Must a lawyer disclose to the court a statute of limitations that could defeat his own client's claim when opposing counsel is unaware of it?

Plain-English summary

Attorney A represented Client A-1 and learned of a statute of limitations that could defeat A-1's claim or counterclaim against Client B-1, though Attorney A did not believe the statute applied. Attorney B, representing B-1, was unaware of the statute. The question was whether DR 7-106(B)(1) of the Code of Professional Responsibility required Attorney A to disclose the statute of limitations to the court.

DR 7-106(B)(1) requires a lawyer presenting a matter to a tribunal to disclose "legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel." The committee unanimously agreed that Attorney A had no duty to disclose the statute of limitations, though members reached that result by different reasoning.

One view held the rule did not apply because Attorney A had a basis to argue the statute did not apply, so it was not "directly adverse"; that a statute of limitations can be waived was also significant to this view. A second view held there was no duty because Attorney A was not "presenting" the statute-of-limitations issue to the court; if Attorney B asserted an inapplicable statute, then Attorney A would have to disclose an applicable one. The third and most extreme view was that "legal authority" in the rule covers only decisional law, noting that reported decisions interpreting the rule involved appellate decisions or a failure to disclose the history of the pending case, and that treating a statute of limitations as "legal authority" would conflict irreconcilably with the lawyer's duties of loyalty and zealous representation. In a footnote, the committee acknowledged one court had suggested the rule and others were implicated where an attorney failed to admit the truth of a matter known to be true that would defeat the client's claim.

Currency note

This opinion was issued in 1987, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The opinion applied DR 7-106(B)(1), the predecessor of current Rule 3.3 on candor toward the tribunal. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer tell the court about a statute of limitations that could defeat his own client's claim?

A: The committee unanimously concluded the lawyer had no duty to disclose it under DR 7-106(B)(1), though members differed in their reasons.

Q: Why was the statute not "directly adverse" legal authority?

A: One committee view reasoned that because the lawyer had a basis to argue the statute did not apply (and a limitations defense can be waived), it was not "directly adverse" within the meaning of the rule.

Q: Does the disclosure duty turn on who raises the issue?

A: Under a second committee view, yes; the lawyer was not "presenting" the limitations issue, but if opposing counsel asserted an inapplicable limitations period, the lawyer would then have to disclose the applicable one.

Q: Does "legal authority" in the rule include statutes?

A: The committee's third and most extreme view read "legal authority" to cover only decisional law, reasoning that treating a statute of limitations as legal authority would conflict with the duties of loyalty and zealous representation; the committee did not adopt a single rationale, only the unanimous result.

Background and rules framework

The opinion applied the former New Mexico Code of Professional Responsibility, specifically DR 7-106(B)(1), which required a lawyer presenting a matter to a tribunal to disclose controlling legal authority known to be directly adverse to the client's position and not disclosed by opposing counsel. That duty corresponds to current Rule 3.3 (candor toward the tribunal).

Citations and references

Rules of Professional Conduct:

• DR 7-106(B)(1) (duty to disclose directly adverse controlling legal authority not disclosed by opposing counsel)

Cases:

• Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (1985), interpreting DR 7-106(B)(1)
• State v. Gardner, 91 N.M. 302, 573 P.2d 236 (1977), interpreting DR 7-106(B)(1)
• Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985), failure to disclose the history of the pending case
• Chemical Engineering Corp. v. Essef Industries, Inc., 795 F.2d 1565 (Fed. Cir. 1986), suggesting the rule may be implicated by failure to admit a known truth defeating the client's claim

See also

• NM Ethics Op. 1987-1: Confidentiality and a Client's Intent to Commit Suicide

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-2.pdf

Original opinion text

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

Advisory Opinion 1987-2
Facts: Attorney A represents Client A-1. Attorney A learns of a statute of limitation which could defeat A-1's claim (or counterclaim) against Client B-1, but Attorney A does not believe the statute of limitation applies. Attorney B, representing Client B-1, is unaware of the statute of limitations.
Question Presented: Does Rule 7-106(B)(1) of the Code of Professional Responsibility require Attorney A to disclose the statute of limitation to the court?
Discussion: Rule 7-106(B)(1) states:
(B) In presenting a matter to a tribunal, a lawyer shall disclose:

(1) legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.
The committee unanimously agrees that Attorney A has no duty to disclose the statute of limitation. The reasoning of the committee members varied.
One view held that Rule 7-106(B)(1) did not apply because Attorney A had a basis for arguing that the statute of limitation did not apply. The statute of limitation would not then be "directly adverse." Additionally, that a statute of limitation could be waived was also significant to this view.
A second view held that Attorney A had no duty to disclose the statute of limitation to the court because Attorney A was not "presenting" the issue of the statute of limitation to the court. If, for example, Attorney B asserts an inapplicable three year statute of limitation, then Attorney A would be required to disclose an applicable two year statute of limitation.
The third, and most extreme, view was that "legal authority," and therefore Rule 7-106(B)(1), applies only to decisional law. A search of virtually every reported decision interpreting Rule 7-106(B)(1) found cases involving appellate decisions, see, e.g., Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (1985); State v. Gardner, 91 N.M. 302, 573 P.2d 236 (1977); or cases involving a failure to disclose the history of the pending case. See, e.g., Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985). Additionally, it was felt that including statute of limitation within the definition of "legal authority" would cause an irreconcilable conflict with a lawyer's duty of loyalty and duty to represent his client zealously.

One court suggested that Rule 7-106(B)(1) and other rules, were implicated where an attorney failed to admit the truth of a matter known to be true, but which would result in defeating his client's claim. Chemical Engineering Corp. v. Essef Industries, Inc., 795 F.2d 1565 (Fed. Cir. 1986).