When first getting involved in a case, all lawyers check on the statute of limitations. On the plaintiff’s side, you put it on the calendar as a filing deadline to ensure a complaint is filed timely. On the defense side, we immediately check the date of filing and the date of accrual to analyze whether there is a viable motion to dismiss from the outset.
But there are other ethics issues created by statutes of limitations. And, at times, there can be significant tension between the statute of limitations and a lawyer’s obligation to conduct a prefiling investigation.
The issue is easy to define. As lawyers, we have a duty to file cases timely. We are also obliged to conduct a proper prefiling investigation and to pursue only meritorious claims and defenses. So, what happens when a lawyer is faced with a significantly compressed time frame to file a complaint, an answer, a counter-claim or third-party complaint?
The primary rules at issue are Md. Rule 1-341 and Md. Rule 19-303.1. Rule 1-341 gives a Maryland Court the ability to require an adverse party to pay costs and reasonable attorneys’ fees if the conduct of party “in maintaining or defending any proceeding was in bad faith or without substantial justification”. The rule is, in many respects, like Fed.R.Civ.Pro. 11. Similarly, under Rule 19-303.1, attorneys can only assert claims or defenses that are “not frivolous.”
The annotations to rules 1-341 and 19-303.1 identify cases in which lawyers were sanctioned for pursuing claims without merit. But, there is precious little authority in Maryland about the tension between the statute of limitations and the pre-filing investigation.
So, what are the guideposts when pressed for time to get a case filed? Can you file and ask questions later? The answer, as is often the case, is “it depends.”
The best guidance I’ve found in Maryland comes from the comments to Rule 19-303.1. Comment 2 provides that a filing is “not frivolous merely because the facts have not first been fully substantiated or because the attorney expects to develop vital evidence only by discovery.” Rather, the standard appears to be “good faith.”
The question then becomes, of course, what constitutes good faith? The tension point I see is that a lawyer often has limited information at the outset of a case and may not be able to get more, despite being pressed with the statute of limitations or some other emergent situation.
Gray v. Washington, 612 A.2d 839 (D.C. 1992), in which the D.C. Court of Appeals reversed Rule 11 sanctions against an attorney under precisely these circumstances. In Gray, the lawyer filed suit to impose a constructive trust on real estate based on his clients’ representations. Unfortunately, Gray’s clients lacked documentation of their position. However, their real property was apparently in danger, so Gray filed for a constructive trust, and he ultimately lost. Upon motion by the defense, the court levied Rule 11 sanctions against him for not seeking the documentation of his clients’ claims. On appeal, the Court of Appeals reversed, instead holding that Gray was allowed to rely upon his clients’ representations. The court thus excused his failure to obtain documents before filing because he “had to act quickly in order to respond to his clients’ predicament.”
Ford Motor Co. v. Benitez, 273 Va. 168 (2007) is another example. In Ford Motor Co., the Virginia Supreme Court upheld sanctions against counsel for asserting certain affirmative defenses in an answer for which he lacked a reasonable basis. In discovery, the plaintiff sought the factual bases for the affirmative defenses. In response, defendants stated, “Plaintiff has also failed to provide any expert disclosures to explain her theory of liability in this case. Without this information, Ford cannot say exactly which affirmative defenses it will continue to pursue.”
Thereafter, plaintiff’s counsel successfully moved to strike some of the affirmative defenses, which defense counsel admitted “were completely groundless.” Plaintiff’s counsel then moved for sanctions, which the trial court imposed. On appeal, the Virginia Supreme Court applied a standard of “objective reasonableness” and affirmed the award. In so doing, the court distinguished the present case from matters where the plaintiff employs an attorney near the deadline of the statute of limitations such that the lawyer may have no alternative to rely upon the client or one where a “defendant may come to counsel at the last minute, leaving counsel no alternative but reliance on his client’s account if a responsive pleading is to be filed in time to avoid default.”
The Ford court specifically noted that the Virginia rules allow for the liberal amendment of pleadings. Maryland’s rules are similar. Amending pleadings later in the process is the more prudent approach.
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His Legal Ethics column appears monthly in The Daily Record. He can be reached at csb@gdldlaw.com.
This article originally appeared in The Daily Record on February 5, 2026.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.
