Can a lawyer knowingly misstate a non-resident defendant's former address to obtain substituted service and support a default judgment?

Plain-English summary

The inquiry asked whether a Texas attorney violates the Canons by intentionally misstating the former residence of an out-of-state defendant in a civil damage suit to obtain service under the Texas non-resident motorist act (Article 2039-a), where that service would support a default judgment, the attorney knows the allegation is false, and the defendant cannot appear to contest the service without submitting to the court's jurisdiction. The Committee concluded that such conduct violates Canon 19 (8-0).

The Committee's opinion was that knowingly misstating the residence facts violates Canon 19 and is also a violation of the oath taken by every attorney admitted to practice in Texas, as set out in Article 309, R.C.S. The Committee noted the opinion rests on the plaintiff's attorney knowingly misstating the residence facts; it added that many members did not feel the plaintiff's attorney would necessarily be bound by the defendant's contention about residence facts set forth in a prior ex parte affidavit.

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer misstate a defendant's address to obtain substituted service?

A: No. The Committee held that intentionally misstating a non-resident defendant's former residence to obtain service under the non-resident motorist act violates Canon 19 (8-0).

Q: What besides Canon 19 did the Committee say the conduct violated?

A: The Committee said the conduct also violates the oath taken by every attorney admitted in Texas, as set out in Article 309, R.C.S.

Q: Was the lawyer bound by the defendant's own prior statement of residence?

A: The Committee noted many members did not feel the plaintiff's attorney would necessarily be bound by the defendant's contention about residence facts in a prior ex parte affidavit.

Background and rules framework

The opinion interprets former Texas Canon 19 (candor and fairness), together with the attorney's oath under Article 309 of the Revised Civil Statutes. The modern analogs are ABA Model Rule 3.3 (candor toward the tribunal) and Model Rule 8.4 (misconduct, including conduct involving dishonesty, fraud, deceit, or misrepresentation).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal) and MR 8.4 (misconduct), as the modern analogs
• Texas Canon 19 (former canon on candor and fairness)

Statutes:

• Article 2039-a (Texas non-resident motorist act, as cited)
• Article 309, R.C.S. (attorney's oath, as cited)

See also

• TX Ethics Op. 214: Withholding a Defense and Candor
• TX Ethics Op. 213: Settlement Demands Pleaded in a Petition
• TX Ethics Op. 204: A Client's Announced Intent to Commit a Crime

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-189/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_189.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Is it a violation of the Canons of Ethics for a Texas attorney to misstate intentionally the former residence of an out-of-state defendant in a civil damage suit for the purpose of obtaining service under the Texas non-resident motorist act (Article 2039-a) where such service will support a default judgment and the Texas attorney knows the allegation is false and realized that the out-of-state defendant cannot make any appearance in the Texas court to contest the service without submitting himself to the jurisdiction of the Texas court?

18 Baylor L. Rev. 283 (1966)

CANDOR AND FAIRNESS - MISSTATEMENT OF RESIDENCE FACTS
An attorney may not misstate intentionally the former residence of an out-of-state defendant in a civil damage suit for the purpose of obtaining service under the Texas non-resident motorist act.

Canon 19.

It is the committee's opinion that such conduct violates Canon 19 and is also deemed a violation of the oath taken by every attorney admitted to practice in Texas, as set out in Article 309, R.C.S. of Texas.

The opinion is based upon the plaintiff's attorney knowingly misstating the residence facts. From the initial inquiry it appeared that plaintiff's attorney received such knowledge of residence facts through an ex parte affidavit by the defendant. In the inquiry itself, however, it was concluded that the plaintiff's attorney knowingly misstated the residence facts. Many members of the Committee did not feel that the plaintiff's attorney would necessarily be bound by the defendant's contention as to the residence facts set forth in his ex parte affidavit in a prior proceeding. (8-0.)

Tex. Comm. On Professional Ethics, Op. 189 (1958)