Also known as: fail to disclose · failed to disclose · failing to disclose · nondisclosure
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
An ethical violation arising when a lawyer omits information that governing rules require to be revealed to a tribunal, third party, or admissions authority. The violation occurs only when the lawyer knows the omitted fact or authority is material and the rules impose an affirmative duty to speak.
An ethical violation arising when a lawyer omits information that governing rules require to be revealed to a tribunal, third party, or admissions authority. The violation occurs only when the lawyer knows the omitted fact or authority is material and the rules impose an affirmative duty to speak.
Select any source to read its text and confirm it supports the definition.
Conduct that creates liability when one party to a business transaction omits a fact he knows may justifiably induce the other to act or refrain from acting. Liability attaches only if the omitting party owes the other a duty to exercise reasonable care to disclose the matter.
Select any source to read its text and confirm it supports the definition.
Conduct that creates liability when one party to a business transaction omits a fact he knows may justifiably induce the other to act or refrain from acting. Liability attaches only if the omitting party owes the other a duty to exercise reasonable care to disclose the matter.
Each sense below has its own examples, sources, and questions.
Francisco Frost represents a client seeking to enforce a contract clause. During oral argument before the state supreme court, Frost knows of a recent controlling decision that directly rejects his client's interpretation. Opposing counsel never cites the case. Frost remains silent and the court rules for his client. The disciplinary board later finds that Frost violated his disclosure duty under the rules.
Faye Fuller represents a client who is negotiating a loan with a bank. Fuller learns her client intends to submit falsified financial statements. Disclosure to the bank would prevent the fraud, yet Fuller says nothing. The bank later sues the client and reports Fuller to the bar. The grievance committee finds that Fuller assisted the fraud by failing to disclose the material fact.
Fatou Fall applies for admission to the bar. She knows the character committee is unaware of a prior suspension in another state. When the committee asks about her disciplinary history, Fall provides an incomplete answer that leaves the misapprehension uncorrected. The committee later discovers the omission and denies admission on that ground alone.
No. The duty exists whenever the lawyer knows of controlling adverse authority in the jurisdiction that opposing counsel has not disclosed. The rule requires disclosure regardless of whether opposing counsel has mentioned the case.
Supporting sources
No. The constitutional obligation to disclose favorable, material evidence applies whether or not the defense makes a request. The duty is triggered by the prosecution's possession of the evidence and its favorable, material character.
Supporting sources
No. A juror's failure to disclose information supports a new trial only if it demonstrates implied bias that probably affected the verdict. Courts consider whether the undisclosed information would have led to a successful challenge for cause and whether the error was harmless.
Supporting sources
Farah Fox agrees to sell her warehouse to Fusion Power. Fox knows the roof has hidden water damage that will require immediate replacement. She says nothing during negotiations even though the buyer would have walked away or demanded a price reduction. After closing, Fusion discovers the defect and sues. The court holds Fox liable for the nondisclosure because she had a duty to speak.
Fumiko Fujimoto and other tribal members sell shares to non-tribe buyers arranged by the defendants. The defendants know the shares trade at a substantial premium in a developed non-Indian market but say nothing. The sellers later sue for damages. The Supreme Court holds that positive proof of reliance is unnecessary in this primarily nondisclosure setting because the withheld facts were material.
Freya Freeman and other minority shareholders challenge a short-form merger that cashes them out at a price they believe is too low. They allege no misrepresentation or omission of fact, only that the merger lacked a valid corporate purpose. The Supreme Court dismisses the Rule 10b-5 claim, explaining that the statute reaches only conduct involving manipulation or deception, not mere breaches of fiduciary duty.
A duty arises when the parties stand in a fiduciary or confidential relationship, when one party has made a partial or misleading statement that requires clarification, or when the facts are basic to the transaction and the other party cannot reasonably discover them.
Supporting sources
…on Law of Torts 726 (5th ed. 1984) ("The reasons for the separate development of [the tort action for misrepresentation and nondisclosure], and for its peculiar limitations, are in part historical, and in part connected with the fact that in the great majority of the cases which have come before the courts the…