Legal Ethics Opinion No. 1477

Zealous Representation: Conducting Settlement Negotiations Based 
on Unamended Answers to Interrogatories

You have presented a hypothetical situation in which an attorney
represents a client in products liability litigation.  The
client's answers to interrogatories were believed to be accurate
when signed under oath. Subsequently, however, the attorney
learns the answers are incorrect and, under Rule 4:1(E)(2) of the
Rules of the Supreme Court of Virginia, the answers will have to
be seasonably amended.  The client, however, wishes to attempt a
settlement before amending interrogatory answers or otherwise
disclosing the correct facts, which disclosure will adversely
affect the settlement value of the case.

You have asked the committee to opine whether, under the facts of
the inquiry, (1)the attorney may attempt a settlement without
first amending the incorrect interrogatory answers, and (2)
whether the attorney is permitted to enter settlement
negotiations as long as he does not verbally reaffirm the
incorrect interrogatory answers, but rather remains silent.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 1-102(A)(4) which states that a lawyer shall
not engage in conduct involving dishonesty, fraud, deceit or
misrepresentation which reflects adversely on his fitness to
practice law; DR 7-102(A)(3), (5), (6), and (7) which provide,
respectively, that a lawyer shall not conceal or knowingly fail
to disclose that which he is required by law to reveal; knowingly
make a false statement of law or fact; participate in the
creation or preservation of evidence when he knows or it is
obvious that the evidence is false; or counsel or assist his
client in conduct that the lawyer knows to be illegal or

The facts you provide indicate that the answers were signed under
oath and that the attorney has knowledge that the answers are
inaccurate.  The committee opines that it would be improper and
violative of DRs 1-102(A)(4), 7-102(A)(5), (6), and (7) for the
attorney to attempt a settlement without first amending the
incorrect interrogatory answers.  The committee further opines
that because the attorney is obligated under the Rules of the
Supreme Court of Virginia to seasonably amend the incorrect
interrogatory answers, any attempt to settle before such
amendment would also be violative of DR 7-102(A)(3).  See LEO

With regard to your second inquiry, the committee is of the
opinion that it would be improper and violative of the
above-named Disciplinary Rules for the attorney to remain silent,
as to the interrogatory answers, in settlement negotiations.  The
committee believes that a settlement entered into in reliance on
sworn, yet incorrect, answers would be fraudulently induced,
whether the attorney verbally reaffirms the incorrect answers or
simply remains silent as to their inaccuracy during the
negotiations process.  See LEOs #l289, l331, l429.

Committee Opinion
August 24, 1992