If a lawyer learns after a settlement that the client negligently gave false interrogatory answers, must the lawyer disclose it?

Plain-English summary

The inquiry concerned a client who, after the lawyer had received settlement proceeds, advised the lawyer that the client had failed to state certain dates of medical treatment in answers to interrogatories. As the committee understood it, the failure was not a deliberate attempt to defraud the opposing party but resulted from the client's failure to fully understand the information called for by the interrogatory.

By a vote of 7 to 6, the committee was of the opinion that, assuming the lawyer concluded the client was acting negligently and not fraudulently, and that all proceedings between the client and the defendants had concluded, the lawyer has no obligation to disclose the error. The committee was of the opinion that if the proceedings were still pending, such as where judgment had not been entered on the settlement, then the lawyer must disclose pursuant to RPC 3.3(d), which requires that the client consent to such disclosure.

The committee noted that its discussion was extensive and that it concluded RPC 3.3 is ambiguous in its operation. It stated that it would consider whether to propose a change in the rule to the Board of Governors for any recommendation to the Supreme Court.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule then numbered RPC 3.3, governing candor toward the tribunal, corresponds to Model Rule 3.3 and was later amended; the committee itself described RPC 3.3 as ambiguous and was considering a rule change. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does a lawyer have to disclose a client's negligent false interrogatory answers learned after settlement?

A: Per the opinion (by a 7-6 vote), not if the client was negligent rather than fraudulent and all proceedings between the client and the defendants had concluded. In that situation the committee was of the opinion that the lawyer has no obligation to disclose.

Q: What if the case is still pending when the lawyer learns of the error?

A: Then disclosure is required. The committee was of the opinion that if proceedings were still pending, for example where judgment had not been entered on the settlement, the lawyer must disclose pursuant to RPC 3.3(d), which requires the client's consent to the disclosure.

Q: Did the committee treat the answer as settled?

A: No. The committee described its discussion as extensive, concluded that RPC 3.3 is ambiguous in operation, and said it would consider proposing a change to the rule. The holding itself passed by a single vote, 7 to 6.

Background and rules framework

The opinion applies the rule then numbered Washington RPC 3.3, corresponding to Model Rule 3.3, on candor toward the tribunal, including RPC 3.3(d). The committee drew the line at whether proceedings had concluded: a concluded matter with a merely negligent client carried no disclosure duty, while a still-pending matter triggered RPC 3.3(d)'s disclosure obligation, which the committee read to require the client's consent. The committee expressly flagged the rule as ambiguous.

Citations and references

Rules of Professional Conduct:

• Washington RPC 3.3 and RPC 3.3(d) (candor toward the tribunal), corresponding to Model Rule 3.3.

See also

• WSBA Ethics Op. 1149: a client's false deposition testimony and the duty to seek consent or withdraw
• WSBA Ethics Op. 1123: disclosure of a client's false testimony and confidentiality
• WSBA Ethics Op. 942: a bankruptcy client who hides an inheritance and refuses to disclose

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=253

Original opinion text

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

Advisory Opinion: 1173
Year Issued: 1988
RPC(s): RPC 3.3
Subject: Client negligently made false answers to interrogatories; duty of lawyer who learns of falsity after settlement proceeds received

The Committee reviewed your inquiry concerning a client who advised you, after you had received settlement proceeds, that the client had failed to state certain dates of medical treatment in answers to interrogatories. This failure to provide information was apparently not made in a deliberate attempt to defraud the opposing party, but rather because of a failure to fully understand the information to be provided in response to the interrogatory. The Committee was of the opinion, by a vote of 7-6, that assuming you have concluded that your client was acting negligently and not fraudulently, and that all proceedings between your client and the defendants named in the law suit have concluded, then you have no obligation to disclose the error. The Committee was of the opinion that if the proceedings were still pending, such as, for example, if judgment has not been entered on the settlement, then you must disclose pursuant to RPC 3.3(d) which requires that your client consent to such disclosure. The Committee discussion on this matter was extensive, and the Committee concluded that RPC 3.3 is ambiguous in its operation. The Committee is going to consider whether it should propose a change in the rule to the Board of Governors to consider making any recommendation to the Supreme Court.