Lawyers often rely on their clients to provide them with information and facts to use in the course of a representation, including in litigation. While lawyers do not necessarily have an obligation early in a matter to independently verify the truthfulness of this information in all circumstances, they are obligated to comply with the Rules of Professional Conduct, which prohibit lawyers from knowingly making false statements of material fact or law to others.

Rule 4.1 of the ABA Model Rules of Professional Conduct outlines a lawyer’s obligations regarding the truthfulness of statements. Specifically, the Rule provides that “[i]n 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 to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”

The penalties for violating this rule can be severe, including disbarment. So what are a lawyer’s obligations to ensure that they are conveying true facts to others? And what happens if a lawyer was misled by a client and then made a misrepresentation of fact? Here are some tips. 

Lawyers Often Rely on Clients to Provide Facts

It is reasonable and necessary for lawyers to rely on their clients to provide them with facts and information related to a representation, especially if the facts provided appear reasonable on their face. Indeed, in most cases, lawyers will not know what events took place prior to litigation without consulting and relying on their clients.

Lawyers face risks, however, when the facts provided to them by their clients appear to be so unreasonable that asserting them in litigation could constitute a violation of Rule 11, the rules on candor, or other obligations. Pleading facts “upon information and belief” that later turn out in discovery not to be supported may not run afoul of any obligation—but there can be risk if the lawyer continues to parrot facts even after learning that those facts are unsupported. 

Although there is nothing inherently unreasonable about relying on reasonable facts provided by a client, Rule 4.1 prohibits lawyers from knowingly making false statements and misrepresentations to others in the course of litigation.

What if a Lawyer Discovers Their Client Has Been Untruthful?

This obligation to be truthful can present a tricky situation if a lawyer later discovers that they relied on a client who shared false information.

Comment [1] to Rule 4.1 provides that “[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.” If a lawyer discovers that a client made a false statement or misrepresentation that the lawyer subsequently communicated to a third party, the lawyer may have an obligation to correct the record unless the rule on client confidentiality, Rule 1.6, prohibits doing so.

Indeed, Rule 4.1(b) requires lawyers to disclose material facts to a third person “when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”

Rule 1.6 gives lawyers the ability to reveal information in certain instances, while Rule 4.1 requires the disclosure of information when the failure to disclose will assist the client in committing a criminal or fraudulent act. Taken together, a lawyer may be obligated to disclose certain information regarding criminal or fraudulent acts but may need to do so with careful consideration of the Rule 1.6 confidentiality obligations.

Is the Statement One of Fact?

Whether an attorney has an obligation to intervene to avoid assisting a criminal or fraudulent act by a client can depend on whether the attorney has failed to disclose a “material fact.” Whether the obligation is triggered often depends on the circumstances, but Comment [2] provides some helpful guidance on the Rule’s scope and what constitutes an actionable “fact.”

Comment [2] discusses specific types of statements that are not ordinarily considered statements of material fact that trigger a potential duty to provide a corrected disclosure. For example, the comment recognizes that “in negotiation, certain types of statements ordinarily are not taken as statements of material fact.” It is expected that statements that fall under the category of “puffing”—such as boasting about the strength of one’s case—are not considered “facts” regarding which an attorney must always be truthful. Other examples in Comment [2] of statements that do not constitute “facts” that warrant correction if untrue include: “[e]stimates of price or value placed on the subject of a transaction,” “a party’s intentions as to acceptable settlement of a claim,” and “the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.”

Thus, lawyers are not prohibited from zealously advocating for their clients in negotiations, but they can consider whether their tactics would constitute a false statement of material fact such that it would violate Rule 4.1.

By considering these issues, lawyers can help make sure that their practices are in line with the ethical requirements, especially when relying on clients to identify facts in support of a legal position.