Can a government agency's in-house lawyer tell opposing counsel and an administrative law judge that the agency has jurisdiction when the lawyer knows there is no factual basis for it?

Plain-English summary

The question (PEC No. 92-19) was whether a government agency's in-house lawyer violates the rules by knowingly misrepresenting to opposing counsel and an administrative law judge that a factual basis for the agency's jurisdiction exists. In the facts, a respondent's attorney challenged the agency's commencement of an administrative proceeding and asked for a delegation of authority; the agency refused to produce one but, through a supervising attorney, directed its in-house attorney to represent that jurisdiction existed. The judge denied the motion to dismiss and ruled for the agency. No delegation of authority had been issued, and the supervising attorney knew or reasonably could have known that; a delegation was later issued with retroactive effect.

The Committee concluded that representing to the administrative law judge that a factual basis for jurisdiction existed, when the attorney knew it did not, violates Rule 3.01 (a lawyer may not assert a position without a non-frivolous basis) and Rule 3.03 (a lawyer may not knowingly make a false statement of material fact to a tribunal or fail to disclose to avoid assisting a criminal or fraudulent act). It added that if the in-house lawyer did not know a delegation existed, he needed a reasonable basis to believe one did before representing jurisdiction; lacking that, he violated Rule 3.01. Knowingly making the same false statement to opposing counsel violated Rule 4.01 (truthfulness in statements to others).

The Committee concluded the supervising attorney who, knowing no basis existed, directed the in-house lawyer to make the representations violated Rule 5.01 (responsibility for a subordinate lawyer's conduct that the supervisor orders, encourages, or knowingly permits, or fails to take reasonable remedial action to mitigate). Finally, it concluded that an attorney (in-house or supervising) who believed the statements true when made but later learned they were untrue has a duty under Rule 1.02 to make reasonable efforts to persuade the client agency to take corrective action.

Currency note

This opinion was issued in 1994, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the 2009 amendments to Rule 3.03 and the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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: Can a government lawyer tell a judge there is jurisdiction when there isn't?

A: The Committee concluded that knowingly misrepresenting a factual basis for jurisdiction to a tribunal violates Rules 3.03 and 3.01, and making the same false statement to opposing counsel violates Rule 4.01.

Q: Is a supervising lawyer responsible for ordering the misrepresentation?

A: The Committee concluded a supervising attorney who knew no basis existed and directed the subordinate to make the representations violated Rule 5.01.

Q: What if the lawyer believed the statement was true and only later learned it was false?

A: The Committee concluded the lawyer then has a duty under Rule 1.02 to make reasonable efforts to persuade the client agency to take corrective action.

Background and rules framework

The opinion interprets Texas Disciplinary Rules 3.03 (candor toward the tribunal; ABA Model Rule 3.3), 3.01 (meritorious claims and contentions; Model Rule 3.1), 4.01 (truthfulness in statements to others; Model Rule 4.1), 5.01 (responsibilities of a partner or supervisory lawyer; Model Rule 5.1), and 1.02(e) (a lawyer's duties on learning of a client's misrepresentation).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal), MR 4.1 (truthfulness to others), MR 3.1 (meritorious claims), MR 5.1 (supervisory responsibility)
• Texas Disciplinary Rules 3.01, 3.03, 4.01, 5.01, 1.02(e)

See also

• TX Ethics Op. 504: Defense Silence When a Prosecutor Misstates a Defendant's Record
• TX Ethics Op. 522: Firm Disclosure Duties After a Partner's False Credentials
• TX Ethics Op. 517: Government Lawyer Telephone Records and Confidentiality

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-499/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_499.pdf

Original opinion text

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

QUESTION PRESENTED

PEC No. 92-19
Is it a violation of the Code of Professional Responsibility for an in-house lawyer for a government agency to knowingly misrepresent to an opposing attorney and an administrative law judge that a factual basis for jurisdiction of an administrative proceeding initiated by the agency does exist?

STATEMENT OF FACTS

A government agency initiates an administrative proceedings against respondent. Respondent's attorney raises an affirmative defense that the proceeding was not commenced in accordance with law and regulation and requests the in-house attorney for the agency to provide a delegation of authority to show that the proceeding was commenced by an agency representative with authority to do so.

The government agency refused to provide a delegation of authority but through a supervising attorney directs its in-house attorney to represent to the respondent and the administrative law judge that jurisdiction exists. Based upon that representation, the administrative law judge denies respondent's motion to dismiss for want of jurisdiction. After hearing, a decision favorable to the government agency is made by the administrative law judge.

No delegation of authority relevant to the administrative proceeding in question had been issued. The supervising attorney knew, or reasonably could have known, that no delegation of authority existed when he directed the in- house attorney to represent that a factual basis for jurisdiction existed.

Later, the respondent's attorney learns that a delegation of authority did not exist. An employee of the same government agency then issues a delegation of authority, retroactively effective for the preceding five and one half years.

The inquiry to the Professional Ethics Committee states that without a delegation of authority there would have been no basis for jurisdiction by the administrative law judge. The Committee makes no determination of the validity of that statement but assumes it to be correct, both the in-house attorney and the supervising attorney are licensed in Texas.

QUESTIONS
Does an in-house attorney for a government agency violate any Disciplinary Rule if he represents to an opposing attorney and an administrative law judge that a factual basis for jurisdiction exists when he knows it does not?
Does a supervising attorney violate any Disciplinary Rule if he directs a subordinate attorney to represent to an opposing attorney and an administrative law judge that a factual basis for jurisdiction exists when he knows it does not?
Does an in-house attorney for a government agency violate any Disciplinary Rule by representing to an opposing attorney and an administrative law judge that a factual basis for jurisdiction exists unless he has a reasonable belief that jurisdiction does exist?

DISCUSSION

An attorney's representation to the administrative law judge that a factual basis for jurisdiction existed if the attorney knew that it did not exist is a violation of DR 3.01 and DR 3.03.

DR 3.03 provides: "(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act. . . ."

DR 3.01 provides: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous."

If the in-house attorney for the government agency did not know that a delegation of authority existed, he should have had a reasonable basis for believing that one existed before representing to the judge that a basis for jurisdiction existed. If he had no reasonable basis for believing that a delegation of authority existed, he violated DR 3.01.

Additionally, if he knew no factual basis for jurisdiction existed, the lawyer for the government agency violated DR 4.01 by representing to his opposing attorney that jurisdiction existed. DR 4.01 provides: "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person, or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetuated by a client.

If the supervising attorney for the in-house lawyer for the government agency knew that no basis for jurisdiction existed and directed the in-house lawyer to represent to his opposing attorney and the administrative law judge that jurisdiction existed, the supervising attorney violated DR 5.01, which provides: "A lawyer shall be subject to discipline because of another lawyer's violation of these rules of professional conduct if: (a) The lawyer is a partner or supervising lawyer and orders, encourages, or knowingly permits the conduct involved . . . ." (b) The lawyer . . . has direct supervisory authority over the other lawyer, and with knowledge of the other lawyer's violation of these rules knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of the other lawyer's violation."

If the in-house attorney for the government agency did not know the misrepresentation was false when made but later discovered that his statement was untrue, he has a duty to make reasonable efforts to persuade his client (the government agency) to take corrective action. DR 1.02(e). His failure to do so would violate that Rule. Likewise, the supervising attorney has the same duty if he did not know the representation was false when made but later learned it to be untrue.

CONCLUSION

Disciplinary Rules 3.01, 3.03 and 4.01 would be violated if the in-house attorney knew that no factual basis for jurisdiction existed at the time he represented to the opposing attorney and the administrative law judge that jurisdiction existed.

DR 3.01 would be violated if the in-house attorney did not have a reasonable basis for believing that jurisdiction existed when he represented that it did.

Rule 5.01 would be violated if the supervising attorney ordered, encouraged, or knowingly permitted the in-house attorney to make false statements to the opposing attorney or the administrative law judge or if he failed to take reasonable remedial action to avoid or mitigate the consequences of the in- house lawyer's violation.

Rule 1.02 would be violated if the in-house lawyer failed to take reasonable efforts to persuade his client (the government agency) to take corrective action if he reasonably believed at the time he made them that his statements to the opposing attorney and the administrative law judge were true but later learned that they were not true.

Tex. Comm. On Professional Ethics, Op. 499 (1994)