When can a lawyer lie?

In a previous post , we looked at the sources of a lawyer’s ethical obligations. The two primary sources are:

In almost every instance in which a lawyer speaks or writes on behalf of a client, the lawyer must be truthful. Here are some examples:

This Rules states that in the course of representing a client a lawyer shall not knowingly:

(a)     make a false statement of material fact or law to a third person; or

(b)     fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting  a criminal or fraudulent act by a client.

This Rule addresses the obligation of a lawyer when speaking to a judge or other legal tribunal. The Rules states:

(a)     A lawyer shall not knowingly:

(1)     make a false statement of material fact or law to a tribunal;

(2)     fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3)     fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4)     offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

In addition, a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

All of this seems very clear – – lawyers are not supposed to lie in representing a client. But, there is an exception recognized by the Rules.

The Comment to Rule 4.1 explains that in settlement negotiations, a lawyer may lie. For example, a defense lawyer can say “my maximum authority is $20,000” when, in fact the lawyer has more authority.

A plaintiff’s lawyer can say “my client will never take less than $40,000” when she knows for a fact that her client will take less.

The Comment to the Rule explains this by stating that in negotiations no one really believes the other side. So, these types of statements are not considered to be “statements of material fact.”

Similarly, in a transaction over a particular matter, the lawyer can make a statement about the value or price of something even though the lawyer knows it to be otherwise.

These exceptions are, of course, rare. In almost all other instances, lawyers must speak the truth.

S. Craig Panter

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156

www.craigpanterlaw.com

Craig Painter

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