An insurer assigned me to defend its insured in a car-accident lawsuit. The insured has refused to meet with me and now can't be located, even after hiring investigators here and abroad. Do I have to enter an appearance and answer the complaint anyway?

Plain-English summary

An insurance company assigned the inquiring attorney to defend its insured, sued by her daughter for injuries suffered as a passenger in a motor vehicle accident. Learning the insured planned to leave the country permanently, plaintiff's counsel scheduled depositions shortly after service. The inquiring attorney wrote to the insured requesting a call to discuss representation, but received no response; a courtesy conference plaintiff's counsel arranged (with an interpreter) was cancelled, and the insured advised she would not meet with the attorney or attend her deposition. An investigator hired by the attorney found the insured no longer resided in Rhode Island, and an international investigative service hired by the insurer could not locate her in the country where she intended to relocate. The attorney secured extensions of time to answer by stipulation and made special appearances solely to obtain court-ordered extensions; an answer was now due.

The panel found no attorney-client relationship had been established, citing Church v. McBurney, 513 A.2d 22, 24 (R.I. 1983) for the contractual nature of the relationship, and noting the insured had refused to meet with the attorney and was now unlocatable. It observed that Rule 1's ethical duties (competence under Rule 1.1, diligence under Rule 1.3, communication under Rule 1.4) generally presuppose an attorney-client relationship, with narrow exceptions such as Rule 1.6 confidentiality owed even to persons who merely consult a lawyer, and concluded the attorney had no obligation under the Rules to enter an appearance, answer, or represent the insured.

The panel then addressed whether representation was even permissible, and concluded it was not, because the attorney could not comply with Rule 1.2, Rule 1.4, and to some extent Rule 1.1. Quoting Rule 1.2(a) (a lawyer must abide by a client's decisions on the objectives of representation and consult on the means), Rule 1.4 (informing the client of the nature of the relationship, keeping the client reasonably informed, and explaining matters sufficiently for informed decisions), and Rule 1.1 (competent representation requiring knowledge, skill, thoroughness, and preparation), the panel found representing someone the attorney had never met or spoken with imprudent, if not impossible: the attorney could not learn the insured's objectives, inform her of the relationship, keep her informed, explain necessary decisions, or prepare with the requisite thoroughness. The panel called these handicaps insurmountable barriers to effective advocacy.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, an attorney-client relationship is not established merely by an insurer's assignment and the attorney's good-faith attempts to reach the insured; where the insured refuses contact and becomes unlocatable, the Rules neither require nor permit the attorney to file an appearance or answer on the insured's behalf, because the attorney cannot satisfy Rule 1.1's competence, Rule 1.2's client-direction, or Rule 1.4's communication requirements without ever having communicated with the client.

Common questions

Q: An insurer assigned me to defend its insured, but the insured won't meet with me and I can't find her. Do I still have to enter an appearance and answer the complaint?

A: No, according to this opinion. The panel held no attorney-client relationship was ever formed, so the Rules do not require the attorney to appear, answer, or represent the insured.

Q: Could I choose to represent the insured anyway, just to protect her interests, even without ever having spoken to her?

A: Not under this opinion. The panel held it would be impermissible, because the attorney could not satisfy the competence, client-direction, and communication requirements of Rules 1.1, 1.2, and 1.4 without ever having communicated with the insured.

Q: What efforts does the opinion expect before concluding a client can't be represented?

A: The panel's conclusion rested on the specific facts presented: a written request for contact, a cancelled courtesy conference with an interpreter arranged, a stated refusal to meet or appear, and investigator searches both domestically and internationally that failed to locate the insured.

Background and rules framework

The opinion applies Rule 1.1 (Competence), Rule 1.2(a) (Scope of Representation), and Rule 1.4 (Communication), the Model Rule counterparts of the same numbers, each quoted at length, along with a footnote reference to Rule 1.6's narrower confidentiality duty to non-clients who merely consult a lawyer. It relies on Church v. McBurney for the contractual basis of the attorney-client relationship under Rhode Island law.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (Competence) / RI Rule 1.1
• MR 1.2(a) (Scope of Representation) / RI Rule 1.2(a)
• MR 1.4 (Communication) / RI Rule 1.4

Cases:

• Church v. McBurney, 513 A.2d 22, 24 (R.I. 1983), the attorney-client relationship is contractual in nature

See also

• Alaska Bar Op. 2004-3: Responsibilities of an Attorney When a Client Cannot Be Contacted
• Alaska Bar Op. 2011-4: Duties of an Attorney in a Criminal Appeal When the Client Cannot Be Contacted

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202005-04.pdf

Original opinion text

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

Final

             Rhode Island Supreme Court Ethics Advisory Panel
                  Opinion No. 2005-04 Request No. 896
                           Issued April 14, 2005


    An insurance company engaged the inquiring attorney to represent its insured, the

defendant in a civil action arising out of a motor vehicle accident. The plaintiff alleges
that she was injured while riding as a passenger in a vehicle operated by the insured, who
is the plaintiff’s mother. Having information that the insured would soon be leaving the
United States to return to a foreign country and to take up permanent resident there,
plaintiff’s counsel scheduled to take the depositions of the plaintiff and the insured three
days after service of process was made upon the insured.

    The inquiring attorney promptly wrote a letter to the insured informing her that

he/he was assigned by the insurance company to defend her, and requesting that the
insured call the inquiring attorney to discuss representation. The letter was not returned
to the inquiring attorney and the insured never contacted him/her. As a courtesy, counsel
for the plaintiff scheduled a conference for the inquiring attorney and the insured at
plaintiff’s counsel’s office, and also arranged for an interpreter to attend. The conference
was cancelled. On the day before the scheduled depositions, the plaintiff and the insured
advised plaintiff’s counsel that the insured was not going to meet with the inquiring
attorney, and that neither of them would attend their depositions.

    In an effort to locate the insured, the inquiring attorney hired an investigator who

advised the inquiring attorney that the insured no longer resides in Rhode Island. The
insurer hired an international investigative service which could not locate the insured in
the country where she was intending to take up permanent residence.

    Meanwhile, the inquiring attorney secured numerous extensions of time to answer

the complaint by stipulation with the plaintiff’s counsel. The inquiring attorney also
made special entries of appearance in the court where the lawsuit is pending for the
specific purpose of obtaining a court order extending the time within which the insured
could answer the plaintiff’s complaint. An answer to the complaint is now due.

ISSUE PRESENTED:

   The inquiring attorney, who has been assigned by an insurer to represent its

insured, asks what his/her ethical obligations are when a complaint has been filed and
served upon the insured, and the insured who would not meet with the inquiring attorney
cannot now be located.
Final Op. 2005-04
Page 2
OPINION:

    The Rules of Professional Conduct neither require nor permit the inquiring

attorney to enter his/her appearance on behalf of the insured, to answer the complaint, or
to represent the insured in the matter.

REASONING:

    The attorney-client relationship is contractual in nature. Church vs. McBurney,

513 A.2d 22, 24 (R.I. 1983). The insured in this inquiry, despite efforts by the inquiring
attorney, refused to meet with the inquiring attorney, and is now among the missing.
Mindful that its jurisdiction is limited to interpreting the Rules of Professional Conduct,
the Panel believes that an attorney-client relationship was not established between the
inquiring attorney and the insured.

   Rule 1 of the Rules of Professional Conduct entitled “Client-Lawyer

Relationship” sets out ethical duties that lawyers owe to clients, and with few exceptions1
assumes an attorney-client relationship. Duties of competence (Rule 1.1), diligence (Rule
1.3) and communication (Rule 1.4) are owed to clients, but lawyers owe no such duties to
individuals who are not clients. The Panel therefore concludes that the inquiring attorney
has no ethical obligation under the Rules to enter his/her appearance on behalf of the
insured, to file an answer in the case, or to represent the insured in the matter.

    If the Rules do not impose an obligation on the inquiring attorney to represent the

insured under these facts, the issue arises as to whether it is permissible for the inquiring
attorney to do so. The Panel is of the opinion that it is not permissible because the
inquiring attorney could not comply with the requirements of Rule 1.2, Rule 1.4, and to
some extent Rule 1.1.

    Rule 1.2(a) states in pertinent part as follows.

            (a)     A lawyer shall abide by a client's decisions concerning the
            objectives of representation, subject to paragraphs (c), (d) and (e), and
            shall consult with the client as to the means by which they are to be
            pursued. A lawyer shall abide by a client's decision whether to accept an
            offer of settlement of a matter. In a criminal case, the lawyer shall abide
            by the client's decision, after consultation with the lawyer, as to a plea to
            be entered, whether to waive jury trial and whether the client will testify.

    Rule 1.4 states.

            (a) When a lawyer has not regularly represented a client and has reason to
            believe that the client does not fully understand the nature of the attorney-
            client relationship and the expectations and obligations arising out of that

1
For example, Rule 1.6 imposes obligations of confidentiality to persons who consult with
lawyers about representation even if the lawyer does not take on the representation.
Final Op. 2005-04
Page 3
relationship, the lawyer shall take reasonable steps to inform the client of the
nature of the attorney-client relationship before the representation is
undertaken. Such disclosure should include what the lawyer expects of the
client and what the client can expect from the lawyer. A lawyer may make
such disclosure by providing the client with a copy of the statement of
client's rights and responsibilities contained in Appendix 2 to these rules, or
in any other manner sufficient to provide the client with a clear
understanding of what services will be rendered by the lawyer and what the
client's responsibilities are in order that the services can be performed
effectively.
(b) A lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.
(c) A lawyer shall explain to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.

   Rule 1.1 provides.

           A lawyer shall provide competent representation to a client. Competent
           representation requires the legal knowledge, skill, thoroughness and
           preparation reasonably necessary for the representation.

    The Panel believes that representation of an individual such as the insured in this

inquiry with whom the inquiring attorney has never met or spoken is imprudent, if not
impossible. The inquiring attorney does not know the insured’s objectives of the
representation. See Rule 1.2. He/she cannot inform the insured of the nature of the
attorney/client relationship, cannot keep the client reasonably informed about the lawsuit,
and cannot explain what is necessary to permit the client to make informed decisions.
See Rule 1.4. Competent representation and its requisite thoroughness and preparation
are not feasible. See Rule 1.1. Believing these handicaps to be insurmountable barriers
to effective advocacy, the Panel concludes that the Rules of Professional Conduct neither
require nor permit the inquiring attorney to represent the insured under these facts.