Must a lawyer file suit to stop the statute of limitations from running when the client has disappeared and cannot be found?

Plain-English summary

In 1970, the inquiring lawyer was retained under a contingent-fee contract to represent a client injured in a 1969 accident. The lawyer had not filed suit and for two years had been unable to locate the client despite diligent effort. He asked whether he had an ethical obligation to file suit before the statute of limitations ran.

Assuming no agreement could be reached with opposing counsel to waive the limitations defense, the committee concluded that suit should be filed. It reasoned that the lawyer's duty "to represent his client zealously within the bounds of the law," under Ethical Consideration 7-1, required him to take whatever action was necessary to prevent loss of the client's rights through the passage of time.

Currency note

The committee reconsidered this opinion in 72-36 (Reconsideration) on July 1, 1987, and reached a different result: a lawyer retained for litigation by a client who has since disappeared is not obligated to file suit to toll the statute of limitations if the lawyer made a reasonable effort to locate the client and the client's unavailability is not the result of the lawyer's neglect. This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct, and it applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.3 and the 1987 reconsideration before relying on anything here.

Common questions

Q: Did the original 1972 opinion require filing suit for a missing client?

A: Yes. The committee concluded that, absent a waiver of the limitations defense, the lawyer should file suit to prevent the client's rights from being lost to the passage of time, citing the duty of zealous representation in EC 7-1.

Q: Is that still the committee's position?

A: No. A 1987 reconsideration modified the result, holding the lawyer is not obligated to file if he made a reasonable effort to locate the client and the client's unavailability was not due to the lawyer's neglect.

Citations and references

Rules of Professional Conduct:

• CPR EC 7-1 (zealous representation within the bounds of the law)

See also

• FL Bar Ethics Op. 72-40: Client Confidences and the Executor Bank

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-36/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-36-1-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-36
October 3, 1972
Advisory ethics opinions are not binding.
A lawyer retained to represent a client should file suit to toll the statute of limitations despite the fact that his client has disappeared.
Note: This opinion was reconsidered in 72-36 (Reconsideration) (July 1, 1987), and the Professional Ethics Committee opined that a lawyer retained for litigation by a client who has since disappeared is not obligated to file suit to toll the running of the statute of limitations if the lawyer has made a reasonable effort to locate the client and the client's unavailability is not the result of neglect on the part of the lawyer.
CPR: EC 7-1
Vice Chairman Daniels stated the opinion of the committee:
In 1970, the inquiring lawyer was retained under a contingent fee contract to represent a client who was injured in an accident which occurred in 1969. The lawyer has not filed suit and for two years has been unable to locate his client, although making diligent effort to do so. Under these circumstances, the lawyer has asked whether he has an ethical obligation to file suit before the statute of limitations runs.
Assuming that no agreement can be reached with counsel for the adverse party or parties to waive the defense of the statute of limitations, the committee is of the opinion that suit should be filed. The lawyer's duty "to represent his client zealously within the bounds of the law" (EC 7-1) requires the lawyer to take whatever action is necessary to prevent loss of the client's rights by the passage of time.