Is it possible for lawyers to lie?
Brett wonders if it’s ethical for a lawyer to commit perjury if he believes it’s in his client’s best interests.
Brett, that’s a wonderful question, and it raises the age-old assumption that lawyers are frequently tempted to lie or, in the worst-case scenario, professionally required to lie. The short answer is that lawyers aren’t meant to lie, but they can’t always stop their clients from doing so. I’ll get to the facts in a minute – honestly—but first, I’m pleased to announce that Go To Meeting is sponsoring the podcast version of this piece.
What Is the Distinction Between Perjury and Simple Lies?
Let me start by defining certain terms. Brett inquired in his email whether lawyers are permitted to do “perjury.” Making a false statement while under oath is referred to as “perjury.” Lawyers rarely commit perjury for the obvious reason that witnesses are the ones who make statements under oath, not lawyers. Lawyers, on the other hand, present arguments based on witness testimony, but not under oath.
Even when a lawyer is forced to make a statement under oath (for example, when the lawyer is a witness), making a false statement is never appropriate. No matter who commits perjury, it is a felony.
But what if the lawyer isn’t testifying under oath? A lawyer “must not knowingly make a false statement of substantial fact,” according to the American Bar Association’s Model Rules of Professional Conduct. To put it another way, lawyers aren’t supposed to lie, and if they do, they risk being penalized or even disbarred. The essential word here, though, is “knowingly.” A lawyer cannot lie “knowingly.”
Is it possible for lawyers to tell if their clients are lying?
There is no rule, however, that a lawyer must be aware of the truth. As a result, lawyers are frequently torn between the rule against lying and another ethical norm requiring lawyers to “zealously” advocate their clients. Here’s how it works: a customer contacts a lawyer. Someone is suing him, or the state is prosecuting him criminally. The client informs the attorney of his version of events.
Lawyers are not allowed to lie, but they are not required to fact-check their clients.
Although the lawyer is doubtful of the client’s story, he is not obligated to fact-check the client. Rather, the lawyer can argue that it is his job as a “zealous” advocate to accept the client’s version of events and strive to elicit facts to back it up.
Off-Limits Confidential Communications
What about clients or witnesses who only reveal part of the story instead of the “full story?” Lawyers must reveal important facts “where disclosure is necessary to avoid assisting a client in committing a criminal or fraudulent act,” according to the Model Code. So, in theory, if a lawyer notices that his client is deceiving a court or another person by omitting crucial information, the lawyer is obligated to reveal the missing information. However, there is an important exemption to this rule: there is no obligation to reveal data that a client shared with his counsel in confidence. And, in most cases, the lawyer will have obtained most of the facts from the client during a private lawyer-client conversation.
Is it Legal for Lawyers to Defend Clients Who They Know Are Guilty?
Okay, I sense you’re becoming fed up with the whole legal ethics thing. What about the enchilada grande? When a lawyer knows his client is guilty, can he represent him in a criminal trial? The answer is affirmative, but the attorney must approach with caution.
A lawyer can defend a client who confesses his guilt to the lawyer but wishes to plead “not guilty” within ethical limitations. The argument is simple: everyone is innocent until proven guilty in the eyes of the law, and it is the state’s responsibility to prove guilt “beyond a reasonable doubt.” A lawyer’s insistence that the state meet its burden of proving guilt beyond a reasonable doubt is not unethical. It’s everyone’s right, and they do it all the time on television.
A lawyer, on the other hand, cannot encourage a client to take the stand and offer false testimony. In that case, the client is guilty of perjury, but the lawyer is guilty of a separate criminal known as “suborning perjury,” which is a very serious crime.
Can Lawyers Tell Lies?
To summarize, a lawyer should not lie, perjure themselves, or encourage others to lie or perjure themselves. However, a lawyer has the right to accept his client’s version of events and is obligated to keep any conversations with the client discreet. Putting ethics aside, whether you’re a lawyer or a client, my advise is to always tell the truth. It’s the most straightforward thing to remember!
Thank you for taking the time to read Legal Lad’s Dirty Tips for a More Lawful Life. Before I go, I’d want to point out that Mignon Fogarty, the creator of “Quick and Dirty Tips,” has a new book out. She provides 365 days of memory tricks, riddles, and images in The Grammatical Devotional to help you learn and apply the most difficult grammar rules. Get a copy from your favorite bookshop or online bookseller and start improving your writing skills one day at a time.