What can a lawyer do when, in a contingency case, the client cannot be located despite reasonable efforts and the client failed to provide updated contact information?

Plain-English summary

An attorney had a contingency-fee agreement with a client in an injury case but could no longer reach the client. Mail to the client's given address was returned as undeliverable (no one there by that name), and the two doctors who treated the client had been given the same address. The client had once mentioned possibly moving to Atlanta and said he would provide a new address if he did, but never did. The attorney checked the Atlanta directory and even spoke with two men of the same name who confirmed they were not the client. The inquiry asked what the attorney should do to protect both himself and the client.

The committee analyzed the diligence, communication, and withdrawal rules. Under Rule 1.3, a lawyer must act with reasonable diligence; the committee assumed the matter had been pending only a relatively short time. Under Rule 1.4, a lawyer must keep the client reasonably informed, an obligation the attorney had tried to meet but could not because of the client's conduct. Under Rule 1.16(b), a lawyer may withdraw where it can be done without material adverse effect, or where the client has failed substantially to fulfill an obligation after reasonable warning, where continuing would impose an unreasonable financial burden or has been rendered unreasonably difficult by the client, or where other good cause exists.

The committee concluded the client had failed in his obligation under Rule 1.16(b)(4) and (5) by not keeping the attorney informed of how to reach him, placing an unreasonable burden on the attorney. Having exercised reasonable diligence in trying to locate the client, the attorney appeared to have met his obligation and should proceed no further in the matter.

Currency note

This opinion was issued in 1998, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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 should a lawyer do when a client disappears and cannot be located?

A: Per the opinion, if the lawyer has pursued all reasonable avenues and the client is unreachable through the client's own fault, the lawyer may reasonably treat the representation as terminated and need not file suit.

Q: Which withdrawal grounds applied?

A: The committee found the client failed substantially to fulfill an obligation under Rule 1.16(b)(4) and rendered the representation unreasonably difficult under Rule 1.16(b)(5) by not providing a way to be contacted.

Q: Did the lawyer's diligence and communication duties still apply?

A: Yes. The committee noted Rule 1.3 required reasonable diligence and Rule 1.4 required keeping the client informed, but the attorney's compliance was frustrated by the client's own conduct.

Background and rules framework

The opinion applied South Carolina RPC 1.3 (diligence), RPC 1.4 (communication), and RPC 1.16(b) (permissive withdrawal), corresponding to the like-numbered Model Rules. It located the lost-client situation within the Rule 1.16(b)(4) and (5) grounds for withdrawal.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.3 / Model Rule 1.3: diligence.
• South Carolina RPC 1.4 / Model Rule 1.4: communication with the client.
• South Carolina RPC 1.16(b) / Model Rule 1.16: permissive withdrawal grounds.

See also

• SC Bar Ethics Op. 08-12: One Party Revokes, Don't File
• SC Bar Ethics Op. 02-14: Files When a Practice Winds Down

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-07/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 98-07

Attorney entered into a contingency fee agreement with Client in an injury case. Attorney cannot get in touch with Client at the address given at the time of interview, with correspondence being returned stating that no one was there by the name of Client. Two doctors who treated Client for the injury were given the same address as the one given to attorney. Client at one time indicated he was thinking of moving to Atlanta and would provide attorney with the new address if he did so. Attorney has received no new address. Attorney checked the Atlanta directory in an effort to locate Client, but could not locate him. However, attorney did talk to two men in Atlanta by the same name who stated they were not Client.

QUESTION:
What should Attorney do to protect himself and Client under the given circumstances?

SUMMARY:
If Attorney has pursued all reasonable avenues to locate Client and, due to the fault of Client, Client cannot be located, it is reasonable for Attorney to assume that the representation has been terminated and would not be obligated to file suit.

OPINION:
RPC 1.3 states that a lawyer should act with reasonable diligence and promptness in representing a client. The facts here do not state how long Attorney has had the matter under consideration prior to trying to locate Client. For purposes of this opinion, it is assumed that this amount of time was a relatively short period.

RPC 1.4 provides for communication with clients. Subparagraph (a) provides that "... a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Attorney has attempted to comply with this Rule, but failed by reason of Client's conduct.

RPC 1.16 provides for declining or terminating representation. Subparagraph (b) states:
(b) Except as is stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client, or if: (4) The client has failed substantially to fulfill an obligation to the lawyer regarding the lawyer's services or payment therefor and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) Other good cause for withdrawal exists.

It appears that Client has failed in his obligation to Attorney under (4) and (5) by failing to keep Attorney informed of a way of contacting client. This places an unreasonable burden on Attorney. With Attorney having exercised reasonable diligence in trying to locate Client, it would appear that he has met his obligation to Client and should proceed no further in the matter.