LEO 1224

LEO: Disclosure - Representing Client Within LE Op. 1224

Disclosure - Representing Client Within the Bounds of the Law:

Attorney Filing Suit on a Cause of Action Which Had Been

Dismissed in a Similar Case By the Same Court.

March 9, 1989

You advised that an attorney was suing on a cause of action which had

been dismissed in a similar case by the same court and you questioned

whether or not it was unethical for the attorney to assert this claim and

further, whether it was improper for the attorney to fail to disclose the

prior court ruling which dismissed a similar claim.

The Committee opines that DR:7-102(A)(2), (3), and (5) are the

appropriate and controlling disciplinary rules in this situation. They

provide that in representing a client a lawyer shall not knowingly advance

a claim or a defense that is unwarranted under existing law, except that

he may advance such claim or defense if it can be supported by good faith

argument for an extension, modification or reversal of the existing law.

Furthermore, he shall not conceal or knowingly fail to disclose that which

he is required by law to reveal or knowingly make a false statement of law

of fact. Under the facts you presented, the Committee is assuming that the

attorney was not specifically asked by the court about similar suits and

that no false statement was made by him. The Committee further opines that

under the facts you have outlined, it does not believe that the attorney

was "required by law" to reveal the existence of the prior rulings by the

court.

Of particular importance is the fact that the decision of the general

district court was appealed to the circuit court because the appellants

believed it was incorrect. The Committee opines that in light of the

appeal status of this claim the attorney advancing similar claims in the

general district court could certainly claim he was making a good faith

argument for an extension, modification or reversal of existing law as

contained in DR:7-102(A)(2).

Therefore, the Committee opines that under the fact situation you have

outlined it was not improper for the attorney to sue on a cause of action

previously dismissed by the same court and furthermore it was not improper

for the attorney to fail to inform the court as to the previous suit when

not specifically asked by the court for such information.

Committee Opinion March 9, 1989

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