When Is It Ethical for Attorneys to Lie?
LACBA Update, June/July 2011
By David B. Parker, partner, Parker Shumaker Mills LLP, and member, LACBA Professional Responsibility and Ethics Committee; William K. Mills, partner, Parker Shumaker Mills LLP; and Rosalyne A. Pak, associate, Parker Shumaker Mills LLP. The opinions expressed are their own.
A well-known biblical commandment, Exodus 20:16, states, “You shall not give false testimony against your neighbor.” However, a California attorney’s conduct is governed by a different set of commandments found in the California Rules of Professional Conduct, state laws including those within the Business and Professions Code, the Code of Civil Procedure, and the Civil Code, as well as case law. Those rules address every subject from false advertising to the public and prospective clients1 to termination of lawyer-client relationships. And while there are proscriptions against lying to judicial officers, and it would violate the fundamental tenets of the lawyer's fiduciary duty to act with deceit toward a client, there is no overriding commandment that makes it unethical for lawyers to lie to others during the representation of a client. While the members of the Rules Revision Commission might have elected to revisit this interesting omission, perhaps even adopt Rule 4.1 of the ABA Model Rules of Professional Conduct,2 the decision was made not to do so.
The State Bar Commission discussed Model Rule 4.1 but ultimately decided not to recommend its adoption because of the duties found under the Business and Professions Code and in the proposed Rule of Professional Conduct 8.4. However, as the dissenting opinion that advocates for the adoption of Model Rule 4.1 states, "The argument that there are State Bar Act provisions that might apply in situations governed by Rule 4.1(a) is no more valid a reason for opposing this rule than it would be in regard to other proposed rules that overlap with one or more statutes in the B & P Code." Furthermore, the opinion points to Business and Professions Code Section 6106 as an already inclusive statute that encompasses the “requirement of lawyer honesty [as] long-standing...for any act involving moral turpitude, dishonesty or corruption.”
As the State Bar prepares to send the proposed new rules to the supreme court3, perhaps it is timely to at least consider whether California is out of step when it comes to this issue.
Currently, the only ethics rule in California dealing with lying is Rule of Professional Conduct 5-200, which provides that it is improper to misrepresent a false statement of fact or law when presenting a matter within a court-related context.4 This commandment is mirrored in Business and Professions Code Section 6068(d), which requires attorneys “to employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Violators of Rule 5-200 are subject to contempt of court5 in addition to discipline by the State Bar. Clearly, neither standard extends to a lawyer’s deceit outside judicial proceedings, such as in communicating with third parties in the course of business transactions, litigation, or dispute resolution communications, which are the principal arenas where candor is often found in short supply.
The courts have also recognized broad statutory safe havens for deceit in the litigation arena, such as the seemingly absolute mediation privilege, as the supreme court has recently affirmed in Cassel v. Superior Court, 51 Cal. 4th 113 (2011) where “[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation...shall remain confidential.”
Furthermore, the “Litigation Privilege,” California Civil Code Section 47, makes absolutely privileged communications made in judicial or quasi-judicial proceedings.6 At the same time, it should be noted that while there are no rules of discipline governing deceit against third parties, in the context of civil liability some courts have been willing to draw limits at least on the Litigation Privilege and have held that an attorney cannot commit fraudulent acts with impunity since an attorney owes a duty not to defraud another, even if they are negotiating at arm’s length.7
The failure by the Rules of Professional Conduct to prohibit deceit in other contexts, particularly adversarial dealings, is no doubt due to a perceived tension between the duty of confidentiality as to a client’s secrets (California Business and Professions Code Section 6068(e)(1)) and the duties of loyalty and what is sometimes referred to as "zealous advocacy”8 on the one hand, and notions of candor, honesty and truthfulness. One limitation on lawyer deceit, applicable in the discipline context, is Business and Professions Code Section 6106, which broadly prohibits acts of "moral turpitude, dishonesty or corruption."9
Of course, the Rules of Professional Conduct do not advocate attorneys to lie, but their studied silence on the issue may incline attorneys to advocate for their client’s interest with indifference to a no-less-compelling interest that lawyers conduct themselves consistent with standards of truthfulness. Model Rule Comment 4.1 prohibits a lawyer from making false statements of material fact or law to others but generally places no affirmative duty to inform an opposing party of relevant facts. Such a duty of candor, we submit, is not inconsistent with maintenance of client confidences but would compel attorneys to be more truthful in honestly communicating to each other—a small step, to be sure, but perhaps a step that should be taken as a reminder that a lawyer's word is his or her bond.10 Perhaps this is worthy of the supreme court's consideration as it examines the new proposed Rules of Professional Conduct.
1 See Cal. R. of Prof'l Conduct R. 1-400(D)(1)-(5).
2 ABA Model Rule of Professional Conduct 4.1 states: “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”
3 It should be noted that the State Bar has not submitted proposed amendments of the Rules of Professional Conduct to the supreme court for approval as of the date this article was published.
4 See Cal. R. of Prof'l Conduct R. 5-200; see also California Attorney Guidelines of Civility and Professionalism at http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics, wherein it states that “attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”
5 See In re Aguilar, 34 Cal. 4th 386 (2004).
6 People ex rel. Gallegos v. Pacific Lumber Company, 158 Cal. App. 4th 950 (2008); but see Cicone v. URS Corp., 183 Cal. App. 3d 194 (1986).
7 See Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 107 Cal. App. 4th 54 (2003), where the court held “[i]n California it is well established that an attorney may not, with impunity, either conspire with a client to defraud or injure a third person or engage in intentional tortious conduct toward a third person....Thus, the case law is clear that a duty is owed by an attorney not to defraud another, even if that other is an attorney negotiating at arm’s length.”
8 See Model Rules of Prof'l Conduct R. 1.3 cmt. where “zeal in advocacy” is used. The words “zealous representation” appeared in the 1969 ABA Model Code Canon 7 but were eliminated from the Model Rules in 1983 and replaced with the word “diligence.”
9 See Cal. Bus. & Prof. Code §6106, where attorney’s acts “involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”; see also Maltaman v. State Bar of California, 43 Cal. 3d 924 (1987) (attorney was suspended from the practice of law when he made misrepresentations to a judge in addition to other misconduct).
10 See Ausherman v. Bank of America Corp., 212 F. Supp. 2d 435 (2002), citing 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering §37.2. ("Rule 4.1(a) recodifies the traditional rule that a lawyer’s word is his bond.”).