Rule 4.1. Truthfulness in statements to others

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In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact when disclosure is necessary to avoid

assisting a criminal or fraudulent act by a client, unless disclosure is

prohibited by Rule 1.6.

COMMENT

[1] Misrepresentation. — A lawyer is required to be truthful when

dealing with others on a client’s behalf, but generally has no affirmative

duty to inform an opposing party of relevant facts. A misrepresentation

can occur if the lawyer incorporates or affirms a statement of another

person that the lawyer knows is false. Misrepresentations can also occur

by partially true but misleading statements or omissions that are the

equivalent of affirmative false statements. For dishonest conduct that does

not amount to a false statement or for misrepresentations by a lawyer

other than in the course of representing a client, see Rule 8.4.

[2] Statement of Fact. — This Rule refers to statements of fact. Whether

a particular statement should be regarded as one of fact can depend on the

circumstances. Under generally accepted conventions in negotiation,

certain types of statements ordinarily are not taken as statements of

material fact. Estimates of price or value placed on the subject of a

transaction and a party’s intentions as to an acceptable settlement of a

claim are ordinarily in this category, and so is the existence of an

undisclosed principal except where nondisclosure of the principal would

constitute fraud. Lawyers should be mindful of their obligations under

applicable law to avoid criminal and tortious misrepresentation.

[3] Crime or Fraud by Client. — Under Rule 1.2(d), a lawyer is

prohibited from counseling or assisting a client in conduct that the lawyer

knows is criminal or fraudulent

existence of an

undisclosed principal except where nondisclosure of the principal would

constitute fraud. Lawyers should be mindful of their obligations under

applicable law to avoid criminal and tortious misrepresentation.

[3] Crime or Fraud by Client. — Under Rule 1.2(d), a lawyer is

prohibited from counseling or assisting a client in conduct that the lawyer

knows is criminal or fraudulent. Paragraph (b) states a specific application

of the principle set forth in Rule 1.2(d) and addresses the situation where a

client’s crime or fraud takes the form of a lie or misrepresentation.

Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by

withdrawing from the representation. Sometimes it may be necessary for

the lawyer to give notice of the fact of withdrawal and to disaffirm an

opinion, document, affirmation or the like. In extreme cases, substantive

law may require a lawyer to disclose information relating to the

representation to avoid being deemed to have assisted the client’s crime or

fraud. If the lawyer can avoid assisting a client’s crime or fraud only by

disclosing this information, then under paragraph (b) the lawyer is

required to do so, unless the disclosure is prohibited by Rule 1.6.

NOTES TO DECISIONS

Candor toward the tribunal.

Truthfulness.

Candor toward the tribunal.

Analysis

Based on an attorney’s false statements to a Virginia court regarding

delivery of legal documents to a party-opponent, and misleading statements

in a Virginia disciplinary proceeding constituting violations of Law. Prof.

Conduct R. 3.3(a)(1), 4.1, and 8.4(c), a 30-day suspension was imposed;

rather than imposing an “admonishment with terms,” as Virginia did, a

“substantially different discipline” was warranted pursuant to Bd. Prof.

Resp. 18(4). In re Amberly, 996 A.2d 793 (Del. 2010)

ents to a party-opponent, and misleading statements

in a Virginia disciplinary proceeding constituting violations of Law. Prof.

Conduct R. 3.3(a)(1), 4.1, and 8.4(c), a 30-day suspension was imposed;

rather than imposing an “admonishment with terms,” as Virginia did, a

“substantially different discipline” was warranted pursuant to Bd. Prof.

Resp. 18(4). In re Amberly, 996 A.2d 793 (Del. 2010).

Disbarment was the appropriate sanction for an attorney’s intentional

misconduct in a medical negligence case, which included failing to

disclose altered medical records, failing to supplement discovery responses

and failing to correct a client’s false testimony (despite multiple

opportunities for corrective action); although the attorney had no prior

disciplinary record and presented evidence of good character and

reputation, dishonesty and other aggravating factors outweighed the

mitigating factors. In re McCarthy, 173 A.3d 536 (Del. 2017).

Truthfulness.

Attorney committed violations of the professional conduct rules by

making false statements of material fact to lenders on Department of

Housing and Urban Development settlement statements (“HUD-1

statements”) filed on behalf of the attorney and the attorney’s clients as

borrowers in residential real estate matters; the attorney’s certification of

the HUD-1 statements was not a true and accurate account of the

transactions. In re Sanclemente, 86 A.3d 1119 (Del. 2014).

Attorney who violated the Delaware Rules of Professional Conduct, as

well as 18 U.S.C. § 1010, by making false certifications in Department of

Housing and Urban Development settlement statements (HUD-1

statements) was disbarred; the attorney acted with the intent of facilitating

22 real estate closings that defrauded those who relied on the accuracy of

the HUD-1 statements. In re Sullivan, 86 A.3d 1119 (Del. 2014)

the Delaware Rules of Professional Conduct, as

well as 18 U.S.C. § 1010, by making false certifications in Department of

Housing and Urban Development settlement statements (HUD-1

statements) was disbarred; the attorney acted with the intent of facilitating

22 real estate closings that defrauded those who relied on the accuracy of

the HUD-1 statements. In re Sullivan, 86 A.3d 1119 (Del. 2014).

Inmate did not show ineffective assistance of counsel; the inmate did

not allege a specific instance in which counsel violated this rule or prove

that the guilty plea at issue was unknowingly or involuntarily entered.

State v. Pickle, 2017 Del. Super. LEXIS 634 (Del. Super. Ct. Dec. 4, 2017).

Del. Rules of Prof'l Conduct Rule 4.2

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