The Florida Bar

November 8, 1977
If an attorney representing a client in an insurance claims matter is unable to locate the client, the attorney must continue to protect the client's interests so as to avoid neglect of a legal matter entrusted to him. Failure to take reasonably available steps to protect the client may appear to constitute de facto withdrawal from employment.

CPR: DR 2-110(A)(1); Canon 6; DR 6-101(A)(3)
Opinions: 76-9, ABA Informal Opinion 1273

Chairman Lehan stated the opinion of the committee:

An attorney undertook representation of a client in connection with certain liability claims on behalf of the client against a third party who was covered by insurance. The insurance company offered to settle the claims, and the attorney feels the settlement offers are reasonable. However, the attorney has not been able to locate the client, who has moved and left no forwarding address; therefore the attorney has not been able to obtain settlement authority or instructions as to the filing of suit. The statute of limitations will expire on the claims in the relatively near future.

The attorney inquires:

(1) What is his legal position, including legal recourse, if any, relative to responding to the settlement offer and/or filing suit?

(2) Would he be guilty of malpractice and unethical conduct if he allows the statute of limitations to expire without having taken some course of action to protect the client's interests?

As to question (1), suggestion has been made as to the possibility of the attorney obtaining appointment of a guardian ad litem for the absent client so that authorization and instructions might be obtained under the circumstances. However, questions of law are not within the jurisdiction of this Committee, especially as to advice as to proper/available courses of action, and we therefore decline to answer that question.

We cannot answer the portion of question (2) relative to whether a malpractice claim would exist against the attorney because that also would involve a question of law. As stated in Opinion 76-9, "the boundaries of negligence in a civil practice action are not always co-existent with the boundaries of conduct which amounts to 'neglect'under DR6-101(A)(3)."

The remaining portion of question (2)-whether the attorney's conduct in allowing the statute of limitations to expire would constitute an ethical violation-involves DR6-101(A)(3) of the new Canon 6 of the Code, which provides:

(A) A lawyer shall not: ...
(3) Neglect a legal matter entrusted to him.

The inquiry indicates various efforts the attorney has made to locate the client. But we are not able to respond directly and fully to the question in this regard because the inquiry could be supplemented by additional facts from which neglect on the part of the attorney might be clearly shown to not exist or to exist as to the failure of the attorney to use reasonably diligent efforts to locate and obtain authorization/instructions from his client, depending upon the circumstances. Nonetheless, we will answer that remaining portion of question (2) to the extent of subscribing to the following quoted portion of ABA Informal Opinion 1273 that:

Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different ... Neglect cannot be found if the acts or omissions complained of were ... the result of an error of judgment made in good faith.

Under the instant facts we are not in a position to say here definitely whether the attorney's failure to protect the client's interests before expiration of the statute of limitations under the circumstances would be an error of judgment made in good faith. However, by way of undertaking to provide guidelines as to Canon6, we believe such failure would be "neglect" under Canon6 if the attorney clearly was either legally entitled, or had legal recourse, to protect the client's interests before expiration of the limitations period.

Failure to take some steps, at least if reasonably available, to protect the client may appear to constitute de facto withdrawal. Cf. DR 2110(A)(1), which says, "a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client...."

One Committee 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 in order to avoid violation of Canon6. The Committee 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 Committee member feels that the attorney, having undertaken the representation, in order to avoid violation of Canon6 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.

[Revised: 08-24-2011]