Does a lawyer commit misconduct by submitting the same medical bills in two accident claims and presenting evidence the lawyer knows is false?

Plain-English summary

A plaintiff's attorney represented a passenger injured when a car was rear-ended, and settled that claim with the first tortfeasor's insurer for $7,500, supported by chiropractor and medical-doctor bills for treatment beginning two days after the accident. The same client had been a passenger in a second rear-end accident the next day, and the same attorney pursued a claim against the second tortfeasor (defendant #2) using the identical medical bills. In discovery, the chiropractor responded to a subpoena duces tecum with a note stating he had treated the plaintiff only for the first accident, not the second. The plaintiff's attorney received that letter before trial but proceeded to trial and submitted the bills as relating solely to the second accident; the client, questioned under oath, denied being injured in the first accident.

The controlling rules were DR 1-102(A)(4) (no dishonesty, fraud, deceit, or misrepresentation reflecting adversely on fitness) and DR 7-102(A)(4) and (A)(5) (no knowingly using perjured testimony or false evidence, and no knowingly making a false statement of law or fact). Citing LE Op. 743, the committee noted it is improper to submit false answers a lawyer has represented may be treated as signed under oath.

The committee concluded that, because the chiropractor's discovery response showed the treatment related only to the first accident, the plaintiff's attorney knew before trial the bills did not relate to the second accident, and so knowingly made a false statement of fact in violation of DR 7-102(A)(5) by submitting the bills and contending otherwise. More significantly, because the client denied the first injury under oath, the attorney also knowingly used perjured testimony or false evidence in violation of DR 7-102(A)(4), conduct that may also violate DR 1-102(A)(4) (citing LE Op. 1429). The committee added that defense counsel for defendant #2, having ascertained the truth, 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 1994, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. 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: Is it misconduct to use the same medical bills to support two separate injury claims?

A: Under this 1994 opinion, it became misconduct here because the lawyer knew, before trial, that the bills related only to the first accident yet presented them as evidence of the second. The committee found a knowing false statement of fact under DR 7-102(A)(5).

Q: What turned this into using perjured testimony?

A: The committee pointed to the client's denial, under oath, of being injured in the first accident. Because the lawyer knew that was false, presenting it amounted to knowingly using perjured testimony or false evidence under DR 7-102(A)(4).

Q: Does opposing counsel have to do anything about it?

A: The committee said 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).

Background and rules framework

The opinion interpreted former Virginia DR 1-102(A)(4) (dishonesty, fraud, deceit, misrepresentation), DR 7-102(A)(4) and (A)(5) (false evidence and false statements), DR 7-102(B)(1) (revealing a client's fraud on a tribunal), and DR 1-103(A) (reporting misconduct). Those provisions now correspond to ABA Model Rule 3.3 (candor toward the tribunal), Rule 8.4(c) (dishonesty), and Rule 8.3 (reporting misconduct).

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• Virginia LE Op. 743: it is improper to submit false interrogatory answers the lawyer has represented may be treated as signed under oath.
• Virginia LE Op. 1429: knowing use of perjured testimony or false evidence may violate DR 1-102(A)(4).

See also

• VA LEO 1840: Fraudulent Deed and Duty to Report
• VA LEO 1635: Secret Recording and Duty to Report
• VA LEO 1646: Reporting Misconduct in a Civil Case

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1608.pdf

Original opinion text

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

Committee Opinion
July 21, 1994
LEGAL ETHICS OPINION 1608

MISCONDUCT – ZEALOUS
REPRESENTATION: PLAINTIFF'S
ATTORNEY SEEKING DUPLICATE
COMPENSATION FROM TWO
DEFENDANTS FOR SAME INJURIES.

You have presented a hypothetical situation in which Plaintiff's attorney represented
plaintiff-passenger of an automobile that was rear-ended. Plaintiff's attorney filed a claim
with the tortfeasor's insurance company and provided medical bills indicating that the
plaintiff had been treated, starting two days after the accident and continuing for
approximately six months, by a chiropractor and a medical doctor. You indicate that
Plaintiff's attorney settled plaintiff's claim with the tortfeasor's insurance company for
$7,500.00, which covered medical bills as well as pain and suffering.
You further indicate that the same plaintiff was a passenger in another vehicle that was
rear-ended the day after the first accident and the same attorney represented the plaintiff
in his claim with the second tortfeasor's company (defendant #2). In that claim, plaintiff's
attorney submitted the exact same medical bills from the chiropractor and the medical
doctor. You indicate that the attorney for defendant #2 denied that plaintiff was injured in
the second accident and Defendant #2 also denied that any amount of money was owed to
the plaintiff based upon the previous settlement and the use of the identical medical bills
for this claim.
Further, you indicate that, during the course of discovery, defense counsel filed a
subpoena duces tecum request with the chiropractor. In reply, the chiropractor sent an
itemized bill for treatment relating to the first accident. In reference to any treatment for
the second accident, the chiropractor submitted a note to the defense counsel stating that
he did not treat the plaintiff for any injuries from the second accident but only treated him
for injuries relating to the first accident.
You advise that Plaintiff's attorney received a copy of the doctor's letter in discovery;
however, he proceeded to trial and submitted those into evidence, contending that the
bills from the chiropractor and the medical doctor involved treatment solely for the
second accident.
Finally, you indicate that Plaintiff's attorney never informed the insurance company
from the first accident of the second automobile accident. Furthermore, when attorney for
defendant #2 questioned the plaintiff, under oath, about the first accident, he denied being
injured as a result of the first accident.
You have asked the committee to opine whether, under the facts of the inquiry,
plaintiff's attorney has acted unethically in submitting the same bills for both accidents
and in seeking compensation from defendant #2 for injuries the plaintiff sustained from
the first accident, after having received the copy of the chiropractor's letter before trial.

Committee Opinion
July 21, 1994
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 a lawyer's fitness to
practice law; DR:7-102(A)(4) and 7-102(A)(5) which provide, respectively, that a lawyer
shall not knowingly use perjured testimony or false evidence, or knowingly make a
false statement of law or fact.
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 committee is of the opinion that the facts you have presented indicate that a
statement of the chiropractor, in response to a discovery request, provides that the
chiropractor did not treat the plaintiff for injuries from the second accident. Thus, based
on the facts presented, the committee is of the opinion that plaintiff's attorney was aware,
prior to trial, that the bill and treatment related only to the first accident, and thus, that
plaintiff's attorney has knowingly made a false statement of fact, in violation of DR:7102(A)(5), by submitting the bills in evidence and contending that such bills related
solely to the second accident. More importantly, however, the committee believes that the
facts also indicate that the plaintiff, when questioned under oath by the attorney for
defendant #2, denied being injured as a result of the first accident. The committee opines,
therefore, that plaintiff's attorney has also knowingly used perjured testimony or false
evidence, in violation of DR:7-102(A)(4). Such conduct may also be violative of DR:1102(A)(4). See LE Op. 1429.
Further, the committee also opines that, since the defense attorney has been able to
ascertain that plaintiff and plaintiff's attorney were aware that the bills and treatment
related only to the first accident, rather than the second accident as alleged at trial, and
that plaintiff was not injured as a result of the first accident, the attorney for defendant #2
may have a duty to report such fraud and misrepresentation to the tribunal under DR:7102(B)(1) and to the appropriate professional authority under DR:1-103(A).
Committee Opinion
July 21, 1994
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.