Also known as: false statements of fact or law
Written by attorneys · grounded in primary & secondary sources — see below
A representation of fact or law that inaccurately describes a material point presented to a tribunal. The phrase encompasses both affirmative misstatements and the failure to correct an earlier representation once its falsity becomes known to the lawyer. The obligation to avoid or remedy such statements forms part of the duty of candor and continues through the conclusion of the proceeding.
Morgan represented Horizon Capital Fund at a hearing before an administrative law judge. Morgan stated that no investors had complained during the period under review. After the hearing Morgan reviewed files and found an email chain documenting an investor complaint about fund disclosures. Morgan took no steps to inform the judge that the earlier statement was inaccurate.
Nicole represented Federal Construct in an arbitration over structural defects. Her witness Alan testified that photographs showed inspections at the condominium site and the photographs were admitted. During a recess Nicole received a text from Alan admitting the photographs had been staged at a different project. Nicole took no action to withdraw the exhibits or notify the arbitrator.
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No. The duty arises once the lawyer acquires knowledge that a prior statement of material fact or law was false, even if the original statement was made in good faith. The obligation is to take reasonable remedial measures, beginning with correction on the record.
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No. A statement becomes actionable under the rule when the lawyer later learns it was false in a material respect and fails to correct it. The rule imposes an ongoing obligation that attaches upon acquisition of knowledge.
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The statement must be material, meaning the tribunal would reasonably consider it important in reaching a decision. A categorical assertion contradicted by later-discovered evidence satisfies materiality when the tribunal relied on the representation.
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