Lawyers And Lying: Public Deception By Legal Professionals

Lawyers are generally prohibited from lying about the law or any other facts in public or in court. The American Bar Association's (ABA) Model Rules of Professional Conduct state that lawyers shall not knowingly make a false statement of material fact. This is to maintain the integrity of the legal profession and court systems. However, lawyers are permitted to pretend to be ordinary people in order to gather evidence of ongoing wrongdoing. While lawyers are not supposed to lie, there are grey areas regarding when they must be truthful and when they can engage in trickery.

Lawyers' obligations to clients vs. the court

Lawyers have a duty of confidentiality to their clients and are obliged to act in their client's best interests. This includes providing an informed understanding of their client's legal rights and obligations, and zealously asserting their client's position under the rules of the adversary system. However, lawyers also have an obligation to the court and opposing parties to act with integrity and candour.

In the context of the question, "can a lawyer lie about the law in public?", the answer is nuanced. Generally, lawyers are not supposed to lie, but there may be situations where they engage in "trickery". For example, lawyers are permitted to pretend to be ordinary customers to gather evidence of ongoing wrongdoing, but they are not permitted to use deceit to gather evidence more generally.

Lawyers must be truthful in all statements to a court and to third parties, including the public. They should not make false statements of fact or law before a legal tribunal or to the public. This is supported by the ABA Model Rules of Professional Conduct. However, the Model Rules of Professional Conduct generally apply to attorneys "in the course of representing a client", so it is unclear whether they apply to lawyers who are not involved in the controversy in question.

If a lawyer's client intends to commit perjury, the lawyer's first duty is to attempt to dissuade the client. If the client insists, the lawyer must withdraw from representation and may be required to disclose the specific reason for withdrawal if instructed to do so by the court. Some states, such as Florida, require lawyers to disclose their client's intent to the court upon withdrawal. However, this is not a universal requirement, and in some states, such as Alabama, a lawyer is not required to disclose information relating to the representation of their client without their consent.

Lawyers' right to lie under the First Amendment

Lawyers are generally not supposed to lie. However, the question of whether lawyers have the right to lie under the First Amendment is a complex one. The First Amendment protects citizens' right to free speech and expression, but it does not provide absolute protection for everything that is said. For example, committing fraud or false advertising is not protected under the First Amendment.

The First Amendment may pose an obstacle to state regulation of attorneys' lies about pending proceedings, but it does not apply to private discipline by professional organizations. Lawyers who make false statements of fact or law before a legal tribunal or to the public may face sanctions and referral to their state bar association for professional discipline.

According to the New York City Bar Association, attorneys should not "make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect." This is especially important in a highly charged environment of public interest. Attorneys are expected to uphold the integrity of the legal profession and maintain the public's trust.

In certain situations, lawyers may engage in deceit or "trickery" to gather evidence of ongoing wrongdoing. For example, lawyers and their agents may pretend to be ordinary customers to gather evidence against a company they believe is violating a court order. However, this does not extend to making false statements in court or to the public.

The line between conjecture, opinion, and deliberate false statements can be blurry, and lawyers must navigate complex ethical obligations when dealing with clients who intend to commit perjury. In such cases, a lawyer's first duty is to attempt to dissuade the client from committing perjury. If the client insists, the lawyer must withdraw from the representation and may be required to disclose the specific reason for withdrawal to the court.

Ultimately, the right to lie for lawyers under the First Amendment is a nuanced and complex issue that involves balancing the lawyer's obligation to their client, the court, and the public.

Lawyers misleading the public

Lawyers are prohibited from making false statements of fact or law to the public. The American Bar Association's (ABA) Model Rules of Professional Conduct specifically states that lawyers "shall not knowingly make a false statement of material fact". Lawyers have an obligation to maintain integrity and be candid with the court and opposing parties.

The New York City Bar Association has reiterated that attorneys should not "make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect". Attorneys should also refrain from making comments about judicial processes or officers that they "know to be demonstrably misleading or palpably false".

In the case of Rudy Giuliani, an appellate court ruled that he made "demonstrably false and misleading statements" by claiming that there was widespread fraud in the 2020 presidential election. As a result, his law license was suspended. The court determined that his false statement "threatened the public interest", which warranted the suspension of his license.

Lawyers are allowed to engage in a limited amount of deceit when gathering evidence. They may pretend to be ordinary people to determine if there is ongoing wrongdoing. However, they may not use deceit when gathering evidence in all cases.

If a lawyer lies, they can face serious consequences, including punishment and termination. They may also be sued by their clients if they are found to have lied or misled them.

Lawyers' use of deceit to gather evidence

Lawyers are generally not permitted to use deceit to gather evidence. However, there are certain situations where lawyers are allowed to engage in deceptive practices to gather evidence of ongoing wrongdoing. For example, lawyers and their agents may pretend to be ordinary customers to gather evidence of a company's violation of a court order. This is a generally accepted practice, as it helps identify ongoing wrongdoing that may be relevant to litigation.

The use of deceit by lawyers is a complex and controversial issue that has raised questions about legal ethics and the boundaries of acceptable behaviour. While lawyers have a duty to act with integrity and candour, they also have an obligation to their clients, which can create a tension between these competing interests. In some cases, lawyers may engage in deceptive practices, such as making misleading statements or presenting unreliable evidence, to protect their client's interests.

The Model Rules of Professional Conduct provide guidelines for lawyers' behaviour, but they do not cover all ethical situations. For example, the rules may not address situations where lawyers have a reasonable belief that their client is lying or presenting false evidence. In such cases, the lawyer is not obligated to disclose their suspicions but must still present only evidence they believe to be truthful and admissible.

Additionally, when a lawyer has actual knowledge that their client intends to commit perjury or present false evidence, the lawyer's first duty is to attempt to dissuade the client. If the client refuses, the lawyer must disclose this information to the court, which can have grave consequences for the client, including loss of the case and potential prosecution for perjury.

Overall, while lawyers generally should not use deceit to gather evidence, there are exceptions to this principle, and the specific ethical obligations of lawyers can vary depending on the jurisdiction and the circumstances of the case.

Lawyers' duty of candour

Lawyers have a duty of candour, which is generally understood as denoting frankness and openness. In the context of judicial review proceedings, the courts recognise that defendants owe a duty of candour and disclosure. This means that defendants must provide a full and accurate explanation of their decision-making process, including the relevant facts and reasoning underlying the challenged measure.

The duty of candour is particularly important for public authorities, as they are expected to maintain a higher level of transparency and accountability. Compliance with the duty of candour is crucial, and any failure or suspected failure to comply can result in sanctions.

In practice, lawyers are expected to be truthful in all statements, both to the court and to third parties, including the public. They should not make false statements of fact or law and should avoid misleading the public or making baseless charges. This applies to lawyers involved in a controversy as well as those who are not.

Additionally, lawyers have specific ethical obligations when their client intends to commit or has committed perjury. While a lawyer's first duty is to attempt to dissuade the client from committing perjury, they may also be required to disclose their client's intent or withdraw from representation. These obligations vary depending on the state and the specific rules of professional conduct.

Frequently asked questions