Counsel’s Duty of Candor to a Client: It’s Time for a Model Rule

Vol. 22 No. 3

By

Raymond J. McKoski is a retired circuit court judge from Lake County, Illinois. He currently serves as an adjunct professor at The John Marshall Law School, in Chicago.

Introduction1

As fiduciaries, lawyers owe their clients the duties of candor, honesty, and truthfulness. Because of the “sacred nature” of the attorney-client relationship2 and the special power that lawyers possess as officers of the court,3 these duties are cast in absolute terms. Thus, counsel’s obligation is one of “absolute and perfect candor or openness and honesty,” without “any concealment or deception, however slight.”4 This fundamental requirement of “truth-speaking”5 forms the foundation for the court’s authority to compel lawyers to act honestly toward their clients.6

Logic dictates that the duty to communicate truthfully with clients would find clear expression in the Model Rules of Professional Conduct (Model Rules). But it doesn’t. This omission is especially glaring in light of the fact that the Model Rules take special care to declare and define a lawyer’s duty of truthfulness to the other constituents of the legal system, including (1) tribunals,7 (2) third persons encountered in the course of representing a client,8 (3) attorney admission and disciplinary bodies,9 (4) former jurors,10 (5) targets of lawyer advertising,11 and (6) recipients of a lawyer’s comments about the integrity or qualifications of a judge.12

While protecting non-client participants in the legal system is certainly an important purpose of professional conduct codes, an equally important purpose is the protection of clients.13 Even a cursory review of the Model Rules demonstrates the care the Rules take in carrying out this client-protection mission. The Model Rules safeguard a client’s property14 and protect against unreasonable fees and expenses.15 Clients are expressly protected from a lawyer’s overreaching in matters of (1) sexual advances,16 (2) business transactions,17 (3) gift solicitations,18 (4) obtaining literary rights,19 and (5) the settlement of malpractice claims.20 Rule 1.6 prohibits the disclosure of information relating to a client regardless of the source or public nature of the information.21 Multiple rules guarantee a client’s right to counsel’s undivided loyalty.22 The Model Rules even protect a litigant from false statements of material fact uttered by an opponent’s attorney.23 But no comparable rule protects a client from lies by his own lawyer. It seems incontrovertible that a rule barring false communications to a client is just as important as a rule safeguarding a client’s property, or a rule addressing a lawyer’s overreaching, or a rule protecting a litigant from an opposing attorney’s lies.

For too long, the legal profession has treated the lawyer’s duty of candor to a client as a “nonissue.”24 Unfortunately, it is an issue, and an issue that demands the same level of attention that the profession affords to a lawyer’s obligation of truthfulness to third persons. In support of a call for a Model Rule declaring and defining a lawyer’s duty of candor to a client, this essay first surveys the Model Rules that mandate candor to non-clients. Second, the essay recounts the obscure and indirect references in the rules to the duty of candor owed to clients. Next, Rule 8.4(c), which prohibits acts of dishonesty, fraud, deceit, and misrepresentation, is examined and found to be a woefully inadequate substitute for a specific rule ensuring a lawyer’s truthful communications with a client. Finally, the essay presents several ways in which to fashion a Model Rule announcing a lawyer’s duty of candor to a client.

A Lawyer’s Duty of Candor to Non-Clients

Because “fundamental honesty is the base line and mandatory requirement to serve in the legal profession,” the Model Rules are replete with provisions detailing a lawyer’s duty of candor to others.25 The long-standing obligation of candor to the court is acknowledged in Rule 3.3(a), which prohibits a lawyer from knowingly presenting false evidence or knowingly making a false statement, regardless of its materiality, to a tribunal.26 Rule 4.1 ensures candor in a lawyer’s professional dealings with others by barring a lawyer from making false statements of material fact or law in the course of representing a client.27 The duty of candor imposed by Rule 4.1 extends to everyone counsel deals with on a client’s behalf, including witnesses, adverse parties, and lawyers,28 but does not include communications by an attorney to a client.29

Rule 8.1, which governs bar admission and attorney discipline, emphatically imposes an “unusually stringent duty” of truthfulness on applicants and lawyers who provide information to admission authorities.30 This heightened duty of truthfulness should come as no surprise because the “good moral character” necessary for entry into the legal profession includes the traits of honesty, truthfulness, and trustworthiness.31 Demanding these qualities in the application process helps achieve one goal of the screening process—shielding clients from lawyer misrepresentations.32 Rule 8.1 also demands this same stringent duty of honesty by lawyers in communications with state disciplinary bodies.

Former jurors are specifically protected against false statements by lawyers. Rule 3.5 prohibits any communication with a discharged juror or discharged prospective juror if the communication involves a misrepresentation by the lawyer.33 In at least two situations, the Model Rules protect members of the public from a lawyer’s false or misleading statements. First, Rules 7.1 and 7.2 prohibit deceptive advertising by proscribing communications about a lawyer or a lawyer’s services that include a material misrepresentation.34 Second, Rule 8.2(a) protects the public from false or reckless statements by lawyers that impugn the qualifications or integrity of a judge, judicial candidate, other adjudicatory officer, or a public legal officer such as a public defender.35

In sum, the Model Rules very precisely declare and define a lawyer’s duty of candor to all of the legal system’s constituents and potential constituents, except for a lawyer’s clients.

The Model Rules and the Duty of Candor to Clients

The Model Rules fail to include a provision setting forth a lawyer’s duty of truthfulness to a client comparable to the rules specifically delineating counsel’s duty of candor to the courts, third persons, admission and disciplinary authorities, former jurors, and the public. The few references to a lawyer’s obligation of honesty, candor, or truthfulness to clients that appear in the Model Rules are obscure and inconsequential.

Rule 2.1 obligates a lawyer to render “candid advice” while serving as an advisor to a client.36 Why the Rule only demands candor in communications that may be classified as “advice” and does not set that same standard for all communications by an advising lawyer is left unstated. Similarly, Rule 2.1 does not explain why it requires candor when an attorney acts as an advisor but not when an attorney acts in the professional capacity of advocate, negotiator, or evaluator.37 Requiring candid advice appears to be nothing more than a reiteration of a provision in Canon 8 of the 1908 Canons of Professional Ethics that held counsel “bound to give a candid opinion on the merits and probable result of pending or contemplated litigation.”38

Rule 1.4, which governs a lawyer’s duty to reasonably and effectively communicate with a client, does not explicitly require that honesty, candor, or truthfulness attach to those communications.39 In fact, the rule impliedly allows less than complete candor because it permits a lawyer to deceive a client by withholding information if the information would likely cause the client “to react imprudently.” 40 Illustrating this provision, Comment 7 explains that withholding a psychiatric diagnosis from a client might be justified if sharing the diagnosis would harm the client.41 Some jurisdictions also interpret Comment 7 to permit deception for “humanitarian reasons.”42 Thus, a lawyer in the District of Columbia may withhold upsetting information from a terminally ill client,43 while a lawyer serving as a guardian ad litem in Wyoming may withhold information from her ward if it is in the ward’s best interest to do so.44 In effect, Comment 7 creates an exception to an unstated general rule requiring truthfulness in communications to clients. Rule 1.4 needs to expressly declare that overarching duty of candor and define its parameters.45

Rule 8.4(c) and the Duty of Candor to Clients

Some might question the need for a Model Rule announcing a lawyer’s duty of truthfulness to a client, in light of the fact that Rule 8.4(c) defines professional misconduct to include acts of “dishonesty, fraud, deceit, and misrepresentation” directed toward anyone, including clients.46 This argument, however, unavoidably suggests that the specific Model Rules prohibiting false statements by a lawyer to other participants in the legal process are also unnecessary because Rule 8.4(c)’s protection extends to judges, third persons, members of admission and disciplinary boards, former jurors, and the public. Relying on Rule 8.4(c) to protect clients is also problematic because little consensus exits as to the prerequisites for invoking subsection (c).

Rule 8.4(c): One Size Doesn’t Fit All

The ABA Commission on the Evaluation of Professional Standards (Kutak Commission) did not include Rule 8.4(c) in the draft set of Model Rules that it submitted to the ABA House of Delegates in August, 1982.47 The Kutak Commission believed that the provision, which had been included as DR 1-102(a)(4) in the Model Code of Professional Responsibility, suffered from (1) vagueness, (2) overbreath, (3) redundancy, and (4) the lack of a clearly stated purpose.48 The Iowa State Bar Association disagreed and proposed an amendment to Rule 8.4 adding the current language of subsection (c). The ABA House of Delegates adopted the amendment by a voice vote without opposition from the Kutak Commission.49

Rule 8.4(c) prohibits dishonesty, deceit, fraud, and misrepresentation toward a client, not because the Rule was designed with clients in mind, but because its “sparse and unqualified language”50 affords protection for “the world at large.”51 Thus, Rule 8.4(c) bars dishonesty, fraud, deceit, and misrepresentation toward most everyone including, for example, the creditors of a lawyer or client, a travel agent, members of a lawyer’s firm, members of a lawyer’s wife’s firm, lenders, police, and the grand jury.52

But some individuals and organizations encompassed within the protective sphere of Rule 8.4(c) have been deemed worthy of special and additional protection against a lawyer’s lies. Accordingly, Rule 3.3 declares the duty of candor to tribunals notwithstanding the fact that acts of dishonesty, deceit, fraud, and misrepresentation directed toward the court can be disciplined under Rule 8.4(c).53 Similarly, the fact that Rule 8.4(c) provides a basis for charging lawyers who lie to attorney admission and disciplinary authorities did not prevent the ABA from enacting Rule 8.1 which expressly establishes a duty of candor to such bodies.54 The duty of candor toward opposing parties, attorneys, and witnesses warrants a separate and definitive prohibition against material misrepresentations to third persons. That declaration is found in Rule 4.1(a), even though Rule 8.4(c) protects the same individuals from a lawyer’s lies.55 And no one would argue that the protection afforded by Rules 7.1 and 7.2 against deceptive advertising should be deleted simply because the same misconduct can be prosecuted under Rule 8.4(c).56 Rule 8.2 specifically bars a lawyer from knowingly or recklessly uttering a false statement concerning the qualifications or integrity of a judge. Why is this protection offered when Rule 8.4(c)’s catch-all language also encompasses this type of false statement? 57 The answer is simple: the legal profession recognizes the need for a specific, explicit standard to insulate the public from inaccurate information about its judges.

It is submitted that clients are just as worthy of a specific rule defining and declaring a lawyer’s duty of candor, as tribunals, administrative and disciplinary bodies, persons encountered by a lawyer during the representation of a client, and members of the public.

Rule 8.4(c): To Each His Own Interpretation

Under Rule 8.4(c), professional misconduct includes “dishonesty, fraud, deceit, or misrepresentation.” “Fraud,” the only one of the four terms defined in the Model Rules, consists of conduct that is fraudulent under a jurisdiction’s procedural or substantive law, where the lawyer has a “purpose to deceive.”58 “Deceit,” a subcategory of fraud, expands misconduct to include “the suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.”59 As used in Rule 8.4(c), “misrepresentation” encompasses fraudulent and deceitful statements and further includes “statement[s] made by a party that a thing is in fact a particular way when it is not so.”60 “Dishonesty” includes fraud, deceit, and misrepresentation, but goes further to proscribe any conduct evidencing a lack of honesty, probity, integrity, fairness, or straightforwardness.61

Because the origin and purpose of Rule 8.4 are unclear,62 and because it “proscribe[s] a broad universe of mis-behavior,”63 the rule has been subject to varying and inconsistent interpretations. Many courts hold that a false statement violates Rule 8.4(c) only when knowingly made,64 while others find a reckless disregard for the truth or falsity of a statement sufficient,65 while still other jurisdictions find gross negligence sufficient to impose discipline under Rule 8.4(c).66 A few states discipline lawyers for negligently violating Rule 8.4(c).67

Nor is there agreement as to the relevance of a lawyer’s motive for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. North Dakota finds that a disciplinary proceeding brought pursuant to Rule 8.4(c) does not require proof of “an evil intent or bad purpose.”68 On the other hand, Oklahoma lawyers cannot be found in violation of Rule 8.4(c) unless “an underlying motive, such as bad or evil intent” accompanies their conduct.69 Materiality is another open question. Although Rule 8.4(c) contains no mention of materiality,70 some courts have read a materiality requirement into the provision.71

Finally, some courts and ethics advisory committees severely limit the scope of Rule 8.4(c) to encompass only conduct “so egregious that it indicates that the lawyer charged lacks the moral character to practice law.”72 The view of a former chair of the ABA Standing Committee on Ethics and Professional Responsibility buttresses this interpretation:

[Rule 8.4(c)] should apply only to grave misconduct that would not only be generally reproved if committed by anyone, whether lawyer or nonlawyer, but would be considered of such gravity as to raise questions as to a person’s fitness to be a lawyer.73

The point is not that one interpretation of Rule 8.4(c) is superior to another. The point is that subsection (c) is a poor substitute for a specific Model Rule governing candor toward a client. This is so for several reasons. First, it is unclear what mental state is necessary to violate Rule 8.4(c). Second, subsection (c) has not received a uniform interpretation as to whether the misrepresentation or dishonesty must be to a material matter. Finally, some courts and advisory committees limit the Rule’s application to conduct so grave as to call into question a lawyer’s moral fitness to practice law, thereby discounting the fiduciary responsibilities of a lawyer to a client. A simple rule defining a lawyer’s duty of candor to a client would resolve these troublesome issues.

Fashioning a Model Rule

The most challenging aspect of drafting a rule ensuring candor in communications by a lawyer to a client is defining the scope of the duty. Should the rule require complete truthfulness or should the duty of truthfulness be limited to material matters.

Several factors militate in favor of requiring truthfulness in all communications regardless of materiality. First, the fiduciary relationship between lawyer and client demands absolute and perfect candor and honesty in dealing with a client.74 Second, requiring truthfulness only in material statements would place a lawyer’s own client on a par with opposing parties and attorneys, witnesses, and others with whom the lawyer has no fiduciary responsibility. The fiduciary relationship with a client should create a duty of complete truthfulness just as a lawyer’s status as an officer of the court mandates complete truthfulness to judges. Third, as noted by Professors Hazard and Hodes, “A rule flatly prohibiting all falsehoods is easier to understand, easier to obey, and easier to administer.”75 Finally, it might be difficult to explain to the public why a Model Rule permits lawyers to lie to their clients on “immaterial” matters.

Assuming a consensus in favor of barring all false statements regardless of materiality, a provision embodying that principle could easily be added as subsection (c) to Rule 1.4 which governs communications with a client. New subsection (c) could be patterned after Comment e of Section 16 of the Restatement (Third) of the Law Governing Lawyers and provide: A lawyer shall not knowingly make a false statement to a client and shall make disclosures to a client necessary to avoid misleading a client.76

If the legal profession prefers, a rule announcing a duty of truthfulness to clients could be limited to statements of material fact or law. In that case, new subsection (c) of Rule 1.4 would provide: A lawyer shall not knowingly make a false statement of material fact or law to a client and shall make disclosures to a client to avoid materially misleading the client.77

As a third alternative, a client candor provision could be borrowed from the Canada Bar Association Code of Professional Conduct.78 Focusing on the intent of the lawyer who makes a false statement or conceals a fact, the Canadian Code prohibits a lawyer from “making an untrue representation or concealing a material fact from a client, with a dishonest or improper motive.”79

Conclusion

The ABA Annotated Model Rules of Professional Conduct states the obvious: “A lawyer may not mislead or lie to a client.”80 That proscription is of sufficient importance to be placed in the Model Rules, to join the specific rules mandating truthfulness by lawyers in their dealings with courts; admission and disciplinary bodies; opposing parties, counsel, witnesses, and other constituents of the legal system; and the public.

Endnotes

1. This essay expands on concepts addressed in the author’s article, The Truth Be Told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client, 99 Iowa L. Rev. Bull. 73 (2014), available at http://ssrn.com/abstract=2419494.

2. Hannon v. State, 266 So. 2d 825, 829 (Ala. Crim. App. 1972) (“The relationship of attorney and client is one of the most sacred relationships known to the law . . . .”).

3. Abbott v. Chesley, 413 S.W.3d 589, 600 (Ky. 2013) (quoting Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky. Ct. App. 1978)).

4. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 820 (Iowa 2007); Disciplinary Counsel v. Parnoff, CV 126031943S, 2013 WL 5614736, at *6 (Conn. Sup. Ct. Sept. 19, 2013) (“[T]he fiduciary relationship between an attorney and a client requires ‘absolute perfect candor, openness and honesty, and the absence of any concealment or deception.’”) (quoting Disciplinary Counsel v. Smigelski, 4 A.3d 336, 342 (Conn. App. Ct. 2010); ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 92-364 (1992).

5. Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 247 (1957) (Frankfurter, J., concurring).

6. See Ex parte Wall, 107 U.S. 265, 273 (1883) (“[A] court has power to exercise a summary jurisdiction over its attorneys to compel them to act honestly towards their clients . . . .”).

7. Model Rules of Prof’l Conduct R. 3.3 (2013).

8. Id. at R. 4.1.

9. Id. at R. 8.1.

10. Id. at R. 3.5(c)(3).

11. Id. at R.7.1 & 7.2.

12. Id. at R. 8.2(a).

13. Laurel S. Terry, Steve Mark & Tahlia Gordon, Adopting Regulatory Objectives for the Legal Profession, 80 Fordham L. Rev. 2685, 2734 (2012) (“Client protection is almost universally recognized as one of the key reasons why lawyer regulation exists.”).

14. Model Rules of Prof’l Conduct R. 1.15 (2013).

15. Id. at R. 1.5.

16. Id. at R. 1.8(j).

17. Id. at R. 1.8(a).

18. Id. at R. 1.8(c).

19. Id. at R. I.8(d).

20. Id. at R. 1.8(h).

21. Id. at R. 1.6(a) cmt. 3.

22. See, e.g., R. 1.7, R. 1.8, R. 1.9, R.1.10.

23. Id. at R. 4.1 (“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.”).

24. Lisa G. Lerman, Lying to Clients, 138 U. Pa. L. Rev. 659, 696 (1990).

25. Comm. on Prof’l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990).

26. Model Rules of Prof’l Conduct R. 3.3(a)(1)(3) (2013).

27. Id. at R. 4.1(a).

28. Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility § 4.1-2 (2013-2014 ed.) (“[Rule 4.1] covers statements made to all third persons such as opposing parties or their counsel in the course of a representation.”); Miss. Bar v. Attorney ST, 621 So. 2d 229, 233 (Miss. 1993) (finding a violation of Rule 4.1 when an attorney falsely advised a witness that he was not recording a conversation with the witness).

29. See Annotated Model Rules of professional Conduct 384 (2007) (“Rule 4.1 is not applicable to what a lawyer says to a client.”).

30. 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 61.2, at 61-3, 4 (3d ed. 2008 Supp.).

31. See In re Dortch, 860 A.2d 346, 355 (D.C. 2004); In re Menna, 905 P.2d 944, 948 (Cal. 1995).

32. See Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 508 (1985).

33. Model Rules of Prof’l Conduct R. 3.5(c)(3) (2013) (“A lawyer shall not . . . communicate with a juror or prospective juror after discharge of the jury if . . . the communication involves misrepresentation, coercion, duress or harassment.”).

34. Id. at R.7.1 & R.7.2; see also infra note 46 (describing the application of Rules 7.1 and 7.2).

35. Id. at R. 8.2(a).

36. Id. at R. 2.1. Comment 1 to Rule 2.1 further suggests that in order to maintain a client’s morale the candid advice may be phrased “in as acceptable a form as honesty permits.” Id. at cmt. 1.

37. Id. Preamble ¶ 2 (classifying a lawyer’s representational roles as that of advisor, advocate, negotiator, and evaluator).

38. Canons of Prof’l Ethics Canon 8 (1908).

39. Model Rules of Prof’l Conduct R. 1.4 (2013).

40. Id. at R. 1.4 cmt. 7 (”In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.”).

41. Id.

42. D.C. Model rules of Prof’l Conduct R. 1.4 cmt. 5 (2013).

43. Id.

44. Wyo. Rules of Prof’l Conduct R. 1.4 cmt. 8 (2013) (“A lawyer appointed to act as a guardian ad litem may withhold information when the attorney reasonably believes that communication of the information to the individual would not be in the individual’s best interests.”).

45. See infra notes 75-78 and accompanying text.

46. Model Rules of Prof’l Conduct R. 8.4(c) (2013). On its face, Rule 7.1 would also appear to provide some protection against false statements by lawyers to their clients by prohibiting “false or misleading communications about the lawyer or the lawyer’s services.” Model Rules of Prof’l Conduct R. 7.1 (2013). But as a practical matter courts apply Rule 7.1 in conjunction with Rule 7.2 almost exclusively to insulate the public from misleading advertisements. See Hunter v. Va. State Bar ex rel. Third Dist., 744 S.E.2d 611, 623-24 (Va. 2013) (Lemons, J., dissenting in part) (“The purposes of Rules 7.1 and 7.2 are to protect the public from misleading communications and advertisements concerning a lawyer’s services.”); Annotated Model Rules of Professional Conduct 515-520 (2007) (citing numerous cases applying Rule 7.1 to lawyer advertisements). It is rare to find a case applying Rule 7.1 outside the advertising context. But see In re Winstead, 69 A.3d 390, 398 (D.C. 2013) (finding a violation of Rule 7.1 where a lawyer falsely stated in a retainer agreement that he was licensed and maintained an office in Maryland).

47. 2 Hazard, supra note 30 § 65.5, at 65-11.

48. Id.

49. A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005, at 808 (2006).

50. 2 Hazard, supra note 30 § 65.5, at 65-11.

51. Annotated Model Rules of Professional Conduct 587 (2007).

52. See, e.g., Attorney Grievance Comm’n v. Friedman, 87 A.3d 1225, 1228 (Md. 2014) (lawyer’s creditors); In re Kaplan, 976 N.Y.S.2d 461, 462-63 (App. Div. 2013) (client’s creditors); Fla. Bar v. Schultz, 712 So. 2d 386, 386-87 (Fla. 1998) (travel agent); In re Strouse, 34 A.3d 329, 331-33 (Vt. 2011) (lawyer’s firm’s client); Lawyer Disciplinary Bd. v. Markins, 663 S.E.2d 614, 615-16 (W. Va. 2008) (lawyer’s wife’s firm); Attorney Grievance Comm’n v. Coppock, 69 A.3d 1092, 1100-1102 (Md. 2013) (lender); In re Mintz, 317 P.3d 756, 761-62 (Kan. 2014) (police); In re Kline, 311 P.3d 321, 380-84 (Kan. 2013) (grand jury).

53. See Attorney Grievance Comm’n v. Berry, 85 A.3d 207, 229 (Md. 2014) (finding that an attorney’s false statement to a court violated Rule 8.4(c)); Lawyer Disciplinary Bd. v. Busch, 754 S.E.2d 729, 739 (W.Va. 2014) (finding a violation of Rule 8.4(c) based upon a prosecutor’s false representation of fact to a court); see also Annotated Model Rules of Professional Conduct 585 (2007).

54. In re Verma, 691 N.E.2d 1211, 1213 (Ind. 1998) (finding that false statements in support of an application for admission to the bar violates both Rule 8.1(a) and Rule 8.4(c)); In re Thalasinos, 981 N.Y.S.2d 714, 714, 718 (App. Div. 2014) (confirming hearing panel’s finding that an attorney violated Rule 8.4(c) by making a false statement in answer to a disciplinary complaint).

55. See Annotated Model Rules of Professional Conduct 586 (2007) (“A lawyer can violate Rule 8.4(c) by deceiving an adverse party or opposing counsel.”).

56. See, e.g., In re Cole, 738 N.E.2d 1035, 1036-37 (Ind. 2000) (finding that misleading advertisements violate Rules 7.1 and 8.4(c)).

57. See Attorney Grievance Comm’n v. Frost, 85 A.3d 264, 278-79 (Md. 2014) (finding that unfounded attacks on the integrity of judges violates Rule 8.4(c)).

58. Model Rules of Prof’l Conduct R. 1.0(d) (2013).

59. In re Shorter, 570 A.2d 760, 768 n.12 (D.C. 1990) (quoting 26 C.J.S. Deceit (1956)).

60. Id. (quoting 58 C.J.S. Misrepresentation (1948)).

61. Id. at 767-68 (quoting Tucker v. Lower, 434 P.2d 320, 324 (1967)); Attorney Grievance Comm’n v. McDonald, 85 A.3d 117, 140 (Md. 2014).

62. 2 Hazard supra note 30 § 65-5, at 65-11.

63. McDonald, 85 A.3d at 140.

64. In re Skagen, 149 P.3d 1171, 1184 (Ore. 2006) (requiring that a misrepresentation or dishonest act be committed knowingly); Fla. Bar v. Mogil, 763 So. 2d 303, 309-10 (Fla. 2000) (“[T]his Court has held that ‘[i]n order to find that an attorney acted with dishonesty, misrepresentation, deceit, or fraud, the Bar must show the necessary element of intent,’ and that ‘in order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing.’”) (quoting Fla. Bar v. Fredericks, 731 So. 2d 1249, 1252 (Fla.1999)).

65. In re Ukwu, 926 A.2d 1106, 1113-14 (D.C. 2007) (“[E]ven if Respondent’s conduct was in reckless disregard of the truth rather than specifically intended to deceive . . . he would have violated Rule 8.4(c).”); Iowa Supreme Court Attorney Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 818 (Iowa 2007) (finding that reckless disregard for the truth warranted discipline under Iowa DR 1-102(A)(4)); Office of Disciplinary Counsel v. Surrick, 749 A.2d 441, 445 (Pa. 2000) (applying Rule 8.4(c) “to misstatements made with reckless disregard for the truth or falsity thereof”).

66. E.g., Walker v. Supreme Court Comm. on Prof’l Conduct, 246 S.W.3d 418, 424 (Ark. 2007) (finding gross negligence sufficient to violate Rule 8.4(c)).

67. E.g., In re Doughty, 832 A.2d 724, 735 (Del. 2013) (“[W]e hold that a negligent misrepresentation also may form the basis for a charge of misconduct under the literal terms of DLRPC Rule 8.4(c).”).

68. In re Edison, 724 N.W.2d 579, 584 (N.D. 2006).

69. State ex rel. Okla. Bar Ass’n v. Wilcox, 318 P.3d 1114, 1125 (Okla. 2014).

70. Apple Corps Ltd. v. Int’l Collectors Soc’y, 15 F. Supp. 2d 456, 475 (D.N.J. 1998) (“[Rule] 8.4(c) is not by its terms limited only to material misrepresentations.”).

71. Id. at 475-74; In re Skagen, 149 P.3d 1171, 1184 (Ore. 2006) (finding that DR 1-102(A)(3) requires proof of materiality to sustain a finding of misrepresentation or dishonesty).

72. In re PRB Docket No. 2007-046, 989 A.2d 523, 528 (Vt. 2009); Utah State Bar Ethics Advisory Comm., Op. 02-05 (2002) (“In our view, Rule 8.4(c) was intended to make subject to professional discipline only illegal conduct by a lawyer that brings into question the lawyer’s fitness to practice law.”).

73. David B. Isbell & Lucantonio N. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testors: An Analysis of the Provisions Prohibiting Misrepresentation Under the Model Rules of Professional Conduct, 8 Geo. J. Legal Ethics 791, 817 (1995).

74. See supra notes 2-4 and accompanying text.

75. 2 Hazard, supra note 30 § 37.3, at 37-6 (3d ed. 2004 Supp.).

76. See Restatement (Third) of the Law Governing Lawyers § 16 cmt. e (2000) (“A lawyer may not knowingly make false statements to a client and must make disclosures to a client necessary to avoid misleading the client.”).

77. See Raymond J. McKoski, The Truth Be Told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client, 99 Iowa L. Rev. Bull. 73, 83 (2014).

78. Canadian Bar Ass’n Code of prof’l Conduct (2009), available at http://www.cba.org/CBA/activities/pdf/codeofconduct.pdf.

79. Id. at Ch. 1 cmt. 5(c).

80. Annotated Model Rules of Professional Conduct 584 (6th ed. 2007).

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