What must a lawyer do when a former client defaults on a settlement, the lawyer can't find the client, and opposing counsel threatens a motion?
NYSBA Ethics Opinion 1163: Lawyer's Duty When Unable to Locate a Missing Client
Short answer: The opinion concludes that a lawyer who once represented a defendant now in default on a settlement, and who cannot locate the client, may tell opposing counsel and the court that the lawyer no longer represents the client if both the representation and the court matter had concluded; but if the representation or the matter remains open, the lawyer must make reasonable efforts to locate the client and then seek the tribunal's permission to withdraw under Rule 1.16, mindful of the duty to protect the client's confidential information.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York'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. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer, now practicing mainly in Colorado but still admitted with an office in New York, had often represented defendants in breach-of-contract and debt cases that settled with payment over time, sometimes filing a stipulation of discontinuance on signing and sometimes on final payment. On signing each settlement the lawyer gave the client written payment instructions and told the client the representation was over. Recently plaintiff's counsel in one such matter emailed that the defendant had defaulted and that a summary-judgment motion was coming. The lawyer tried to reach the defendant by email and phone without success, and although the lawyer believes the representation ended at settlement, worries the court may see it differently. The lawyer asked whether it may tell plaintiff's counsel it no longer represents the defendant, and whether it must respond to a filed motion or may instead seek to be relieved.
On the first question, the committee answers yes: no rule bars the lawyer from telling plaintiff's counsel that, in the lawyer's view, the lawyer no longer represents the defendant. But that does not end the problem, because plaintiff's counsel or the court may disagree. The committee notes a termination letter can be significant, and in some cases dispositive, on whether the relationship ended (N.Y. State 1008), but whether it actually ended depends on questions of law beyond the committee's jurisdiction. The proper course depends on the settlement's terms and their effect on the matter's status in court. If both the representation and the court matter have concluded, the lawyer should inform the court that the lawyer no longer represents the defendant and need not respond on the defendant's behalf.
If instead the representation has not concluded or the matter remains open, the lawyer must follow Rule 1.16. Good cause to seek withdrawal exists where the client fails to cooperate or makes the representation unreasonably difficult (Rule 1.16(c)(7)) or where the lawyer believes in good faith a tribunal will find good cause (Rule 1.16(c)(12)); inability to locate the client after reasonable steps supplies that good cause (citing N.Y. State 787 on reasonable steps). Under Rule 1.16(d), where the tribunal's rules require permission to withdraw, the lawyer must seek it and, if denied, continue the representation. Throughout, Rule 1.6 governs confidentiality: with no communication from the client, the lawyer must decide whether disclosing the client's unavailability would be embarrassing or detrimental; the lawyer may always tell the court that professional considerations require termination, and only if the court orders more does Rule 1.6(b)(6) permit disclosure of confidential information.
In practice
Under this opinion, the lawyer's first step is to determine, as a matter of law and the settlement's terms, whether the representation and the court matter are actually closed. If both are closed, the opinion holds the lawyer may inform opposing counsel and the court that it no longer represents the defendant and need not respond to the motion. If either is open, the opinion holds the lawyer must take reasonable steps to locate the client, then move to withdraw under Rule 1.16 (seeking the tribunal's permission where required), and must guard the client's confidences, disclosing only that professional considerations require withdrawal unless the court orders more.
Common questions
Q: Can the lawyer just tell opposing counsel it no longer represents the missing client?
A: Per the opinion, yes, nothing bars the lawyer from saying that is the lawyer's view, but it does not resolve the situation, because opposing counsel or the court may disagree and the lawyer must still decide whether a duty to respond exists.
Q: How does the lawyer know whether a duty to respond remains?
A: Per the opinion, it depends on whether the representation and the court matter are concluded, which turns partly on questions of law (and the settlement's terms) outside the committee's jurisdiction. A termination letter can be significant but is not necessarily dispositive.
Q: If the matter is still open, what should the lawyer do?
A: Per the opinion, make reasonable efforts to locate the client, then seek to withdraw under Rule 1.16; inability to locate the client after reasonable steps is good cause, and where the tribunal requires permission the lawyer must obtain it.
Q: What can the lawyer tell the court about the missing client?
A: Per the opinion, the lawyer may always say professional considerations require termination; it must protect confidences under Rule 1.6 and may disclose more only if the court orders it under Rule 1.6(b)(6).
Background and rules framework
The opinion applies New York Rule 1.16 (withdrawal), including Rule 1.16(c)(7) (client failure to cooperate), 1.16(c)(12) (good-faith belief the tribunal will find good cause), and 1.16(d) (need for the tribunal's permission), together with Rule 1.6 confidentiality and Rule 1.6(b)(6) (disclosure when ordered by a court). These correspond to ABA Model Rules 1.16 and 1.6. The committee stresses that whether the attorney-client relationship has ended is governed by substantive law outside its jurisdiction.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.16; 1.16(c)(7); 1.16(c)(12); 1.16(d) (and Comment [3]); 1.6; 1.6(b)(6); Preamble paragraph 9
- ABA Model Rules 1.16, 1.6 (analogues)
Other opinions cited:
- N.Y. State 1008 (2014): effect of a termination letter on whether the relationship has ended
- N.Y. State 787 (2005): reasonable steps to locate a missing client
- N.Y. State 1144 (2018): meaningful communication as a predicate to effective representation
- N.Y. State 1057 (2015): disclosure when moving to withdraw as counsel
See also
- NY State Bar Op. 1203: Withdrawal Over COVID-19 Health Risk in Immigration Court
- NY State Bar Op. 1182: Disposition of Unclaimed Wills of Missing Testators
Source
- Landing page: https://nysba.org/ethics-opinion-1163/