What must a lawyer do when a client cannot be located and the lawyer has lost all contact?

Plain-English summary

Opinion E-96-2 answered a firm representing a personal-injury plaintiff it could no longer contact, having pursued numerous leads without success. The committee explained that the duties of communication and consultation and the duty to follow a client's instructions all depend on knowing the client's whereabouts and how to reach the client (citing SCR 20:1.2(a) and 20:1.4 and Olfe v. Gordon, on the lawyer's general duty to follow a client's specific instructions).

Agreeing with ABA Informal Opinion 1467 (1981), the committee concluded that a lawyer should make "reasonable inquiry and effort" to learn a missing client's whereabouts, with what is reasonable varying by circumstance. If efforts to contact the client are unsuccessful, the lawyer may have no alternative but to seek to withdraw under SCR 20:1.16, taking steps to the extent reasonably practicable to protect the client's interests. Whether the lawyer must file a lawsuit on the client's behalf, and thereby satisfy the statute of limitations, also depends on the circumstances; in many situations involving a client whose whereabouts are unknown, the committee observed that filing may be the most cautious course.

Currency note

This opinion was issued in 1996, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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 is the first step when a lawyer cannot reach a client?

A: Reasonable inquiry and effort to find them. The committee, following ABA Informal Op. 1467, concluded that a lawyer should make reasonable inquiry and effort to learn the client's whereabouts, with the required effort depending on the circumstances.

Q: What if the lawyer still cannot locate the client?

A: The lawyer may have to withdraw. The committee concluded that if efforts fail, the lawyer may have no alternative but to seek to withdraw under SCR 20:1.16, taking reasonably practicable steps to protect the client's interests.

Q: Does the lawyer have to file suit to preserve a deadline?

A: It depends. The committee concluded that whether the lawyer must file a lawsuit to satisfy the statute of limitations depends on the circumstances, and that in many cases involving a missing client, filing may be the most cautious course.

Background and rules framework

The opinion interpreted SCR 20:1.2(a) / Model Rule 1.2 (scope of representation and the client's objectives) and SCR 20:1.4 / Model Rule 1.4 (communication), explaining that both depend on the ability to reach the client, and SCR 20:1.16 / Model Rule 1.16 (declining or terminating representation, including steps to protect a client on withdrawal). It relied on Olfe v. Gordon and ABA Informal Op. 1467.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.2(a) / Model Rule 1.2 (objectives of representation)
• Wis. SCR 20:1.4 / Model Rule 1.4 (communication)
• Wis. SCR 20:1.16 / Model Rule 1.16 (withdrawal; protecting the client)

Cases:

• Olfe v. Gordon, 93 Wis. 2d 173, 286 N.W.2d 573 (1980), lawyer's general duty to follow a client's specific instructions
• Sherman v. Heisler, 85 Wis. 2d 246, 270 N.W.2d 397 (1980)

Other opinions cited:

• ABA Informal Op. 1467 (Aug. 10, 1981): reasonable inquiry and effort to locate a client

See also

• DC Ethics Op. 266: Withdrawal Requiring Court Approval and Client Whereabouts
• DC Ethics Op. 359: Disposition of a Missing Client's Trust Account Monies

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-96-2.pdf