Category Archives: Florida Bar Ethics Opinion 72-36 – filing lawsuit when client is missing

The client is missing and the statute of limitations expires soon:  what can or must a lawyer do?

Hello everyone and welcome to this Ethics Alert, which will discuss the ethics issues when a client is missing (or refuses to communicate) and the statute of limitations is about to expire.  I have been asked this question (or a variation of it) many times in my over 30 years of practice and I have provided guidance to lawyers.  Florida Bar Ethics Opinion 72-36 RECONSIDERATION) July 1, 1987 addresses this issue and the opinion is here: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-36-Rec.pdf

In the initial Ethics Opinion 72-36 (published in 1972), the facts were that “the inquiring attorney was retained by his client under a contingent fee contract in a personal injury matter. The client disappeared sometime after retaining the attorney and before suit was filed. Two years passed and, despite his diligent efforts, the attorney was unable to locate the client. The attorney asked whether he was ethically obligated to file suit before the limitations period expired.”

The initial opinion stated that “the attorney’s duty of zealous representation required him to take whatever action was necessary to prevent loss of the client’s rights due to the passage of time. Specifically, the attorney was obligated to file suit unless he could obtain the opposing party’s agreement to waive the statute of limitations.”  Emphasis supplied.

After the Florida Ethics Opinion was published in 1972, ABA Informal Opinion 1467 was published, which stated that the ABA Committee on Ethics and Professional Responsibility had determined that an attorney has no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect.

After the ABA Informal Opinion was published, the Florida Bar’s Professional Ethics reconsidered Ethics Opinion 72-36.  After reviewing the facts and Informal Opinion 1467, the committee stated:

“The Committee is now in accord with the conclusions reached in ABA Informal Opinion 1467. There, the attorney’s reasonable efforts to locate the client had been unsuccessful and the attorney believed there was no reasonable likelihood that the client would return. The ABA Committee on Ethics and Professional Responsibility determined that the attorney had no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect. The ABA committee further stated that it was not improper for an attorney to include in his employment agreement a provision requiring the client to promptly notify the attorney of any change in address and providing that, if the client failed to so notify the attorney, the attorney was not obligated to proceed with the case.

In view of ABA Opinion 1467, the Professional Ethics Committee is now of the opinion that an attorney whose client cannot be located despite the attorney’s reasonable efforts is not obligated to file suit to toll the running of the statute of limitations if the client’s unavailability is not caused by the attorney’s neglect or inaction (see Rule 4-1.3, Rules Regulating The Florida Bar, requiring an attorney to act with reasonable diligence and promptness in representing a client) and: (1) the attorney believes there is no reasonable chance the client will return; or (2) the client’s unavailability is a breach of the attorney-client employment agreement. However, even in these situations it would not be unethical for the attorney to file suit in order to toll the statute of limitations.”

The executive summary of Ethics Opinion 72-36 (RECONSIDERATION) states:  “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.”

Bottom line:  Although ethics opinions are for guidance only and are not binding, the Florida Ethics Opinion (and the ABA Informal Opinion) makes it clear that al lawyer is not required to file a lawsuit on behalf of a client when the client is unavailable and cannot be located, even if the statute of limitations will run; however, the lawyer is also not ethically prohibited from filing the lawsuit.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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