MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-9
WHETHER IT IS A VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT FOR AN ATTORNEY EMPLOYED BY A COUNTY OFFICE OF LAW TO INITIATE PROCEEDINGS SEEKING FINES IN MATTERS WHERE THE RELEVANT STATUTE OF LIMITATION ARGUABLY HAS EXPIRED
Your inquiry of November 23, 2005, was considered by the Ethics Committee of the Maryland State Bar Association at its meetings on January 18th and February 15, 2006 and I have been assigned by the Committee with the task of providing a response.
Specifically, at the request of the Administrative Judge of the District Court for your County, you have been asked to obtain an opinion of this Committee as to the ethical propriety of the Office of Law in your County filing suit in matters arguably barred by the applicable statute of limitations. You have advised us that this issue has been raised by the Court in connection with your office’s prosecution of parking infractions, for which Maryland law provides a one year statute of limitations. Md. Cts. & Jud. Proc. Code Ann. §5-107. You have asked for our guidance as to whether it is appropriate, under the Maryland Rules of Professional Conduct, for attorneys in your office to file suit in matters where the statute of limitations has (at least arguably) expired.
From a review of the history of the opinions of this Committee, this inquiry is a matter of first impression for the Committee. In Ethics Docket 87-30, we previously considered the ethical propriety of the filing and/or maintaining of a Motion to Suppress, by a defense lawyer in a criminal case, for the sole purpose of generating a hearing in the hope that necessary witnesses would fail to appear. We considered the implications of such a Motion under Rule 3.1 of the Maryland Rules of Professional Conduct, which had been adopted just prior to that opinion. In that opinion, the Committee concluded, with one dissenting member, that it was not a violation of the Rules of Professional Conduct for a defense lawyer in a criminal case to file and prosecute such a motion.
The Committee, after examining the applicable Rules and authority in Maryland and in other jurisdictions, also concludes that it is not ethically improper for an attorney in your office to prosecute a claim arguably barred by the statute of limitations. In reaching this conclusion, we have considered the implications of Rules 3.1, 3.8 and 8.4 of the Maryland Rules of Professional Conduct. We have also considered Rule 2-323 of the Maryland Rules of Procedure and the applicable authorities decided thereunder. In those cases, the Maryland Courts have concluded that the statute of limitations, whether in a civil or criminal case, is an affirmative defense under Maryland law which is not jurisdictional, and that failure to raise the affirmative defense results in its waiver. See, e.g., Foos v. Steinberg, 247 Md. 35, 230 A.2d 79 (1967); Brodak v. Brodak, 294 Md. 10, 447 A.2d 847 (1982); Brooks v. State, 85 Md. App. 355, 584 A.2d 82 (1991).
Rule 3.1 of the Rules of Professional Conduct provides that a lawyer “…shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law”. The last sentence of Rule 3.1 emphasizes, however, that it is appropriate for a lawyer to defend a proceeding “to require that every element of the moving party’s case be established”. Moreover, the Comment to that Rule makes clear that the filing of an action or defense is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.
Accordingly, in light of Maryland Rule 2-323 and the Maryland cases holding that the statute of limitations is an affirmative defense, which must be pleaded specially, whether in a civil or criminal case, this Committee concludes that it is not a violation of the Maryland Rules of Professional Conduct for an attorney in your office to pursue a case arguably barred by limitations.
In reaching its conclusion, however, the Committee is relying upon the facts as you have presented them and, specifically, your reference to matters being “arguably” time-barred. In that regard, this Committee would have significant concerns and may well reach the opposite conclusion on your inquiry if your office, as a matter of customary practice, systematically and deliberately initiated such actions in cases obviously barred by limitations, or if your office intentionally deferred the initiation of proceedings on parking infractions (which, the Committee is aware, typically provide for escalating fees) particularly in matters where the defendants are likely to be pro se litigants. Under such circumstances, this Committee may well conclude that such a practice or such conscious decisions raise concerns under Rule 8.4(d) of the Maryland Rules of Professional Conduct. Your inquiry is one earmarked by particular sensitivity, in our view, because of the special trust invested in your office as the County’s Office of Law. Cf. Rule 3.8 of the Maryland Rules of Professional Conduct. Special Responsibilities of a Prosecutor. The Committee recommends, therefore, in order to avoid such a situation, that your office consider adopting a policy, as a matter of professionalism, which prohibits pursuit of any actions that are known to be time-barred.
The Committee trusts that you will find this answer responsive to your inquiry, and we thank you for requesting the assistance of this Committee. Our opinions may be obtained on-line at www.msba.org.