Legal Ethics Opinion No. 1429
Zealous Representation--Attorney's Misstatement On Pleading
You have presented a hypothetical situation in which a
plaintiff's attorney filed in federal court a suit which set
forth several claims against defendants A, B, and C. One of the
claims against defendant A was based on the negligent
installation of a furnace in a home. The suit was filed in 1990,
and the plaintiff alleged that the furnace had been installed in
1986. Defendant A raised the defense of the statute of repose,
pursuant to 8.01-250 of the Code of Virginia. During
discovery, the plaintiff's attorney and plaintiff stated that the
plaintiff had been "informed" by the owner of the home that the
furnace had been installed in 1986. In addition, plaintiff's
attorney and plaintiff alleged that plaintiff had been "informed"
by a service technician employed by defendant A that "he had
installed the furnace about two years prior to 1988".
In discovery depositions, the home owner (an 86-year-old woman)
testified that she could not remember when the furnace was
installed nor remember what she had told the plaintiff. Also
during discovery, defendant A produced a purchase order showing
that the furnace was purchased in 1982 and time records
indicating that the furnace had been installed in 1983. In
depositions, two employees of defendant A testified that they had
installed the furnace in late 1982 or early 1983. The service
technician, who allegedly had "informed" the plaintiff that he
had installed the furnace two years prior to 1988, provided an
affidavit, which was forwarded to plaintiff's attorney, that he
had never been involved in installation of furnaces at the time
and in the area in which the furnace was installed. A management
official of defendant A also provided an affidavit that defendant
A had ceased installing furnaces in 1984. In addition, one of
plaintiff's experts testified that prior to filing the suit in
federal court, he had been informed by plaintiff's attorney that
the furnace had been installed in 1983.
You indicate that Defendant A moved for summary judgment in
federal court based on the above facts. Prior to the entry of
summary judgment, however, the federal court dismissed the
plaintiff's action on a jurisdictional basis. Finally, you
inform the committee that Plaintiff has subsequently filed an
action in state court, naming defendants A, B, and C, alleging in
the motion for judgment that the furnace was installed in 1986.
You have asked the committee to opine as to the propriety of
plaintiff's attorney's conduct since it appears, under the facts
of the inquiry, that he has made a misstatement of fact in a
pleading. In addition, you ask the committee to consider as to
any obligation on defendant's attorney to report such
misstatement to the tribunal.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 7-102(A)(5), which provides that, in his
representation of a client, a lawyer shall not knowingly make a
false statement of law or fact; DR 7-102(B)(1), which mandates
that a lawyer who receives information clearly establishing that
a person other than his client has perpetrated a fraud upon a
tribunal shall promptly reveal the fraud to the tribunal; and DR
l-l02(A)(4) which prohibits a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation which
reflects adversely on a lawyer's fitness to practice law. Seealso DR l-l03(A) regarding an attorney's obligation to report the
misconduct of another attorney.
The committee has previously opined that it is improper for an
attorney who has executed answers to interrogatories and who has
represented to opposing counsel that the answers may be treated
as if they were signed under oath by the attorney's client, to
include in said interrogatories answers which are false. See LEO
#743. The facts you have provided indicate that statements,
either by deposition or affidavit, from defendant provide that
the furnace was installed before 1984. Of greater import,
however, the facts also indicate that the plaintiff's own expert
testified that plaintiff's attorney informed him, prior to filing
the suit in Federal Court, that the furnace had been installed in
1983. Based upon the facts you have provided, the committee is
of the opinion that plaintiff's attorney was aware that the
furnace had been installed prior to 1986, the date stated in his
motion for judgment, and thus that plaintiff's attorney has
knowingly made a false statement of fact, in violation of DR
7-102(A)(5). Such conduct may also be violative of DR
l-l02(A)(4).
The committee also opines that, since the defense attorney has
been able to ascertain by statements made under oath that
plaintiff and plaintiff's attorney were aware that the furnace
had been installed in 1982 or 1983, rather than 1986 as alleged
in the motion for judgment, the defense attorney may have a duty
to report such fraud and misrepresentation to the tribunal under
DR 7-102(B)(1) and to the appropriate professional authority
under DR l-l03(A). See LEO #1361.
Committee Opinion
September 16, 1991
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