Must a lawyer who substantively rewrites a release sent by opposing counsel point out the changes before returning the signed document?

Plain-English summary

In a FELA settlement, the railroad's lawyer sent plaintiff's counsel (Lawyer A) a general release of all claims plus the settlement check, asking that the client sign the release and return it before the check was negotiated. The client had an unrelated, unreported potential claim. Lawyer A had the release retyped to drop the general "all claims" language and limit it to the pending claim, then returned the revised document without comment. The railroad's lawyer discovered the change and accused Lawyer A of misconduct.

The opinion concluded there was no impropriety in narrowing the release itself, because there had never been a "meeting of the minds" that the client would release all claims, and no explicit agreement to a general release. But having substantially changed the character of the document, the opinion held, Lawyer A had a duty to notify opposing counsel of the changes, consistent with the philosophy of Rule 4.1 (truthfulness in statements to others), and noted that disclosure could be made without breaching the duty of confidentiality about the undisclosed claim.

The opinion further reasoned that Rule 8.4(a)(4) bars conduct involving dishonesty, fraud, deceit, or misrepresentation. While it was debatable whether silence was "fraud," Lawyer A's failure to flag the changes appeared calculated to make opposing counsel believe the returned form was unchanged. Citing the Seventh Circuit's Standards for Professional Conduct (which direct counsel to identify changes between drafts), the opinion concluded that failing to flag such substantive changes is at the least "sharp practice" and may, in a proper case, constitute deceit or misrepresentation under Rule 8.4(a)(4).

Currency note

This opinion was issued in 1996, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 4.1(a) and 8.4(a)), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer narrow a release sent by the other side before signing it?

A: The opinion concluded yes; because there was no meeting of the minds on a general release, narrowing the document to the pending claim was not itself improper.

Q: Must the lawyer tell opposing counsel about the change?

A: Yes. The opinion held that after substantially changing the document, the lawyer had a duty to notify opposing counsel of the changes, consistent with Rule 4.1, and that doing so would not breach confidentiality about the undisclosed claim.

Q: What rule does silently returning the altered document implicate?

A: The opinion concluded that returning the changed release without flagging it may constitute conduct involving deceit or misrepresentation under Rule 8.4(a)(4), and is at least "sharp practice."

Background and rules framework

The opinion interpreted Illinois Rule 4.1 (truthfulness in statements to others; Model Rule 4.1) and Rule 8.4(a)(4) (misconduct involving dishonesty, fraud, deceit, or misrepresentation; Model Rule 8.4(c)). It drew on the Seventh Circuit's Standards for Professional Conduct regarding lawyers' duties to other counsel.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.1 (truthfulness in statements to others) / Illinois Rule 4.1
• Model Rule 8.4(c) (dishonesty, fraud, deceit, misrepresentation) / Illinois Rule 8.4(a)(4)

Other references:

• Standards for Professional Conduct Within the Seventh Federal Judicial Circuit ("Lawyers' Duties to Other Counsel," No. 7)

See also

• ISBA Ethics Op. 99-03: Soliciting an Already-Represented Borrower
• ISBA Ethics Op. 99-07: Lawyer for Lender Compensated by Borrower

Source

• Landing page: https://www.isba.org/ethics/opinions/9510