If your client stops communicating with you and seemingly disappears, how hard do you have to search for the client before you can convince a court to allow you to withdraw from the representation?
A leading firm found out recently that you at least have to get on the internet and take a look.
Where’s the client?
In Caveman Foods, LLC v. Ann Payne’s Caveman Foods, LLC, the law firm sought to withdraw from representing the defendant in a trademark infringement case pending in the Eastern District of California.
The firm said that the client had ceased operations, was no longer an active company, had no assets that could be distributed to creditors, and had no office, phone, e-mail, employees or forwarding contact information in the U.S.
Relying in part on California Rule of Professional Conduct 3-700(C)(1)(d), governing the termination of representation, the firm said that withdrawal should be permitted because the defendant was unresponsive and “unwilling or unable to communicate” with counsel, which had “rendered it unreasonably difficult for [the firm] to carry out its employment effectively.”
Not so fast…
But the court said that the statements about the client’s inaccessibility did “not appear to be entirely true,” because “a simple internet search” for the client’s name revealed that the client was indeed an active business.
The court found plenty of traces of the client via its own website, including recent press releases, upcoming events that the client’s agents would be attending in the near future and a display of products corresponding to the ones mentioned in the complaint.
Most significant, said the court, the website listed the client’s current mailing address, phone numbers, email addresses, names and contact information of company representatives and the addresses of retailers selling the client’s products.
All this led the court to say that in the absence of evidence that the firm attempted to contact its client using all that available information, the firm’s contention that the client was unresponsive or unwilling to communicate “seem[s] unfounded.”
Rule 11 problem, too
As if this weren’t embarrassing enough, the court invoked Federal Civil Rule 11, in criticizing the firm for not conducting a reasonable inquiry to determine that its motion to withdraw was well-grounded in fact. Rather, it appeared to the court that the firm had not carried out “the minimal inquiry required to verify whether its representations regarding defendant were accurate.”
Nor did the firm comply with California Rule 3-700(A)(2), the court said, because it failed to make “sufficiently diligent attempts to locate defendant or notify defendant of the motion” to withdraw. California courts require solid evidence of the lawyer’s diligent efforts to locate clients in order to inform them of the impending withdrawal.
That was especially important here, the court wrote, because California law prohibits business entities from appearing pro se; granting the firm’s motion to withdraw would thus effectively subject the client to default judgment against it.
Don’t let this happen to you
Second-guessing is easy, of course. But if the firm had pursued the client using the leads available on the internet, it might have been able to satisfy the court that the client remained unresponsive and thus been able to win an exit from the case. As it was, the court denied the motion to withdraw unless and until the firm itself locates replacement counsel for the defendant.