I Cannot Tell A Lie—Attorneys and Rules Regulating Truth Telling

By Joel A. Osman and Mark A. Graf

Many of us were exposed in school to the story of George Washington and the cherry tree: Young George, when asked about a cherry tree which had fallen victim to his hatchet, said, "I cannot not tell a lie" and therefore admitted that he had felled the tree. Historians doubt that this ever occurred but it remains an enduring parable in American culture.

With apologies to "Honest Abe" Lincoln, members of our profession sorely lack a good parable about honest lawyers. We have instead a number of Rules of Professional Conduct which mandate that attorneys be truthful. Unfortunately, the reality of modern practice suggests that at least two of these rules reflect a reality no more factual than young George and his tree.

Our Rules of Professional Conduct "… are intended to regulate professional conduct of lawyers through discipline" and provide that a willful violation of any of these rules is a basis for discipline.[1]  It follows therefore that failure to comply with any rule that requires an attorney to be truthful is a big deal. The Rules of Professional Conduct require attorney truthfulness in three significant areas:

Truthful Communications with Clients.  Rule of Professional Conduct 1.4 requires that a lawyer: 1) promptly inform the client of any decision with respect to which disclosure of the client's informed consent is required; 2) reasonably consult with the client about the means by which to accomplish the client's objectives in the representation; 3) keep the client reasonably informed about significant developments relating to the representation; and 4) advise the client about any relevant limitations on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.          This rule makes no reference to "truth" in these communications but it can be reasonably inferred that a lack of truthfulness in making the communications required by this rule would constitute a violation of same and thus a basis for discipline.

Similarly, Rules of Professional Conduct 1.4.1 and 1.4.2 impose duties upon attorneys to disclose respectively all terms and conditions of proposed plea bargains or settlement offers and to disclose whether the lawyer has professional liability insurance. Likewise, Business and Professions Code Section 6103.5 also imposes a duty on attorneys to promptly communicate written offers of settlement to their client. Clearly truthful communications by a lawyer to his or her client is both laudable and a core value of our profession. Thus, it makes sense to discipline attorneys who fail to honor this core value.

Truthful Communication with Tribunals. Rule of Professional Conduct 3.3 exposes attorneys to potential discipline for knowingly: 1) making a false statement of fact or law to a tribunal; 2) failing to disclose to a tribunal controlling legal authority adverse to the position of the client and not disclosed by opposing counsel; or 3) offering evidence that the lawyer knows to be false. Discipline might also be imposed upon an attorney based upon Business and Professions Code Section 6068(d), which requires attorneys "[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with the truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law."

Again, these rules are based upon a principle that is both laudable and central to the administration of justice. When we appear before a tribunal, we are officers of the court in addition to being advocates on behalf of our clients. We cannot discharge our duties to the court if we are free to lie to the court by misrepresenting the state of the facts, the law, or the evidence.[2]

Truthful Communications to Third Persons: The third area in which the Rules of Professional Conduct impose a duty of truthfulness upon attorneys is more problematic. Attorneys are duty-bound to advocate zealously for their clients.[3] Rules of Professional Conduct which impose on attorneys a duty of truthfulness to third parties may occasionally be in conflict with the attorney's duty to advocate zealously on behalf of clients.

Rule of Professional Conduct 4.1 provides that in the course of representing a client a lawyer shall not knowingly: 1) make a false statement of material fact or law to a third person; or 2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Business and Professions Code Section 6068, subdivision (d) (1) or rule 1.6.

To further complicate things, Rule of Professional Conduct 8.4 (c) states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation." Additionally, Business and Professions Code Section 6106 provides that attorneys can be disciplined for "… any act involving moral turpitude, dishonesty or corruption…".

Certainly, neither the Rules of Professional Conduct nor the Business and Professions Code should countenance an attorney assisting a client in a criminal or fraudulent act or fraudulent conduct by attorneys for their own benefit. These rules go much further than that. Consider for example the attorney who declares in a negotiation, "My client will never pay a dime more than X." If the attorney is merely posturing and in fact knows that his client will pay more than X, the attorney arguably has violated the provisions of Rule 4.1 (a), Rule 8.4(c) and Section 6106.

To avoid this conclusion, various authorities historically have attempted to categorize such posturing as something other than a statement of material fact or to dismiss such posturing as mere "puffery" which is not subject to sanction under this rule. For example, comment [2] to the ABA version of this rule, Model Rule 4.1, suggests that whether a particular statement should be regarded as one of fact can depend on the circumstances. In California, the State Bar Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-194 suggests that:

A statement of opinion is not actionable, nor is a statement of "puffery." A statement of puffery is one that is "extremely unlikely" to induce reliance. "Ultimately, the difference between a statement of fact and mere puffery rest in the specificity or generality of the claim."(Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311.)

These historical efforts to distinguish between conduct which should be subject to discipline for violation of rules imposing a duty of truthfulness to third parties and mere "puffery" are an inadequate attempt to reconcile the conflict between an attorney's duty as an advocate on behalf of his or her client and the declared need to be truthful to third parties. A far better solution would be for the Rules and statutes to recognize the impracticality of imposing a duty of truthfulness to third parties on attorneys. This could be accomplished by simply eliminating subsection (a) of Rule 4.1 and inserting carve-out language into Rule 8.4(c).

Such changes were not incorporated into the recent revision of the Rules of Professional Conduct—but perhaps they should have been. The simple fact of the matter is that complete truthfulness is of limited utility to certain aspects of advocacy. Our rules and statutes should reflect this reality.

Joel A. Osman, senior counsel at and general counsel to Parker Mills LLP, concentrates his practice on litigation, trials, and legal ethics. He is a current member and former chair of the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee and a former member of the State Bar's Committee on Professional Responsibility and Conduct.

Mark A. Graf is senior counsel at Parker Mills LLP whose practice focuses on professional liability, insurance, and commercial litigation.

[1] R. of Prof'l Conduct 1.0 (a) and (b).

[2] See Pickering v. State Bar, (1944) 24 Cal.2d 141, 145.

[3] See Davis v. State Bar, (1983) 33 Cal.3d 231, 238.