ANNOTATIONSCOMMENT
Misrepresentation
A lawyer is required to be truthful when dealing with others on a
client's behalf, but generally has no affirmative duty to inform an
opposing party of relevant facts. A misrepresentation can occur if the
lawyer incorporates or affirms a statement of another person that the
lawyer knows is false. Misrepresentations can also occur by failure to
act.
Statements of Fact
This Rule refers to statements of fact. Whether a particular
statement should be regarded as one of fact can depend on the
circumstances. Under generally accepted conventions in negotiations,
certain types of statements ordinarily are not taken as statements of
fact. Estimates of price or value placed on the subject of a
transaction and a party's intentions as to an acceptable settlement of a
claim are in this category, and so is the existence of an undisclosed
principal except where nondisclosure of the principal would constitute
fraud.
Fraud by Client
Paragraph (b) recognizes that substantive law may require a lawyer
to disclose certain information to avoid being deemed to have assisted
the client's crime or fraud. The requirement of disclosure created by
this paragraph is, however, subject to the obligations created by Rule
1.6.
COMMITTEE COMMENT
The deletions the Committee made in subparagraph (a) are those
adopted by Minnesota to not limit the prohibition to material
statements, and to eliminate the argument over whether or not a
statement concerned a "material" fact. This provision is substantially
the same as DR 7-102(A)(3) and (5) of the Code.
ANNOTATION
Annotator's note.
Rule 4.1 is similar to
DR 7-102 as it
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
that provision have
been included in the annotations to Rule 1.2.
Conduct violating this rule in conjunction with other rules of
disciplinary conduct sufficient to justify public censure. People v.
Newman, 925 P.2d 783 (Colo. 1996).
Conduct violating this rule in conjunction with other disciplinary
rules is sufficient to justify suspension. People v. Mason,
938 P.2d 133 (Colo. 1997);
In re Meyers, 981 P.2d 143 (Colo. 1999).
Conduct violating this rule in conjunction with other disciplinary
rules is sufficient to justify disbarment. People v. Jackson,
943 P.2d 450 (Colo. 1997);
In re Hugen, 973 P.2d 1267 (Colo. 1999).
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