Advisory Opinion:
1173
Year Issued:
1988
RPC(s):
RPC 3.3
Subject:
Client negligently made false answers to interrogatories; duty of lawyer who learns of falsity after settlement proceeds received
The Committee reviewed your inquiry concerning a client who advised you, after you had received settlement proceeds, that the client had failed to state certain dates of medical treatment in answers to interrogatories. This failure to provide information was apparently not made in a deliberate attempt to defraud the opposing party, but rather because of a failure to fully understand the information to be provided in response to the interrogatory. The Committee was of the opinion, by a vote of 7-6, that assuming you have concluded that your client was acting negligently and not fraudulently, and that all proceedings between your client and the defendants named in the law suit have concluded, then you have no obligation to disclose the error. The Committee was of the opinion that if the proceedings were still pending, such as, for example, if judgment has not been entered on the settlement, then you must disclose pursuant to RPC 3.3(d) which requires that your client consent to such disclosure. The Committee discussion on this matter was extensive, and the Committee concluded that RPC 3.3 is ambiguous in its operation. The Committee is going to consider whether it should propose a change in the rule to the Board of Governors to consider making any recommendation to the Supreme Court.
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