Lying to or Misleading the Court

If your lawyer lies or misleads a court into believing something that isn’t true, he’s violating the ethics rules. If his lie ends up backfiring and ruining your case, you may have a claim for legal malpractice.

There are too many examples of lawyers who have lied to the court, misled the court about important details or failed to disclose facts that were known to them. The United States Court of Appeals in Puerto Rico sanctioned an attorney with a fine for filing a “sham affidavit” in a discrimination case he was handling. In another federal case, attorney Lewis Spicer was slapped with a $5,000 fine for including a phony claim of sexual assault in his client’s pleadings. Yet another attorney, Vince Fields, based in Illinois, lied to the court about having cancer in order to get an extension in certain cases, according to the bar association authorities who filed a complaint against him.

These are just a few examples. The internet is filled with examples of smooth talkers who cover up facts or who report “fake news” to the court in order to help their clients. Lawyers have a special duty as officers of the court to avoid conduct that undermines the integrity of the legal process. That duty includes an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Of course, a lawyer is not required to be impartial when he speaks to the court; being one-sided (in favor of his client) is part of his training. However, the lawyer must not allow the court to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

The Lawyer’s Duty of Honesty is Very Broad

The duty of the lawyer goes beyond what he says in court. His legal papers must be truthful too. He is responsible for pleadings and other documents prepared for litigation. That doesn’t mean that the lawyer must have personal knowledge of everything his client or other witnesses tell him. But, any assertion which claims to be based on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. Sometimes, if the lawyer fails to make a disclosure that he should make to the court, he will be treated as if he made a deliberate misrepresentation.

The same rules apply to legal arguments. An attorney cannot write a brief or make an oral argument to the court based on a knowingly false representation of law. If she does so, it constitutes dishonesty toward the court. A lawyer, of course, is still an advocate for his client, which means that she is not required to make a disinterested or objective statement of the law. Still, she must recognize the existence of pertinent legal authorities for and against her client’s position. She has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

False evidence is another form of lying or misleading the court. A lawyer must refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the judge or the jury from being misled by false evidence. A lawyer does not violate this rule if the lawyer offers the evidence for the purpose of establishing its falsity.

A lawyer cannot force, or even allow, his client to lie. If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

To schedule a consultation with our firm to discuss your legal malpractice case, contact The Law Offices of Mark S. Guralnick.

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