Misrepresentation.
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.
Statements of Fact.
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 in this category, and so is the existence of an undisclosed principal
except where nondisclosure of the principal would constitute fraud.
Fraud by Client.
Making a false statement may include the failure to make a statement in circumstances in which
silence is equivalent to making such a statement. Thus, where the lawyer has made a statement
that the lawyer believed to be true when made but later discovers that the statement was not true,
in some circumstances failure to correct the statement may be equivalent to making a statement
that is false. When the falsity of the original statement by the lawyer resulted from reliance upon
what was told to the lawyer by the client and if the original statement if left uncorrected may
further a criminal or fraudulent act by the client, the provisions of Rule 1.6(c)(3) give the lawyer
discretion to make the disclosure necessary to rectify the consequences.
