Thursday, October 14, 2010

The Limits of Dishonesty?

Honesty is cited by the Vermont Rules of Mandatory Continuing Legal Education as one of the "tenets of the legal profession." But what does it mean to be "honest" in the context of law practice? Rule 4.1 of the Vermont Rules of Professional Conduct makes clear that "in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person." Is that all there is to it? Can lawyers be dishonest as long as they are not "in the course of representing a client"? Probably not, and Rule 8.4 says that it is professional misconduct to do things "involving dishonesty, fraud, deceit or misrepresentation." Rule 4.1 is obviously narrower than Rule 8.4, but can the latter rule really mean what it says?

Most would agree with the Professional Responsibility Board when it concludes that Rule 8.4's prohibition really only applies to deception that reflects poorly on a person's fitness to practice law. The Board -- and all those who agree with it -- thus assume that there are bad lies and there are not-so-bad lies, that some lies are wrong while others must at least be tolerated and should not provide the basis for professional discipline.

Over the next several months, I want to think through the morality of lying and deception, particularly as it applies to lawyers, but also as it applies in the general realm of political theory. Should government lawyers be permitted to supervise investigations that they know involve deception? Should criminal defense lawyers be able to do the same, or even engage in the deception themselves? After all, most criminal defense lawyers would argue that their duty to their client may sometimes outweigh their obligation to abide by professional ethical rules -- or at least they believe that violating the rules may sometimes be necessary in order to carry out their role in the adversary system. How about civil defense lawyers? Or plaintiffs' lawyers? Should they be permitted to engage in deception? For isn't it the case that the consequences of losing a civil suit can sometimes be more severe than the consequences of losing a criminal case?

And what does all this haggling about the justifiable limits of dishonesty say about a profession that claims to be based on honor and integrity?

Tough questions.

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