Mark Hinderks of Stinson LLP. Courtesy photo

Dear Ethics Lawyer

This column, written by Mark Hinderks, of Stinson LLP, focuses on ethics questions. The discussion here is based on the ABA Model Rules of Professional Conduct, but the Model Rules are often adopted in different and amended versions, and interpreted in different ways in various places. Always check the rules and authorities applicable in your relevant jurisdiction—the result may be completely different.

Question: I represent a company threatened by suit. The opposing lawyer is someone I know and interact with frequently, and ordinarily is both competent and fair in his dealings. In this case, his demand letter states that in the absence of settlement, he will file a lawsuit against our client on or before July 1, the last day of the statute of limitations. I know that he has made either a counting mistake or a mistake in noting July 1 rather than June 1 and that the limitations period actually runs a month earlier, on June 1.

Am I obligated to correct his mistake, or can I simply let the time run? As a matter of professional courtesy, and to avoid creating a malpractice action against him by his client (who will be harmed by the statutory time running), may I correct him or ask him about the reason for his apparent mistake? Or does my duty to our client mandate that I stay silent and let the time run, before playing that defense for my client as a "gotcha"?