LEO: Disclosure - Representing Client Within LE Op. 1224
Disclosure - Representing Client Within the Bounds of the Law:
Attorney Filing Suit on a Cause of Action Which Had Been
Dismissed in a Similar Case By the Same Court.
March 9, 1989
You advised that an attorney was suing on a cause of action which had
been dismissed in a similar case by the same court and you questioned
whether or not it was unethical for the attorney to assert this claim and
further, whether it was improper for the attorney to fail to disclose the
prior court ruling which dismissed a similar claim.
The Committee opines that DR:7-102(A)(2), (3), and (5) are the
appropriate and controlling disciplinary rules in this situation. They
provide that in representing a client a lawyer shall not knowingly advance
a claim or a defense that is unwarranted under existing law, except that
he may advance such claim or defense if it can be supported by good faith
argument for an extension, modification or reversal of the existing law.
Furthermore, he shall not conceal or knowingly fail to disclose that which
he is required by law to reveal or knowingly make a false statement of law
of fact. Under the facts you presented, the Committee is assuming that the
attorney was not specifically asked by the court about similar suits and
that no false statement was made by him. The Committee further opines that
under the facts you have outlined, it does not believe that the attorney
was "required by law" to reveal the existence of the prior rulings by the
Of particular importance is the fact that the decision of the general
district court was appealed to the circuit court because the appellants
believed it was incorrect. The Committee opines that in light of the
appeal status of this claim the attorney advancing similar claims in the
general district court could certainly claim he was making a good faith
argument for an extension, modification or reversal of existing law as
contained in DR:7-102(A)(2).
Therefore, the Committee opines that under the fact situation you have
outlined it was not improper for the attorney to sue on a cause of action
previously dismissed by the same court and furthermore it was not improper
for the attorney to fail to inform the court as to the previous suit when
not specifically asked by the court for such information.
Committee Opinion March 9, 1989
See also LE Op. 1327.