Misrepresentation
[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 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) 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 information
relating to the representation to avoid being deemed to have assisted the
client’s crime or fraud.
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 is prohibited by Rule 1.6.
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