Formal Advisory Opinion No. 87-1
Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 87-1
State Bar of Georgia
Issued by the Supreme Court of Georgia
On January 11, 1989
Formal Advisory Opinion No. 87-1
For references to Standard of Conduct 4, please see Rule 8.4(a)(4) and Comments and 3 of Rule 8.4.
For references to Standard of Conduct 44, please see Rule 1.3 and Comments 1, 2 and 3 of Rule 1.3.
For references to DR 7-102(a)(2), please see Rule 3.1(b).
For references to EC 7-4, please see Comment 2 of Rule 3.1.
For references to EC 7-5, please see Rule 1.2(d) and Comment 6 of Rule 1.2, Comment 3 of Rule 3.1.
For an explanation regarding the addition of headnotes to the opinion, click here.
Ethical Propriety of Filing a Lawsuit in Order to be Within the Statute of Limitations, But Before Sufficient Information is Acquired to Determine if a Legitimate Cause of Action Exists.
It is not ethically improper for an attorney to file a lawsuit before complete factual support for the claim has been established provided that the attorney determines that a reasonable attorney would conclude that there is a reasonable possibility that facts supporting the cause of action can be established after the filing of the claim; and provided further that the attorney is not required by rules of procedure, or otherwise to represent that the cause of action has an adequate factual basis. If after filing it is discovered that the lawsuit has no merit, the attorney will dismiss the lawsuit or in the alternative withdraw.
Are there ethical prohibitions against filing suit when the lawyer does not know whether facts exist which would constitute a cause of action, and the information needed to make that determination cannot be acquired prior to the expiration of the pertinent statute of limitations?
It cannot be determined from these facts whether filing of the suit would constitute a violation of O.C.G.A. § 9-15-14, or of the requirements of Yost v. Torok, 256 Ga. 92 (1986); nor is such determination within the scope of an ethical opinion. This opinion considers only whether the applicable ethical regulations proscribe filing suit in the situation described by correspondent.
There is no Standard of Conduct directly applicable. Specifically, no Standard of Conduct speaks to the situation in which the facts presented by a client suggest a cause of action, but additional facts are necessary for the attorney to make a clear assessment of the claim. Accordingly, the filing of the claim alone cannot be the basis for discipline in Georgia under the present Standards of Conduct. If, however, the attorney is required, by rules of procedure or otherwise, to represent that the cause of action has an adequate factual basis, the attorney cannot make that representation in the situation in question. To make such a representation in this situation would constitute a violation of Standard 4 and would subject the attorney to discipline.
If such a representation is required, the effect of the proscription may be to postpone the filing of the suit to beyond the date of the applicable statute of limitations. That is a matter for ethical regulation only if the delay in the investigation prior to the filing was caused by the attorney's "willful neglect" (constituting a violation of Standard 44 for which discipline is sanctioned).
The absence of Standards of Conduct does not, however, leave the lawyer without a source of guidance. The canons, ethical considerations, and directory rules are helpful in dealing with the question presented.
This guidance is found in the Georgia Code of Professional Responsibility:
DR 7-102 -- Representing a Client Within the Bounds of the Law.
(A) In his representation of a client, a lawyer shall not:
(2) knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law
DR 7-102(A)(2) creates a subjective test by use of the term "knowingly." It is violated when the attorney knows that the proposed claim is unwarranted. Such knowledge is not present in the situation in question.
EC 7-4 and EC 7-5 advise the attorney to avoid "frivolous" claims. Claims may be frivolous because the legal arguments for a cause of action are frivolous, or because factual support is clearly lacking for any cause of action. Only the second form of frivolousness is in question here. Consistent with the overall structure of the Code of Professional Responsibility, EC 7-4 creates an objective standard for the attorney which is more demanding than the subjective standard of DR 7-102(A)(2). A claim is frivolous under EC 7-4 when there is no reasonable possibility of the existence of the factual basis for the cause of action. EC 7-4 does not require complete factual support for the cause of action prior to the filing, but does require that a reasonable attorney would conclude that there is a reasonable possibility that facts supporting the claim can be established after the claim is filed. EC 7-4 permits, for example, the use of discovery to determine if the factual basis of a claim exists if there is a reasonable possibility that is does. This use is consistent with part of the purpose of discovery, i.e., to reveal facts which require dismissal of a claim.
In the situation in question, the attorney is acting consistent with ethical guidance if he or she determines that a reasonable attorney would conclude that there is a reasonable possibility that facts supporting the cause of action can be established after the filing of the claim.
GO TO Formal Advisory Opinion No. 86-7 GO TO Formal Advisory Opinion No. 87-5 Return to handbook browser.