Can a lawyer who is sued personally plead the statute of limitations as a defense, for example against a landlord or for funds the lawyer was holding to forward to another attorney?

Plain-English summary

A member posed two questions. First, may an attorney ethically plead the statute of limitations when sued by his landlord for unpaid rent, where the landlord had extended credit because the attorney was just commencing practice and could not initially pay rent? Second, may an attorney ethically plead the statute of limitations when sued for repayment of funds delivered to the attorney to be forwarded to a foreign attorney in payment for services rendered or to be rendered?

The committee, concurring with ABA Opinion 273 (Appendix A of the compiled ABA opinions), said that in substance an attorney may ethically plead the statute of limitations in an action brought against him unless he has done something to lull the other side into a sense of security. As to the second inquiry, the committee noted that statutes of limitations generally do not run against a trustee holding property in trust, and that the attorney may have violated Canon 11, which relates in part to the misuse of a client's trust funds. It also directed attention to Rule 11.02(4) of the Integration Rule of The Florida Bar.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 9 and 11 of the Canons of Professional Ethics and Rule 11.02(4) of the then-Integration Rule; the safekeeping of client and third-party funds is now governed by Rule 5-1.1 of the Rules Regulating The Florida Bar (Model Rule 1.15). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer plead the statute of limitations when sued personally?

A: The committee, agreeing with ABA Opinion 273, said an attorney may ethically plead the statute of limitations in an action against him unless he has done something to lull the other side into a sense of security.

Q: Does the answer change for money the lawyer was holding to forward to another attorney?

A: The committee noted that limitations generally do not run against a trustee holding property in trust, and that pleading limitations there could implicate Canon 11 on the misuse of a client's trust funds; it also pointed to Rule 11.02(4) of the Integration Rule.

Background and rules framework

The opinion applied former Canons 9 and 11 of the Canons of Professional Ethics and Rule 11.02(4) of the then-Integration Rule of The Florida Bar, and it concurred with ABA Opinion 273. Canon 11 concerned the handling and misuse of a client's trust funds; the safekeeping of client and third-party property is now governed by Rule 5-1.1 of the Rules Regulating The Florida Bar (Model Rule 1.15).

Citations and references

Rules of Professional Conduct:

• Canon 9, Canon 11 [Canons of Professional Ethics; Canon 11 concerning trust funds; see current Rule 5-1.1]
• Rule 11.02(4), Integration Rule of The Florida Bar

Other opinions cited:

• ABA Informal Op. 273: an attorney may plead the statute of limitations unless he lulled the other side into a sense of security

See also

• FL Bar Ethics Op. 02-4: Third-Party Claims on Settlement Funds
• FL Bar Ethics Op. 02-6: Disputed Real-Estate Escrow Deposit

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-37/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-37.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-37
June 15, 1965
Advisory ethics opinions are not binding.
A lawyer does not necessarily commit ethical impropriety in asserting the statute of limitations when sued unless the lawyer has done something to lull the other party into a false sense of security.
Canons: 9, 11; Rule 11.02(4), Integration Rule
Opinion: ABA Informal 273
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar poses two questions for our consideration.

1. May an attorney ethically plead the statute of limitations when sued by his landlord for unpaid rent? In this instance credit was extended by the landlord because the attorney was commencing his practice and initially could not pay rent.
2. May an attorney ethically plead the statute of limitations when sued for repayment of funds which were delivered to the attorney to be forwarded to a foreign attorney in payment for services rendered, or to be rendered, by the foreign attorney?
   In Opinion 273 in Appendix A of the compiled Opinions of the Professional Ethics Committee of the American Bar Association it is stated in substance that an attorney may ethically plead the statute of limitations in an action brought against him unless he has done something to lull the other side into a sense of security. This Committee concurs with that opinion.
   It should be noted with respect to the second inquiry, however, that the statutes of limitations generally do not run against a trustee holding property in trust and that the attorney may have violated Canon 11, which relates in part to misuse of trust funds of a client. Attention is also directed to Rule 11.02(4) of the Integration Rule of The Florida Bar.