If opposing counsel knowingly pleads a false date to dodge a statute of repose, has he violated the rules, and must the other lawyer report it?

Plain-English summary

A plaintiff's attorney sued over the allegedly negligent installation of a furnace, pleading that it was installed in 1986 so the claim would fall inside the statute of repose (Va. Code § 8.01-250). Discovery undercut that date: the defendant produced a 1982 purchase order and 1983 time records, two employees testified to a 1982-83 installation, the technician who supposedly "informed" the plaintiff of a later date swore he had never installed furnaces in that area at that time, and the plaintiff's own expert testified that plaintiff's counsel had told him before filing that the furnace was installed in 1983. After the federal case was dismissed on jurisdictional grounds, the plaintiff refiled in state court still alleging a 1986 installation. The inquiring lawyer asked whether plaintiff's counsel's conduct was proper and whether defense counsel had any duty to report the misstatement.

The committee identified the controlling rules as DR 7-102(A)(5) (a lawyer shall not knowingly make a false statement of law or fact in representing a client), DR 7-102(B)(1) (a lawyer who receives information clearly establishing that a person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal it), and DR 1-102(A)(4) (no dishonesty, fraud, deceit, or misrepresentation reflecting adversely on fitness), and it noted DR 1-103(A) on the duty to report another lawyer's misconduct.

On the facts presented, the committee concluded that plaintiff's attorney was aware the furnace had been installed before 1986 and therefore knowingly made a false statement of fact in the motion for judgment, in violation of DR 7-102(A)(5), and that the conduct might also violate DR 1-102(A)(4). Because defense counsel had been able to establish through sworn statements that plaintiff and plaintiff's counsel knew the true installation date, the committee opined that defense counsel may have a duty to report the fraud and misrepresentation to the tribunal under DR 7-102(B)(1) and to the appropriate professional authority under DR 1-103(A).

Currency note

This opinion was issued in 1991, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, when the information establishing the violation is a client confidence, current Rule 1.6(c)(3) lets a lawyer report another lawyer's misconduct only with the client's consent after consultation. 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: Does pleading a date you know is false to fit a statute of repose violate the rules?

A: Under this 1991 opinion, yes. The committee concluded that because plaintiff's attorney knew the furnace was installed before the pleaded 1986 date, he knowingly made a false statement of fact in violation of DR 7-102(A)(5), and that the conduct might also violate DR 1-102(A)(4).

Q: How did the committee decide the lawyer "knew" the date was false?

A: It pointed to the sworn record, especially the plaintiff's own expert's testimony that plaintiff's counsel had told him before filing that the furnace was installed in 1983, together with the defendant's purchase order, time records, and employee testimony placing installation in 1982-83.

Q: Must opposing counsel report the false statement?

A: The committee opined that defense counsel, having established the truth through sworn statements, may have a duty to reveal the fraud to the tribunal under DR 7-102(B)(1) and to report it to the appropriate professional authority under DR 1-103(A).

Background and rules framework

The opinion interpreted former Virginia DR 7-102(A)(5) and DR 7-102(B)(1) (false statements and the duty to reveal a fraud on a tribunal), DR 1-102(A)(4) (dishonesty and misrepresentation), and DR 1-103(A) (reporting another lawyer's misconduct). Candor to the tribunal is now addressed in Virginia Rule 3.3, dishonesty in Rule 8.4, and the reporting obligation in Rule 8.3, which (per the committee note) is qualified by the confidentiality limits of Rule 1.6(c)(3).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-102(A)(5), DR 7-102(B)(1), DR 1-102(A)(4), DR 1-103(A) (Code of Professional Responsibility)
• ABA Model Rule 3.3 (candor toward the tribunal); Model Rule 8.4 (dishonesty); Model Rule 8.3 (reporting professional misconduct)

Statutes:

• Va. Code § 8.01-250 (statute of repose)

Other opinions cited:

• Virginia LE Op. 743: false answers in interrogatories represented as signed under oath.
• Virginia LE Op. 1361: duty to report fraud and misrepresentation.

See also

• VA LEO 1477: Settling on False Interrogatories
• VA LEO 1522: Understated Deed Price, Duty to Report
• VA LEO 1528: Duty to Report a Lying Lawyer
• VA LEO 1608: Submitting Known-False Evidence

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1429.pdf

Original opinion text

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

Committee Opinion
September 16, 1991
Legal Ethics Committee Notes. – If information about the ethics violation is a client confidence, a
lawyer may report the other lawyer’s misconduct only if the client consents under Rule 1.6(c)(3); the
lawyer considering whether to report must consult with the client under that Rule.

LEGAL ETHICS OPINION 1429

TRIAL CONDUCT: ATTORNEY'S
MISCONDUCT - MISSTATEMENT OF
FACT – FALSE STATEMENTS - DUTY
TO REPORT.

You have presented a hypothetical situation in which a plaintiff's attorney filed a suit in
federal court which set forth several claims against defendants A, B, and C. One of the
claims against defendant A was based on the negligent installation of a furnace in a
home. The suit was filed in 1990, and the plaintiff alleged that the furnace had been
installed in 1986. Defendant A raised the defense of the statute of repose, pursuant to §
8.01-250 of the Code of Virginia. During discovery, the plaintiff's attorney and plaintiff
stated that the plaintiff had been "informed" by the owner of the home that the furnace
had been installed in 1986. In addition, plaintiff's attorney and plaintiff alleged that
plaintiff had been "informed" by a service technician employed by defendant A that "he
had installed the furnace about two years prior to 1988".
In discovery depositions, the home owner (an 86-year-old woman) testified that she
could not remember when the furnace was installed nor remember what she had told the
plaintiff. Also during discovery, defendant A produced a purchase order showing that the
furnace was purchased in 1982 and time records indicating that the furnace had been
installed in 1983. In depositions, two employees of defendant A testified that they had
installed the furnace in late 1982 or early 1983. The service technician, who allegedly had
"informed" the plaintiff that he had installed the furnace two years prior to 1988,
provided an affidavit, which was forwarded to plaintiff's attorney, that he had never been
involved in installation of furnaces at the time and in the area in which the furnace
was installed. A management official of defendant A also provided an affidavit that
defendant A had ceased installing furnaces in 1984. In addition, one of plaintiff's experts
testified that prior to filing the suit in federal court, he had been informed by plaintiff's
attorney that the furnace had been installed in 1983.
You indicate that Defendant A moved for summary judgment in federal court based on
the above facts. Prior to the entry of summary judgment, however, the federal court
dismissed the plaintiff's action on a jurisdictional basis. Finally, you inform the
Committee that Plaintiff has subsequently filed an action in state court, naming
defendants A, B, and C, alleging in the motion for judgment that the furnace was installed
in 1986.
You have asked the Committee to opine as to the propriety of plaintiff's attorney's
conduct since it appears, under the facts of the inquiry, that he has made a misstatement
of fact in a pleading. In addition, you ask the Committee to consider as to any obligation
on defendant's attorney to report such misstatement to the tribunal.

The appropriate and controlling disciplinary rules related to your inquiry are DR:7-102(A)(5), which provides that, in his representation of a client, a lawyer shall not
knowingly make a false statement of law or fact; DR:7-102(B)(1), which mandates that a
lawyer who receives information clearly establishing that a person other than his client
has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal; and
DR:1-102(A)(4), which prohibits a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's
fitness to practice law. (See also DR:1-103(A) regarding an attorney's obligation to report
the misconduct of another attorney.)
The Committee has previously opined that it is improper for an attorney who has
executed answers to interrogatories and who has represented to opposing counsel that the
answers may be treated as if they were signed under oath by the attorney's client to
include in said interrogatories answers which are false. (See LE Op. 743.) The facts you
have provided indicate that statements, either by deposition or affidavit, from defendant
provide that the furnace was installed before 1984. Of greater import, however, the facts
also indicate that the plaintiff's own expert testified that plaintiff's attorney informed him,
prior to filing the suit in federal court, that the furnace had been installed in 1983. Based
upon the facts you have provided, the Committee is of the opinion that plaintiff's attorney
was aware that the furnace had been installed prior to 1986, the date stated in his motion
for judgment, and thus that plaintiff's attorney has knowingly made a false statement of
fact, in violation of DR:7-102(A)(5). Such conduct may also be violative of DR:1-102(A)(4).
The Committee also opines that, since the defense attorney has been able to ascertain
by statements made under oath that plaintiff and plaintiff's attorney were aware that the
furnace had been installed in 1982 or 1983, rather than 1986 as alleged in the motion for
judgment, the defense attorney may have a duty to report such fraud and
misrepresentation to the tribunal under DR:7-102(B)(1) and to the appropriate
professional authority under DR:1-103(A). (See LE Op. 1361.)