Truthfulness Without Candor

False Statements to Third Persons

Truthfulness Without Candor

Rule 4.1(a) forbids a lawyer to “make a false statement of material fact or law to a third person.”¹ The rule’s lead-in confines that prohibition with two conditions: the lawyer must be acting “[i]n the course of representing a client,” and must act “knowingly.”² The words “third person” name the audience, which is anyone other than the lawyer’s own client. Other Model Rules also demand honesty, and each covers its own ground. Rule 8.4(c) casts the widest net by generally forbidding “conduct involving dishonesty, fraud, deceit or misrepresentation,” Rule 3.3(a) demands that the lawyer speak the truth before tribunals, and Rule 4.1 forbids false statements to third persons.³

The duty Rule 4.1 creates is narrower than the word “honesty” suggests, and the narrowness turns on one distinction. A person is truthful when she believes everything she says, and candid when she discloses all the relevant information. One can be truthful without being candid, because accurate statements about some matters leave room to say nothing about others. Toward the other side, the lawyer’s duty is “truthfulness within the conventions of the dialogue, not a duty of candor.”⁴ To lie is to make a false statement, while to withhold is merely to be reticent, and paragraph (a) polices only the lie. The working rule follows: a lawyer ordinarily need not volunteer information to a third person, but when the lawyer does speak, the lawyer may not lie.⁵

The Iowa Supreme Court stated both halves of that rule in a single passage: “[b]ecause of confidentiality prohibitions, a lawyer may generally refuse to provide information without breaching any duty. However, once the lawyer undertakes to provide information, that lawyer has a duty to provide the information truthfully.”⁶ The passage explains why silence is tolerated, since confidentiality prohibitions leave the lawyer free to refuse, and it marks the moment the duty attaches, which is the moment the lawyer chooses to speak. The facts alleged in that case, Hansen, illustrate the kind of misrepresentation at stake: a transactional lawyer helped a client fabricate corporate documents so that the client could sell a business the client never owned, conduct one scholar thought deserving of a place in any rogues’ gallery of attorney misrepresentation.⁷

Contract law drew a comparable line long before the Model Rules. In Laidlaw v. Organ, Chief Justice Marshall observed that parties to a bargain need not educate one another but must take care not to say or do anything tending to impose upon the other side.⁸ Lines of this kind are hard to draw anywhere in the law of bargaining. In deciding whether assent exists, a court faces the twin dangers of underenforcement, which fails to enforce a genuine agreement, and overenforcement, which enforces an assent that never occurred, and no perfect solution exists because almost any effort to avoid one error invites the other.⁹ Rule 4.1(a) takes a narrower path: it asks only whether the lawyer, in speaking, asserted something false.

The missing eyewitness shows both halves of the rule at work. A lawyer who has found no eyewitness to an event has no duty to volunteer that fact, but may not tell the opposing side that she has found one.¹⁰

The two answers differ in one respect only: the second asserted something false, and the first revealed nothing. Students err in both directions here. Some treat every failure to disclose as a violation of paragraph (a), and others assume that because no duty to speak exists, a convenient embellishment is harmless. Silence is not an unconditional safe harbor either. Comment 1 to Rule 4.1 recognizes that “[m]isrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements,” so withholding can sometimes taint an entire expression as dishonest.¹¹ The rule also confines the duty to “material” facts, which means the obligation of veracity reaches only factual matters that would be significant and induce reasonable reliance by the other person.¹²

Paragraph (b) of the same rule addresses silence directly, and only in a narrow case. The opinion in Virzi v. Grand Trunk Warehouse and Cold Storage Co. sets it out: a lawyer may not “fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client,” unless Rule 1.6 prohibits the disclosure.¹³ The two paragraphs thus divide the field. Paragraph (a) reaches what the lawyer says, and paragraph (b) reaches one narrow category of what the lawyer withholds. A lawyer who stays quiet in an ordinary negotiation violates neither, because (a) requires a statement and (b) requires that silence would assist a client’s crime or fraud.