PROFESSIONAL ETHICAL RULES GOVERNING
LAWYERS’ LYING, E.G., IN NEGOTIATIONS

Michael Sean Quinn, Ph.D, J.D., Etc.


Quinn & Quinn
2630 Exposition Blvd  #115

Austin, Texas 78703

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To what extent, if any is what I have written here at variance with what else I have written on lawyers and lying.  Hint: There are a couple of blogs on these matters recently. 

Most of these rules regard the relationship between lawyers (Ls) and their clients (Cs).  Of course, this is the main body of the ethical rules.  This relationship is not the only topic of those rules.
1.   “As negotiator, a lawyer seeks a result
advantageous to the client but consistent with requirements of
honest
dealing
with others.” (ABA, Preamble [2](Some of the citations are to the ABA Modes Rules; some of them are to the Texas Rules.) [End note [i]]
2. A lawyer may not knowingly
counsel a client to or assist a client in committing a crime or fraud,
although a lawyer may advise a client as to the probable consequences of such a
contemplated action. (A-1.2(d), T-1.02(c). 
Both systems of rules define the term “knowingly” the same way, but they
define the word “fraud” slightly differently, although both definitions of
their “fraud”-definitions involve the idea and the language of  “purpose to deceive.”)
3.  A lawyer shall reasonably consult with his/her
client about the means by which the client’s objective may be achieved.  This would include informing and explaining
to the client what a lawyer cannot do as the result of controlling law,
including the applicable ethical rules. (A-1.4(a)(2) & (4), T-1.02(f).)
4.  A lawyer may disclose confidential
information from or regarding the client when it is reasonable to accomplish
one or more of the following: to prevent the client from committing a crime or fraud,
to prevent rectify, or mitigate injury in furtherance of the lawyer’s services
when the act or activity has already begun, 
to obtain legal advice, to avoid criminal or ethical charges against the
lawyer, to deal with a lawsuit between the lawyer and client. (A-1.6(b)(2)-(5),
T-1.0(4)-(7).)  The rules are worded
somewhat differently and applications may differ a bit.  The fore going tried to capture both of them,
but tends more toward the ABA
rule.)
I am tired of using the words “lawyer,”
attorney,” and “client” to summarize and paraphrase the rules. I will therefore switch to “L’ and “C.”

5.  L shall (= must = is obligated to)
withdraw from representing C, if L’s continued representation of C would result
in L’s violating the Rules of Professional Conduct or some other law, e.g., law
forbidding fraud.  (A-1.16(a)(1).)[ii]
6. L may
withdraw if C persists in conduct which L has characterized to C as involving
crime or fraud and has (at least thereby) advised not to perform or
quite performing (A-1.16(b)(2)), or if L has advised C regarding the criminal
or fraudulent character of his contemplated conduct,  and C goes forward anyway  (A-1.16(b)(3).) [For the purposes of this discussion Item #5 is vastly more significant
than Item #6.]

7. L shall not
knowingly “make a false statement of fact or law to a tribunal or fail
to correct a false statement of material fact or law previously made to the
tribunal by” L. (A-3.3(a)(1), T-3.03(a)(1) & 3,03(B). The A-rule and the
T-rule are different when it comes to correcting past errors; the former covers
corrections with respect to both fact and law, while the latter covers only
facts.)
8.  L shall not knowingly offer evidence L knows
to be false
, and if has done so, he will correct the error upon
learning the truth. (A-3.3(a)(3), (T-3.03(a)(5)-(b).) Knowledge and knowing are deeper and can be closer to certainty than even reasonable belief. 
9.  If L is representing C in an adjudicative
proceeding, and L knows that C was, is or intends to engage in criminal or fraudulent
conduct related to the proceeding, then L “shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.” (A-3.3(b); the
T-rules have no independent or equivalent or analogue to 3.3 (b) in  T-3.03(b).) 
10. “In the
course of representing [C, L] 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 [C], unless disclosure is prohibited by Rule
1.6.” (A-4.1. T-4.01(a) is the same and A-4.1(a).[iii])
Comment [2] to
the A-rule reads as follows:  “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 ordinary in this category, and so is the existence of
an undisclosed principal except where nondisclosure of the principal would
constitute fraud.[iv]
11.  If L1 knows that L2 has
violated the applicable rules of professional conduct and if that violation
“raises a substantial question about [L2]’s honesty,
trustworthiness
, or fitness as a lawyer in other respects, [L1}
shall inform the appropriate [professional/disciplinary] authority. (A-8.3,
T-8.03.)
12.  It is professional misconduct, so no  L shall violate the ethical rules or either
induce or assist someone else to do so, nor shall L commit [T: any “serious”]
criminal acts [or any at all] that reflect adversely upon L’s “honesty,
trustworthiness,
or fitness”; of “engage in conduct involving dishonesty,
fraud, deceit or misrepresentations[.] 
(A-8.4(a)-(c), T-8.04(a)(1)-(3).)



[i]
Citations will hereinafter be abbreviated by 
“A-“ for rules, etc., of the ABA, Model Rules of Pro- fessional Conduct
and “T-“ for the Texas Disciplinary Rules of Professional
Conduct. 
All of the “underlinings” in this list are mine, and they emphasize fraud, since that is more or less the
focus of this presentation.
[ii] This
rule is related to the “Misconduct” rules in 
Rule 8.4.
[iii]
The T-rule is different when it comes of §(b). 
Here is how T reads: 4.04(b): “fail to disclose a material fact to a
third person when disclosure is necessary to avoid making [L] a party to a
criminal act or knowingly assisting a fraudulent act perpetrated by [C].”  This is different from A-4.1(b): (1) the
A-rule talks about “assisting” the T-rule talks about being a “party.” (2) The
A-rule except disclosures prohibited by A-1.6, which prohibits the disclosure
of lots of confidential information, whereas the T-rule contains no such
exception.  Question: Why is law included
in both sections (a) but left out of both sections (b)?
[iv] The
T-Comment is almost the same.  As to a
party’s intention regarding settlement, the T-Comment #1 reads slightly
different: “a party’s supposed intentions as to an acceptable settlement of a
claim may be viewed merely as negotiating positions rather than as accurate
representations of material fact.”

Originally posted on 07/01/2014 @ 7:29 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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