By Edward McIntyre
Introduction: In this new feature, Edward McIntyre, professional responsibility lawyer and co-editor of San Diego Lawyer, examines the ethical considerations when a client disappears.
It can happen. The client was right there. Then gone. Either vanished. Or refuses to communicate—at all. In either case, the client’s gone. All the while, deadlines loom. Ethically, what’s a lawyer to do? No easy choices.
Rule 1.4 (communication) requires a lawyer “reasonably” to consult with the client about how to accomplish the client’s objectives and keep the client “reasonably informed” about significant developments. But if the lawyer cannot communicate with the client—because the client has disappeared or refuses to communicate—and the lawyer has made reasonable efforts to find the client or get the client to communicate, the lawyer has one option—withdraw.
Rule 1.16(b)(4) permits withdrawal because the client has made it unreasonably difficult for the lawyer to carry out the representation effectively; further, since the lawyer’s authority is significantly limited in any action he or she may take on the client’s behalf, rule 1.16(b)(9) also permits withdrawal because continued representation will likely result in violation of the rules or State Bar Act—e.g., Bus. & Prof. Code section 6104 (appearing without authority); see also California State Bar Form. Opn. 1989-111. In withdrawing, however, the lawyer may not disclose, either to the court or opposing counsel, that the client has vanished or is incommunicado. Bus. & Prof. Code section 6068, subdivision (e)(1) and rule 1.6 (confidentiality).
This article was originally published in the May/June 2019 issue of San Diego Lawyer.