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July 01, 2013

Scruples: The Lying Client

An ethics lawyer explains how to deal with a client who is lying.

Michael Downey

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Paradox sank into the chair with an anxious look,

“What’s wrong?” Ethox inquired.

“Our client Lance has been lying” Paradox answered. “I’m sure of it. What do I need to do?”

“When did Lance lie?” Ethox pressed.

“Everyone was accusing Lance of cheating. Lance kept denying it, and everyone on Lance’s side—including his lawyer, me—accepted Lance’s denials as true.” Paradox spoke quickly. “During the mediation, I finally realized that Lance must be lying. Will I get in trouble for allowing him to do this?” 

“I highly doubt it,” Ethox responded. “Normally, a lawyer must know that a client is lying or providing false evidence before the lawyer will get into any serious trouble.”

“Really?” Paradox asked.

“Yes,” Ethox answered. “ABA Model Rule 4.1 states that a lawyer shall not ‘knowingly’ make a false statement of law or fact. Rule 8.4, meanwhile, prohibits a lawyer from engaging in ‘fraud’ or ‘deceptive conduct.’ Normally, these rules require a lawyer to have knowledge of a misstatement before the lawyer will be held responsible.”

Paradox sighed with relief, but Ethox continued, “That doesn’t mean you are completely out of the woods.”

“What do you mean?”

“Did you include Lance’s misrepresentations in any pleadings?” Ethox queried.

“We did,” Paradox said. “We filed some discovery, and Lance provided deposition testimony that turns out to be false.”

“Then Rule 3.3 applies,” Ethox warned. “If Lance’s misstatements were material, you are going to need to remedy them.”

“What do you mean, ‘remedy’? Can’t I just convince Lance to settle the case and put all Lance’s lying behind us?”

“Probably not,” Ethox answered. “Most authorities read Rule 3.3 as actually requiring that a false statement be withdrawn or rendered void.”

“Really? I can’t see Lance agreeing to an action that would reveal he had been lying.”

“Well,” Ethox considered, “if Lance won’t let us correct or withdraw the misstatements, we may need to terminate the representation. Failure to do so may result in our violating Rule 3.3. We might also be found to have violated Rule 1.2, in that we might be deemed to have assisted Lance with a crime or fraud.”

“So we would have to withdraw?”

“Yes. Rule 1.16(a) requires a lawyer to terminate a representation when the representation will result in a violation of the rules or other law,” Ethox answered. “Rule 3.3 requires you to remedy Lance’s false testimony. If Lance won’t allow you to correct the testimony, our only option may be to withdraw. Be aware that even if we terminate the representation, we would still have an obligation to correct Lance’s false testimony under Rule 3.3.”

Paradox’s eyes sparkled a bit. “That should be fun. If I am ending my representation of Lance, I would be more than happy to tell the judge about Lance’s lying—and perhaps a bit of his other misconduct.”

“Be careful. That also might get you in trouble,” Ethox cautioned.

“What do you mean?” Paradox was perplexed.

“The need to correct Lance’s misrepresentations to the court,” Ethox explained, “overrides our duty as lawyers to keep Lance’s confidences. Rule 3.3 expressly overrides a lawyer’s duty of confidentiality. That said, in other contexts we still have to keep Lance’s confidences. Thus, we can correct the misstatement, but we can disclose only the information reasonably necessary to do so.”

“Wow!” Paradox replied. “Having a lying client is very complicated. And I guess we have no chance of collecting the fees Lance still owes.”

“Actually, if we are forced to withdraw due to Lance’s misconduct, we may still be entitled to recover some portion of the fees. How about if we try to plan a comprehensive response?”

Paradox was relieved. “That is the best idea I have heard all day.” 

Michael Downey

The author is with Armstrong Teasdale LLP, St. Louis. He also teaches legal ethics at Washington University School of Law.