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American College of Trust and Estate Counsel
3415 S. Sepulveda Boulevard
Suite 330
Los Angeles, CA 90034
310-398-1888
310-572-7280 (fax) |
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| << Back to Table of Contents |
ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT |
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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 to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
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| MRPC 4.1 prohibits a lawyer from knowingly making false statements of fact or law to any thirdparty or knowingly failing to disclose material facts to any third-party under the circumstances Page 55 described in paragraph (b). This rule must be considered in light of the lawyer's duties to the court, MRPC 3.3 (Candor toward the Tribunal). In addition, the lawyer for a fiduciary is obligated to deal fairly and honestly with the beneficiaries of the fiduciary estate. See ACTEC Commentary on MRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer).
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| In representing a fiduciary the lawyer is bound by MRPC 3.3 (Candor toward the Tribunal) in all relations with the court. MRPC 4.1 operates the same way as MRPC 3.3 if the lawyer is representing the fiduciary in dealing with beneficiaries. Thus, if a fiduciary is not subject to court supervision and is therefore not required to render an accounting to the court but chooses to render an accounting to the beneficiaries, the lawyer for the fiduciary must exercise the same candor toward the beneficiaries that the lawyer would exercise toward any court having jurisdiction over the fiduciary accounting.
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| Cases
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Colorado:
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People v. Vigil, 929 P.2d 1311 (Colo. 1996). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.7.
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Texas:
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Lesikar v. Rappeport, 33 S.W.3rd 282 (Tex. Ct. App. 2000, pet. denied). Attorney has no duty to reveal
information about his client-executor’s fraud to a third party (even a co-executor who is not his client)
when his “client is perpetrating a nonviolent, purely financial fraud through silence.”
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| Ethics Opinion
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Illinois:
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Op. 98-07 (1999). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 3.3.
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