8.1 Bar Admission and Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

COMMENT

[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer?s own admission or discipline as well as that of others. Thus, it is separate misconduct for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer?s own conduct. Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

[2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of relevant state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.

[3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.

REPORTER?S NOTES:

Model Rule 8.1 (2002) generally corresponds to M. Bar R. 3.2(b). The Task Force discussed the distinction between the term ?knowingly? as used in Rule 8.1(a) and ?should have known,? the term used in M. Bar R. 3.2(b). The Task Force observed that the definition of ?knowingly? in the Terminology Section of the 2002 Model Rules explicitly states that ?a person?s knowledge may be inferred from circumstances.? M. Bar R. 3.2(b) sets forth a objective standard, and Model Rule 8.1(a) (2002) and the Model Rule definition of ?knowingly? present a hybrid standard. The Task Force concluded that, in practice, no meaningful distinction exists.

The Task Force further observed that much of the substance of M. Bar R. 3.2(b)(2) is addressed in the Model Rule 8.1(b) (2002) language. The Task Force noted that the term ?person? is broad enough to cover a false statement by a lawyer?further[ing] the application for admission of another . . . .?

The term ?misleading? as used in M. Bar R. 3.2(b)(1) is captured in Rule 8.1(b) by the term ?misapprehension.?

The Task Force decided not to use the 2002 Model Rules phrase ?professional offense? in Comment [1] because it implies conduct that is akin to criminal conduct. Within the confines of bar discipline, professional misconduct has never been directly or indirectly associated with criminal conduct. The Task Force recommended the term ?misconduct.? With the noted modifications, the Task Force recommended adoption of Model Rule 8.1 (2002).