9 ms·

When is it okay for a lawyer to lie? (2018)

93 points by lazugod 6y ago

pseingatl 6y ago
Always. See, The Grammar of Money, by Felous.
NotSammyHagar 6y ago
It was interesting to read the scenarios but the result was only disappointing. I'm a non-lawyer expecting there to be complicated nuances that lawyers can use to explain their 'honesty'. Misdeeds by prosecutors (as in ignoring police lying on the stand because they need support from them for their next cases), not disclosing information like in this case cause me to take a very careful consideration of what a lawyer tells me.
notafraudster 6y ago
I was bummed to see the examples, which I reproduce here to highlight their obviousness (or their, uh, being noncontroversial): 1. Can a lawyer who suspects the opposing party of breaking an agreement engage in plain-clothes trickery to figure out if that's true? Yes. 2. Is a lawyer obligated to essentially testify [respond to a judge's inquiry] in a manner that incriminates their client based on private information? No, thought when they do respond to the inquiry they should be vague rather than affirmatively lying. 3. Do prosecutors need to drop charges if, after a plea deal is signed, information comes up that would inhibit prosecuting the case in the absence of a plea deal? No, but this feels scummy.
- beervirus 6y ago
  I think 3 turns on the fact that this is more specific than just “information that would inhibit prosecuting the case.” That would include exculpatory evidence, which the prosecutor would have to turn over.
  - sooheon 6y ago
    If a fact need not be disclosed in the midst of prosecution, why is it a requirement to prosecute in the first place?
    - vkou 6y ago
      It's a soft requirement, because the witness will be 'necessary'[1] in court in the particular circumstances of this particular crime. If the prosecutor had a stronger case (Say, a different witness, or CCTV evidence, etc, etc, etc), then this particular witness would not be necessary. [1] In the opinion of the average criminal lawyer, assuming that the case is litigated correctly, and that the jury isn't entirely composed of utter mouth-drooling morons prejudiced against the defendant.
- aaron695 6y ago
  > No, but this feels scummy. I don't get the it's bad implied in the article. Let's say it's a rape, and the victim dies, what's really changed? You can hate the idea of plea bargains, but that's a different topic. They admit they are guilty, so proceed on. If it means they are screwed in challenging it later or in sentencing it might matter, but it doesn't seem the case. Otherwise, very boring examples. Nicola Gobbo was a criminal lawyer and a police informant at the same time, but hasn't been charged with anything, I feel like there would be a interesting example in there somewhere. https://en.wikipedia.org/wiki/Nicola_Gobbo https://en.wikipedia.org/wiki/Nicola_Gobbo
SMAAART 6y ago
I few months ago I was in court, I was suing 2 related parties and I was pro-se. One of the lawyers of one of the defendants lied 3 times in front of the judge, when I called him upon it, the judge didn't bling. This was civil court, not small claims. Oh well.
- beervirus 6y ago
  What sort of lies?
- bigiain 6y ago
  > when I called him upon it, the judge didn't bling. Now I'm imagining that judge getting presented with evidence the defence lawyer is lying to them, and whipping out a chunky gold chain and a diamond encrusted grill...
- mcherm 6y ago
  Was there clear and obvious evidence of the lies, or was it largely your testimony? If there was clear and obvious evidence of the lies then you can submit a complaint to the bar (or whatever the disciplinary body is for lawyers in your state). The judge is NOT actually the one with the authority to enforce these professional obligations.
  - paxys 6y ago
    The judge doesn't enforce professional obligations but absolutely enforces perjury. Of course the real question is why was the lawyer testifying at all?
    - matthewheath 6y ago
      It doesn't sound like the lawyer was testifying? They can certainly lie in their presentation of the case, during summing up, etc.
WalterBright 6y ago
Holly Golightly: How do I look? Paul Varjak: Very good. I must say, I’m amazed.
parsimo2010 6y ago
These are interesting scenarios, but let's not forget that the rules are only binding under the threat of being caught and punished. They aren't like the laws of physics. So if a lawyer isn't supposed to engage in trickery, they might do so anyway, especially if they think they can get away with it and their client happens to be a rich criminal who pays them extra to do shady stuff. Source: Lawyers wouldn't have the reputation they do if all the members of the club had integrity.
- umvi 6y ago
  Yeah, I didn't realize how downright nefarious lawyers can be until I read "Bad Blood" and thought to myself "How is what David Boies does to help Theranos legal? This seems extremely unethical at the very least, and highly illegal at most"
  - spaetzleesser 6y ago
    Totally agree about Boies. This behavior should have consequences. He behaved like a mafia hitman who doesn’t care who he is bringing down as long as the money keeps flowing. Basically he is a psychopath with no ethics.
  - nmfisher 6y ago
    As someone who (in an earlier life) started off in the profession, here's a dirty little secret - I'd say around 2/3 of lawyers get by on pure bluff, bluster and intimidation. I'm talking shouting on phone calls, slamming fists on tables, threatening letters, and so on. Once you have the slightest clue about the law, it's easy to just laugh it off. The problem is, most people don't know any better, so these tactics are incredibly effective a lot of the time. However, you do get a truly lethal combination when you combine an asshole lawyer with a well-funded client. That's not because it's some highly intelligent, sophisticated legal team who can craft superior legal arguments. Rather, it's because they can simply brute-force their way through by outspending you. It doesn't matter how legally "right" you are if you're not willing/able to spend the money in court to prove it. A lot of people take advantage of that, including the asshole lawyer (who, of course, profits from it).
flowerlad 6y ago
How is a court-appointed defense attorney supposed to do his job if he knows his client is guilty?
- beervirus 6y ago
  You can still raise a vigorous defense without lying.
- yardie 6y ago
  They would have to sit back, tell their client to plead the 5th, and let the prosecutor do their job of proving a crime was committed by the suspect beyond reasonable doubt. I watched the OJ Simpson trial when I was a kid. I was sure he was guilty. I think his lawyers thought so as well. Once they realized the LAPD had tampered with the crime scene and the evidence they used that wedge to open the door for reasonable doubt. And they absolutely hammered at it for months. By the end the jury was full of doubt. Most public defenders don't have the resources for that kind of defense. And most assume their client is guilty. Which is why plea bargains are prevalent.
  - sokoloff 6y ago
    An alternate explanation for the prevalence of plea bargains is that many defendants are actually guilty of something, that guilt is likely enough provable to not be worth the risk, and we’ve allowed sentencing guidelines and charge-stacking practices to amplify that risk to the point where it’s game theoretic sensible to take a light plea deal. I’m not nearly convinced that public defender assumption of guilt is a significant driving factor.
    - Viliam1234 6y ago
      Unfortunately, there are reasons to accept a plea bargain even if you are perfectly innocent. First, reality is not important per se, only how the judge and the jury see it. If you know you didn't do something, but there is evidence pointing towards you, and you have a reason to believe that people judging you would be convinced by it... it makes sense to accept a smaller punishment (for something you didn't do) rather than risk years of prison (for something you didn't do). Second, the process itself is already a punishment. How many times can you be absent from your job because you are at the court, before you lose the job? How much will it cost you to pay for the lawyer, for travel, etc. If you are poor, it can make more sense to accept a smaller punishment for something you didn't do, rather than ruin your life in an attempt to prove your innocence.
a3n 6y ago
When do you want it to be ok?
paxys 6y ago
Scenarios 1 & 2 are pretty obvious, and 3 is not about the lawyer at all. Makes sense though since you're unlikely to hear any criticism of the profession in a publication by the ABA.
- elliekelly 6y ago
  The third scenario is about a lawyer - the prosecutor.
50208 6y ago
My wife is an attorney, family law, and it's clear from the years of stories and discussions on what's she has dealt with that most attorneys lie with impunity ... and so do the litigants going to court! The judges generally don't hold the liars accountable, the attorneys don't hold the other attorneys accountable, and no one holds the judges accountable ... and with no real accountability, it's a free for all. If the State Bars would hold their own members to their own supposed standard we'd be in a much better place.
IncRnd 6y ago
How does an attorney sleep? First he lies on one side, then he lies on the other. Source: An attorney told me.
Iv 6y ago
It has been several years ago that I discovered that despite a similar philosophy behind law-writing and programming, these worlds are very far apart and every year, even when I thought my cynicism was stable, the gap continues to widen. This is from the American Bar Association, it is the opposite of a blog post you would end with IANAL. Yet, we read (at the end) that even professional lawyers are "struggling" with understanding why a given accepted practice is ok given the laws and obligation. And this on no small matter: it is about hiding that the plaintiff died before the trial. And it is not clear whether it is ok or not. I had the "chance" to discuss with lawyers specialized in intellectual property. They did not even understand their subject or the imprecision of law. Every time I try to dig into legal issues surrounding IP I end up with the impression that the difference between a lawyer and a layperson is that the lawyer just is more up to date with what was made up in court recently. Lawyers are going to help you if you are in a case that has happened tens of times in the past but is going to be clueless in a genuinely new situation. Just as the judge will be. Recently I read about the licensing issues around deep learning models, the definitions of fair use and derivative works. We are used to IETF standards and IEEE specs. Even RFCs are usually pretty precise in how they define things. Laws are crappy when put to that standard. They are just there to provide arguments in a mud-slinging negotiation.
- deleted 6y ago
  [deleted]
- austincheney 6y ago
  While the difference in source material can be a wide gap as you described the bigger difference that people commonly point at is ethics. As a lawyer there are rules that define standards of behaviors and violation thereof can quickly terminate not just employment but the career forever. Software doesn’t have that and the entire idea is utterly foreign. As a case in point all lawyers have a general understanding of the word ethic and how it applies to their profession. I have found, as a long time software developer, that most software developers have no idea what that word means and are quick to make faulty assumptions regarding its application. In the software developers’ defense there is not a lot of reason to accurately understand a thing that has never existed in the first place.
anamax 6y ago
Should prosecutors be able to add incriminating statements to a confession transcript? (I'm talking about damning statements that the defendant didn't make.) The CA Attorney General at the time said yes. A CA Appeals Court said no. https://caselaw.findlaw.com/ca-court-of-appeal/1695398.html https://caselaw.findlaw.com/ca-court-of-appeal/1695398.html
- dehrmann 6y ago
  I can't quite tell, but Kamala Harris might have been the AG in question. That wasn't what the AG argued; the AG argued that case shouldn't be dismissed on those grounds. The question is closer to if the prosecutor adds incriminating statements to a confession transcript, is that grounds for dismissal.
  - tsimionescu 6y ago
    Yup: > Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Appellant. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Respondent.
supernova87a 6y ago
I just have to say, that is one horrible font for a website.
- sooheon 6y ago
  Could not read without reader mode, which is rare for me in 2020.
throwawayjoke 6y ago
80%+ of prostitutes suck. hurhurhur
altmind 6y ago
> Everyone knows that lawyers are not allowed to lie — to clients, courts or third parties. What a great point for lose people reading the article; from the first sentence.
mwexler 6y ago
I find it interesting in the US that we hold lawyers to the high standard of no lying, while law enforcement officers are given more latitude, esp in interrogation situations. Seeing it in TV shows and movies, which often have officers and detectives lying about knowledge, evidence, other witness statements, all to get info, I assumed that it was fictional. In many cases, though not all, it appears to be allowed within limits in real life. See, for example, https://www.google.com/amp/s/www.adamsluka.com/amp/can-the-police-lie-to-me.html https://www.google.com/amp/s/www.adamsluka.com/amp/can-the-p.... This doesn't mean all cops are liars, and they still shouldn't commit perjury, but it's an interesting comparison to me. I guess it's a reflection of the advocate/adversary approach that is often a part of the legal process.
- pc86 6y ago
  Non-AMP link: https://www.adamsluka.com/can-the-police-lie-to-me.html https://www.adamsluka.com/can-the-police-lie-to-me.html

93 points by lazugod 6y ago

Always. See, The Grammar of Money, by Felous.

It was interesting to read the scenarios but the result was only disappointing. I'm a non-lawyer expecting there to be complicated nuances that lawyers can use to explain their 'honesty'. Misdeeds by prosecutors (as in ignoring police lying on the stand because they need support from them for their next cases), not disclosing information like in this case cause me to take a very careful consideration of what a lawyer tells me.

notafraudster 6y ago

I was bummed to see the examples, which I reproduce here to highlight their obviousness (or their, uh, being noncontroversial): 1. Can a lawyer who suspects the opposing party of breaking an agreement engage in plain-clothes trickery to figure out if that's true? Yes. 2. Is a lawyer obligated to essentially testify [respond to a judge's inquiry] in a manner that incriminates their client based on private information? No, thought when they do respond to the inquiry they should be vague rather than affirmatively lying. 3. Do prosecutors need to drop charges if, after a plea deal is signed, information comes up that would inhibit prosecuting the case in the absence of a plea deal? No, but this feels scummy.

beervirus 6y ago
I think 3 turns on the fact that this is more specific than just “information that would inhibit prosecuting the case.” That would include exculpatory evidence, which the prosecutor would have to turn over.
- sooheon 6y ago
  If a fact need not be disclosed in the midst of prosecution, why is it a requirement to prosecute in the first place?
  - vkou 6y ago
    It's a soft requirement, because the witness will be 'necessary'[1] in court in the particular circumstances of this particular crime. If the prosecutor had a stronger case (Say, a different witness, or CCTV evidence, etc, etc, etc), then this particular witness would not be necessary. [1] In the opinion of the average criminal lawyer, assuming that the case is litigated correctly, and that the jury isn't entirely composed of utter mouth-drooling morons prejudiced against the defendant.
aaron695 6y ago
> No, but this feels scummy. I don't get the it's bad implied in the article. Let's say it's a rape, and the victim dies, what's really changed? You can hate the idea of plea bargains, but that's a different topic. They admit they are guilty, so proceed on. If it means they are screwed in challenging it later or in sentencing it might matter, but it doesn't seem the case. Otherwise, very boring examples. Nicola Gobbo was a criminal lawyer and a police informant at the same time, but hasn't been charged with anything, I feel like there would be a interesting example in there somewhere. https://en.wikipedia.org/wiki/Nicola_Gobbo https://en.wikipedia.org/wiki/Nicola_Gobbo

SMAAART 6y ago

I few months ago I was in court, I was suing 2 related parties and I was pro-se. One of the lawyers of one of the defendants lied 3 times in front of the judge, when I called him upon it, the judge didn't bling. This was civil court, not small claims. Oh well.

beervirus 6y ago
What sort of lies?
bigiain 6y ago
> when I called him upon it, the judge didn't bling. Now I'm imagining that judge getting presented with evidence the defence lawyer is lying to them, and whipping out a chunky gold chain and a diamond encrusted grill...
mcherm 6y ago
Was there clear and obvious evidence of the lies, or was it largely your testimony? If there was clear and obvious evidence of the lies then you can submit a complaint to the bar (or whatever the disciplinary body is for lawyers in your state). The judge is NOT actually the one with the authority to enforce these professional obligations.
- paxys 6y ago
  The judge doesn't enforce professional obligations but absolutely enforces perjury. Of course the real question is why was the lawyer testifying at all?
  - matthewheath 6y ago
    It doesn't sound like the lawyer was testifying? They can certainly lie in their presentation of the case, during summing up, etc.

WalterBright 6y ago

Holly Golightly: How do I look? Paul Varjak: Very good. I must say, I’m amazed.

parsimo2010 6y ago

These are interesting scenarios, but let's not forget that the rules are only binding under the threat of being caught and punished. They aren't like the laws of physics. So if a lawyer isn't supposed to engage in trickery, they might do so anyway, especially if they think they can get away with it and their client happens to be a rich criminal who pays them extra to do shady stuff. Source: Lawyers wouldn't have the reputation they do if all the members of the club had integrity.

umvi 6y ago
Yeah, I didn't realize how downright nefarious lawyers can be until I read "Bad Blood" and thought to myself "How is what David Boies does to help Theranos legal? This seems extremely unethical at the very least, and highly illegal at most"
- spaetzleesser 6y ago
  Totally agree about Boies. This behavior should have consequences. He behaved like a mafia hitman who doesn’t care who he is bringing down as long as the money keeps flowing. Basically he is a psychopath with no ethics.
- nmfisher 6y ago
  As someone who (in an earlier life) started off in the profession, here's a dirty little secret - I'd say around 2/3 of lawyers get by on pure bluff, bluster and intimidation. I'm talking shouting on phone calls, slamming fists on tables, threatening letters, and so on. Once you have the slightest clue about the law, it's easy to just laugh it off. The problem is, most people don't know any better, so these tactics are incredibly effective a lot of the time. However, you do get a truly lethal combination when you combine an asshole lawyer with a well-funded client. That's not because it's some highly intelligent, sophisticated legal team who can craft superior legal arguments. Rather, it's because they can simply brute-force their way through by outspending you. It doesn't matter how legally "right" you are if you're not willing/able to spend the money in court to prove it. A lot of people take advantage of that, including the asshole lawyer (who, of course, profits from it).

flowerlad 6y ago

How is a court-appointed defense attorney supposed to do his job if he knows his client is guilty?

beervirus 6y ago
You can still raise a vigorous defense without lying.
yardie 6y ago
They would have to sit back, tell their client to plead the 5th, and let the prosecutor do their job of proving a crime was committed by the suspect beyond reasonable doubt. I watched the OJ Simpson trial when I was a kid. I was sure he was guilty. I think his lawyers thought so as well. Once they realized the LAPD had tampered with the crime scene and the evidence they used that wedge to open the door for reasonable doubt. And they absolutely hammered at it for months. By the end the jury was full of doubt. Most public defenders don't have the resources for that kind of defense. And most assume their client is guilty. Which is why plea bargains are prevalent.
- sokoloff 6y ago
  An alternate explanation for the prevalence of plea bargains is that many defendants are actually guilty of something, that guilt is likely enough provable to not be worth the risk, and we’ve allowed sentencing guidelines and charge-stacking practices to amplify that risk to the point where it’s game theoretic sensible to take a light plea deal. I’m not nearly convinced that public defender assumption of guilt is a significant driving factor.
  - Viliam1234 6y ago
    Unfortunately, there are reasons to accept a plea bargain even if you are perfectly innocent. First, reality is not important per se, only how the judge and the jury see it. If you know you didn't do something, but there is evidence pointing towards you, and you have a reason to believe that people judging you would be convinced by it... it makes sense to accept a smaller punishment (for something you didn't do) rather than risk years of prison (for something you didn't do). Second, the process itself is already a punishment. How many times can you be absent from your job because you are at the court, before you lose the job? How much will it cost you to pay for the lawyer, for travel, etc. If you are poor, it can make more sense to accept a smaller punishment for something you didn't do, rather than ruin your life in an attempt to prove your innocence.

a3n 6y ago

When do you want it to be ok?

paxys 6y ago

Scenarios 1 & 2 are pretty obvious, and 3 is not about the lawyer at all. Makes sense though since you're unlikely to hear any criticism of the profession in a publication by the ABA.

elliekelly 6y ago
The third scenario is about a lawyer - the prosecutor.

50208 6y ago

My wife is an attorney, family law, and it's clear from the years of stories and discussions on what's she has dealt with that most attorneys lie with impunity ... and so do the litigants going to court! The judges generally don't hold the liars accountable, the attorneys don't hold the other attorneys accountable, and no one holds the judges accountable ... and with no real accountability, it's a free for all. If the State Bars would hold their own members to their own supposed standard we'd be in a much better place.

IncRnd 6y ago

How does an attorney sleep? First he lies on one side, then he lies on the other. Source: An attorney told me.

Iv 6y ago

It has been several years ago that I discovered that despite a similar philosophy behind law-writing and programming, these worlds are very far apart and every year, even when I thought my cynicism was stable, the gap continues to widen. This is from the American Bar Association, it is the opposite of a blog post you would end with IANAL. Yet, we read (at the end) that even professional lawyers are "struggling" with understanding why a given accepted practice is ok given the laws and obligation. And this on no small matter: it is about hiding that the plaintiff died before the trial. And it is not clear whether it is ok or not. I had the "chance" to discuss with lawyers specialized in intellectual property. They did not even understand their subject or the imprecision of law. Every time I try to dig into legal issues surrounding IP I end up with the impression that the difference between a lawyer and a layperson is that the lawyer just is more up to date with what was made up in court recently. Lawyers are going to help you if you are in a case that has happened tens of times in the past but is going to be clueless in a genuinely new situation. Just as the judge will be. Recently I read about the licensing issues around deep learning models, the definitions of fair use and derivative works. We are used to IETF standards and IEEE specs. Even RFCs are usually pretty precise in how they define things. Laws are crappy when put to that standard. They are just there to provide arguments in a mud-slinging negotiation.

deleted 6y ago
[deleted]
austincheney 6y ago
While the difference in source material can be a wide gap as you described the bigger difference that people commonly point at is ethics. As a lawyer there are rules that define standards of behaviors and violation thereof can quickly terminate not just employment but the career forever. Software doesn’t have that and the entire idea is utterly foreign. As a case in point all lawyers have a general understanding of the word ethic and how it applies to their profession. I have found, as a long time software developer, that most software developers have no idea what that word means and are quick to make faulty assumptions regarding its application. In the software developers’ defense there is not a lot of reason to accurately understand a thing that has never existed in the first place.

anamax 6y ago

Should prosecutors be able to add incriminating statements to a confession transcript? (I'm talking about damning statements that the defendant didn't make.) The CA Attorney General at the time said yes. A CA Appeals Court said no. https://caselaw.findlaw.com/ca-court-of-appeal/1695398.html https://caselaw.findlaw.com/ca-court-of-appeal/1695398.html

dehrmann 6y ago
I can't quite tell, but Kamala Harris might have been the AG in question. That wasn't what the AG argued; the AG argued that case shouldn't be dismissed on those grounds. The question is closer to if the prosecutor adds incriminating statements to a confession transcript, is that grounds for dismissal.
- tsimionescu 6y ago
  Yup: > Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Appellant. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Respondent.

supernova87a 6y ago

I just have to say, that is one horrible font for a website.

sooheon 6y ago
Could not read without reader mode, which is rare for me in 2020.

throwawayjoke 6y ago

80%+ of prostitutes suck. hurhurhur

altmind 6y ago

> Everyone knows that lawyers are not allowed to lie — to clients, courts or third parties. What a great point for lose people reading the article; from the first sentence.

mwexler 6y ago

I find it interesting in the US that we hold lawyers to the high standard of no lying, while law enforcement officers are given more latitude, esp in interrogation situations. Seeing it in TV shows and movies, which often have officers and detectives lying about knowledge, evidence, other witness statements, all to get info, I assumed that it was fictional. In many cases, though not all, it appears to be allowed within limits in real life. See, for example, https://www.google.com/amp/s/www.adamsluka.com/amp/can-the-police-lie-to-me.html https://www.google.com/amp/s/www.adamsluka.com/amp/can-the-p.... This doesn't mean all cops are liars, and they still shouldn't commit perjury, but it's an interesting comparison to me. I guess it's a reflection of the advocate/adversary approach that is often a part of the legal process.

pc86 6y ago
Non-AMP link: https://www.adamsluka.com/can-the-police-lie-to-me.html https://www.adamsluka.com/can-the-police-lie-to-me.html