Can a lawyer settle a case using interrogatory answers he now knows are false, as long as he stays silent instead of repeating them?

Plain-English summary

A lawyer represented a client in products-liability litigation. The client's interrogatory answers, signed under oath, were believed accurate when signed, but the lawyer later learned they were incorrect and would have to be seasonably amended under Rule 4:1(E)(2) of the Rules of the Supreme Court of Virginia. The client wanted to attempt a settlement before amending or otherwise disclosing the correct facts, since disclosure would lower the settlement value. The committee was asked whether the lawyer could attempt settlement without first amending the answers, and whether he could enter negotiations as long as he did not verbally reaffirm the incorrect answers but instead stayed silent.

The controlling rules were DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation reflecting adversely on fitness) and DR 7-102(A)(3), (5), (6), and (7) (failing to disclose what the law requires revealed; knowing false statement of law or fact; creating or preserving evidence known to be false; and counseling or assisting conduct known to be illegal or fraudulent).

The committee concluded that it would be improper, in violation of DR 1-102(A)(4) and DR 7-102(A)(5), (6), and (7), for the lawyer to attempt settlement without first amending the incorrect interrogatory answers, and that because he was obligated to seasonably amend them under the Rules of the Supreme Court of Virginia, attempting to settle first would also violate DR 7-102(A)(3) (citing LE Op. 743). On the second question, it concluded that remaining silent would be equally improper, because a settlement entered in reliance on sworn but incorrect answers would be fraudulently induced whether the lawyer verbally reaffirmed the answers or simply stayed silent about their inaccuracy (citing LE Op. 1289, 1331, 1429).

Currency note

This opinion was issued in 1992, 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 opinion's committee note observes, current Rule 3.3(a)(2) and Rule 4.1(b) require a lawyer to disclose facts when disclosure is necessary to avoid assisting a client's criminal or fraudulent act. Treat this page as historical context, not current guidance.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 lawyer settle a case before amending interrogatory answers he now knows are false?

A: Under this 1992 opinion, no. The committee held it would be improper, and that the duty to seasonably amend the answers under the Rules of the Supreme Court of Virginia meant settling first would also violate DR 7-102(A)(3).

Q: Does staying silent about the false answers, instead of repeating them, avoid the problem?

A: No. The committee held a settlement reached in reliance on sworn but incorrect answers would be fraudulently induced whether the lawyer reaffirmed the answers or simply stayed silent about their inaccuracy.

Background and rules framework

The opinion interpreted former Virginia DR 1-102(A)(4) and DR 7-102(A)(3), (5), (6), and (7), together with the duty to seasonably amend interrogatory answers under Rule 4:1(E)(2) of the Rules of the Supreme Court of Virginia. The duties not to make false statements and to disclose facts to avoid assisting a client's fraud are now in Virginia Rules 4.1 and 3.3, with the general dishonesty bar in Rule 8.4(c).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 1-102(A)(4); DR 7-102(A)(3), (5), (6), (7) (Code of Professional Responsibility)
• ABA Model Rule 4.1 (truthfulness to others); Model Rule 3.3 (candor toward the tribunal); Model Rule 8.4 (misconduct)

Other rules:

• Rule 4:1(E)(2), Rules of the Supreme Court of Virginia: duty to seasonably amend interrogatory answers.

Other opinions cited:

• Virginia LE Op. 743: duty to amend before proceeding.
• Virginia LE Op. 1289, 1331, 1429: a settlement induced by incorrect sworn answers is fraudulently induced.

See also

• VA LEO 1522: Misstating a Deed's Purchase Price
• 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/1477.pdf

Original opinion text

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

Committee Opinion
August 24, 1992
LEGAL ETHICS OPINION 1477

ZEALOUS REPRESENTATION:
CONDUCTING SETTLEMENT
NEGOTIATIONS BASED ON
UNAMENDED ANSWERS TO
INTERROGATORIES.

You have presented a hypothetical situation in which an attorney represents a client in products liability litigation. The client's answers to interrogatories were believed to be accurate when signed under oath. Subsequently, however, the attorney learns the answers are incorrect and, under Rule 4:1(E)(2) of the Rules of the Supreme Court of Virginia, the answers will have to be seasonably amended. The client, however, wishes to attempt a settlement before amending interrogatory answers or otherwise disclosing the correct facts, which disclosure will adversely affect the settlement value of the case. You have asked the Committee to opine whether, under the facts of the inquiry, (1) the attorney may attempt a settlement without first amending the incorrect interrogatory answers, and (2) whether the attorney is permitted to enter settlement negotiations as long as he does not verbally reaffirm the incorrect interrogatory answers, but rather remains silent. The appropriate and controlling Disciplinary Rules related to your inquiry are DR:1102(A)(4) which states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on his fitness to practice law; DR:7-102(A)(3), (5), (6), and (7) which provide, respectively, that a lawyer shall not conceal or knowingly fail to disclose that which he is required by law to reveal; knowingly make a false statement of law or fact; participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false; or counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. The facts you provide indicate that the answers were signed under oath and that the attorney has knowledge that the answers are inaccurate. The committee opines that it would be improper and violative of DRs 1-102(A)(4), 7-102(A)(5), (6), and (7) for the attorney to attempt a settlement without first amending the incorrect interrogatory answers. The Committee further opines that because the attorney is obligated under the Rules of the Supreme Court of Virginia to seasonably amend the incorrect interrogatory answers, any attempt to settle before such amendment would also be violative of DR:7102(A)(3). See LE Op. 743. With regard to your second inquiry, the Committee is of the opinion that it would be improper and violative of the above-named Disciplinary Rules for the attorney to remain silent, as to the interrogatory answers, in settlement negotiations. The Committee believes that a settlement entered into in reliance on sworn, yet incorrect, answers would be fraudulently induced, whether the attorney verbally reaffirms the incorrect answers or simply remains silent as to their inaccuracy during the negotiations process. See LE Op. 1289, LE Op. 1331, LE Op. 1429.

Committee Opinion
August 24, 1992
Legal Ethics Committee Notes. – Rule 3.3(a)(2) and Rule 4.1(b) require a lawyer to disclose facts if disclosure is necessary to avoid assisting a client’s criminal or fraudulent acts.