Do lawyers lie?
4 Aug 2008
I was relieved to see that a paper entitled “Fitting Lying to the Court into the Central Moral Tradition of Lawyering” by Fred C. Zacharias was, in fact, an argument in favour of the ethical principle, articulated in virtually every ethical code, that a lawyer must never knowingly mislead the court, even when that principle might appear to be inconsistent with the lawyer’s role of zealous representation.
Fred C. Zacharias is the Herzog Endowed Research Professor, at the University of San Diego School of Law. His paper is a response to an article by Monroe H. Freedman, entitled “In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct”. Monroe Freedman is a Professor of Law at Hofstra Law School in Long Island, NY.
These papers raise an interesting question. Suppose a judge calls both the prosecutor and defence lawyer into private chambers before a criminal trial and asks, “Come on, let’s move this along. Did he do it or didn’t he?”.
The hypothetical is apparently not as far-fetched as it might appear: The issue was apparently raised with Professor Freedman by defence attorneys in Brooklyn when several of them were met by different judges with that very (and highly improper) question.
He argues that to respond in the generally accepted manner, which is simply to politely draw the judge’s attention to the abject impropriety of the question, might actually prejudice the client, since the judge might retaliate against the lawyer by making findings contrary to the lawyer’s client where there is close evidence on each side.
Professor Freedman relies on his “doctrine of mental reservation”, to justify responding to the judge that “… I have no doubt that my client is innocent.”
The answer might violate the common ethical proscriptions against making false statements to a tribunal, and personally vouching for a client, but according to Professor Freedman, it is justified by the potential harm that might arise by criticizing the judge for his or her improper question. In addition, it would be less of a misstatement of fact than to state that the client is “not guilty”, since such a statement might be misleading if the client is indeed guilty of the facts that comprise the offence with which he or she is charged.
According to Professor Freedman, a statement that the client is “innocent” is simply a re-iteration of the legal presumption in favor of the accused in any criminal proceeding.
Thus, the “mental reservation” being withheld from the inquiring judge, is that the client is innocent at law.
Professor Zacharias responds that either way, the statement is calculated to mislead the judge, and is not ethically acceptable.
Suffice it to say that I agree with Professor Zacharias. His analysis is a worthy read, and his reasoning is independently supported by Allan C. Hutchinson in his text, “Legal Ethics and Professional Responsibility” (Toronto: Irwin Law).
Allan C. Hutchinson is Distinguished Research Professor at Osgoode Hall Law School, York University.
Professor Hutchinson and Professor Zacharias both argue that a lawyer’s duty to the client does not trump his or her duties to society and to the legal system in general. To answer in a misleading way tends to erode public confidence both in the legal profession and in the judicial system.
I would add that once again, the lawyer, as a professional, must ask what kind of profession he or she wishes to participate in. The lawyer’s role in society is shaped with each decision taken.
While a lawyer should always act in ways that advance the client’s interests, he or she lawyer should also act so as to strengthen public confidence both in the role of the profession and in the judicial system at large.