Opinion 98-8
(March 1998)

You have asked the Committee for an opinion on the following situation: Approximately one year ago you entered into an agreement with your client A for representation in her claim for injuries sustained on a boating accident which took place in November of 1996. Your last contact with your client was in May of 1997 and you have been unable to locate her since that time. You have made several attempts to locate her. Two letters sent to her at her last known address, were both returned by the Post Office noting, moved, left no forwarding address. From August 1997 to February 1998, you may repeated telephone calls to her last known phone number all of which were answered with a recording advising the number has been disconnected. Correspondence to the client's local county voter registration office asking for updated address information was returned with a note stating not a registered voter in this County. A letter to the Postmaster seeking a forwarding address was answered with moved, left no forwarding address. Correspondence to the police department of the municipality where she was last known to reside produced the same address that you have. A letter to her former employer was returned marked please be advised that we have no current information on the above individual...Finally a follow-up call to her former employer yielded the same response as the letter to him.

You are asking the Committee what your obligation is in continuing with this case in which the statute of limitations does not run for several months. You do not know if your client is still treating for her injuries or what her current physical condition is, or for that matter if she wishes you to continue as her attorney in this matter. Furthermore, you advise that you feel it is inappropriate for you to press the defendant for information regarding this case, since you have lost contact with the client. As regards filing a summons to toll the statute of limitations as it gets nearer, you advise that you do not wish to do this since you do not have your client's testimony to back up her claims, particularly since no deposition or other verified statement by your client was ever taken to your knowledge. Finally, you ask if you may drop the case without exposing yourself or your law firm to the potential of professional liability.

The scope of the Professional Guidance Committee is to advise inquirers about their own ethical conduct to be taken in the future. The Committee does not opine on issues of substantive law, so this opinion will not address what will or will not subject you or your firm to the potential of professional liability.

In prior Committee Opinion 94-10, this Committee addressed circumstances very much like those in which you find yourself. That opinion concluded that due diligence as required by Pennsylvania Rule of Professional Conduct Rule 1.3, and competence as required by Rule 1.1 required the inquirer to file a summons on behalf of his missing client. After careful debate, the Committee feels that this situation although similar warrants a different approach because of the fact that should you be unable to find your client prior to the statute running, it will have been 18 months since your last communication with your client, as opposed to the 6 months reflected in the facts of Opinion 94-10.

Several other local and state bar association guidance opinions have addressed this issue. South Dakota State Bar opinion 92-6, Dallas Bar Association opinion 1992-07 and Rhode Island State Bar Association opinion 91-82 all would, in accord with this Committee's opinion 94-10, require that you continue your attempts to locate your client and file a summons in order to toll the statute of limitations. However, Wisconsin State Bar opinion E-96-2 holds that the obligation to toll the statute has to be determined by the circumstances of the situation. In addition, ABA informal opinion 1467 (1981) concludes there is no duty to toll the statute of limitations for a missing client, providing the loss of contact has not been caused by the lawyer's neglect.

The Committee, in discussing your inquiry, wishes to point out that although you have made many efforts to locate your client, perhaps several other things could be done in this endeavor. Since the client had injuries, it was suggested that you contact her treating physician if you have that individual's name. In addition, should you have your client's social security number, there are a number of data bases in which you could legally attempt to locate her. In addition, hospital records to which you might have access could contain the name of a friend or next of kin who might know where your client is.

The Committee believes that there is no absolute obligation to file a summons and then withdraw as late as possible in order for your conduct in this matter to be ethical. The Committee finds that only you, as the individual with the most information about this client's case can determine, looking at the totality of all the circumstances, whether it is appropriate for you to follow the advice given in Opinion 94-10. It may be that after reviewing all the information you have been able to collect you feel that it is incumbent upon you to continue to look for your client and file a summons to toll the statute of limitations. However, given the length of time that will have passed between her last contact with you and the date the statute of limitations runs, you may also legitimately decide that you have no further obligations to your client.

The Committee is aware that you may wish to have a more definitive response to your inquiry. With that in mind, please note that you can follow the advice in Opinion 94-10, obtaining as many extensions of time as possible for filing a complaint, and then withdrawing. However, assuming you pursue the kind of efforts discussed above, the Committee believes that such action may not be required in order for you to act ethically as regards this situation.
     

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.