Everyone knows that lawyers are not allowed to lie — to clients, courts or third parties. But once you get beyond deliberate false statements, the scope of the obligations to truth and integrity become less clear. What about reckless and negligent statements that are false? What about misleading statements and implications about the extent of your knowledge? What about omissions? When is it okay to exploit someone else’s misapprehension and when do you have to correct it?
Those and other questions were the focus of a recent ABA-sponsored webinar titled, “Lies, Damned Lies, and Alternative Facts,” during which a panel of expert ethics lawyers attempted to answer these questions and discussed the scope of lawyers’ duty of candor under ABA Model Rules 1.2, 1.6, 3.3, 4.1 and 8.4.
Program moderator Bruce A. Green, director of the Louis Stein Center for Law and Ethics at Fordham Law School, presented five scenarios and a resulting Q&A to fellow panelists Rebecca Roiphe and Nicole I. Hyland, who explained their response and the applicable case law. Roiphe is a professor at New York Law School, where she teaches professional responsibility and professional responsibility in criminal practice. Hyland is a partner at Frankfurt Kurnit Klein & Selz in New York, where she focuses on legal ethics, professional responsibility and legal malpractice.
“As a general practice,’’ said Green, “lawyers aren’t supposed to lie. But there are hard questions about when you must be forthcoming and when is it okay to engage in a little trickery. These questions raise a bit of tension between, on the one hand, the lawyer’s obligation to the client and confidentiality and, on the other hand, the lawyer’s obligation to integrity and the candor to the court and opposing parties.”
Here are three of the scenarios:
Scenario 1: A law firm represented a plaintiff in trademark and copyright litigation against a stamp manufacturer that was putting the plaintiff’s photos on its stamps. The firm obtained a court order forbidding the company from continuing to use the plaintiff’s photos. Believing that the company was violating the court order, lawyers and paralegals at the firm telephoned the company asking to purchase stamps with the plaintiff’s photos. When the firm sought sanctions against the company for violating the court order, the company in turn sought sanctions against the law firm.
Question: Should the court sanction the law firm for gathering evidence through the use of deceit?
Answer: No, because although lawyers may not generally use deceit to gather evidence, lawyers and their agents may pretend to be ordinary customers in order to gather evidence of ongoing wrongdoing.
The court said there is a tradition here of lawyers either engaging in or supervising investigators to engage in a certain amount of deceit to get information to identify ongoing wrongdoing that may be relevant to a litigation, Hyland said, adding that this is a generally accepted practice. These are ethical rules of reason and there is a certain amount of permissible dissembling allowed in order to identify wrongdoing that you probably wouldn’t be able to identify otherwise.
Roiphe said there are three things relevant here:
1) the amount of deceit the person uses
2) the purpose of deceiving and what that was trying to achieve
3) is there any other way this could have been done
“When you look at those three on balance in this scenario, it weighs toward allowing this behavior because when it’s ongoing wrongdoing, it’s very hard to use other methods to get at that wrongdoing. In that way, the purpose is relatively a good one,” she said.
Scenario 2: A drug defendant’s lawyer received a call from her client’s mother the night before a scheduled court date. The defendant’s mother told the defense lawyer that her son would likely not make it to court the next day, as he had just left the house “high as a kite.” Drug use would violate a term of the defendant’s pretrial release. When the defendant is absent from court the next day, the judge asks defense counsel, “Do you have any information about why your client is absent from court?”
Q: How should the lawyer respond?
A: The lawyer should ask the judge to excuse her from answering because of her confidentiality obligations to her client.
Roiphe said this question brings up the intersection or tension of a lawyer’s obligation to tell the truth or not to make a false statement and their obligation to confidentiality to their client. “But I also think the lawyer could say, ‘I have no idea where my client is,’ and still be truthful. She has no idea where her client is, though she might know why the client isn’t present.”
The main issue here is that this is a criminal defendant and criminal defense lawyer. Roiphe said the Model Rules must be read in context and a relevant piece of that context is who is the client and what is the representation? “Criminal defense lawyers are operating in an interesting space in which there is a certain constitutional overhang in all of this and their obligation to their client is not only created by these ethical rules but also by constitutional provisions, and I think that changes the balance somewhat.’’
Hyland said telling the judge that you have no idea where your client is can be almost as harmful as any other type of response because it deflects your responsibility. “But you could say, ‘I’m still looking into that. I don’t have enough information yet,” she explained. “There may be a way to say it that appeases the judge or makes the judge angry or think that you’re being evasive.”
Scenario 3: A defendant is charged with robbery. The case turns on the complaining witness’ testimony. Initially, the prosecution cannot locate the complainant, but eventually it does and the prosecutor announces, “ready for trial” and the case is marked trial-ready. Over the next two months, the prosecutor and defense counsel negotiate a guilty plea. The defendant accepts the plea offer. Days before the scheduled guilty plea, the prosecutor learns of the complainant’s death. The case is not triable without the complainant, but the prosecutor does not disclose the complainant’s death and the defendant enters a guilty plea.
Q: Was the prosecutor’s conduct improper in not disclosing that the complainant and key witness had died before the guilty plea?
A: No, because the witness’ death was not exculpatory, and therefore the prosecutor had no constitutional, statutory or ethical duty of disclosure.
Roiphe said that in the actual case the court concluded no, and added that for her the issue is one of deceit. “By not turning over this information, you’re not affirmatively lying but you’re not giving over this information that you know would be critical in the defendant making this decision,” she explained. “I believe the prosecutor does have the obligation to turn that information over and it comes from the duty of candor. If the defense attorney has in some ways a kind of tempered obligation, then the prosecutor has a particularly heightened obligation of candor and the reason why is that they are a minister of justice. Part of the prosecutor’s job is to balance procedural fairness with another job that prosecutors have and that is that guilty people go to jail.”
Hyland said that in a civil case, if you are representing the plaintiff and the client dies, you can’t consummate a settlement because you no longer have a client and you no longer have authority. “But more to the point, it’s deceptive,” she said. “I’m even struggling with why this would be less deceptive on the criminal side and why a prosecutor could engage in this conduct when a civil litigator would clearly be in the wrong.”
“Lies, Damned Lies, and Alternative Facts” was presented by the ABA Law Practice Division, Solo, Small Firm and General Practice Division, Section of Family Law, Section of Litigation, Government and Public Sector Lawyers Division, Business Law Section and the Center for Professional Development.