The Importance of Honesty in Legal Practice
In addition to the established rules of conduct, there are also strong professional expectations for ethics in the legal field. Honesty and integrity are at the core of every ethical obligation and represent the foundation upon which our legal system is built. Lying or otherwise acting dishonestly puts this foundation at risk, and therefore, as a matter of course, legal professionals are ethically obligated to maintain honesty in all of their practice.
Maintaining this level of integrity entails more than simply not lying about your credentials or misrepresenting yourself. Minor acts of dishonesty such as manipulating evidence, exaggerating facts, or failing to disclose or document potential conflicts of interest represent ethical violations that could have detrimental consequences for your clients, the court, and your professional reputation.
For this reason , while you may be able to skirt judicial ethical codes on rare occasions without serious consequences, doing so is a gamble that should only be undertaken with the greatest caution. The legal system is still set up under the expectation that attorneys and judges alike will maintain the utmost level of honesty and fairness in the courtroom—even when strict standards for honesty are not actively enforced.
If you have been caught up in an ethical situation in your professional practice, the most important consideration you must keep in mind will always be your obligation to maintain integrity and honesty in your legal practice. As lawsuits attorneys with extensive experience, we can offer you the aggressive representation that will ensure your case is effectively argued. We offer a free initial consultation to clients in need.
Legal Implications of Lying under Oath
The primary legal consequence of wilfully lying in court arises, as in so many areas of criminal law, from a breach of the Criminal Code. Wilfully omitting to state the truth is treated as perjury under the Criminal Code and may be punished as a serious crime. It is also treated as "obstruction of justice" under the Code, which is a lesser charge, punishable by way of an Order for Pending Conviction and a fine. In Ontario, when such contempt refers to a false affidavit, the Rules of Civil Procedure have found a way to impose quasi-criminal liability. Costs will almost certainly be ordered against the liar and Court Orders may be issued to preclude the dishonest testimony in future litigation. Further, a judge may issue a "censure". The Ontario Superior Court of Justice has held that the misrepresentation was "an offence so serious that the frank acknowledgement of its occurrence on the record of the proceedings disposed of the issue at the bar." If the dishonesty has already been exposed, as in the Patel case, the court may include an admonition in its written decision to a future tribunal where the dishonest party is likely to appear. For example, in the appeal of Annacott Advanced Credit Corp v. Lenthall, the motions judge had ruled against the defendant on the basis of the misrepresentation of facts in his affidavit. The defendant appealed and the Ontario Divisional Court held that the motions judge ought to have corrected the offending affidavit before correcting the errors in the case. Madeline County on Abatec Construction Co. v Telaro Developments Limited, 2010 ONSC 3596 quoted Annacott, stating that a judge should always take steps to correct the record and to safeguard the integrity of the courts "particularly where the issue involves a party lying in a court document …". Over and above criminal liability, however, are the consequences that arise from a breach of duty of care to the court. Whether the testimony is given in good faith or innocent error, lack of candour threatens the integrity of the court process. It is the candour requirement that allows the judge to be impartial and independent. There is a heavy expectation that witnesses will be truthfully candid regardless of their own personal interests. An express duty is established under the Rules of Civil Procedure. The courts regulate both members and non-members of the legal profession. Rule 2.1 refers to circumstances in which the courts may take action against a member of the legal profession, including prohibition of practice. In addition, members are bound by indemnity, which means they must cover and pay any damages they incur in a civil action that relates to or arises from the performance or intended performance of the member’s duties (other than as a result of the member’s dishonesty). But a member’s right of indemnity will be lost in circumstances that indicate "dishonesty, fraud, criminal or unlawful conduct, or conduct disgraceful or dishonourable to the member’s profession", and counsel is deemed to have acted dishonestly where the "nature or colour" of the actions is such that the barrister may be justifiably prohibited from serving as an officer of the court. Under the Rules of Professional Conduct, all lawyers have a positive duty to strive to be honourable, candid and forthright and to maintain the integrity of the justice system.
Rules and Regulations Regarding Lawyer Conduct
To address client and public concerns over the conduct of lawyers, the ABA has promulgated a set of ethical rules, designated the Model Rules of Professional Conduct. The Model Rules are not binding on lawyers unless adopted into law by the fifty states, U.S. territories, or federal agencies. But similar rules have been enacted in nearly every state, and most are modeled on the Model Rules. While differing to some degree, the states’ rules uniformly require lawyers to communicate honestly and candidly with clients, with opposing parties and their lawyers, and with the courts and their officers.
The Model Rules first became the basis for state rules in 1983 and, in 2003, the ABA adopted the preamble, which recognized both that lawyers may have to take "tactical action undermining credibility" of the other party or witness, and that the rules do not authorize, or excuse unlawful conduct or behavior contrary to the Rules of Professional Conduct. In a nutshell, while an advocate may not knowingly or intentionally misrepresent the facts or law to the court, neither may advocacy otherwise undermine the adversary system, nor obstruct the administration of justice.
Exceptions and Ambiguities
There are a few exceptions to some of the general rules that I have already set forth and in some instances there are gray areas that either allow a lawyer to stretch the truth or misrepresent the truth:
1. Misstating Numbers
Many times when doing calculations certain numbers might be rounded up or down to make things a bit simpler. For example an employee might be earning $51,750.50 but it is rounded up to $52,000.00 when testifying. While this is not exactly lying it is a bit of an exaggeration.
2. Using a False Assumption to create a Hypothetical
Lawyers many times use hypotheticals to make their case. However, sometimes they use false assumptions in forming the hypothetical. For example, "Assuming you paid 5% of your commission income in state income tax and it was credited to you as a deduction on your federal income tax return will you agree that this tax credit lowers your taxable income?"
3. Objections
During litigation lawyers fight a lot. In these disputes they often misstate the law because they are trying to win the fight rather than give the court an accurate picture of the law. While this is not exactly lying in the legal sense it does lead to judges making errors. A simple example would be a lawyer trying to get a judge to admit evidence that is hearsay. Even though the law is clear that the evidence is inadmissible the lawyer might try to convince the judge that it is admissible to win. This does not mean that the lawyer is dishonest. It merely means that the lawyer is overzealous.
High-Profile Cases of Attorney Ethics Breaches
There are not many published opinions explicitly discussing lawyers who lie but bad lawyers and bad facts usually lead to published opinions or other media attention. Here are some notable ones with the citation if it was mentioned in a published opinion: Sitton v. State of Florida, 501 F.Supp.2d 1258 (S.D.Fla.2007) (Defendant’s rights were violated when prosecutor ‘knowingly submitted false testimony’ to the court and misled jury concerning time of complainant’s death; defendant was entitled to habeas relief partly because prosecutor knew complainant had died before Defendant’s confession was taken and presented evidence that she had died eight hours after the confession was taken.) Turner v. Rogers, 564 U.S. 431 (2011) (Private parties have right to jury trial in contempt proceedings that could result in incarceration without the state having to provide counsel.) State v. Stonum, 727 N.W.2d 363, 370 (Neb. 2007) ("[T]he prosecutor’s role is to seek justice, not merely to convict." "A prosecutor is not a representative of an ordinary party to a controversy, but is the representative not of an ordinary party to a controversy, but is the representative of the sovereignty." See also, Opinion US Supreme Court 03-05-99. State v. Krueger, 947 P.2d 673, 675 (Mont. 1997) (We hold: (1) even if the prosecutor’s comment at closing arguments was improper, it was not so egregious as to constitute reversible error; and (2) prosecutorial misconduct does not constitute per se ineffective assistance of counsel under [United States Supreme Court cases)] Strickland v. Washington). State v. Gulbrandson, 84 P.3d 427, 432 (Mont . 2004) (We hold a claimed violation of the law, standing alone, either by a prosecutor in closing argument or by trial counsel’s failure to object, does not rise to the level of ineffective assistance of counsel); State v. Carter, 158 P.3d 40, 45 (Mont. 2007) (We conclude: (1) the prosecutor’s comments during closing argument did not constitute prosecutorial misconduct; and (2) application of this Court’s reversal remedy for prosecutorial misconduct claims is left to the parties’ sound discretion for each case.) State v. Koosmann, 637 A.2d 21, 29 (Vt. 1993) ("Our system of criminal justice is premised on respect for constitutional guarantees which ensure that innocent persons are not deprived of their lives and liberties without their due process rights, as guaranteed by the Vermont and Federal Constitutions, being scrupulously followed." The court held that defense counsel had a duty to raise a possible insanity defense, even based on a report which stated there was a "substantial probability" of insanity, but she failed to do so.); State v. Harris-Andrews, 801 A.2d 154, 163 (Md. Ct. App. 2002) (The prosecutor deliberately deceived the court by presenting the grand jury with misleading information, thereby violating Harris-Andrews’ constitutional right to due process (the constitutional guarantee of due process requires the prosecution to turn over all exculpatory evidence); See also, Note, State v. Harris-Andrews, 39 U. Balt. L.Rev. 581, 584 (2009).) In addition to those above, prosecutors have been impeached for lying to the court twice in Montana regarding whether they were meeting with witnesses and the circumstances regarding the witnesses Mary Jo Pogreba and Karie Lough.
Effects of Attorney Misconduct on the Legal System
The potential fallout from lawyer misconduct, especially instances of deception or lies in court, is a significant risk to the integrity of the justice system. When a lawyer lies in court – whether in testimony as a witness, in statements of fact made to a judge either verbally or in writing based on what is in evidence at that time or in the past or what will come forward in evidence – this can undermine the whole purpose of the litigation and seriously affect the outcome. In the most egregious cases, this can lead to serious miscarriage of justice. This situation may occur when a lawyer willfully ignores or fails to find relevant and/or material evidence (for example in the electronic age) or evidences any degree of gamesmanship or "dirty tricks" (such as refusing to provide material in discovery or other abuse of process) for the purpose of swaying the system or influencing or indirectly getting what their client wants.
For example, in a family law matter, by not disclosing the existence of a key financial document in court that is contrary to their position or argument, a lawyer may be denying the other party a fair chance to respond or make an appropriate case. Because family law matters can be decided on very minimal amount of evidence, the failure to disclose a key document may result in a very different outcome. In some cases, where there is strong bias on the part of a judge or arbitrator, even a failure to properly cross-examine the evidence in court or argue a point may result in a favoured outcome. Committing fraud, forgery, misleading a judge or "pulling a fast one" in these matters requires a lot more than just an explanation because the foundation of the fairness of the justice system can be seriously damaged.
As each lawyer is obligated to ensure that court proceedings are conducted in a fair, just and equable manner, this type of conduct can have a negative impact on the justice system. The potential for mischief becomes a reality if a lawyer breaches their ethical duties or commits fraud as there are often devastating consequences for the relevant parties. Further if a lawyer does not take every reasonable step to correct or bring to the court’s attention any mistaken fact or misunderstanding of the law, a relevant party may be deprived of a fair hearing.
Finally, the erosion of public or affected parties’ confidence in the justice system in the wake of deception or lying by a lawyer may lead to the public losing trust or respect in the system and cause them to abandon "the rule of law." This type of result is potentially disastrous for the administration of justice and can lead to chaos.
How to Safeguard Against Attorney Misconduct
As in any profession, if you begin to suspect a problem with your attorney, the best thing to do is address that concern with your lawyer first. A friendly conversation may clear up any confusion and allow you to continue with your case without issue. If that is not effective, or you have serious concerns, sometimes a lack of responsiveness or unethical behavior is a red flag that should lead you to seek a new attorney as soon as possible. Some of the red flags to look for are:
· Infrequent updates about your case and its status
· Inability to reach your attorney at the office or by phone
· Unclear communication about your case
· Spending time with you instead of working on your case
· Collecting money but not opening a file or starting work on your case
· Excessive billing or vague invoices
If your attorney is not behaving ethically, there is an avenue to complain about and report any issues – the American Bar Association has a model rule governing lawyers’ ethics, called Model Rule 8 . 3. Your lawyer will be subject to their state bar association’s version of the rule, which generally governs what lawyers must do if they know that another lawyer (or a judge) is violating the rules of ethics. While intended to maintain professional honesty and respect, it can also keep you protected against lawyers who do not uphold ethical standards. It is important to be aware of these rules since your lawyer has a duty to report misconduct to the authorities in the legal community. His or her failure to do so could lead to disciplinary action in the future. In addition, you are also free to file a complaint with the state bar association (or your country’s equivalent). If your complaint is substantial enough, they may be able to investigate and take action against your attorney, including disbarment or permanent suspension of their license to practice law.