The Florida Bar

October 3, 1972

A lawyer retained to represent a client should file suit to toll the statute of limitations despite the fact that his client has disappeared.

Note: This opinion was reconsidered in 72-36 (Reconsideration) (July 1, 1987), and the Professional Ethics Committee opined that a lawyer retained for litigation by a client who has since disappeared is not obligated to file suit to toll the running of the statute of limitations if the lawyer has made a reasonable effort to locate the client and the client's unavailability is not the result of neglect on the part of the lawyer.

CPR: EC 7-1

Vice Chairman Daniels stated the opinion of the committee:

In 1970, the inquiring lawyer was retained under a contingent fee contract to represent a client who was injured in an accident which occurred in 1969. The lawyer has not filed suit and for two years has been unable to locate his client, although making diligent effort to do so. Under these circumstances, the lawyer has asked whether he has an ethical obligation to file suit before the statute of limitations runs.

Assuming that no agreement can be reached with counsel for the adverse party or parties to waive the defense of the statute of limitations, the committee is of the opinion that suit should be filed. The lawyer's duty “to represent his client zealously within the bounds of the law” (EC 7-1) requires the lawyer to take whatever action is necessary to prevent loss of the client's rights by the passage of time.

[Revised: 08-24-2011]