Legal Ethics Opinion No. 1397

 Representing a Client Within the Bounds of the Law--Misconduct: 
Misstating the Date on a Certificate of Service of a Pleading

You have indicated that an attorney has repeatedly, on the last
response filing date, miscertified a "service certificate" by
dating the same on the response date, but not actually depositing
the pleading or other material in the U.S. mail until a
subsequent date, for delivery to other attorneys of record.

You have requested that the committee opine as to whether
miscertification of the nature described is improper and
unethical under the provisions of the Virginia Code of
Professional Responsibility.

The appropriate and controlling disciplinary rules to your
inquiry are DRs 7-l05(C)(5) and l-l02(A)(3) and (4).  The former
prohibits a lawyer from intentionally or habitually violating any
established rule of procedure or evidence, where such conduct is
disruptive of the [trial] proceedings. DR l-l02(A)(3) and (4), in
pertinent part, prohibit a lawyer from committing a deliberately
wrongful act or engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation when any such activities reflect
adversely on the lawyer's fitness to practice law.  Further
guidance may be found in Ethical Consideration 7-22 which, in
pertinent part, indicates that, since "[r]ules of evidence and
procedure are designed to lead to just decisions and are part of
the framework of the law....a lawyer is not justified in
consciously violating such rules and he should be diligent in his
efforts to guard against his unintentional violation of them."

The committee has earlier opined that it is improper for a lawyer
who has executed answers to interrogatories, and who has
represented to opposing counsel that the answers may be treated
as if they were signed under oath by the attorney's client, to
include in such interrogatories answers which are false.  LEO
#743; see also LEOs #732, 948 ll27.

The committee is of the opinion that an attorney's repeated
misstatement of the date on which pleadings were mailed to
attorneys of record, in order to attempt to demonstrate
compliance with the Rule, is improper and violative of the Code's
proscriptions against both deceit and habitual violation of an
established rule of procedure, whether or not the misstatement is
intentional.  Furthermore, the committee views even a single
incident of intentional misstatement to be improper and violative
of the Code of Professional Responsibility.  See Howard v. Gulf,
C. & S.F. Ry., l35 S.W. 707 (Tex.Civ.App. l9ll). 

Committee Opinion
January 14, 1991