ETHICS OPINION 702-1994 DUTY TO CONTACT CLIENT; DUTY TO DISCLOSE CLIENT’S WHEREABOUTS

NEW YORK COUNTY LAWYERS’ ASSOCIATION

Committee on Professional Ethics

QUESTION NO. 702

TOPIC: DUTY TO CONTACT CLIENT; DUTY TO DISCLOSE CLIENT’S WHEREABOUTS

DIGEST: LAWYER APPOINTED AS GUARDIAN AD LITEM IN MORTGAGE FORECLOSURE PROCEEDING SHOULD MAKE REASONABLE ATTEMPT TO CONTACT CLIENT; HOWEVER, LAWYER SHOULD NOT DISCLOSE CLIENT’S WHEREABOUTS WITHOUT CONSENT OF CLIENT

CODE: DR 4-101 (A) ,(B)(1) & (2), (C) (2) , DR 5-107 (B) , DR 7-101(A) (3) ; EC 4-4, 7-1, 7-7, 7-8.

QUESTIONS:

A lawyer has been appointed by a court to act as a guardian ad litem for the defendant in a mortgagee bank’s action to foreclose a mortgage on the defendant’s condominium apartment. The defendant was neither an infant nor an incompetent, but the inquirer advises that appointment of a guardian ad litem was made because the bank had been unable to locate the defendant in order to serve him with the summons and complaint. After his appointment as guardian ad litem, the lawyer learned from several sources that the defendant apparently had been intentionally avoiding process.

Does the lawyer have a duty to contact his client under these circumstances?

Does the lawyer have a duty to disclose to the court the whereabouts of his client?

OPINION:

Typically, a court appoints a guardian ad litem to represent the interests of a minor or an incompetent. See CPLR Art. 12. Here, the court appointed the lawyer to protect the interests of a “ward” who is neither an infant nor disabled but who is absent from the proceedings. Whatever may be the authority under which the appointment was made, no facts are disclosed that suggest that the terms of the appointment impose on the guardian ad litem any obligations inconsistent with those that counsel for the defendant has under the Lawyer’s Code of Professional Responsibility (the “Code”).

Duty To Contact Client

The Code provides that “[t]he duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law.” EC 7-1. The Code also provides that in general “the authority to make decisions is exclusively that of the client” (EC 7-7), and that

A lawyer should exert best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. EC 7-8.

In this situation, the lawyer has reason to believe that his client has resolved simply to “walk away” from the mortgaged property, apparently of the view that to appear in the proceeding would be prejudicial, subjecting him to entry of a deficiency judgment. However, the lawyer cannot be wholly confident that the client, contrary to his apparent beliefs, may not have defenses in the foreclosure proceeding of which he is currently unaware. To be sure, the decision whether to forego a legal defense is ultimately for the client and not the lawyer, but to make that decision properly the client must be informed of the legal consequences of such waiver. See N.Y. State 155 (1970).

Thus, if the client is to make an informed decision with respect to appearing in this proceeding, the lawyer should exert reasonable efforts to contact the client and after learning the facts, inform him of the relevant legal considerations. The lawyer’s duty to attempt to locate the client exists irrespective of any assumption the court might have made in appointing. the lawyer as a guardian ad litem that the client’s whereabouts were unknown or unknowable.

Duty Not To Disclose Client’s Whereabouts

The Code provides that a lawyer shall not knowingly reveal a confidence or secret of a client, or use a confidence or secret of a client to the disadvantage of the client. DR 4-101 (B) (1) & (2) . In addition, the Code provides that a lawyer shall not intentionally prejudice or damage the client during the course of the professional relationship. DR 7-101 (A) (3) . The Code also provides, however, that a lawyer “may reveal . . . confidences or secrets when . . . required by law or court order.” DR 4-101(C)(2).

The general principle that has been drawn from the Code provisions is that prima facie information about a client’s whereabouts acquired in the course of a legal representation is not to be disclosed by the lawyer. “Information respecting a client’s whereabouts ‘gained in the professional relationship that the client has requested be held inviolate’ squarely falls within the general ethical obligation of preserving the confidentiality of client secrets.” N.Y. State 528 (1981). Moreover, knowledge of a client’s location should not be disclosed regardless of whether the client requested that it be kept confidential if the knowledge were gained in the course of the professional relationship and if such a disclosure would be likely to be detrimental to the client, DR 4-101(A); N.Y. County 70 (1915) & 353 (1939).

Lawyers have been instructed that they are not to reveal information concerning their client’s location in various situations. In the circumstances discussed in N.Y. County 462 (1958) , for example, a defendant in a criminal case defaulted in appearance, his bail was forfeited and a bench warrant for his arrest issued. The lawyer learned of the client’s whereabouts upon receipt of a letter from the client revealing his address, which he asked the lawyer to keep confidential. The Committee advised the lawyer to inform the client that the representation could not continue while the latter remained a fugitive. However, the Committee also advised that the lawyer should not voluntarily seek out public authorities and inform them of the client’s address, and that if a police officer, investigator or prosecutor approached him for the defendant’s address, the lawyer should not furnish it. The Committee also opined that the lawyer could reveal the defendant’s address only if he were brought before a competent legal tribunal and ordered to reveal it, after he interposed a claim of privilege and it was overruled by the court. This result has been consistently followed. N.Y. State 528, supra, and 405 (1975); A.B.A. 23 (1930); N.Y. City 312 (1934). For a judicial decision overruling a claim of privilege and requiring such a disclosure (in that case of the client’s identity), see Application of D’Alessio, 155 Misc.2d 518, 589 N.Y.S.2d 282 (Sup. Ct. Westch. Co. 1992).

No facts presented suggest that anything peculiar to the duties of the guardian ad litem in this proceeding affects the foregoing analysis. It has been observed that as a guardian ad litem a lawyer assumes a special trust: “While representing a client, he is also acting as an arm of the court. A guardian serves, by virtue of judicial appointment, derives his powers from the court, and must account to the court.” N.Y. State 514 (1979). Nevertheless, none of the guardian’s obligations to the court in this case appears to override the lawyer’s ethical obligations not to disclose his client’s whereabouts. Moreover, even if the guardian ad litem’s services are to be paid for by the mortgagee bank, the guardian’s loyalty is to his client and not the bank or any other party or entity. DR 5-107 (B); N.Y. County 659 (1983).

Some other considerations are worth noting. Even if the court and the mortgagee bank already have in their possession the address at which the lawyer suspects the client might be residing, the lawyer should still not reveal such information since the protection afforded a client’s secrets exists without regard to the fact that others share the knowledge. SC 4-4. In addition, any concern that the lawyer’s attempt to locate his client would reveal the latter’s whereabouts and thus prejudice the client is misplaced since the lawyer need not, and should not, disclose the client’s whereabouts as set forth above.

CONCLUSION:

In the circumstances of this case the lawyer, acting as guardian ad litem, has a duty to make reasonable efforts to contact his client. However, the lawyer need not, and should not, disclose to the court or any other party or entity any information concerning the client’s whereabouts without the express consent of the client.