Talking to your lawyer about truth, fact and when the other guy’s lawyer lies

Coincidentally, as I was going to write something about lawyers and lying, this article showed up in the New York Law Journal: Attorney Accused of Telling Client to Commit Perjury | New York Law Journal.

So what happens if the other guy’s lawyer makes false statements, or signs off on the false statements his client makes? I was thinking it fell under the legal term “suborning perjury,” but I was wrong. Just looked it up in my Black’s Law Dictionary: Third Pocket Edition (bought used at the Strand), and discovered that “subornation” requires inducement. That is, someone has to induce a person to lie, as the New York Law Journal article linked above suggests might have happened in that case.

Let me invent an exemplary instance. A plaintiff sues, claiming and offering proof that the defendant owes her money. At some point in the proceedings, the defendant’s lawyer writes to the judge, copying the plaintiff’s lawyer, saying that the debt has been paid. He does not write a personal escape hatch into his letter, such as “My client informs me that the debt has been paid.” He just states, “The debt has been paid.”

But the debt has not been paid. And the putative escape hatch wouldn’t work anyway. The statement is a lie. Or, as legal terminology would have it, “perjury,” as Black’s defines it: “The act or an instance of a person’s deliberately making material false or misleading statements while under oath.” [All the legal definitions I quote are from Black’s.]

My POV on affidavits and affirmations: swearing to the truth of a statement

When I, a plaintiff and non-lawyer, write an affidavit for court submission, I swear the statements in it are true. Moreover, I attach proof that those statements are true. And my lawyer is rigorous: she will check every statement against evidence, against the documentary proof. She will not affirm that my statements are true until she proves they are true.

A lawyer usually doesn’t sign an affidavit, which is, “A voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.”

A lawyer signs an affirmation: “A pledge equivalent to an oath but without reference to a supreme being or to ‘swearing’; a solemn declaration made under penalty of perjury but without an oath… either type of pledge [affidavit or affirmation] may subject the person making it to the penalties for perjury.”

The reason a lawyer doesn’t sign an affidavit is because he’s already sort of pre-sworn-in as an “Officer of the court: A person who is charged with upholding the law and administering the judicial system. Typically officer of the court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.”

So are there Rules of Professional Conduct that require lawyers not to “misstate,” or whatever euphemism you want to use instead of “lie?” Yes. And here they are:

In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.
Comment
Misrepresentation
[1]
A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.
Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.

 

Me again: It is the lawyer’s obligation to himself to make sure any statements he makes on behalf of his client are true. No responsible lawyer signs off on or affirms a statement he hasn’t thoroughly vetted for truth, accuracy, proof. If his client tells the lawyer, “I paid that debt,” the lawyer must say to the client, “I need to see proof before I tell the court that you paid the debt.”

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