Can a lawyer file a lawsuit for a client when the statute of limitations on the claim has already run?

Plain-English summary

A client has a valid tort claim, but on review the lawyer finds the limitations period has expired. The client still wants suit filed. The opinion frames the issue as whether filing a time-barred claim is "frivolous" under Rule 3.1, which bars a lawyer from bringing a proceeding "unless there is a basis in law and fact for doing so that is not frivolous."

The opinion concludes it is not frivolous. Relying on ABA Formal Opinion 94-387, it reasons that the expiration of the limitations period does not affect the validity of the claim or divest the court of jurisdiction. The statute of limitations is an affirmative defense the defendant must plead in the answer or waive. Because a court can enforce a time-barred claim when the defense is not raised, and because the plaintiff may continue settlement negotiations with an opposing party unaware of the limitations problem, filing the suit does not advance a frivolous claim.

The opinion reaches the same result where the defendant has disappeared and the lawyer intends to serve by publication. Service by publication is available only after other efforts at service have failed (Rule 4(j1), N.C. Rules of Civil Procedure) and, if procedurally proper, confers jurisdiction. The opinion states that a client with a valid claim should not be penalized because a defendant evaded personal service during the limitations period.

In practice

Under this opinion, as the North Carolina rule stood at the time, filing a claim known to be time-barred does not by itself violate Rule 3.1, because the limitations defense is one the defendant can waive. The opinion's reasoning turns on the limitations period being an affirmative defense rather than a jurisdictional or merits bar. The opinion does not address whether other rules (for example, duties of candor or truthfulness in negotiation) constrain how the lawyer may then describe the claim to an opposing party or court.

Common questions

Q: Is it ethical to file a lawsuit in North Carolina when the statute of limitations has run?

A: Yes. Opinion #1 concludes that filing a time-barred claim is not frivolous under Rule 3.1, because the limitations period is an affirmative defense the defendant must plead or waive, and the court retains jurisdiction to hear the claim.

Q: Why isn't a time-barred claim considered frivolous?

A: The opinion reasons that expiration of the limitations period does not affect the validity of the claim or divest the court of jurisdiction; it is merely an affirmative defense, so a court can enforce the claim if the defendant raises no objection.

Q: Can a lawyer file suit against a missing defendant and serve by publication when the claim is time-barred?

A: Yes, if service by publication is procedurally appropriate. Opinion #2 states that when all reasonable efforts at personal service have failed and publication complies with Rule 4(j1), filing against a missing defendant on a time-barred claim is permitted.

Background and rules framework

The opinion interprets Rule 3.1 of the North Carolina Rules of Professional Conduct (the state counterpart to Model Rule 3.1 on meritorious claims and contentions), which prohibits bringing or defending a proceeding without a non-frivolous basis in law and fact. It reads Rule 3.1 against the civil-procedure backdrop that the statute of limitations is an affirmative defense under North Carolina law, and that service by publication under Rule 4(j1) of the Rules of Civil Procedure can confer jurisdiction when personal service fails.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.1 (meritorious claims and contentions)
• N.C. Rule 3.1 (basis in law and fact that is not frivolous)

Statutes and rules:

• N.C. R. Civ. P. 4(j1) (service by publication)

Cases:

• Northampton County Drainage Dist. No. 1 v. Bailey, 92 N.C. App. 68, 373 S.E.2d 560 (1988), rev'd in part and aff'd in part, 326 N.C. 742, 392 S.E.2d 352 (1990), statute of limitations as a pleaded affirmative defense
• In the Matter of Phillips, 18 N.C. App. 65, 196 S.E.2d 59 (1973), service by publication conferring jurisdiction

Other opinions cited:

• ABA Formal Opinion 94-387: asserting a time-barred claim

See also

• ABA Formal Op. 93-376: Client Lying in Discovery
• ABA Formal Op. 06-439: Truthfulness in Negotiation
• ABA Formal Op. 07-446: Ghostwriting for Pro Se Litigants

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2003-formal-ethics-opinion-13/

Original opinion text

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

Inquiry #1:

Attorney consults with a Client who has a valid tort claim for money damages against Defendant. Upon further review of the facts, Attorney discovers the statute of limitations has run on the claim. Client insists that Attorney bring an action against Defendant.

Is it ethical to file a lawsuit, knowing that the statute of limitations has run on the claim?

Opinion #1:

The question is whether filing a time-barred claim is "frivolous" under Rule 3.1 of the Rules of Professional Conduct. Rule 3.1 provides as follows:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.

Filing suit after the limitations period has expired does not affect the validity of the claim, nor does it divest a court from having jurisdiction to hear the matters raised therein. ABA Formal Opinion 94-387, 1001:235, 237 (1994). Instead, the statute of limitations is merely an affirmative defense to an otherwise enforceable claim. Id. The defendant must plead the statute of limitations in his answer or it is waived. Northampton County Drainage Dist. No. 1 v. Bailey, 92 N.C. App. 68, 373 S.E.2d 560 (1988), rev'd in part and aff'd in part, 326 N.C. 742, 392 S.E.2d 352 (1990). In addition, the expiration of the limitations period does not prevent a plaintiff from continuing to negotiate settlement with an opposing party who is unaware of the limitations period. ABA Formal Opinion 94-387 at 236-237. Because a time-barred claim can be enforced by a court if the defense raises no objection, filing suit under these circumstances would not violate the prohibition against an attorney advancing a frivolous claim under Rule 3.1.

Inquiry #2:

Assume the same facts as in Inquiry #1, except that Defendant has disappeared and all reasonable efforts to locate him or to effect personal service upon him have failed.

May Attorney file suit against a missing defendant, with the intent to serve the lawsuit by publication, knowing the statute of limitations has run on the claim?

Opinion #2:

There is no basis for reaching a different conclusion when the defendant is unavailable. Service by publication is another means by which a party is given notice of a legal action against him, but such service can only be used when all other efforts to serve the party have failed. Rule 4(j1), Rules of Civil Procedure. If the facts warrant service by publication, and if service is in accordance with statutory law, then service in this fashion will be sufficient to confer jurisdiction over the matter upon the courts. In the Matter of Phillips, 18 N.C. App. 65, 196 S.E.2d 59 (1973). A client with a valid claim should not be penalized because a defendant successfully evades personal service during the period of the statute of limitations. If service by publication is procedurally appropriate under the circumstances, an attorney may file suit against a missing defendant, even when the claim is time-barred.