Ethics 2000 - February 2002 Report


In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.



[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.

Statements of Fact

[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

Crime or Fraud by Client

[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) recognizes that states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose certain information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. The requirement of If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure created by this paragraph is, however, subject to the obligations created is prohibited by Rule 1.6.

Model Rule 4.1

Reporter’s Explanation of Changes


The Commission is not recommending any change in the Rule text.


[1] This Comment is presently quite brief, and the Commission is recommending additional guidance in the form of 1) a reference to "partially true but misleading statements;" 2) substituting "omissions that are the equivalent of affirmative false statements" for the vague "failure to act;" and 3) a cross-reference to Rule 8.4.

[2] The Commission received several requests to clarify the lawyer’s obligation of candor in negotiations. The Commission is recommending the addition of the word "ordinarily" to clarify that, under some circumstances, an estimate of price or value could constitute a false statement of fact under this Rule. In addition, the Commission recommends a reference to the lawyer’s obligations under the jurisdiction’s criminal and tort law of misrepresentation.

Caption Presently the caption refers only to client fraud, whereas paragraph (b) refers to both frauds and crimes. Thus, the word "crime" has been added to the caption.

[3] The Comment has been expanded to explain that a lawyer's duty under this Rule not to assist client crime or fraud is a "specific application" of the lawyer's duty under Rule 1.2(d). It also explains the remedial measures a lawyer may be required to take to avoid assisting client crime or fraud. Disclosure is required only to the extent permitted by Rule 1.6.