The statute of limitations has run on two of my clients' personal injury claims because I never filed suit for them, but the insurance adjuster is still negotiating with me. Can I keep negotiating on their behalf?

Plain-English summary

An attorney who filed a complaint on behalf of one client seeking recovery for personal injuries sustained in an accident asked the panel whether he could properly continue negotiating a settlement. He had begun negotiating on behalf of that client and two other clients injured in the same accident, but no complaint was filed on behalf of the other two, and the insurance adjuster handling the claim had been given an open extension on answering the complaint. The statute of limitations had since run for the two clients whose claims were never filed, and the attorney asked whether it was proper to continue negotiating on their behalf.

The panel identified Rule 4.1 as governing the attorney's negotiations with the insurance adjuster concerning the two time-barred clients. It quoted the rule's prohibition on a lawyer knowingly making a false statement of material fact or law to a third person in the course of representing a client. The panel noted that expiration of the limitations period is an affirmative defense, and held that the attorney may properly continue negotiations so long as he observes the requirements of Rule 4.1(a).

Currency note

This opinion was issued in September 1989, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 4.1(a) as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can I keep negotiating a settlement for a client whose claim is now barred by the statute of limitations?

A: Yes, according to this opinion. The panel held the attorney may properly continue negotiations so long as he observes Rule 4.1(a), because expiration of the limitations period is an affirmative defense rather than something that automatically forecloses negotiation.

Q: Do I have to volunteer to the adjuster that the statute of limitations has run on my client's claim?

A: The opinion does not impose an affirmative disclosure duty; it frames the limitations period as an affirmative defense and conditions continued negotiation only on compliance with Rule 4.1(a)'s bar on knowingly making a false statement of material fact or law to a third person.

Q: What rule governs what I can say to an insurance adjuster during these negotiations?

A: Rule 4.1(a), which the opinion quotes as barring a lawyer from knowingly making a false statement of material fact or law to a third person in the course of representing a client.

Background and rules framework

The opinion applies Rule 4.1(a) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, which bars a lawyer from knowingly making a false statement of material fact or law to a third person, to an attorney's continued settlement negotiations with an insurance adjuster on behalf of clients whose personal injury claims had become time-barred.

Citations and references

Rules of Professional Conduct:

• MR 4.1 (truthfulness in statements to others)
• RI RPC 4.1(a) (prohibition on knowing false statements of material fact or law to a third person, as adopted November 15, 1988)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Opinion 06-439: Truthfulness in Negotiation and Mediation

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2089-20.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION 89-20, REQUEST #67
Issued September 14, 1989

An attorney seeks Panel advice as to whether he may properly continue negotiating a settlement on behalf of a client under the circumstances he outlines. The attorney advises the Panel that he filed a complaint on behalf of a client seeking recovery for personal injuries sustained in an accident. The attorney states that he began negotiating on behalf of this client and two other clients who were injured in the same accident. The attorney advises the Panel that no complaint was filed on behalf of the other two clients. The attorney adds that the insurance adjuster handling the claim was given an open extension on answering the complaint. The attorney states that the statute of limitations has now run with regard to the two clients for whom no complaint was filed and asks whether it is proper for him to continue to negotiate on their behalf.

The attorney's negotiations with the insurance adjuster concerning the two clients for whom the statute of limitations has run would be governed by Rule 4.1. This rule provides:

In the course of representing a client a lawyer shall not knowingly:

(a) Make a false statement of material fact or law to a third person; * * *

The Panel notes the expiration of the period of limitations is an affirmative defense. The Panel takes the position that the attorney may properly continue negotiations so long as he observes the requirements of Rule 4.1(a).

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.