Must a divorce defendant's lawyer disclose to the court an affirmative defense his client chooses not to raise, and can he use it as leverage in settlement?

Plain-English summary

A wife sued her husband for divorce on cruelty grounds. The parties did not afterward publicly live together, but during the case the husband's attorney learned of acts of intercourse between the spouses that in law constituted condonation. The husband did not wish to resist the divorce, but wanted his attorney to notify the wife's attorney of this affirmative defense, to be used as "trading matter" to secure a favorable property settlement. The inquiry asked whether the husband's attorney was bound to disclose the ground of the affirmative defense to the court, and whether he could use the threat of the condonation defense to obtain a more favorable settlement.

The Committee unanimously answered both questions in the negative and found no violation of the Canons (7-0). It reasoned that condonation is an affirmative defense that must be pleaded and proved to be used, that there is no requirement that a party use such a defense, and that it may be waived, which distinguished the situation from Opinion 33. The husband's attorney therefore did not breach any duty to the courts by failing to disclose information about the affirmative defense. In the absence of other facts indicating a lack of candor to the court, he could use the information to attempt to favorably influence settlement negotiations. The Committee cited Crittenden v. Crittenden, 214 S.W.2d 670 (Tex. Civ. App. 1948).

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer disclose to the court an affirmative defense his client chooses not to raise?

A: Under this opinion, no. The Committee held the husband's attorney did not breach any duty to the courts by failing to disclose facts constituting the unpleaded affirmative defense of condonation, which must be pleaded and proved and may be waived.

Q: Can a lawyer use an unraised affirmative defense as leverage in settlement negotiations?

A: Yes. The Committee held that, in the absence of other facts indicating a lack of candor to the court, the attorney may use the existence of the affirmative defense in an attempt to favorably influence settlement negotiations.

Q: Why didn't withholding the defense breach the duty of candor?

A: The Committee reasoned condonation is an affirmative defense that must be pleaded and proved, there is no requirement that a party use it, and it may be waived, which distinguished the situation from Opinion 33.

Background and rules framework

The opinion interprets the former Texas Canons on candor and fairness (Canons 19 and 29), as applied to a lawyer who learned of an unpleaded affirmative defense his client did not wish to raise. The Committee relied on Crittenden v. Crittenden and distinguished its earlier Opinion 33. The modern analogs are ABA Model Rule 3.3 (candor toward the tribunal) and Model Rule 4.1 (truthfulness in statements to others).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal), as the modern analog
• MR 4.1 (truthfulness in statements to others), as the modern analog
• Texas Canons 19 and 29 (former canons)

Cases:

• Crittenden v. Crittenden, 214 S.W.2d 670 (Tex. Civ. App. 1948), condonation as an affirmative defense that must be pleaded and proved

Other opinions cited:

• Texas Ethics Opinion 33: distinguished

See also

• TX Ethics Op. 226: County Attorney Interviewing a Jailed Accused
• TX Ethics Op. 233: Negotiating Over the City Attorney's Head
• TX Ethics Op. 235: Letter to a Represented Plaintiff

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-214/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_214.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Wife sues husband for divorce on grounds of cruelty. The parties do not thereafter publicly live together, but during the pendency of the divorce action the attorney for the defendant husband learns of acts of sexual intercourse between the spouses, constituting condonation in law. The defendant husband does not wish to resist the suit for divorce but does desire his attorney to notify wife's attorney of this affirmative defense, to be used as "trading matter" to secure a favorable property settlement for the husband.
Is the husband's attorney bound to disclose the ground of affirmative defense to the court?
May the husband's attorney use the threat of the affirmative defense of condonation in order to secure a more favorable property settlement than his client might otherwise be entitled to receive?

18 Baylor L. Rev. 300 (1966)

CANDOR AND FAIRNESS - WITHHOLDING INFORMATION OF AN AFFIRMATIVE DEFENSE
The lawyer representing a defendant husband in a divorce suit may properly withhold from the court facts constituting the affirmative defense of condonation.

CANDOR AND FAIRNESS - USING AFFIRMATIVE DEFENSES TO INFLUENCE NEGOTIATIONS FOR SETTLEMENT
An attorney may properly use the existence of an affirmative defense to a divorce action in an attempt to favorably influence settlement negotiations.

Canons 19, 29.

The committee is of the unanimous opinion that the questions should be answered in the negative and do not present any violation of the Canons of Ethics.

Condonation is an affirmative defense that must be pleaded and proved in order to be used. See Crittenden v. Crittenden, 214 S. W. 2d 670 (Text Civ. App. 1948). There is no requirement that a party use such a defense, and it may be waived. This aspect distinguishes the present situation from that involved in Opinion 33. Therefore, the attorney for the defendant husband does not breach any duty to the courts by failing to disclose information regarding such an affirmative defense.

In the absence of other facts indicating lack of candor to the court, the attorney may use this information in an attempt to favorably influence negotiations for settlement. (7-0.)

Tex. Comm. On Professional Ethics, Op. 214 (1958)