When a civil defendant's truthful answer could expose the client to criminal prosecution, how can the lawyer file a CR 11-compliant answer?

Plain-English summary

The inquiry concerned compliance with CR 11 where a civil lawsuit has been filed against a client who disclosed information relevant to the suit that, if known, might subject the client to criminal prosecution. The committee was of the opinion that RPC 8.4 prohibits the lawyer from filing an answer that contains an untruth, but that the lawyer may assert the client's Fifth Amendment privilege.

The committee was also of the opinion that nothing in the rules prohibits a lawyer from filing an answer that is truthful or that asserts the Fifth Amendment. It expressed concern that advising a client that any lawyer who knew all the facts would be unable to file an answer to the civil complaint would encourage the client to lie.

Currency note

This opinion was issued in 1990, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 lawyer file a false answer to protect a client from criminal exposure?

A: Under this 1990 opinion, no. The committee was of the opinion that RPC 8.4 prohibits filing an answer that contains an untruth.

Q: What can the lawyer do instead?

A: The committee was of the opinion that the lawyer may file a truthful answer or assert the client's Fifth Amendment privilege; nothing in the rules prohibits either course.

Q: Why did the committee flag the advice about "no lawyer could answer"?

A: It was concerned that telling a client that any fully informed lawyer could not file an answer would encourage the client to lie.

Background and rules framework

RPC 8.4, Washington's version of ABA Model Rule 8.4, defines professional misconduct, including dishonesty. CR 11 is Washington's civil rule requiring that pleadings be well grounded and not interposed for an improper purpose. The committee reconciled the two: the lawyer cannot satisfy CR 11 with a false answer, but may file a truthful answer or invoke the client's Fifth Amendment privilege.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.4 (misconduct)
• Washington RPC 8.4

Court rules:

• Washington CR 11 (signing of pleadings)

See also

• WA Ethics Op. 1328: Client's Fraudulent Settlement Document and the Duty to Withdraw
• WSBA Ethics Op. 1149: Client's False Deposition Answer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=417

Original opinion text

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

The Committee reviewed your inquiry concerning your compliance with CR 11 under circumstances in which a civil lawsuit has been instituted against a client who has disclosed to you information relevant to that lawsuit which, if known, might subject him to criminal prosecution. The Committee was of the opinion that RPC 8.4 prohibits you from filing an answer which contains an untruth, but that you may assert your client's privileges under the Fifth Amendment. The Committee was also of the opinion that nothing in the Rules prohibits a lawyer from filing an answer that is truthful or which asserts the Fifth Amendment. The Committee was also concerned that advising a client that any lawyer who knew all the facts would not be able to file an answer to the civil complaint would encourage the client to lie.