But What if You Can't Find Your Client?
There is no shortage of ethics articles reminding you to pay attention to the occasionally overlooked question of who is the client and when a potential conflict may require the withdrawal from a representation in a transaction or litigation. But as I look down at an open copy of “where's waldo” on the living room floor, I am reminded of another question that one hopes not to have a murky answer to at the wrong time. Where is the client? It’s a usually simple but very important thing to know; and when the ability to locate and reach the client is neglected, it can lead to headaches and claims.
We've seen personal injury cases in which the attorney was waiting for the client to finish treatment when the statute of limitations for the accident drew near, they couldn't locate the client, creating the dilemma of what to do. What are your ethical obligations with respect to preserving the client’s cause of action? If you file to preserve the claim and move to withdraw, how do you advise the client that they need to find new counsel to protect their interest? Or what happens if, during the course of litigation where everything appears to be going nicely, you can't get the client to respond with the necessary information to complete discovery requests? What do you do if you if opposing counsel sends an unanticipated, and very attractive, settlement proposal that is time sensitive?
This may seem like a fanciful problem. Clients have a vested economic interest to pay attention and pursue their legal matters. Often lawyers face the opposite problem with the client who is constantly reaching out, pressing for answers, pressing for a resolution, and demanding delivery of a pound of flesh from the other side. Constant contact, as long as it doesn't impede your work on their behalf, or on behalf of your other clients, is a preferable situation to the alternative where you can’t find your client. Clients are often not rational actors and can fall prey to life’s many foibles and simply ghost you for reasons tragic or pedestrian. That will not preclude you from having to deal with potential ethical or pecuniary consequences when they reappear. We suggest that at the outset of a case, you should be sure to underscore that communication is key. Verify as many means of contacting the client as possible and explain and document the remedies and consequences available to you if they disappear. In a professional relationship between a sophisticated party with a fiduciary duty such as a lawyer and a layperson, the burdens to anticipate and document rest on the lawyer and it’s the lawyer who is most likely to be held to account when they fail to plan adequate means of communication.
Authored by: Mike Flaherty, Senior Claims Attorney
Michael Flaherty is a claims attorney for ALPS. He received his undergraduate degree from James Madison University and his law degree from George Mason School of Law. Mike began handling claims for ALPS in 2002 and works in the company’s Richmond, Virginia office. Prior to joining ALPS, Mike spent four years as staff counsel for a national labor union. Mike also spent a year as staff counsel to the Virginia General Assembly.