OPINION 189
October 1958

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.

Question

Is it a violation of the Canons of Ethics 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?

Opinion

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 defendants. 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.)