Applying the Rule

Applying the Rule

Rule 4.1(a) forbids a lawyer to "make a false statement of material fact or law to a third person," and a problem built on that sentence yields to a fixed sequence of four screens.¹ Each screen removes a different kind of conduct for a different reason. The first removes conduct outside the representation and statements made to the client. The second removes honest mistakes, the third removes opinion and bargaining posture, and the fourth removes details too minor to matter. A statement violates the paragraph only if it clears all four, so the analysis can stop at the first screen the facts fail. Working in order also guards against the tempting conclusion that the lawyer was simply dishonest, which skips the elements the rule names.

Steps one and two usually go quickly, because an examiner tells you whom the lawyer represents and who is listening, and either supplies or withholds the facts showing what the lawyer knew. Step three carries most of the weight in negotiation problems. It asks what the listener was entitled to take as information, and the answer depends on the circumstances and on the expectations of the people involved.⁵ A listener hears a prediction or a bottom-line announcement as the other side's advocacy and discounts it, but hears a specific assertion about the world as something to rely on. Step four then confirms that the asserted fact would matter to the listener's decision about whether, and on what terms, to deal.

Examiners often set a specific lie beside a favorable presentation, and the pair tests step three because the two situations share every other element.

Both lawyers speak for a client, address a non-client, and hope to move the other side, so the difference lies entirely in what each one asserted. Carl's number has a right answer sitting in a file, while Priya's characterization of her case has none until a jury decides. Had Priya told the claimant's lawyer that the insurer held a signed statement in which the claimant admits running the red light, when no such statement existed, she would have crossed the line, because the existence of a signed admission is a fact about the world on which counsel would reasonably rely. Had Carl said only that the claim was worth far more than the insurer's offer, he would have stayed within the negotiating convention, because a valuation gives the listener nothing to verify.

The recurring trap in this area is treating silence as a false statement. A lawyer's duty toward a non-client is truthfulness, not candor, so a lawyer who has found no eyewitness need not announce it, and the same is true of any other weakness in the client's case.⁶ Fact patterns tempt the student by placing in the lawyer's file a fact the other side would love to know and then asking whether the failure to mention it is a violation. The answer starts with whether the lawyer asserted anything at all, because paragraph (a) requires a statement, and a lawyer who stays quiet or declines to answer has made none. Silence becomes a problem in only two situations. The first is a position whose pressing depends on a premise the lawyer knows is untrue, as when a lawyer demands continuing lost wages while hiding that the client has found a new job at a higher salary. The omission there makes the demand itself fraudulent, and a lawyer who chooses to speak must say enough to avoid being deliberately misleading.⁷ The second is the narrow disclosure duty in paragraph (b), which applies when silence would assist a client's crime or fraud, unless Rule 1.6 prohibits disclosure.⁸

In a written answer, stop at the first step that fails and say why, because the failure is the conclusion. When the knowledge step fails, the better answer adds that other rules of professional conduct may still reach a careless misstatement. When the fact step fails, the answer should name the statement as opinion, estimate, or posture and say that the listener would have discounted it.