Determining the appropriate course of action when a client goes missing or passes away is a perplexing gray area of California law. The dilemma for attorneys is primarily based upon the nuanced balancing act of abiding by ethical duties as officers of the court to protect client confidences while simultaneously providing effective representation when the client is unable to participate in his or her own case. Engaging in this balancing act is more challenging than it seems due to the various bodies of laws which, at times, can be conflicting.
Ethical Issues Confronting Lawyers When a Client Is Deceased
When a client dies, a lawyer is faced with the difficult task of reconciling the three main legal principles that govern a lawyer's ethical duties to a client -- the attorney-client privilege (Evid. Code Sections 950-962), work-product doctrine (Code Civ. Proc. Sections 2018.010-2018.080) and duty of confidentiality (B&P Code Section 6068) -- with the logistics of providing legal support for those responsible for wrapping up the affairs of the decedent.
Under the attorney-client privilege, a client has the right to prevent the disclosure of "confidential communications," which is defined as information exchanged between the client and the lawyer in connection with the representation. Confidential communications may extend to third parties if they are present to "further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted," such as a translator. While the attorney-client privilege is a powerful tool to prevent disclosure, there are several exceptions outlined in Evidence Code Sections 956-962 which include disclosure in malpractice actions, fee disputes, to prevent death or bodily harm and cases related to a decedent's trust or will.
It is well-settled law in California that the attorney-client privilege survives the death of a client. However, the lifespan of the privilege is not indefinite. So long as a "holder of the privilege" is in existence, the attorney-client privilege survives. In its practical application, one scenario whereby the "holder of the privilege" continues to exist following the death of a client is where a "personal representative" is appointed on behalf of the deceased client. Prob. Code Section 58(a) ("Personal Representative" means executor, administrator, or any person listed in Prob. Code Section 58(a)); Evid. Code Section 953(c); Moeller v. Superior Court, 16 Cal. 4th 1124, 1131 (1997) ("Therefore, when a successor trustee takes office it assumes all of the powers of trustee, including the power to assert the privilege with respect to confidential communications between a predecessor trustee and an attorney on matters of trust administration.") When a personal representative is appointed, he or she steps into the shoes of the deceased client and becomes the "holder of the privilege." Once the personal representative is discharged, there is no "holder of the privilege" and, as such, the attorney-client privilege is terminated.
Distinguished from the attorney-client privilege, the duty of confidentiality is virtually absolute, much broader in scope, protects information learned from any source, and, importantly, survives the death of a client. Dietz v. Meisenheimer & Herron, 177 Cal. App. 4th 771, 785 (2009). Like the attorney-client privilege, the duty of confidentiality requires attorneys to "maintain inviolate the confidence, and at every peril to himself or herself, to preserve the secrets, of his or her client." "Secrets" include information gained in the professional relationship the client has requested be held inviolate or the disclosure of which would be embarrassing or likely detrimental to the client. In re Mortgage & Realty Trust, 195 B.R. 740, n.12 (1996).
The lone statutory exception to the duty of confidentiality is where the lawyer reasonably believes that disclosure is necessary to prevent a criminal act that is likely to result in the death of, or substantial bodily harm to, an individual. ( Note that the disclosure is discretionary. Even if the exception applies, there are various protections in place before disclosure may be made. An attorney cannot unilaterally determine that an exception applies. Disclosure must be approved by the Court or with client's informed consent. General Dynamics Corp. v. Sup. Ct. (Rose), 7 Cal. 4th 1164, 1189 (1994); Commercial Standard Title Co., Inc. v. Sup. Ct. (Smith), 92 Cal.3d 934, 945 (1979).)Whether other exceptions apply is currently being disputed between the courts and the Legislature. Given the conflicting authorities on whether exceptions to the duty of confidentiality mirror those for the attorney-client privilege, the best practice for counsel is to err on the side of caution and protect the client's confidences to the highest degree possible.
Unlike the attorney-client privilege, the attorney is the holder of the privilege in the work-product context albeit there are exceptions where work-product is discoverable in attorney-client disputes or in connection with disciplinary charges against the attorney. The California Code of Civil Procedure provides that any writings reflecting an attorney's impressions, conclusions and opinions are absolutely protected from discovery while all other work product (which is not statutorily defined) is entitled to qualified protection. Code Civ. Proc. Section 2018.030. Evidently, since the privilege primarily serves to protect an attorney, the death of a client does not impact the lifespan of the privilege unless an exception to the privilege applies.
Ethical Issues Confronting Lawyers When a Client Is Missing
The most frustrating cases are arguably the ones involving an unresponsive or unreachable client. Although there is no legal authority that clearly outlines the duties of an attorney when a client is missing, the California State Bar Standing Committee on Professional Responsibility and Conduct suggests that, at a minimum, the attorney must expend a reasonable amount of time and funds to make a "diligent effort" to locate the client. State Bar of Cal., Formal Opn. No. 1989-111. What constitutes a "diligent effort" is a case-specific determination unique to the attorney- client relationship and to the particular legal matter with which the lawyer is assisting. Some practical examples of what may constitute basic efforts are hiring a private investigator, searching public records, sending correspondence by registered mail to the client's last known address, personally going to client's last known address and hiring a registered process server to deliver correspondence and documents to the client. An invaluable tool in this exercise is the people-search function on Westlaw and LexisNexis, in which attorneys would be wise to invest. Whatever the lawyer decides, the California State Bar suggests the lawyer document all efforts taken to locate the missing client.
A solution for attorneys dealing with a missing client is to withdraw representation by filing a motion to be relieved as counsel where it is "unreasonably difficult for the member to carry out the employment effectively." Cal. Rule of Prof. Conduct, Rule 3-700(C)(1)(d). The California State Bar has opined that a missing client is a "sufficient basis to withdraw" (State Bar of Cal., Formal Opn. No. 1989-111, p. 2) from a matter as long as the attorney complies with Rule 3-700 (A), which requires the attorney to obtain permission from the court and take "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client."
However, lawyers should heed caution when drafting a motion to be relieved as counsel in order to preserve both the duty of confidentiality and the duty not to mislead a judge. The dilemma, properly posed, is whether a motion to be relieved should disclose the very fact that the client is missing. Under the duty of confidentiality, a lawyer has a duty to not disclose any information that may be detrimental or embarrassing to the client -- a lawyer's inability to locate the client may be both. On the other hand, while attorneys must exercise extreme discretion in terms of what facts to include in a motion to be relieved, providing a particularly sparse explanation for filing the motion to be relieved and failing to disclose that a client is missing may actually violate the lawyer's duty to not mislead a judge with false statements of fact or law. In fact, an overly redacted explanation of why the lawyer is withdrawing from representation may be considered "concealment of material information" and akin to an "overtly false statement," as one California court has found. Griffls v. S.S. Kresge, 150 Cal. App. 3d 491, 499 (1984).
Although there is no blackletter law on how to handle this dilemma, at least one county bar association has opined that when a lawyer's duty to maintain confidences and the duty to not mislead a judge with false statements of fact or law conflict, the lawyer's "only ethical option is to respectfully inform the court that due to applicable ethics rules, he or she is not at liberty to answer the question" regarding the client's whereabouts. San Diego County Bar Legal Ethics Com. Opn. 2011-1, p. 3. In situations where the lawyer actually does not know whether the client is and has no inkling of any incriminating information that may explain the absence, the lawyer will likely be just as restricted in his or her response to a judge's inquiry about the client's whereabouts because the mere absence may, per se, be detrimental or embarrassing to the client. Further there is no obligation to inform opposing counsel that the client cannot be located. An attorney may reveal information necessary to formulate the basis for a motion to withdraw, but in doing so, the attorney cannot violate a client's right to confidentiality.
The duty to maintain confidences when a client is deceased or missing is complicated and often subject to conflicting responsibilities and interpretations. Attorneys should proceed with caution when faced with these situations and consult the published opinions, exercise proper judgment and meticulously document efforts to protect confidences.