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March 08, 2021

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.