Ethics Opinion

Opinion 77-2

FLORIDA BAR ETHICS OPINION
OPINION 77-2
November 8, 1977
Advisory ethics opinions are not binding.
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:
Opinions:

DR 2-110(A)(1); Canon 6; DR 6-101(A)(3)
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 DR 6-101(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 DR 6-101(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 Canon 6, we believe such failure would be “neglect”
under Canon 6 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 Canon 6. 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 Canon 6 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.