Disappearance of a Client Without a Trace Does Not Terminate the Power of Attorney but Limits the Lawyer's Authority
The armed aggression of the Russian Federation against Ukraine has caused a situation where thousands of citizens, including lawyers and their clients, disappear without a trace under special circumstances, are captured, or perform combat missions for a long time without means of communication. Lawyers face the question of what to do when the contract is valid, the case is in court, and the client — military or civilian — has disappeared without a trace?
The decision of the Council of Advocates of Ukraine No. 27 became an answer to the question of how to maintain a balance between the professional duty to protect the client's interests and the impossibility of obtaining their current will.
The status of a person missing under special circumstances arises from the moment the relevant information is entered into the Unified Register, as provided by Law No. 2505-VIII. At the same time, such status does not limit the civil legal capacity of the person.
At the same time, as emphasized by the Council of Advocates of Ukraine, a lawyer must take into account the actual impossibility of obtaining the current will from such a client. In this regard, previously given instructions cannot be automatically expanded or changed, and new instructions from the client cannot be obtained. This requires the lawyer to exercise increased professional caution when making procedural decisions.
The Council of Advocates of Ukraine stressed that the relationship between a lawyer and a client is based on trust and involves constant communication necessary for making procedural decisions. In the event of a client's disappearance without a trace, the lawyer is obliged to inform the court, providing supporting documents.
It is categorically prohibited to perform actions that change the scope of the client's rights (withdrawal of a claim, change of subject, settlement agreement, acknowledgment of circumstances).
Only actions aimed at protecting previously agreed positions, such as appealing rulings harmful to the client, responding to opponents' attacks, are allowed to continue.
The lawyer is recommended to file a motion to suspend the case if it is impossible to obtain instructions from the client without harming their interests.
The validity of the power of attorney does not mean the existence of the client's current will
The Council of Advocates of Ukraine paid special attention to the validity of the power of attorney issued by the client before their disappearance without a trace. The Council explained that such a power of attorney does not automatically lose legal force due to the person acquiring the status of missing.
At the same time, the validity of the power of attorney does not mean that the lawyer can perform any procedural actions on behalf of the client without restrictions. The Council emphasizes that the inability to obtain the current will of the principal significantly affects the limits of authority implementation.
In particular, the lawyer is obliged to honestly inform the court about the fact of the client's disappearance. Concealing this circumstance and creating the impression of the existence of the party's current will may be regarded as a violation of professional ethics and the principle of good faith.
Family cases and divorce cases
Since the termination of marriage is exclusively a personal will in accordance with Article 56 of the Family Code of Ukraine, it requires confirmation of the will at the time of decision-making.
If a serviceman disappears without a trace and the lawyer continues to insist on divorce, this may contradict the actual will of the person at the decision-making stage. The same applies to renunciation of inheritance or resignation from work at one's own request.
The Council of Advocates of Ukraine grants the lawyer the right to choose a course of action depending on the situation:
- Only defensive actions without changing the position.
- A motion to suspend proceedings.
- In exceptional cases, if the execution of the mandate has become objectively impossible, but taking into account the client's interests, termination of the contract is recommended.
The decision of the Council of Advocates of Ukraine goes beyond purely procedural clarification and focuses attention on the ethical standards of the profession in wartime conditions. The document emphasizes that even in the absence of communication with the client, the lawyer is obliged to act exclusively in their interests, adhering to the principles of good faith and professional responsibility.
At the same time, the Council stresses the importance of openly informing the court about the fact of the client's disappearance. Under such circumstances, it is the court that should assess the procedural consequences of the party's absence and make appropriate decisions based on complete and reliable information provided by the lawyer.
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