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Case 22-1426, Document 78, A304 3536039, Page50 of 217 Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 304 of 348 previously noted, there is some contemporaneous evidence supporting her assertion. Villafafia’s mention of the agreement, even if not described in specific terms, would have been sufficient to apprise those victims of the status of the federal investigation. Nevertheless, Villafafia did not recall discussing the NPA specifically or in general terms with other victims interviewed at that time, nor did she do so with Edwards or any other victim’s attorney. OPR therefore considered whether the omission of information about the existence of the NPA during these interactions rose to the level of professional misconduct in violation of FRPC 4-4.1 or 4-8.4.41 OPR evaluated Villafafia’s conduct in light of the comment to FRPC 4-4.1: A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. The victims and their attorneys were certainly not “opposing part[ies]” to the USAO, but the comment indicates that the rule recognizes that omissions made during discussions with third parties, even of relevant facts, are not always treated as false statements. Here, the evidence does not show that Villafafia knowingly made an affirmative false statement to the victims or Edwards or that her omissions were “the equivalent of affirmative false statements” about material facts. First, Villafafia told OPR that she believed the investigation was ongoing and her statement to that effect truthful, and as discussed earlier in this Chapter, the evidence shows that Villafafia and the agents did continue to investigate the case until Epstein entered his guilty plea in state court in June 2008. Villafafia’s email correspondence with her supervisors reflects her strong advocacy during that timeframe to declare Epstein in breach and to charge him. The evidence similarly does not show that Villafafia knowingly made any affirmative false statement to Edwards when she informed him of the state court plea, although she declined to provide additional information in response to his questions.*” Second, in reaching its conclusion, OPR considered the full context in which Villafafia interacted with the victims and Edwards. Prosecutors routinely make decisions about what information will be disclosed to witnesses, including victims, for a variety of strategic reasons. In many cases, prosecutors must make difficult decisions about providing information to witnesses, 441 In Florida Bar v. Joy, the court affirmed a referee’s conclusion that Joy violated FRPCs 4-4.1(a) and 4-8.4(c) “for making false statements by omission of material facts in his representations [to counsel].” Florida Bar v. Joy, 679 So. 2d 1165, 1166-68 (Fla. 1996). See also Florida Bar re Webster, 647 So. 2d 816 (Fla. 1994) (petition for reinstatement denied due to “misrepresentation by omission”). ae In Feinberg, 760 So. 2d at 938, the court found that an Assistant State Attorney lacked candor and violated ethics rules when, after meeting with a defendant outside his attorney’s presence, the prosecutor falsely stated to the defense attorney that he (the prosecutor) had not met with the defendant. 278 DOJ-OGR-00021480