Accurate But Misleading Letter Violates Ethics Rules

The line between a technically accurate but incomplete representation to an opposing party and an omission of fact that amounts to dishonest conduct can be a difficult one to draw. A recent bar case from Massachusetts illustrates the point. The lawyer represented a divorcing wife. The husband agreed to permit a cash advance from marital assets to allow the wife to purchase a new home. The client had a romantic relationship with another man who agreed to purchase the home in his name and then sell the property to her. The lawyer wrote a letter to opposing counsel that did not disclose the arrangement, at the specific request of the client.

Bar Counsel filed charges, which were rejected by a hearing committee based on findings that the letter contained no affirmative false statements and that the lawyer had acted in good faith. On appeal, the Board of Bar Overseers rejected the finding of no misconduct and ordered an admonition. The letter was “deliberately misleading…obviously calculated to lead the husband’s attorney to believe that the advance was for a routine, arms-length transaction…” Further, the client’s request to not disclose was a mitigating factor, not a defense. (Mike Frisch)