CHAPTER 3 - 3-1 TRUTH-TELLING

• Jurisdiction: United States

3-1 Truth-Telling

When representing a client, a lawyer shall not make a false statement of material fact to a third person.¹ The duty of truth-telling is easy to conceptualize but can be very tricky in practice, especially in negotiations and fora where the parties understand that statements are to be "taken with a grain of salt." The commentary to the rule notes that under "generally accepted conventions" in negotiation, certain statements are understood as not to be taken as statements of material fact. These include estimates of price or value and a party's willingness to accept an offer in a certain amount.

In Statewide Grievance Committee v. Gillis a judge refused to impose discipline in a presentment case where a lawyer made demand on two different insurance companies for damages on behalf of a client who had suffered similar injuries in two different accidents.² The court found no authority for "the proposition that an attorney who represents a potential plaintiff must, especially in his preliminary contacts with an insurer, blurt out the details of all the facts that could have an adverse effect on the merits or value of his or her client's claim." The court went on to find that "(n)o one-certainly no experienced insurance adjuster-could be expected to take at face value" the claims made by counsel. Quoting from a Florida case, the court noted that "attorneys work in an adversarial setting in which the Rules of Professional Conduct do not contemplate paragons of virtue." Contra, however, see Nelson v. Charlesworth where the Appellate Court notes that an attorney's sharp tactics in violation of Rule 4.1 "contribute to the deterioration of civility and collegiality and invite the scorn of the public on the bar" and has no place in our bar.³

In Statewide Grievance Committee v. Kennelly an attorney was reprimanded for a Rule 4.1 violation when he misrepresented the amount of insurance left on a "wasting" indemnity policy.⁴ An attorney was disbarred for conduct that included affirmative misrepresentations as to whether certain funds were in his clients' funds account in violation of Rule 4.1.⁵ An attorney was disbarred for, among other rule violations, a violation of Rule 4.1 where he misrepresented his intentions with regard to amending and filing a petition in a bankruptcy matter.⁶ An attorney was disciplined when a court found that he had misrepresented to counsel and the court his clients' intentions regarding making a payment if a law day was...