What should a lawyer do about a missing client when the statute of limitations is about to run?

Plain-English summary

The inquiry concerned clients who fail to keep in contact with their attorney, and presented two hypotheticals. In the first, a lawyer hired for a tort claim could not reach the client (no response to calls and letters, whereabouts unknown), the suit had not been filed, the statute of limitations would run in a year, and the lawyer wished to withdraw. The committee concluded that the attorney must use due diligence to locate the client prior to withdrawal, and directed the inquirer to RPC 1.2, 1.3, and 1.4.

In the second hypothetical, a lawyer represented a wife in an auto-accident injury claim where suing the other party could produce a potential cross-claim against the client's husband; the lawyer could not reach the client, letters were returned with no forwarding address, and the statute of limitations would run in 30 days. The committee concluded that the attorney should not file suit on behalf of the wife in the absence of her authorization. It added that the situation may raise other legal issues, and that the committee does not issue opinions on matters involving legal questions.

Currency note

This opinion was issued in 1999, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.2, 1.3, and 1.4 correspond to ABA Model Rules 1.2 (scope of representation), 1.3 (diligence), and 1.4 (communication), and were revised in the 2006 revisions, so verify the current rules before relying on them.

Common questions

Q: Can a lawyer withdraw from a case when the client has vanished?

A: The committee concluded the attorney must first use due diligence to locate the client prior to withdrawal, directing the lawyer to RPC 1.2, 1.3, and 1.4.

Q: Can a lawyer file suit to beat the statute of limitations if the client is unreachable?

A: The committee concluded the attorney should not file suit on behalf of the client in the absence of her authorization, even with the limitations period about to run.

Q: Did the committee resolve the related legal questions?

A: No. It said the situation may raise other legal issues and that the committee does not issue opinions on matters involving legal questions.

Background and rules framework

The opinion applied Washington RPC 1.2 (scope of representation and allocation of authority), RPC 1.3 (diligence), and RPC 1.4 (communication), corresponding to ABA Model Rules 1.2, 1.3, and 1.4. The committee grounded the duty to search for a missing client before withdrawing in those rules, and treated filing suit without the client's authorization as outside the lawyer's authority where the client has not authorized it.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation and allocation of authority); Washington RPC 1.2
• ABA Model Rule 1.3 (diligence); Washington RPC 1.3
• ABA Model Rule 1.4 (communication); Washington RPC 1.4

See also

• WSBA Ethics Op. 1128: Unclaimed Trust Funds
• WSBA Ethics Op. 1069: Client Acting Against Interests
• WSBA Ethics Op. 1136: Insurer Counsel and Coverage Dispute

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1057

Original opinion text

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

Advisory Opinion: 1864
Year Issued: 1999
RPC(s): RPC 1.2; 1.3; 1.4
Subject: Lawyer unable to locate missing client; withdrawal; filing suit without client's consent

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry #1864 concerning clients who fail to keep in contact with their attorney.

The Committee has reviewed your inquiry and determined that the following:

In regard to hypothetical number one [lawyer hired for tort claim; client does not respond to lawyer's calls and letters; client's whereabouts unknown; lawsuit not filed and statute of limitations will run in a year; lawyer wishes to withdraw], the attorney must use due diligence to locate the client prior to withdrawal. The inquirer is directed to RPC 1.2, 1.3 and 1.4. In regard to hypothetical number two [lawyer represents a wife in a claim for injuries in an automobile accident, where there is a potential for a cross-claim against client's husband if the lawyer sues the other party; lawyer has been unable to reach the client; letters are returned with no forwarding address, and the statute of limitations will run in 30 days] , the attorney should not file suit on behalf of the wife in the absence of her authorization. This situation may raise other legal issues. The committee does not issue opinions on matters involving legal questions.