20010038 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20010038

Rules: 4–1.4; 4–1.16

Client-Lawyer Relationship

Communication; Declining or Terminating Representation

Subject: Communication

Summary: Inability to locate clients

QUESTION: Attorney represents three plaintiffs, X, Y, and Z, in a lawsuit. Attorney has been able to speak with X regarding the trial setting, but Attorney has been unable to locate or speak with Y and Z. Attorney hired a private investigator who found out that Y is on vacation and Z travels extensively for work. The families of Y and Z are not able to help Attorney. In the past, the Judge advised Attorney that he will not continue the matter any more. However, since Attorney can only locate X, it seems unfair to proceed. Attorney may file a motion to withdraw, but feels that would be unfair to X. What should Attorney do in this situation?

ANSWER: Attorney should leave a message for Y and Z at every location where it is reasonably possible that they would receive it, notifying them of the trial date. Attorney should continue to make periodic efforts to contact them. Attorney should also discuss this situation with X and determine what X’s instructions are regarding Attorney’s representation of X. If X is willing to seek another continuance or to dismiss without prejudice, if that is possible, Attorney may proceed on that basis, if Attorney is unable to locate the other clients prior to trial. If X is unwilling to seek another continuance or dismiss without prejudice, Attorney will need to seek to withdraw from representation of Y and Z, but make it clear to the judge that Attorney does not believe they have received notice. If possible, Attorney may need to dismiss without prejudice as to the two “missing” plaintiffs and proceed with representation of X.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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