You have asked for a formal opinion from the Professional Guidance Committee regarding your ethical obligations to file a summons to toll the statute of limitations in a personal injury matter where you cannot locate your client. For the reasons that follow, the Committee holds that Rule 1.3 of the Rules of Professional Conduct requires that you file the summons to toll the statute while you continue in your efforts to locate your client.
Your client is a plaintiff who was involved in a personal injury action wherein the cause of action arose on July 3, 1992. Your last contact with your client was sometime in December 1993 or January 1994 at which time you advised your client in a telephone conversation that the third party carrier was denying the client's claim and that it would be necessary to institute suit on the client's behalf. At that time, you suggested to the client that he schedule an appointment to meet with you to discuss the case further and to sign the appropriate verification to attach to plaintiff's complaint. Since that time you have not seen nor heard from the client despite attempts at communication via letter and telephone. The last letters were returned marked "attempted not known", "return to sender", "no such person lives here." You also state that you have written to two other individuals involved in the accident, also without success. Your contacts with the postal service to obtain a forwarding address for the client have also, to date, been unsuccessful. You have also hired an investigator to attempt to locate your client.
Your inquiry to this committee involves what further obligations you have to your client assuming the investigator is unsuccessful in locating the client.
Rule 1.3 of the Rules of Professional Conduct, "Diligence" provides guidance. It states "A lawyer shall act with reasonable diligence and promptness in representing a client." You are required to act with "reasonable diligence" in your representation of your client. Under the circumstances the committee holds that filing a summons to toll the Statute of Limitations would be required of the reasonably prudent and competent lawyer. The comment to Rule 1.3 notes that:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer...A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.
While efforts to locate the client continue, reasonable diligence requires the filing of the summons. You further ask for guidance regarding your ethical obligations, assuming you file the summons, when a rule to file a complaint is served. It is the position of the committee that you request an extension of time from opposing counsel at that time. When all possible extensions of time have been exhausted, the committee's position is that it would be appropriate at that time to ask for leave of court to withdraw pursuant to Rule 1.16 "Declining or Terminating Representation." The pertinent provision of the Rule would be Rule 1.16 (b)(5) and (6) which provide:
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;
(6) other good cause for withdrawal exists.