SECTION .0400 - TRANSACTIONS WITH PERSON OTHER THAN CLIENTS
27 ncac 02 RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not
knowingly make a false statement of material fact or law to a third person.
Comment
Misrepresentation
[1] A lawyer is required to be truthful when dealing with
others on a client's behalf, but generally has no affirmative duty to inform an
opposing party of relevant facts. A misrepresentation can occur if the lawyer
incorporates or affirms a statement of another person that the lawyer knows is
false. Misrepresentations can also occur by partially true but misleading
statements or omissions that are the equivalent of affirmative false
statements. For dishonest conduct that does not amount to a false statement or
for misrepresentations by a lawyer other than in the course of representing a
client, see Rule 8.4.
Statements of Fact
[2] This Rule refers to statements of fact. Whether a
particular statement should be regarded as one of fact can depend on the
circumstances. Under generally accepted conventions in negotiation, certain
types of statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a party's
intentions as to an acceptable settlement of a claim are ordinarily in this
category, and so is the existence of an undisclosed principal except where
nondisclosure of the principal would constitute fraud. Lawyers should be
mindful of their obligations under applicable law to avoid criminal and
tortuous misrepresentation.
Crime or Fraud by Client
[3] Under Rule 1.2(d), a lawyer is prohibited from
counseling or assisting a client in conduct that the lawyer knows is criminal
or fraudulent. Ordinarily, a lawyer can avoid assisting a client's crime or
fraud by withdrawing from the representation. Sometimes it may be necessary for
the lawyer to give notice of the fact of withdrawal and to disaffirm an
opinion, document, affirmation or the like. In extreme cases, substantive law
may require a lawyer to disclose information relating to the representation to
avoid being deemed to have assisted the client's crime or fraud. Rule 1.6(b)(1)
permits a lawyer to disclose information when required by law. Similarly, Rule 1.6(b)(4)
permits a lawyer to disclose information when necessary to prevent, mitigate,
or rectify the consequences of a client's criminal or fraudulent act in the
commission of which the lawyer's services were used.
History Note: Authority G.S. 84-23;
Eff. July 24, 1997;
Amended Eff. February
27, 2003.