Can a lawyer file suit before the statute of limitations runs without yet having full factual support for the claim?

Plain-English summary

The opinion answered whether a lawyer may file suit to preserve a claim against the running of the statute of limitations when the lawyer does not yet know whether facts exist to support a cause of action and cannot acquire that information before the limitations period expires. The Board limited itself to the ethical question, expressly declining to decide whether such a filing would violate O.C.G.A. 9-15-14 or the standards of Yost v. Torok, 256 Ga. 92 (1986).

The Board found no Standard of Conduct directly on point: none addressed the situation where a client's facts suggest a cause of action but more facts are needed to assess it, so the filing alone could not be the basis for discipline. It identified two qualifications. If a rule of procedure or other law required the attorney to represent that the claim had an adequate factual basis, the attorney could not make that representation here, and doing so would violate Standard 4. And if the delay in investigating before filing was caused by the attorney's willful neglect, that could violate Standard 44.

Turning to the canons, ethical considerations, and directory rules for guidance, the Board explained that DR 7-102(A)(2) uses a subjective "knowingly" test that is not met when the lawyer does not know the claim is unwarranted, while EC 7-4 sets a more demanding objective standard against frivolous claims. Under EC 7-4 a claim is frivolous when there is no reasonable possibility of a factual basis; the rule does not require complete factual support before filing but does require that a reasonable attorney conclude there is a reasonable possibility that supporting facts can be established after filing, allowing, for example, the use of discovery to determine whether the factual basis exists.

Currency note

This opinion was issued in 1989, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Code of Professional Responsibility and Standards of Conduct this opinion construes. The State Bar's headnotes map Standard 4 to Rule 8.4(a)(4), Standard 44 to Rule 1.3, DR 7-102(A)(2) to Rule 3.1(b), and EC 7-4 and EC 7-5 to Comments under Rules 3.1 and 1.2. 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 Treat this page as historical context, not current guidance.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 of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a Georgia lawyer file suit just to beat the statute of limitations before confirming the facts?

A: Under this opinion, yes, if a reasonable attorney would conclude there is a reasonable possibility that facts supporting the cause of action can be established after filing, and the lawyer is not required to represent that the claim already has an adequate factual basis.

Q: When does filing such a suit become an ethics problem?

A: The opinion identified two situations: where the lawyer is required by procedure or law to represent that the claim has an adequate factual basis and cannot truthfully do so (Standard 4), and where the lawyer's failure to investigate before filing amounts to willful neglect (Standard 44).

Q: What standard governs whether the claim is frivolous?

A: The opinion applied EC 7-4's objective standard: a claim is frivolous when there is no reasonable possibility of a factual basis, but discovery may be used to test a claim where a reasonable possibility exists.

Background and rules framework

The opinion construed the former Standards of Conduct 4 (conduct involving misrepresentation) and 44 (willful neglect), together with DR 7-102(A)(2) and Ethical Considerations 7-4 and 7-5 of the Georgia Code of Professional Responsibility. The State Bar's headnotes connect these to current Rules 8.4(a)(4), 1.3 (diligence), 3.1 (meritorious claims and contentions), and 1.2(d).

Citations and references

Rules of Professional Conduct:

• MR 3.1 / Ga. RPC 3.1(b) (meritorious claims and contentions; analog to DR 7-102(A)(2) and EC 7-4)
• MR 8.4 / Ga. RPC 8.4(a)(4) (misrepresentation; analog to former Standard 4)
• MR 1.3 / Ga. RPC 1.3 (diligence; analog to former Standard 44)
• MR 1.2 / Ga. RPC 1.2(d) (analog cited for EC 7-5)

Former standards construed:

• Standards of Conduct 4 and 44; DR 7-102(A)(2); EC 7-4 and EC 7-5

Statutes:

• O.C.G.A. 9-15-14 (litigation abuse; the Board declined to apply it)

Cases:

• Yost v. Torok, 256 Ga. 92 (1986) (abusive litigation; outside the scope of the ethics opinion)

See also

• TX Ethics Op. 271: Lis Pendens Filed to Cloud Title
• TX Ethics Op. 499: Government Lawyer Misstating the Basis for Jurisdiction

Source

• Landing page: https://www.gabar.org/handbook?rule=rule507

Original opinion text

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

State Bar of Georgia
Issued by the Supreme Court of Georgia
On January 11, 1989
Formal Advisory Opinion No. 87-1

For references to Standard of Conduct 4, please see Rule 8.4(a)(4) and Comments 1 and 3 of Rule 8.4

For references to Standard of Conduct 44, please see Rule 1.3 and Comments 1, 2 and 3 of Rule 1.3 .

For references to DR 7-102(a)(2), please see Rule 3.1(b) .

For references to EC 7-4, please see Comment 2 of Rule 3.1 .

For references to EC 7-5, please see Rule 1.2(d) and Comment 6 of Rule 1.2 , Comment 3 of Rule 3.1 .

For an explanation regarding the addition of headnotes to the opinion, click here .

Ethical Propriety of Filing a Lawsuit in Order to be Within the Statute of Limitations, But Before Sufficient Information is Acquired to Determine if a Legitimate Cause of Action Exists.

It is not ethically improper for an attorney to file a lawsuit before complete factual support for the claim has been established provided that the attorney determines that a reasonable attorney would conclude that there is a reasonable possibility that facts supporting the cause of action can be established after the filing of the claim; and provided further that the attorney is not required by rules of procedure, or otherwise to represent that the cause of action has an adequate factual basis. If after filing it is discovered that the lawsuit has no merit, the attorney will dismiss the lawsuit or in the alternative withdraw.

QUESTION PRESENTED:

Are there ethical prohibitions against filing suit when the lawyer does not know whether facts exist which would constitute a cause of action, and the information needed to make that determination cannot be acquired prior to the expiration of the pertinent statute of limitations?

OPINION:

It cannot be determined from these facts whether filing of the suit would constitute a violation of O.C.G.A. § 9-15-14, or of the requirements of Yost v. Torok , 256 Ga. 92 (1986); nor is such determination within the scope of an ethical opinion. This opinion considers only whether the applicable ethical regulations proscribe filing suit in the situation described by correspondent.

There is no Standard of Conduct directly applicable. Specifically, no Standard of Conduct speaks to the situation in which the facts presented by a client suggest a cause of action, but additional facts are necessary for the attorney to make a clear assessment of the claim. Accordingly, the filing of the claim alone cannot be the basis for discipline in Georgia under the present Standards of Conduct. If, however, the attorney is required, by rules of procedure or otherwise, to represent that the cause of action has an adequate factual basis, the attorney cannot make that representation in the situation in question. To make such a representation in this situation would constitute a violation of Standard 4 and would subject the attorney to discipline.

If such a representation is required, the effect of the proscription may be to postpone the filing of the suit to beyond the date of the applicable statute of limitations. That is a matter for ethical regulation only if the delay in the investigation prior to the filing was caused by the attorney's "willful neglect" (constituting a violation of Standard 44 for which discipline is sanctioned).

The absence of Standards of Conduct does not, however, leave the lawyer without a source of guidance. The canons, ethical considerations, and directory rules are helpful in dealing with the question presented.

This guidance is found in the Georgia Code of Professional Responsibility:

DR 7-102 -- Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(2) knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law

DR 7-102(A)(2) creates a subjective test by use of the term "knowingly." It is violated when the attorney knows that the proposed claim is unwarranted. Such knowledge is not present in the situation in question.

EC 7-4 and EC 7-5 advise the attorney to avoid "frivolous" claims. Claims may be frivolous because the legal arguments for a cause of action are frivolous, or because factual support is clearly lacking for any cause of action. Only the second form of frivolousness is in question here. Consistent with the overall structure of the Code of Professional Responsibility, EC 7-4 creates an objective standard for the attorney which is more demanding than the subjective standard of DR 7-102(A)(2). A claim is frivolous under EC 7-4 when there is no reasonable possibility of the existence of the factual basis for the cause of action. EC 7-4 does not require complete factual support for the cause of action prior to the filing, but does require that a reasonable attorney would conclude that there is a reasonable possibility that facts supporting the claim can be established after the claim is filed. EC 7-4 permits, for example, the use of discovery to determine if the factual basis of a claim exists if there is a reasonable possibility that is does. This use is consistent with part of the purpose of discovery, i.e., to reveal facts which require dismissal of a claim.

In the situation in question, the attorney is acting consistent with ethical guidance if he or she determines that a reasonable attorney would conclude that there is a reasonable possibility that facts supporting the cause of action can be established after the filing of the claim.