If a client demands that a Texas lawyer verify a pleading under Rule 93 that the lawyer knows contains false statements, must the lawyer comply?

Plain-English summary

The inquiry asked whether, if a client demands that the attorney verify a pleading under Rule 93 of the Texas Rules of Civil Procedure and the attorney knows statements in the pleading to be false, the attorney must honor the client's demand. The Committee answered no.

The Committee reasoned that, although attorneys owe clients a duty of zealous representation, that representation must stay within the bounds of the law. Knowingly verifying a false pleading would, at a minimum, expose the lawyer to discipline under DR 7-102(A)(5) (knowingly making a false statement of fact), DR 7-102(A)(7) (assisting a client in illegal or fraudulent conduct), DR 1-102(A)(4) (conduct involving fraud, dishonesty, deceit, or misrepresentation), and DR 1-102(A)(6) (conduct reflecting adversely on fitness to practice). The Committee noted that DR 7-102(A)(2) forbids knowingly advancing an unwarranted claim or defense and that DR 7-102(A)(5) forbids knowingly making a false statement of law or fact, and that these prohibitions apply even more strongly to claims made in verified pleadings.

The Committee explained that Rule 93's purpose is to deter frivolous or untrue claims by requiring that they be sworn to, and that a false verification is a form of perjury, citing Davis v. Young California Shoes, Inc. and Five Star Energy Corp. v. Sowell, Ogg & Hinton, and noting that another state had disbarred an attorney for false verification in Office of Disciplinary Counsel v. Grigsby. It concluded that perjury can never be condoned and that no client has the right or power to make an attorney perjure himself or use the known perjury of another.

Currency note

This opinion was issued in 1983, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The closest current provisions are Texas Rule 3.03 (candor toward the tribunal) and Rule 8.04 (misconduct), with ABA analogs Model Rules 3.3 and 8.4. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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: Must a Texas lawyer verify a pleading the lawyer knows to be false if the client demands it?

A: No. The Committee concluded that the duty of zealous representation must stay within the bounds of the law and that knowingly verifying a false pleading would subject the lawyer to discipline under several Disciplinary Rules.

Q: Which rules would a knowingly false verification violate?

A: The Committee identified, at a minimum, DR 7-102(A)(5), DR 7-102(A)(7), DR 1-102(A)(4), and DR 1-102(A)(6), and noted that DR 7-102(A)(2) and DR 7-102(A)(5) apply even more strongly to verified pleadings.

Q: How did the Committee characterize a false verification?

A: As a form of perjury. The Committee cited Texas case law treating a false Rule 93 verification as perjurous and a Pennsylvania disbarment for false swearing, and concluded that no client may compel a lawyer to perjure himself.

Background and rules framework

The opinion interprets DR 7-102(A)(2), DR 7-102(A)(5), and DR 7-102(A)(7) (representing a client within the bounds of the law) and DR 1-102(A)(4) and DR 1-102(A)(6) (misconduct involving dishonesty and conduct reflecting on fitness) of the former Texas Code of Professional Responsibility, applied to a verification under Rule 93 of the Texas Rules of Civil Procedure. The closest current provisions are Texas Rule 3.03 and Rule 8.04, with ABA analogs Model Rules 3.3 and 8.4. The analysis turns on a false verification being a form of perjury that the client cannot compel.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal); MR 8.4 (misconduct), as the modern analogs
• DR 7-102(A)(2), DR 7-102(A)(5), DR 7-102(A)(7), DR 1-102(A)(4), DR 1-102(A)(6) (former Texas Code of Professional Responsibility)

Statutes and rules:

• Tex. R. Civ. P. 93 (verified pleas requiring verification)

Cases:

• Davis v. Young California Shoes, Inc., 612 S.W.2d 703 (Tex. Civ. App.--Dallas 1981, no writ), a Rule 93 verification must be direct and unequivocal enough to subject the affiant to perjury if untrue
• Office of Disciplinary Counsel v. Grigsby, 425 A.2d 730 (Pa. 1981), disbarment for filing a false sworn pleading
• Five Star Energy Corp. v. Sowell, Ogg & Hinton, 640 S.W.2d 722 (Tex. Civ. App.--Houston [14th Dist.] 1982, writ app. pending), a sworn denial that is false exposes the party to perjury prosecution

See also

• TX Ethics Op. 415: Pleading a Dollar Amount for Unliquidated Damages
• TX Ethics Op. 412: Erroneous Legal Opinion for an Employee Organization
• TX Ethics Op. 442: Revealing a Client's Fraud Committed Before the Representation

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-405/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_405.pdf

Original opinion text

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

QUESTION PRESENTED

If a client demands that the attorney verify a pleading pursuant to Rule 93, T.R.C.P., and the attorney knows statements in the pleading to be false, must the attorney honor the client's demand?

DISCUSSION

No. While attorneys owe clients a duty to zealously represent them, such representation must be within the bounds of the law. To knowingly verify a false pleading would, at a minimum, subject an attorney to professional discipline for violation of the following Disciplinary Rules: 7-102(A)(5), knowingly making a false statement of fact; 7-102(A)(7), assisting a client in illegal or fraudulent conduct; 1-102(A)(4), engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation; 1-102(A)(6), engaging in conduct reflecting adversely on the attorney's fitness to practice law. While DR 7-102(A)(2) forbids a lawyer from knowingly advancing a claim or defense that is unwarranted under existing law and DR 7-102(A)(5) forbids knowingly making a false statement of law or fact, such prohibitions even more strongly apply to claims made in verified pleadings.

The General Commentary to Rule 93 quotes from an article and a speech by Robert W. Stayton. Of particular relevance is language from Stayton's article, "The Scope and Function of Pleadings Under the New Federal and Texas Rules: A Comparison," 20 Texas L.Rev. 16, 25 (1941): It is required that, if made, contentions here referred to shall be under oath . . . . . It is the impression that the requirement of sworn, specific pleadings in these exceptional instances and in others of a like nature, has resulted in a wholesome deterrence.

The obvious intent of Rule 93 is to deter certain frivolous or untrue claims by requiring that they be sworn to. It is evident from the cases that the verification is not to be taken lightly and that false verification is a form of perjury. See Davis v. Young California Shoes, Inc., 612 S.W.2d 703 (Tex. Civ.App.--Dallas 1981, no writ). Davis states that a proper Rule 93 verification must be "so direct and unequivocal as to subject the affiant to perjury if untrue." Id. at 704. While this case is concerned with the definiteness of the assertions required to comply with Rule 93, the obvious implication is that a false verification is perjurous.

At least one other state has adopted this viewpoint, and has subjected an attorney to professional discipline for false verification. See Office of Disciplinary Counsel v. Grigsby, 425 A.2d 730 (Pa. 1981). In that case, the attorney was disbarred on the basis of evidence that he filed a false sworn pleading and a false sworn application for a driver's license. "This Court has held that false swearing is an 'egregious species of dishonesty' which goes to the heart of the legal profession . . . . . Truth is the corner-stone of the judicial system; a license to practice law requires allegiance and fidelity to truth." Id. at 733. Disbarment was, therefore, considered the appropriate remedy for false swearing.

See also Five Star Energy Corp. v. Sowell, Ogg & Hinton, 640 S.W.2d 722, 725 (Tex.Civ.App.--Houston [14th Dist.] 1982, writ app. pending), which states, "A denial under oath is presumed to be true and if a party swears to incorrect information, he opens himself up to prosecution for perjury."

This Committee has always made it clear and will continue to stress that an attorney has a duty to act in a truthful and honest fashion with respect to all of his professional dealings. In this instance it suffices to say that perjury can never be condoned and no client has the right or power to make an attorney perjure himself or use the known perjury of another

Tex. Comm. On Professional Ethics, Op. 405 (1983)