Md. R. Att'y 19-304.1
Md. R. Att'y 19-304.1
COMMENT
Misrepresentation--[1] An attorney 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 attorney incorporates or affirms a statement of another person that the attorney knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by an attorney other than in the course of representing a client, see Rule 19-308.4 (8.4).
Statements of Fact--[2] 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 negotiation, certain types of statements ordinarily are not taken as statements of material 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 ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Attorneys should be mindful of their obligations under applicable law to avoid criminal or tortious misrepresentation.
Fraud by Client--[3] Under Rule 19-301.2(d) (1.2), an attorney is prohibited from counseling or assisting a client in conduct that the attorney knows is criminal or fraudulent. Subsection (a)(2) of this Rule states a specific application of the principle set forth in Rule 19-301.2(d) (1.2) and addresses the situation where a client's crime or fraud takes the form of a lie or misrepresentation. Sometimes an attorney can avoid assisting a client's crime or fraud by withdrawing from the representation. It also may be necessary for the attorney to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, however, substantive law may require an attorney to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. If the attorney can avoid assisting a client's crime or fraud only by disclosing this information, then under section (b) of this Rule the attorney is required to do so, even though the disclosure otherwise would be prohibited by Rule 19-301.6 (1.6).
Disclosure--[4] As noted in the comment to Rule 19-301.6 (1.6), the duty imposed by Rule 19-304.1 (4.1) may require an attorney to disclose information that otherwise is confidential and to correct or withdraw a statement. However, the constitutional rights of defendants in criminal cases may limit the extent to which an attorney for a defendant may correct a misrepresentation that is based on information provided by the client. See Comment to Rule 19-303.3 (3.3).
Model Rules Comparison: Rule 19-304.1 (4.1) has been rewritten to retain elements of existing Maryland language, to incorporate some changes from the Ethics 2000 Amendments to the ABA Model Rules, and to incorporate further revisions.