on numerous occasions and by a variety of methods to contact Client A. Initially, Attorney A called Client A but Client A did not return her phone calls. Last year, Attorney A wrote to Client A but the letters were returned without a forwarding address. Client A's telephone number was disconnected and there is no new listing for her. She no longer works for the company that employed her in July 1993. Attorney A asked Client A's former employer to forward a letter to Client A at the last address the employer had on file for Client A. She received no response to this letter. Attorney A tried to get Client A's new address from one of the doctors Client A was seeing in 1993. The doctor's office had her old address. The insurance company for the prospective defendant in the automobile accident has not heard from Client A and has closed its file. Client A's own automobile insurance policy was canceled in April 1994. The company does not have a new address for Client A. Finally, Attorney A checked the county property listings. The last listing for Client A was in 1993.

The statute of limitations on Client A's claim will expire in ten months. A complaint has not been filed. A representative of Attorney A's malpractice insurance carrier recommended that she file a complaint on behalf of Client A and then immediately make a motion to withdraw. What is Attorney A's ethical responsibility to Client A?

Opinion:

When a client stops communicating with his or her lawyer, the lawyer must take reasonable steps to locate and communicate with the client. In the present inquiry, Attorney A's efforts to locate Client A were more than reasonable. However, if the lawyer is still unable to locate the client and the client has made no effort to contact the lawyer, the client's failure to contact the lawyer within a reasonable period of time after the lawyer's last contact with the client must be considered a constructive discharge of the lawyer. Rule 2.8(b)(4) of the Rules of Professional Conduct requires a lawyer to withdraw from the representation of a client if the lawyer is discharged by the client. Therefore, Attorney A must withdraw from the representation.

Attorney A may not file a complaint on behalf of Client A although filing suit might stop the running of the statute of limitations. The determination of the objective of legal representation is the client's prerogative. As the comment to Rule 7.1 observes, "[t]he client has ultimate authority to determine the purposes to be served by legal representation within the limits imposed by law and the lawyer's professional obligation." If a client disappears, the lawyer cannot know whether the client wanted to proceed with the lawsuit, who the client was prepared to sue, and whether the allegations in the complaint are accurate. Therefore, if a client disappears and the lawyer is unable to locate the client after reasonable efforts to do so, the lawyer should withdraw from the representation without taking further action on behalf of the client.