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Filing Suit After the Statute of Limitations Has Run

Adopted: January 16, 2004

Opinion rules that an attorney may file a time-barred claim on behalf of a client, even when the defendant is unavailable and can only be served by publication.

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.

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