ER 4.1 Truthfulness in Statements to Others

The Standard

Competent, diligent advocacy does not license dishonesty toward or disregard for the rights of others. ER 4.1 prohibits a lawyer from knowingly making a false statement of material fact or law to a third person, and from failing to disclose a material fact when necessary to avoid assisting a client’s crime or fraud.

The Limitation

ER 4.1 requires actual knowledge; the standard is higher than negligence. Under accepted negotiation conventions, a party’s stated settlement position or a general estimate of value is ordinarily not a statement of material fact. But a specific, verifiable false claim – misstating a cost figure, or representing that evidence exists when it does not – goes beyond permissible posturing.

ER 4.1(b)’s disclosure duty is narrow: it applies only to avoid assisting a client’s crime or fraud, and only when disclosure is not prohibited by ER 1.6. Withdrawal is usually sufficient.

FAQs

What is the difference between “puffing” and a false statement of material fact?

Statements about a party’s general negotiating position or the perceived value of a claim are not statements of material fact. Specific, verifiable factual claims – misstating a cost figure in a negotiation, or claiming evidence exists when it does not – are. The best practice: if your statement conveys a specific fact the listener could reasonably rely on, it must be true.

Can my client instruct me to overstate our position to the other side?

A client may direct strategy but cannot require a lawyer lie. If the client insists, refuse and counsel the client. If there’s an impasse, consider whether withdrawal under ER 1.16 is required.

Does ER 4.1 apply outside of litigation?

Yes. It applies whenever a lawyer communicates with a third person while representing a client – including transactions, contract negotiations, and regulatory matters.

Can a misrepresentation occur through silence or omission?

Yes. Partially true but misleading statements, omissions equivalent to affirmative false statements, and affirming a statement you know to be false can all constitute violations.

When must I disclose a material fact to a third person under ER 4.1(b)?

Only when disclosure is necessary to avoid assisting a client’s crime or fraud. This is not a general duty to volunteer information helpful to the other side. Withdrawal usually satisfies the obligation – though where the lawyer has issued an opinion or document that others may still rely on, notice of withdrawal and disaffirmance may also be required.

The interplay with ER 1.6 is important: if ER 1.6 prohibits the disclosure, it is not required. But if ER 1.6 permits the disclosure – for example, because the client used the lawyer’s services to commit the crime or fraud, or to mitigate resulting harm to another’s financial interests – then disclosure may be mandatory under ER 4.1(b), not merely optional. A lawyer who fails to disclose in those circumstances risks being found to have assisted the client’s criminal or fraudulent conduct. When facing this situation, contact the Ethics Hotline.

Can using AI to draft documents create ER 4.1 problems?

Yes. A lawyer is responsible for the accuracy of every statement submitted, regardless of how it was generated. Submitting AI-generated content without proper verification can result in a misstatement of law or fact in violation of ER 4.1 (and potentially ER 3.3). Always verify AI outputs before using them.

This page is managed by Patricia Seguin

ER 4.1 Truthfulness in Statements to Others

The Standard

The Limitation

FAQs

Best Practices

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