Is it okay for a lawyer to lie if it helps the client?
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.