If a divorce lawyer learns after the judgment that the client omitted a material asset from a sworn Statement of Net Worth, must the lawyer do anything about it?
NY State Bar Ethics Opinion 1123: False Statement of Net Worth and remedial measures
Short answer: A divorce lawyer who learns that the client omitted a material asset from a sworn Statement of Net Worth must take reasonable remedial measures that remain available, even after the divorce has concluded. The duty starts with remonstrating with the client to correct the statement; if the client refuses, it can include withdrawing the lawyer's certification and the statement, and disclosing client confidences only if necessary.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
After a divorce decree and property distribution, the inquirer's client revealed an asset that was legally required to be listed in the sworn Statement of Net Worth (SNW) and was subject to equitable distribution but had been left off. The asset's value is material to the size of the marital estate, and the client now wants to use it to pay other obligations under the judgment. The lawyer asks whether the omission must be revealed.
The committee works through Rule 3.3(a)(3): a lawyer who comes to know that material evidence offered by the lawyer or the client is false must take reasonable remedial measures, including disclosure to the tribunal if necessary. The SNW, sworn under penalty of perjury and relied on by the court for equitable distribution under DRL §236, is "evidence," and the omission makes it "false." Materiality, a fact question beyond the committee's jurisdiction, is assumed met. Rule 3.3(b) may also apply if the omission was a knowing fraud on the tribunal. Critically, New York's Rule 3.3(c) omits the ABA Model Rule's phrase limiting these duties to "the conclusion of the proceeding," so (following N.Y. State 837) the duty can continue after the case ends, lasting as long as a remedial measure remains available; divorce decrees are not uncommonly reopened.
On what remediation requires, Comment [10] directs the lawyer to first confidentially remonstrate with the client, advise of the duty of candor, and seek correction. Because the proceeding has ended, withdrawing from the representation would not cure the false evidence, so the duty starts with urging the client to amend the SNW. If the client refuses, the committee identifies measures short of disclosure: under Rule 1.6(b)(3) the lawyer may withdraw a certification or representation the lawyer believes is still being relied on and was based on materially inaccurate information, and may withdraw the SNW or state it should not be relied on, which should prompt the court or the former spouse to act. Because the lawyer's knowledge came from the client and is confidential, disclosure is permitted only if "necessary"; if a reasonable measure short of disclosure exists, that course must be taken. The committee leaves the precise steps to the inquirer as fact-dependent.
In practice
Under this opinion, a New York divorce lawyer who learns the client concealed a material asset on a sworn Statement of Net Worth has a continuing duty under Rule 3.3 to take reasonable remedial measures, and that duty does not end simply because the divorce concluded; it runs as long as remediation remains possible. The lawyer begins by urging the client to correct the statement and warning that the lawyer will otherwise have to act. If the client refuses, the lawyer can take steps short of revealing confidences, such as withdrawing a certification under Rule 1.6(b)(3) or withdrawing the statement, which typically triggers follow-up by the court or the other side. Outright disclosure of confidential information is required only when no lesser reasonable remedial measure will work.
Common questions
Q: Does the duty to fix false evidence end when the case is over in New York?
A: No. New York's Rule 3.3(c) omits the ABA phrase limiting the duty to "the conclusion of the proceeding," so per N.Y. State 837 the obligation can continue after the case ends, as long as a remedial measure is still available (Opinion 1123 ¶¶ 9-11).
Q: What is the lawyer's first step on learning the client hid an asset?
A: Remonstrating with the client confidentially, advising of the duty of candor, and seeking the client's agreement to correct or withdraw the false statement (¶¶ 14, 17).
Q: Must the lawyer reveal the client's confidences to the court?
A: Only if necessary. If a reasonable remedial measure short of disclosure exists, such as withdrawing the certification or the statement under Rule 1.6(b)(3), the lawyer must take that course instead (¶¶ 15, 18).
Background and rules framework
The opinion applies Rule 3.3 (Model Rule 3.3) on candor to the tribunal, including the remedial-measures duties of Rule 3.3(a)(3) and (b) and the New York-specific scope of Rule 3.3(c), and Rule 1.6 (Model Rule 1.6) on confidentiality, in particular the Rule 1.6(b)(3) exception for withdrawing a representation based on materially inaccurate information. Rule 1.0(i) defines "fraud" and Rule 1.0(k) defines "knows."
Citations and references
Rules of Professional Conduct:
- New York Rule 3.3(a)(3), (b), (c) (Model Rule 3.3): false evidence; remedial measures; New York scope
- New York Rule 1.6(b)(3) (Model Rule 1.6): withdrawing a representation based on inaccurate information
- New York Rule 1.0(i), (k): definitions of "fraud" and "knows"
Statutes:
- N.Y. Domestic Relations Law §236: compulsory financial disclosure; sworn Statement of Net Worth
Other opinions cited:
- N.Y. State 837 (2010): New York's omission of the "conclusion of the proceeding" limit; disclosure only if necessary
- N.Y. State 781 (2004): withdrawing a false financial statement as remediation
- N.Y. City 2013-2: materiality standard and when the remedial duty ends
See also
- NY State Bar Op. 1140: Representing a testifying expert witness
- NY State Bar Op. 1194: Estate lawyer, beneficiaries, withdrawal, and fraud disclosure
- NY State Bar Op. 1126: Confidentiality owed to a prospective client
Source
- Landing page: https://nysba.org/ethics-opinion-1123/