When a lawyer loses contact with a personal injury client before filing, must the lawyer file suit before the statute of limitations runs?

Plain-English summary

The inquiry described a lawyer who had entered into an attorney-client relationship with a personal injury client but lost contact with the client before a complaint was filed and before receiving instructions on whether to file. The lawyer asked what his obligation might be to file an action before the statute of limitations ran.

The committee concluded that whether it is appropriate under the Rules to file suit depends on the scope of the representation, citing RPC 1.2. It noted that the scope may be influenced by any fee agreement and by the nature of prior communications with the client, and that whether filing suit was implicit or express depends on the totality of the communications between the lawyer and the client. The committee stated that whether refraining from or commencing suit without further direction from the client would violate the Rules turns on whether the lawyer can articulate a good-faith belief that he was authorized to file suit or to refrain. It said review of RPC 1.4(b) is warranted, that consideration of RPC 1.13(b) may be warranted based on the nature and extent of the lawyer's contacts with the client, and it pointed also to RPC 3.1.

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 Treat this page as historical context, not current guidance.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. In the 2006 revisions Washington renumbered its client-with-a-disability rule (the former RPC 1.13) to RPC 1.14, tracking ABA Model Rule 1.14, so verify the current rule and citation before relying on it.

Common questions

Q: Must a lawyer file suit for a missing client to beat the limitations period?

A: The committee concluded it depends on the scope of the representation under RPC 1.2, as shaped by the fee agreement and the prior communications with the client.

Q: How does a lawyer decide whether filing or not filing is proper?

A: The committee said it turns on whether the lawyer can articulate a good-faith belief that he was authorized to file suit or to refrain from filing.

Q: What other rules did the committee point to?

A: It said review of RPC 1.4(b) is warranted, consideration of RPC 1.13(b) may be warranted depending on the lawyer's contacts with the client, and it pointed also to RPC 3.1.

Background and rules framework

The opinion turned on Washington RPC 1.2 (scope of representation), corresponding to ABA Model Rule 1.2, treating the authority to file as a function of the agreed scope and the parties' communications. It also pointed to RPC 1.4(b) (communication, MR 1.4), RPC 1.13(b) (clients under a disability, the rule then numbered 1.13 in Washington and corresponding to ABA Model Rule 1.14), and RPC 3.1 (meritorious claims and contentions, MR 3.1).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation); Washington RPC 1.2
• ABA Model Rule 1.4 (communication); Washington RPC 1.4(b)
• ABA Model Rule 1.14 (client with diminished capacity); Washington RPC 1.13(b)
• ABA Model Rule 3.1 (meritorious claims and contentions); Washington RPC 3.1

See also

• WA Ethics Op. 1873: Settling for a Missing Client
• WA Ethics Op. 1864: Missing Client, Looming Deadline
• WSBA Ethics Op. 954: When a Client Vanishes Mid-Case

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1093

Original opinion text

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

Advisory Opinion: 1899
Year Issued: 1999
RPC(s): RPC 1.2; 1.4(b); 1.13(b); 3.1
Subject: Missing client; lawyer's duty with respect to statute of limitations

The inquirer posed the following situation: A lawyer who has entered into an attorney-client relationship with a personal injury client lost contact with the client before a compliant was filed and before receiving instructions on whether to file a complaint. The inquiring lawyer wonders what his obligation may be to file an action before the statute of limitations runs.

Whether or not it is appropriate under the Rules of Professional Conduct for you to file suit depends upon the scope of your representation. See RPC 1.2. The scope of representation may be influenced by any fee agreement and the nature of prior communications with the client. The question of whether filing suit is or was implicit or express depends upon the totality of the communications between the lawyer and the client. Whether refraining from or commencing suit without further direction from the client would violate the Rules of Professional Conduct turns on whether the lawyer can articulate a good faith belief that he was authorized to file suit or refrain from filing. In considering the scope of representation, review of RPC 1.4(b) is warranted. Based upon the nature and extent of the lawyer’s contacts with his client, consideration of RPC 1.13(b) may be warranted. See also RPC 3.1.