What should a lawyer do when a divorce client disappears and the case is not finished?

Plain-English summary

The inquiry concerned a situation in which a dissolution had not been completed and the client's location was unknown. The committee addressed three points. On withdrawal, the lawyer may withdraw from the representation provided she is in compliance with RPC 1.15, and the lawyer should make all reasonable efforts to contact the client and notify her of the status of the matter and the withdrawal as provided in RPC 1.4(a).

On file retention, unless the lawyer surrenders the file to the client under RPC 1.15, the lawyer should retain the file. On misrepresentation, the lawyer should inform the opposing party of the status of the matter to avoid running afoul of RPC 8.4(c), which prohibits misrepresentation; the committee noted the respondent may be misled about the status of the matter, and about his own marital status, if the lawyer does not inform him that the matter was not completed.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. At the time of this opinion, Washington's RPC 1.15 corresponded to ABA Model Rule 1.16 (declining or terminating representation, including return of the file). RPC 1.4 and 8.4 correspond to Model Rules 1.4 (communication) and 8.4 (misconduct). Verify the current rule numbering before relying on the citations here.

Common questions

Q: Can a lawyer withdraw when the divorce client has gone missing?

A: The committee said the lawyer may withdraw provided she complies with RPC 1.15 and makes reasonable efforts to contact the client and notify her of the status under RPC 1.4(a).

Q: What should the lawyer do with the client's file?

A: The committee said that, unless the lawyer surrenders the file to the client under RPC 1.15, the lawyer should retain the file.

Q: Does the lawyer have to tell the opposing party anything?

A: The committee said the lawyer should inform the opposing party of the status to avoid misrepresentation under RPC 8.4(c), because the respondent may otherwise be misled about the matter and about his own marital status.

Background and rules framework

The opinion applied RPC 1.15 (which at the time corresponded to ABA Model Rule 1.16, declining or terminating representation), RPC 1.4(a) (communication), and RPC 8.4(c) (misconduct involving misrepresentation), corresponding to ABA Model Rules 1.16, 1.4, and 8.4. The committee separated the analysis into withdrawal, file retention, and avoiding misrepresentation to the opposing party.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.4 (communication); Washington RPC 1.4(a)
• ABA Model Rule 1.16 (declining or terminating representation); Washington RPC 1.15
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(c)

See also

• WA Ethics Op. 1783: Withdrawing From a Nonpaying Debtor
• WA Ethics Op. 1782: Notice Before Destroying a File
• WA Ethics Op. 1751: Auto-Withdrawal for Unpaid Fees

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=989

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1796
Year Issued: 1998
RPC(s): RPC 1.4(a); 1.15; 8.4(c)
Subject: Missing client; client location unknown and dissolution case not completed

The Committee researched and reviewed your inquiry concerning the situation where a dissolution has not been completed and the client's location is unknown. The Committee determined the following:

1. Withdrawal. The lawyer may withdraw from representation providing she is in compliance with RPC 1.15. The lawyer should make all reasonable efforts to contact the client and notify her of the status of the matter and the withdrawal as provided in RPC 1.4(a). 2. File Retention. Unless the lawyer surrenders the file to the client under RPC 1.15, the lawyer should retain the file. 3. Misrepresentation. The lawyer should inform the opposing party of the status of the matter to avoid running afoul of RPC 8.4(c), which prohibits misrepresentation. The respondent may be misled about the status of the matter (and his own marital status) if she does not inform him that the matter was not completed.