Can a lawyer file a lawsuit on a claim that the statute of limitations has already run on?

Plain-English summary

The committee was asked under what circumstances a lawyer may properly institute suit on a cause of action against which the period of limitations has run. It answered that the propriety turns on whether, as a matter of law, the passage of time extinguishes the right or merely bars the remedy.

Noting that it does not pass on questions of law, the committee nonetheless drew the distinction the ethics rule depends on, relying on the Court of Appeals in Romano v. Romano, 19 N.Y.2d 444 (1967): where a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause and the plaintiff must establish it; where the cause existed at common law or by other statute, the time limit is ordinarily one of limitations that must be raised as a defense and can be waived.

From that distinction the committee derived the rule. A suit on a cause that has been extinguished through the passage of time may not properly be instituted, because the right no longer exists and bringing the action would violate DR 7-102(A)(2), which bars knowingly advancing a claim unwarranted under existing law and not supportable by a good-faith argument for extending, modifying, or reversing the law (compare DR 7-102(A)(1) and (2) with DR 2-109(A)(1) and (2)). Where the passage of time merely gives rise to a waivable affirmative defense, there is no impropriety in suing; this is the usual case, and the authorities have generally held it proper to advance a claim against which the period has run, citing N.Y. City 518 (1939) and several ABA informal opinions.

The committee stressed that the qualification matters and goes to the heart of Canon 7, which requires zealous representation "within the bounds of the law." Because it is not always clear whether the passage of time affects the right or only the remedy, where the law is unclear the Code requires the lawyer to give the client every benefit of the doubt and proceed on the assumption that the right is unaffected (EC 7-2, EC 7-3, EC 7-4). Throughout, the lawyer must be completely candid with the client about the nature of the defense and when it would defeat the claim (EC 7-8); if the client decides to proceed after being fully informed, the lawyer may institute suit so long as the claim has not clearly been extinguished as a matter of law.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the duty to bring only meritorious claims is now governed by Rule 3.1, and communication with the client by Rule 1.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is it always improper to sue on a claim the statute of limitations has run on?

A: Under this opinion, no. The committee held it is proper where the limitation merely bars the remedy and can be waived as an affirmative defense, which it described as the usual case.

Q: When is suing on a time-barred claim improper?

A: Where the passage of time has, as a matter of law, extinguished the underlying right, for example where a statute creates the cause and makes the time limit an ingredient of it. The committee held that suing in that situation violates DR 7-102(A)(2).

Q: What if it is unclear whether the right was extinguished or only the remedy barred?

A: The committee said the lawyer must give the client the benefit of the doubt and proceed on the assumption that the right survives, while being completely candid with the client about the limitations defense.

Background and rules framework

The opinion applies Canon 7 and DR 7-102(A)(2) (no knowingly advancing a claim unwarranted under existing law), read alongside DR 2-109(A) (refusing employment to bring a legally unsupportable action) and EC 7-2 through EC 7-4 and EC 7-8 (resolving doubtful questions for the client and keeping the client informed). The current Model Rule analogues are Rule 3.1 (meritorious claims and contentions) and Rule 1.4 (communication).

Citations and references

Rules of Professional Conduct:

• MR 3.1 (meritorious claims and contentions)
• MR 1.4 (communication)
• NY Canon 7; EC 7-2, EC 7-3, EC 7-4, EC 7-8; DR 2-109(A)(1)-(2), DR 7-101(A)(1), DR 7-102(A)(1)-(2)

Cases:

• Romano v. Romano, 19 N.Y.2d 444 (N.Y. 1967), distinguishing a time limit that is an ingredient of the cause from a waivable statute of limitations
• Sharrow v. Inland Lines, 214 N.Y. 101 (N.Y. 1915), cited on when the passage of time affects the right
• Hughes v. Hinson's Garage, Inc., 9 A.D.2d 1014 (N.Y. App. Div. 4th Dep't 1959)

Other opinions cited:

• N.Y. City 518 (1939); ABA Inf. 694 (1963); ABA Inf. 272 (1959): the general propriety of advancing a claim against which the period has run
• N.Y. State 472 (1977); N.Y. State 469 (1977): zeal within the bounds of the law

See also

• NY State Bar Op. 483: Suing opposing counsel for defamation mid-case

Source

• Landing page: https://nysba.org/opinion-475/