by Robert M. Jarvis
According to the FBI, every day 1,860 Americans — including 141 Floridians — are reported missing.1 While most are quickly found, at the end of 2011, the FBI had 85,158 active missing person files.2 Of course, the actual numbers are greater, for not everyone who goes missing is reported.
When a client disappears, a lawyer is confronted with a host of perplexing ethical questions. Can he or she simply mark the file “closed,” or must the lawyer make an attempt to find the client (and if so, how much of an attempt)? What about any property the lawyer was holding for the client? Likewise, what are the lawyer’s duties to the court, opposing counsel, and third parties? And what happens if the client eventually reappears? This article explores these and related questions under Florida law.
Persons who have not been heard from and cannot be located are known as “absentees.”3 After a certain period, an absentee can be declared “legally dead.” Absentees who reappear (at whatever time) are commonly referred to as “returnees.”
In antiquity, there was a presumption that life continued. As such, in the absence of proof to the contrary, a person was presumed to be alive until his or her 100th birthday.4 Because of the hardships created by this presumption, England’s parliament passed two statutes in the 17th century that, respectively, allowed missing spouses and missing life tenants to be declared legally dead after the passage of seven years.5 In 1805, Lord Ellenborough relied on these statutes to hold that any person who had been missing for seven years could be declared legally dead.6 The Florida Supreme Court recognized this presumption in 1857.7
By statute, Florida has now reduced the waiting period to five years.8 Further shortening is permitted if the absentee was exposed to a specific peril9 or evidence establishes an earlier date of death.10 When a person has gone missing but has not yet been declared legally dead, Florida law permits a conservator to be appointed to attend to the absentee’s property.11 Such conservators have the same powers as guardians under Ch. 744.12 Once a person is declared legally dead, his or her estate is probated in the usual manner.13
The Florida Constitution contains a specific provision dealing with absentees. In June 1955, Palm Beach Circuit Judge Curtis Chillingworth disappeared from his home and could not be located.14 One month later, Gov. LeRoy Collins asked the Florida Supreme Court if he had the power to appoint a replacement. It held he did not,15 but after a year, relented due to the growing backlog of cases in Judge Chillingworth’s court.16 To deal with such situations, the Florida Constitution now deems an office vacant when the incumbent has been missing without explanation for 60 consecutive days.17
Florida Ethics Rules
Rule 4-1.2(a) of the Florida Rules of Professional Conduct (FRPC) requires lawyers to abide by their client’s decisions (unless doing so would violate the FRPC or the law), while Rule 4-1.4 obligates lawyers to communicate with their clients in a prompt fashion. In addition, Rule 4-1.3 requires a lawyer to pursue a client’s matter with diligence. Clearly, a lawyer cannot comply with any of these provisions when a client disappears.
Based on these three rules, it would seem that a lawyer has no choice but to terminate his or her representation of a missing client pursuant to Rule 4-1.16(a)(1), which states that a lawyer must withdraw if “the representation will result in [a] violation of the Rules of Professional Conduct or law.”
Even if a lawyer concludes that withdrawal is not mandated by Rule 4-1.16(a)(1), Rules 4-1.16(b)(3)-(5) permit the lawyer to terminate the representation if the client fails to pay the lawyer’s bills; circumstances have made it impossible for the lawyer to continue; or “other good cause for withdrawal exists.” While the first of these reasons may or may not exist (depending on what financial arrangements the client made before his or her disappearance), the second and third reasons will almost surely exist whenever a client goes missing.
Regardless of which ground is used, a lawyer must be mindful of Rule 4-1.16(d), which states, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest[.]” Ordinarily, this rule poses no special problems because the client simply hires another lawyer. But in the case of an absentee, this solution is obviously out of the question. As a result, the lawyer must do what is reasonable under the circumstances.
Of course, if the lawyer is handling a matter in court and the client disappears, the lawyer must seek permission to withdraw. When such permission is denied, Rule 4-1.16(c) requires the lawyer to remain in the case.
If a lawyer is able to withdraw from representation because of a client’s disappearance, the absentee becomes, ipso facto, a former client. The lawyer must then abide by the strictures of Rule 4-1.9, meaning that he or she must avoid prejudicing his or her former client, either by accepting new work that is directly adverse to the absentee or using confidential information against his or her interests.
This, of course, sets up an interesting question: What if the absentee later returns? Is he or she still a client? Assuming that the lawyer sent a termination letter to his or her last known address, or took similar steps at the time of withdrawal (as outlined in Rule 4-1.16(d)), it is probable that the returnee will be deemed a former client and not a current client, even if he or she insists otherwise.
Suppose, however, that a lawyer does not want to terminate the representation. Is there a way to remain in the case? The answer is clearly “yes” if there is someone else who can act for the client, as in the case of a corporation whose president goes missing. In such situations, Rule 4-1.13(a) makes it clear that the corporation is the client and the lawyer does not represent its officers, directors, employees, or shareholders. Because the corporation is still functioning, the president’s disappearance makes no difference from an ethical standpoint.
Of course, if the client is an individual and, as a result, Rule 4-1.13 does not apply, the lawyer can arguably turn to Rule 4-1.14. This is because Rule 4-1.14(a) permits a lawyer to continue to represent a client who “is impaired, whether because of minority, mental disability, or for some other reason.” Are the words “or for some other reason” elastic enough to cover missing clients? It would seem that they are, for Rule 4-1.14(b) says that a lawyer “may seek the appointment of a guardian or take other protective action with respect to a client . . . when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.” Moreover, as explained above, Florida law specifically permits a conservator to be appointed to look after an absentee’s property.
Regardless of whether a lawyer continues to represent a client or withdraws from the representation, a number of other rules potentially come into play when a client disappears. First, of course, there is Rule 4-1.1, which requires lawyers to limit themselves to cases they are competent to handle. If, for example, a client hires an experienced maritime lawyer to file a lawsuit based on a less-than-satisfactory cruise, does the client’s subsequent disappearance mean that the lawyer is no longer competent to handle the matter? On first blush the answer would seem to be “no,” because the client’s disappearance does not affect the underlying claim against the cruise line. But if foul play is suspected, the maritime lawyer has suddenly been thrust into the middle of a criminal case for which he or she may be ill-prepared.
Second, Rule 4-1.5 requires a lawyer to charge a reasonable fee. Normally, the lawyer can (and, indeed, should) discuss fees at each stage of the case and determine with the client what work will be done, by whom, and for how much. When the client is missing, the lawyer is left to make such decisions on his or her own, which means that the lawyer must walk a fine line between doing too much and not doing enough.
Third, if the lawyer is representing two clients, and one of them disappears, the lawyer cannot thereafter favor the client who remains, because doing so would be a violation of Rules 4-1.7(a) and 4-1.8(g), which require the lawyer to treat both clients fairly. In such a case, the lawyer almost certainly must withdraw from the representation of both clients.
Fourth, Rule 4-1.15, which directs a lawyer to safeguard a client’s property, becomes especially important when the client is absent. While safeguarding a ring is easy (the lawyer can simply let it continue to sit in a safe-deposit box until the client returns, a court enters an appropriate order, or the escheat statutes are triggered), what about assets that must be actively managed (such as real estate)? Once again, the lawyer should seek to have a guardian or conservator appointed.
Fifth, Rules 4-3.3 and 4-3.4, which require candor toward the court and fairness to opposing counsel, mean that a lawyer must timely disclose the client’s disappearance and, in accordance with Rule 4-3.2, determine how to keep any pending litigation moving forward in an expeditious manner.18 In these circumstances, the existence of a guardian or conservator solves most problems.
What if, however, it is not generally known that the client has disappeared? Must the lawyer disclose such information to a buyer who believes that the client is still alive and would not go through with the purchase if he or she knew the truth? Likewise, what if the revelation of the client’s disappearance will cause the stock price of the client’s business to tumble? On the one hand, it would seem that the lawyer is required to tell what he or she knows because of Rule 4-4.1, which prohibits misstatements (as well as omissions) of material facts. On the other hand, Rule 4-1.6 requires a lawyer to keep a client’s confidences. It would seem that in most instances Rule 4-4.1 will be the applicable rule.
Sixth, the lawyer must be very careful if the client’s disappearance is sensational enough to make headlines and the lawyer is offered a book, TV, or movie deal. Rule 4-1.8(d) states that a lawyer may not acquire literary or media rights prior to the conclusion of a representation. Even after the representation concludes, a lawyer has a continuing obligation under Rule 4-1.6 to maintain the client’s confidences, which might impede his or her ability to participate in any project concerning the client’s disappearance.
Seventh, if the lawyer decides to sell his or her practice, Rule 4-1.17(b) requires that written notice be given to every client. In the case of a missing client, this obviously presents a problem. However, the comments to Rule 4-1.17(b) provide clear directions regarding what to do:
A lawyer or law firm selling a practice cannot be required to remain in practice just because some clients cannot be served with written notice of the proposed sale. Because these clients cannot themselves consent to the substitution of counsel or direct any other disposition of their representations and files, with regard to clients whose matters involve pending litigation the rule requires an order from the court authorizing the substitution (or withdrawal) of counsel. . . .
The rule provides that matters not involving pending litigation of clients who could not be served with written notice may not be included in the sale. This is because the clients’ consent to disclosure of confidential information and to substitution of counsel cannot be obtained and because the alternative of court authorization ordinarily is not available in matters not involving pending litigation. Although such matters shall not be included in the sale, the sale may be consummated without inclusion of those matters.
Lastly, the lawyer must guard against false disappearance claims. This is so because Rule 4-1.2(d) prohibits a lawyer from assisting a client in committing a criminal or fraudulent act. In warning lawyers about this possibility, a Broward County probate judge tells the following story:
In one case, after five years, pursuant to F.S. 731.103(3), some loving, caring parents showed up with their attorney in tow. Everyone but the court and the court reporter knew that this was a fraud in action. Under oath, the parents said that their middle-aged son had been in the drug business and was missing. He supposedly left their house one night never to be heard from again. Under oath, they stated that, about three years later, he had been involved in a big drug deal that went sour. In fact, they had newspaper stories about law enforcement in another Gulf state finding all of these bodies that had been piled up and burned. One body was identified as that of the missing person’s best friend and suspected drug partner. Other evidence was presented. Ultimately, the court ruled this person to be presumed dead. (It eventually was revealed that the presumed deceased son was somehow earning a lot of money, and had some valuable real estate assets and lots of liquidity. The parents were anxious to possess these assets.) The probate was opened, and eventually closed. Two or three years later, the son turned up. Naturally, the parents stood by their story, while insisting that this person was not their son. Fingerprints revealed that the son was telling the truth, yet the mother kept insisting he was not her son. The parents, of course, had to return everything they prematurely “inherited.” (Investigation later revealed that the son was nowhere near the site where his friend met his early death. He had been convicted and was serving a sentence at the time his parents were misleading the court.)19
Over the years, a number of Florida courts have grappled with the challenges posed by missing clients. In The Florida Bar v. Johnson, 241 So. 2d 161 (Fla. 1970), for example, a disbarred lawyer moved for reinstatement after making restitution to all of his former clients except one, who he could not locate. In supporting his application, The Florida Bar recommended that after reinstatement, “Mr. Johnson, as an honorable member of this profession…uphold the high ethical standards of The Florida Bar by continuing his search for Lottie Ferguson in order to pay her the $250.00 due.”20
In The Florida Bar v. Meserve, 372 So. 2d 1373 (Fla. 1979), a lawyer was suspended for two years for various offenses, including representing both the husband and wife in a divorce case. Although he eventually withdrew from the case because of the obvious conflict, before he did, he prepared and filed an affidavit in which the husband claimed not to know the wife’s whereabouts. The referee, however, found that the lawyer did “know how to reach the wife through her mother in Fernandina.”21
In Tosar v. Sladek, 393 So. 2d 61 (Fla. 3d DCA 1981), the court granted a motion for summary judgment based on the lack of record activity. In the course of its discussion, it observed, “Had the plaintiff’s counsel lost contact with his client, he could have procured appointment of an administrator ad litem pursuant to Florida Rule of Probate and Guardianship Rule 5.120(a) until a personal representative could have qualified.”22
In Saenz v. Pena, 754 So. 2d 826 (Fla. 3d DCA 2000), the defendant’s lawyer was unable to find his client and, therefore, moved to withdraw. After the motion was granted, summary judgment was entered for the plaintiff. The defendant later resurfaced (he had been away from Florida for medical reasons) and filed a pro se motion to set aside the judgment. The trial court refused, but was reversed by the appellate court: “We conclude that because the motion to withdraw was filed without notice to Saenz, in violation of the mandatory notice requirements of rule 2.060(j), Florida Rules of Judicial Administration, the motion to set aside judgment should have been granted.”23
In State v. Gilliam, 884 So. 2d 128 (Fla. 2d DCA 2004), a criminal defense lawyer lost touch with his client. Thereafter, the time for speedy trial expired. The lawyer, therefore, moved for dismissal and “advised the court that he filed the notice of expiration because he felt obligated to do so, to protect his client’s speedy trial rights[.]”24
By far, however, the most factually interesting missing client case is McWhorter v. McWhorter, 122 So. 2d 504 (Fla. 2d DCA 1960). Elsie McWhorter hired Ft. Lauderdale lawyer Arthur Bohn to institute divorce proceedings and obtain a restraining order against her husband Grady. Two days after the complaint was filed, Elsie mysteriously disappeared while her children were at school. She was never heard from again.
Uncertain what to do, Bohn moved for an indefinite stay and was granted a six-month postponement. When Bohn sought a second extension, however, Broward Circuit Judge Ted Cabot denied his request. In affirming this decision, the appellate panel wrote: “In considering this question we fail to see where the Chancellor abused his discretion, and we will so hold on this point.”25
Florida Ethics Opinions
There are a number of Florida Bar ethics opinions on the subject of missing clients. In 1961, for example, the Professional Ethics Committee (PEC) issued Ethics Opinion 61-15.26 In it, a lawyer:
represented the wife in a divorce suit, and prior to the final hearing the husband-defendant died. At the time of his death there were two life insurance policies with benefits available to his client amounting to some $1,200. He later received payment of the insurance amounts by mail but was then unable to locate his client and found that she had sold her home, taken her children out of school, remarried, and that the children had married. His attempts to locate his client were unsuccessful. The following December he received a Christmas card in which she stated that he was welcome to the insurance collections. The postmark on the card showed it was mailed in his city but it had no return address. He…now desires to know whether he is entitled to withdraw the funds in accordance with the instructions contained in the Christmas card and how he should handle the matter.27
Not surprisingly, the PEC advised the lawyer that while he was entitled to his reasonable fees and costs, he could not keep the excess:
We suggest that the member determine what is a reasonable fee for the services rendered and add the costs thereto and subtract the same from the amounts received. We do not consider that the statement made by the client in her Christmas card that he is welcome to the funds would be sufficient justification for accepting the same.28
In 1963, the PEC issued Opinion 63-3,29 in which a lawyer sought guidance regarding the disposition of a missing client’s property. The PEC counseled:
Where the client is not available, we believe it desirable to check the file for certainty that no important papers are being disposed of before destroying them.
As to funds held on behalf of a client who cannot be located, we find no obligation to invest the funds, but believe it would be advisable to deposit the same in a trust account in the name of the client, with the lawyer as trustee, with some bank or savings and loan association where the funds would be insured and would draw interest.30
In 1972, the PEC returned to the problem of missing clients in Opinion 72-36.31 In 1970, a personal injury victim retained a lawyer on a contingent fee basis. Shortly thereafter, the client disappeared, and despite the lawyer’s best efforts, could not be found. In 1972, with the statute of limitations about to run, the lawyer was unsure what to do. The PEC instructed him as follows:
Assuming that no agreement can be reached with counsel for the adverse party or parties to waive the defense of the statute of limitations, the committee is of the opinion that suit should be filed. The lawyer’s duty “to represent his client zealously within the bounds of the law”…requires the lawyer to take whatever action is necessary to prevent loss of the client’s rights by the passage of time.32
In 1977, the PEC responded to yet another missing client question in Opinion 77-2.33 A lawyer obtained a settlement offer from an insurance company but then could not find his client. He, therefore, asked the PEC whether he should accept the offer, reject it and file suit, or take no action at all.
After noting that the lawyer could seek to have a guardian ad litem appointed, the PEC, being divided, wrote:
One [c]ommittee member finds implicit in the facts of the inquiry that the attorney, by undertaking to represent the client in connection with a liability claim, has authority to file suit; that member, therefore, feels that the attorney should do so before the statute of limitations expires…. The [c]ommittee majority would agree that if such authority exists, suit may be so filed. But the majority does not find such authorization implicit and sees potential problems if suit is filed, the client continues to be missing, and the suit is, for that reason, dismissed or lost, in which event the amount presently available through settlement would also have been lost.
Another [c]ommittee member feels that the attorney, having undertaken the representation . . . should use his good judgment as to whether it is in the best interests of the client to settle or sue. That member points out that if suit is filed there would be additional time in which to complete the search for the client.34
Lastly, in 1987 the PEC, acting under the newly effective FRPC, reconsidered Opinion 72-36.35 This time, it came to a different conclusion:
Upon reconsideration, the [c]ommittee has concluded that its statement in Opinion 72-36 of an attorney’s duty when faced with a missing client and an approaching statute of limitations was overly broad…. [T]he Professional Ethics Committee is now of the opinion that an attorney whose client cannot be located despite the attorney’s reasonable efforts is not obligated to file suit to toll the running of the statute of limitations if the client’s unavailability is not caused by the attorney’s neglect or inaction (see Rule 4-1.3, Rules Regulating The Florida Bar, requiring an attorney to act with reasonable diligence and promptness in representing a client) and: (1) the attorney believes there is no reasonable chance the client will return; or (2) the client’s unavailability is a breach of the attorney-client employment agreement. However, even in these situations it would not be unethical for the attorney to file suit in order to toll the statute of limitations.36
Given the FBI’s statistics, every practicing lawyer should be proactive when it comes to the problem of missing clients. In this regard, one set of commentators has advised:
[T]he following should be part of the interview process: 1. Obtain all phone numbers and addresses at which the client can be reached, 2. Impress on the client the importance of keeping the attorney informed of vacation plans and changes of address or phone number, and 3. Obtain the names and addresses of persons likely to know of the client’s whereabouts.37
In addition to gathering as much contact information as possible during the initial client interview, lawyers should add appropriate language to their retainer agreements. The PEC specifically approved this approach in reconsidered Opinion 72-36:
The [c]ommittee is…in accord with the conclusions reached in ABA Informal Opinion 1467 [(Aug. 10, 1981)]. There, the…ABA committee…stated that it was not improper for an attorney to include in his employment agreement a provision requiring the client to promptly notify the attorney of any change in address and providing that, if the client failed to so notify the attorney, the attorney was not obligated to proceed with the case.38
Of course, no matter how carefully a lawyer plans there is always the possibility that a client will go missing. In such situations, a lawyer should 1) perform a reasonable search to locate the client; 2) protect the client’s interests to the extent possible, using his or her best judgment as to what the client would have wanted;39 3) send written notices to the client’s last known physical and virtual addresses if the lawyer decides to stop representing the client; and 4) continue to safeguard the client’s property. Of course, particular circumstances may require the lawyer to vary these steps or take additional ones.
1 See Federal Bureau of Investigation, NCIC Missing Person and Unidentified Person Statistics for 2011, available at http://www.fbi.gov/about-us/cjis/ncic/ncic-missing-person-and-unidentified-person-statistics-for-2011 [hereinafter FBI Statistics], and email from Gwen Johnson, Senior Management Analyst Supervisor, Florida Department of Law Enforcement — Missing and Endangered Persons Information Clearinghouse, to the author (dated Sept. 21, 2012, at 1:32 p.m.) (copy on file with the author).
3 See Fla. Stat. §§747.01(1) (defining military absentees) and 747.01(2) (defining civilian absentees).
4 See Eagle’s Case, 3 Abb. Pr. 218, 219 (N.Y. Sur. Ct. 1856) (tracing the rule to the Digest of Justinian).
5 See An Act to Restrain All Persons from Marriage Until Their Former Wives and Former Husbands Be Dead, 1 Jac., Ch. 11 (1604), and An Act for Redress of Inconveniences by Want of Proof of the Deceases of Persons Beyond the Seas or Absenting Themselves, Upon Whose Lives Estates Do Depend, 18-19 Car. 2, Ch. 11 (1667).
6 See Doe v. Jesson, (1805) 102 Eng. Rep. 1217, 1219 (K.B.).
7 See Smith v. Croom, 7 Fla. 81, 144 (1857).
8 See Fla. Stat. §731.103(3).
9 See id. In Woods v. Estate of Woods, 681 So. 2d 903 (Fla. 4th D.C.A. 1996), a crew member who disappeared during Hurricane Erin was declared dead even though only one year had passed since he was last seen.
10 See Fla. Stat. §731.103(4). Where such evidence does not exist, an absentee will be deemed to have died at the expiration of the five-year period. See Cotton ex rel. Boynton v. Prudential Ins. Co. of Am., 2006 WL 212016 (N.D. Fla. 2006).
11 See Fla. Stat. §747.02.
12 See Fla. Stat. §747.035.
13 See Fla. Stat. §733.209.
14 It was eventually determined that Judge Chillingworth and his wife had been killed on the orders of Judge Joseph A. Peel. See Catherine Cole & Cynthia Young, True Crime, Florida: The State’s Most Notorious Criminal Cases 11-18 (2011).
15 See In re Advisory Opinion to the Governor, 81 So. 2d 778 (Fla. 1955) (en banc).
16 See Advisory Opinion to the Governor, 88 So. 2d 756 (Fla. 1956) (en banc).
17 See Fla. Const. art. X, §3.
18 Because Rule 4-3.4 is a “two-way street,” a lawyer who learns that his or her opponent’s client has gone missing should not seek to take unfair advantage of the situation. Indeed, it would seem that in such circumstances, every professional courtesy should be extended.
19 Mel Grossman, Pitfalls in Estate Administration: A View from the Bench, The Florida Bar, Practice Under Florida Probate Code §20.3, at 20-6 to 20-7 (6th ed. 2010).
20 Johnson, 241 So. 2d at 161.
21 Meserve, 372 So. 2d at 1374.
22 Tosar, 393 So. 2d at 63.
23 Saenz, 754 So. 2d at 827.
24 Gilliam, 884 So. 2d at 129.
25 McWhorter, 122 So. 2d at 506.
26 See Fla. Eth. Op. 61-15, available at 1961 WL 7386 (Sept. 21, 1961).
27 Id. at *1.
29 See Fla. Eth. Op. 63-3, available at 1963 WL 7601 (June 25, 1963).
30 Id. at *1.
31 See Fla. Eth. Op. 72-36, available at 1972 WL 18054 (Oct. 3, 1972).
32 Id. at *1.
33 See Fla. Eth. Op. 77-2, available at 1977 WL 23165 (Nov. 8, 1977).
34 Id. at *2. Today, Rule 4-1.2(a) makes it clear that the lawyer could not accept the insurance company’s settlement offer: “A lawyer shall abide by a client’s decision [emphasis added] whether to settle a matter.”
35 See Fla. Eth. Op. 72-36 (on reconsideration), available at 1987 WL 125113 (July 1, 1987).
36 Id. at *1.
37 William H. Fortune et al., Modern Litigation and Professional Responsibility Handbook: The Limits of Zealous Advocacy §1.8.3 at 31 (2d ed. 2001 & 2012 Cum. Supp.).
38 Fla. Eth. Op. 72-36 at *1 (on reconsideration).
39 As Rule 4-2.1 implicitly recognizes, it is easier to exercise such judgment if the lawyer and the client had a long relationship before the client disappeared.
Robert M. Jarvis is a professor of law at Nova Southeastern University in Ft. Lauderdale, where he teaches legal ethics.