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Opinion 692

Question Presented

Does a lawyer have a duty under the Texas Disciplinary Rules of Professional Conduct to correct false statements made by his client in response to questioning by the opposing party’s counsel during a deposition?

A lawyer represented an individual defendant in a case arising from a car crash.  A key issue in the case was whether the defendant-driver was looking down at his cell phone when the crash occurred.  In an early meeting with his lawyer, the defendant admitted that he had been looking down at his phone when the accident happened but argued that the crash was the plaintiff’s fault because the plaintiff was driving erratically.  When the plaintiff asked for the defendant’s deposition, the defendant’s lawyer counseled his client to testify truthfully if asked about whether he had been looking at his phone.  The defendant agreed to do so.

But during the deposition, in response to questions by the opposing lawyer, the defendant lied, testifying that he was not looking at his phone at the time of the crash.  At the next break, the defendant’s lawyer urged the client to correct the falsehood, but the client refused and instructed his lawyer to remain silent and do nothing to correct the falsehood.  The lawyer returned to the deposition, and the issue did not come up again.  When the plaintiff’s lawyer passed the witness, the defendant’s lawyer declined to ask any questions.


Bluebook Citation

Tex. Comm. On Professional Ethics, Op. 692 (2021)