Episode 104: November 30, 2009
by Adam Freedman
Today’s topic answers the question Can lawyers tell lies? Professionally, that is.
But first, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Can Lawyers Lie?
Brett asks whether it is ethical for a lawyer to commit perjury if he thinks it’s in the best interests of his client.
That’s a great question, Brett, and it touches on the age-old suspicion that lawyers are, at best, often tempted to lie or, at worst, professionally obligated to lie. The quick answer is that lawyers are not supposed to lie, but they can’t necessarily prevent their clients from lying. I’ll get to the details in a minute – honestly--but first I’m happy to tell you that the podcast version of this article is brought to you by Go To Meeting.
What’s the Difference Between Perjury and Plain Lies?
First, let me clear up the terminology. In his email, Brett asked whether lawyers are allowed to commit “perjury.” The term “perjury” refers specifically to making a false statement under oath. It’s rare for lawyers to commit perjury for the simple reason that lawyers generally do not make statements under oath--that’s what witnesses do. Instead, lawyers make arguments based on the testimony of witnesses, but they don’t do so under oath.
But even when a lawyer is required to make a statement under oath (such as when the lawyer is himself a witness), it is never proper to make a false statement. Perjury is a crime no matter who commits it.
But what about when the lawyer isn’t under oath? The American Bar Association’s Model Rules of Professional Conduct states that a lawyer “shall not knowingly make a false statement of material fact.” In other words, lawyers aren’t supposed to lie--and they can be disciplined or even disbarred for doing so. But notice, the key word here is “knowingly.” A lawyer cannot “knowingly” lie.
Do Lawyers Know if Their Clients Are Lying?
There is, however, no rule that requires a lawyer to know what the truth is. As a result, lawyers are sometimes torn between the rule against lying and a separate ethical rule requiring lawyers to represent their clients “zealously.” Here’s what happens: a client approaches a lawyer. He’s being sued by someone, or is being criminally prosecuted by the state. The client tells the lawyer his version of the facts.
Lawyers shouldn’t lie, but they don’t have to fact-check their clients.
The lawyer is skeptical of the client’s story, but he’s under no obligation to fact-check the client. Rather, the lawyer can argue that it is his duty as a “zealous” advocate to accept the client’s version of the story, and try to produce evidence to support that story.
Confidential Communications are Off-Limits
What about clients or witnesses who only tell part of the truth, rather than the “whole truth?” The Model Code requires that lawyers must disclose important facts “when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” So, in theory, if a lawyer sees that his client is misleading a court or another person by omitting important facts, the lawyer is supposed to disclose the missing information. But there’s a big exception to this rule: there is no duty to disclose facts that a client told his lawyer in confidence. And generally, most facts that the lawyer learns from the client will have been learned in a confidential lawyer-client conversation.
Can Lawyers Defend Clients They Know are Guilty?
Okay, I can tell you’re getting frustrated with the whole topic of legal ethics. What about the big enchilada? Can a lawyer defend a client in a criminal trial when he knows the client is guilty? The answer is: yes, but the lawyer has to proceed somewhat carefully.
If the client confesses his guilt to the lawyer, but wants to plead “not guilty,” a lawyer can represent him within ethical bounds. The reason is simple: in the eyes of the law, every person is innocent until proven guilty, and it is the state’s obligation to prove guilt “beyond a reasonable doubt.” There is nothing unethical about a lawyer demanding that the state meet its burden of proving guilt beyond a reasonable doubt. It’s everybody’s right, and they do it on TV all the time.
One thing a lawyer cannot do, however, is encourage the client to get up on the stand and give false testimony. In that situation, the client commits perjury, but the lawyer commits a distinct crime known as “suborning perjury,” and it’s a very serious offense.
Recap: Can Lawyers Lie?
So, to recap, a lawyer should not lie, commit perjury, or encourage others to lie or commit perjury. But a lawyer is entitled to accept his client’s version of the facts and is positively required to maintain the confidentiality of all communications with the client. Ethics aside, my advice, whether you’re the lawyer or the client, is: always tell the truth. It’s the easiest thing to remember!
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