Must a lawyer tell the court a divorcing wife is pregnant when a statute requires disclosing children for custody and support?

Plain-English summary

The inquiry arose under a statute requiring a divorce petition to disclose whether there were any children under the age of 16, which obligated the court to make orders for custody and support. The question was whether an attorney is guilty of unethical conduct when he knowingly withholds from the court his knowledge that the wife is pregnant.

The committee was unanimous that the information should be disclosed. A majority grounded the duty in Texas Canons 1 and 19; several members also cited American Bar Canons 1 and 15; two cited American Bar Canon 22; and two took the view that Article 4639A of the Revised Civil Statutes of Texas required disclosure regardless of any Canon. The vote was 10-0.

Currency note

This opinion was issued in 1951, 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; a lawyer's duty of candor to the tribunal is now addressed by ABA Model Rule 3.3, and the statute cited here may since have been amended or renumbered. Treat this page as historical context, not current guidance.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: Did the lawyer have to volunteer that the wife was pregnant?

A: Yes. The committee was unanimous (10-0) that the information should be disclosed and that knowingly withholding it from the divorce court was improper.

Q: Which rules did the committee rely on?

A: A majority relied on Texas Canons 1 and 19; several members added American Bar Canons 1 and 15, two cited American Bar Canon 22, and two pointed to Article 4639A of the Revised Civil Statutes as requiring disclosure regardless of any Canon.

Background and rules framework

The opinion interprets former Texas Canons 1 and 19 (the duty to the court and candor and fairness), together with the cited ABA Canons and Article 4639A of the Revised Civil Statutes, applied to a divorce case in which the statute required disclosure of children for custody and support. The modern analog is ABA Model Rule 3.3 (candor toward the tribunal).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal), as the modern analog
• Texas Canons 1 and 19, ABA Canons 1, 15, and 22

Statutes:

• Article 4639A of the Revised Civil Statutes of Texas (cited by two members as requiring disclosure)

See also

• TX Ethics Op. 47: Conflicts of Interest in a Will-Interpretation Suit
• TX Ethics Op. 39: Sham Conveyance to Encumber a Known Homestead

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-33/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_33.pdf

Original opinion text

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

QUESTION PRESENTED

Under our statute requiring that a petition disclose whether there are any children under the age of 16, making it obligatory upon the court to make such orders respecting custody and support as is best for the child or children, is an attorney guilty of unethical conduct who knowingly withholds from the court in a divorce case knowledge that the wife is pregnant?

18 Baylor L. Rev. 210 (1966)

DUTY OF ATTORNEY TO THE COURT - CANDOR AND FAIRNESS - WITHHOLDING INFORMATION
An attorney may not knowingly withhold from the court his knowledge that the wife in a divorce case is pregnant.

Canons 1, 19.

It is the unanimous opinion of the committee that this information should be disclosed. A majority of the members expressed the view that the failure to make this disclosure would be a violation of Texas Canons 1 and 19. Several were also of the opinion that failure to disclose this information would be in violation of American Bar Canons 1 and 15. Two members thought a failure to disclose this information would violate American Bar Canon 22, and two members expressed the view that Article 4639A of the Revised Civil Statutes of Texas would require this information to be disclosed regardless of any Canon. (10-0)

Tex. Comm. On Professional Ethics, Op. 33 (1951)