UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 98-07
Attorney entered into a contingency fee agreement with Client in an injury case. Attorney cannot get in touch with Client at the address given at the time of interview, with correspondence being returned stating that no one was there by the name of Client. Two doctors who treated Client for the injury were given the same address as the one given to attorney. Client at one time indicated he was thinking of moving to Atlanta and would provide attorney with the new address if he did so. Attorney has received no new address. Attorney checked the Atlanta directory in an effort to locate Client, but could not locate him. However, attorney did talk to two men in Atlanta by the same name who stated they were not Client.
QUESTION:
What should Attorney do to protect himself and Client under the given circumstances?
SUMMARY:
If Attorney has pursued all reasonable avenues to locate Client and, due to the fault of Client, Client cannot be located, it is reasonable for Attorney to assume that the representation has been terminated and would not be obligated to file suit.
OPINION:
RPC 1.3 states that a lawyer should act with reasonable diligence and promptness in representing a client. The facts here do not state how long Attorney has had the matter under consideration prior to trying to locate Client. For purposes of this opinion, it is assumed that this amount of time was a relatively short period.
RPC 1.4 provides for communication with clients. Subparagraph (a) provides that "... a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Attorney has attempted to comply with this Rule, but failed by reason of Client's conduct.
RPC 1.16 provides for declining or terminating representation. Subparagraph (b) states:
(b) Except as is stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client, or if: (4) The client has failed substantially to fulfill an obligation to the lawyer regarding the lawyer's services or payment therefor and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) Other good cause for withdrawal exists.
It appears that Client has failed in his obligation to Attorney under (4) and (5) by failing to keep Attorney informed of a way of contacting client. This places an unreasonable burden on Attorney. With Attorney having exercised reasonable diligence in trying to locate Client, it would appear that he has met his obligation to Client and should proceed no further in the matter.