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Opinion 72-36 (Reconsidered)

July 1, 1987
Advisory ethics opinions are not binding.
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.

Rule 4-1.3
72-36; ABA Informal 1467

In Opinion 72-36, the inquiring attorney was retained by his client under a contingent fee
contract in a personal injury matter. The client disappeared sometime after retaining the attorney
and before suit was filed. Two years passed and, despite his diligent efforts, the attorney was
unable to locate the client. The attorney asked whether he was ethically obligated to file suit
before the limitations period expired.
The Committee stated that the attorney’s duty of zealous representation required him to
take whatever action was necessary to prevent loss of the client’s rights due to the passage of
time. Specifically, the attorney was obligated to file suit unless he could obtain the opposing
party’s agreement to waive the statute of limitations.
Upon reconsideration, the Committee has concluded that its statement in Opinion 72-36
of an attorney’s duty when faced with a missing client and an approaching statute of limitations
was overly broad.
The Committee is now in accord with the conclusions reached in ABA Informal Opinion
1467. There, the attorney’s reasonable efforts to locate the client had been unsuccessful and the
attorney believed there was no reasonable likelihood that the client would return. The ABA
Committee on Ethics and Professional Responsibility determined that the attorney had no duty to
file suit to toll the statute of limitations if the client’s unavailability was not caused by the
attorney’s neglect. The ABA committee further stated that it was not improper for an attorney to
include in his employment agreement a provision requiring the client to promptly notify the
attorney of any change in address and providing that, if the client failed to so notify the attorney,
the attorney was not obligated to proceed with the case.
In view of ABA Opinion 1467, the Professional Ethics Committee is now of the opinion
that an attorney whose client cannot be located despite the attorney’s reasonable efforts is not
obligated to file suit to toll the running of the statute of limitations if the client’s unavailability is
not caused by the attorney’s neglect or inaction (see Rule 4-1.3, Rules Regulating The Florida
Bar, requiring an attorney to act with reasonable diligence and promptness in representing a
client) and: (1) the attorney believes there is no reasonable chance the client will return; or (2)
the client’s unavailability is a breach of the attorney-client employment agreement. However,
even in these situations it would not be unethical for the attorney to file suit in order to toll the
statute of limitations.