So the RIAA lied about a lawyer being employed by the EFF. Why the RIAA lied is not interesting to me. (And don’t turn this into a thread saying how the RIAA can’t be expected to do research relevant to a court case it started.) What I’m interested in is how often lawyers attempt to put one over on the judge in American court cases. Is this a recognized tactic? Is it disbarment in a can?
There is a gigantic assumption here: that the RIAA’s lawyers provably and definitely knew that the guy wasn’t an EFF attorney. It is exaggerating only slightly to say that if every lawyer was disbarred because it was proven that an aspect of their case was false, the losing side’s attorneys would get disbarred in every single case. And sometimes the winning side’s as well, given that very often isolated aspects of even the winning side’s case will be proven false.
But in any event, to get to perhaps the nub of your question, and speak only of knowing lies (at least in my jurisdiction, which is Australia):
1/ lawyers are not supposed to knowingly lie to the court. There was one struck off in my jurisdiction for knowingly lying in a mediation recently, and there is no doubt that doing so in court would result in the same
2/ certain lawyers do it all the time, subtly. On minor points where they can claim they were mistaken, or where there is an element of judgment involved such that it is hard to say that they were definitely lying.
Counsel who do this get a reputation. This has certain negative consequences. For example, most counsel could say to the court that a certain witness gave certain evidence earlier in a trial and the judge would barely ask to be given a trancript reference, except as a formality. But certain other counsel could say the same thing, and his opposing counsel would only have to raise a sceptical eyebrow and the judge would be demanding to be taken to the trancript, and he would read it on the spot on the assumption he’s being told crap.
Needless to say, some counsel get made senior counsel and subsequently often a judge, and certain others don’t.
Fibbing counsel are a PITA for two reasons. Firstly, they sometimes get away with their fibs. Secondly, they waste everyone’s time and money because hours have to be spent showing that their fibs are fibs.
How many counsel do this? I dunno, maybe 5% in my jurisdiction.
How often do lawyers lie to judges?
How often are their lips moving?
MOderator steps in.
You know what, vison. This Is General Questions. If you have a serious answer to the question, post it. If all you want to do is make jokes, take it to another Board.
samclem GQ moderator
I don’t know how often lawyers lie. I can say, however, that by quoting a personal account by one side involved in a case proves absolutely nothing about the reality of that claim. It may be completely true, to be sure. I still wouldn’t attempt to build anything off that flimsy a foundation, myself.
—Except in Family Court. (with all due respect.)
(whoops, sorry, samclem. Should have read ALL the posts before posting. But, a case could probably made that because there is no jury, no guarantee of counsel for an indigent party, and extremely emotional issues at stake, lying all around would have to be increased.)
OK, so the judge is likely to look at them more closely but nobody’s getting perp-walked out of their offices for this. I thought as much.
Well, it depends. It’s very difficult to prove a flat-out lie, as Princhester’s account sets out. What is the difference between carelessness or lack of preparation by the lawyer, leading to an incorrect statement to the court, and a lie? Mental element - the conscious intention to mislead the court. That’s not easy to prove.
As well, often the underlying facts may be relatively clear, but the interpretation to put on those facts may differ. Each lawyer presents the facts from the perspective of the lawyer’s client. I’ve heard the actual parties mutter things like “that’s a lie” listening to the lawyer for the other side, because from their perspective, the statement’s not accurate. But from the perspective of that lawyer’s client, that is the truth. Of course, if the parties were in complete agreement, they wouldn’t be in court.
If a lie can be proven, yes, it’s disciplinary conduct. I am aware of cases where lawyers have been disciplined for misleading the court. However, it’s not normally for oral submissions, but for filing a false document or issuing false process, because that type of case is easier to prove. It happens occasionally, often as a result of the lawyer procrastinating and missing a deadline, and is treated seriously by the law society.
I went up against a liar once, and it was annoying, but nothing came of it other than the judge recognizing this guy as a liar.
He would lie about things like giving me notice of a hearing via voice mail. One day I got a call from the court asking why I wasn’t there for the hearing. I said I never got notice. The attorney said he left a voice mail the day prior. I said I received no such voice mail.
I’ve had other judges in similar situations assume notice was given based upon counsel’s word and just make a ruling when opposing counsel does not show up for a hearing.
I think the judge in this case knew this attorney had a bad rap as a liar and that is why the judge made the effort to call me in the middle of the hearing to make sure I had received notice of the hearing.
The judge allowed me to appear by phone right there on the spot and make my argument.
I think the judges catch on to which attorneys are liars. The judges probably ask themselves why everyone who goes up against this one attorney claims they never received proper notice of hearings.
It seems wrong that the court would depend on an attorney to notify opposing counsel of a hearing. Shouldn’t the court be responsible for that?
That reminds me of a question I’ve been wondering about. How do the courts handle people who say things that are technically true yet completely misleading. (I mean on the order of DHMO arguments. Yes I get that it’s supposed to be a joke but I mean if someone were actually using arguments like that to trick people.) Is it lying or just being a dick?
It wouldn’t make sense for the judge to set the hearing. Hearings are set to resolve disputes between the parties, and the judge isn’t going to know when those disputes exists. Moreover, it’s generally expected that disputes which can be resolved without judicial intervention should be so resolved, and the judge only needs to be involved when the parties are at an impasse.
Attorney’s are supposed to coordinate with each other to set a hearing. It’s a matter of professional courtesy to find out when the other attorney is available to appear, but that doesn’t always happen. Sometimes, if the other attorney isn’t responding to your inquiry (or just says something obtuse like “I’m not free for the next several months”), you just have to go ahead and schedule it, and notify them when it is.
As to the OP, lawyers are not just advocates for their client; they are also officers of the court. Thus, a lawyer is responsible for not lying to the court, nor misleading the court. Obviously, there’s a grey area in this edict - different people can have a different interpretation of events, so the truth is not readily apparent. However, it would be a grievous offense (subject to discipline by the Bar, which regulates attorney conduct) to knowingly lie to the court. It’s this standard which explains why judges will (normally) trust an attorney who makes definitive statement to the judge. And, when the claim seems dubious, I’ve heard the judge ask the attorney “are you willing to say that as an officer of the court?” The inherent message is, don’t swear to something unless you personally know it to be true. Otherwise, you are essentially putting your career on the line.
Typically, if one party seeks a hearing, that party is required to see that the hearing is duly scheduled and to provide due notice to all other parties. The noticing party should be prepared to swear under oath and/or as an officer of the court that they gave due notice to all other parties.
The court doesn’t have the resources to give everyone notice of everything in every case. The court relies on the parties to do that themselves, sometimes at the risk that the parties lie about giving notice or otherwise screw something up that must be retroactively reversed or corrected.
In my youth I wanted to go into law and I worked for a prosecuting attorney for about six months, as a clerk/secretary and it was very disheartening. It made me not study law.
Basically what I learned was that Americans are taught trials and police are about “Finding the truth,” and “justice.” What I learned prosecuting attorneys and defense attorneys are not about “truth” or “justice,” it is about “proving your position.”
This is hard for Americans to accept. We have it so ingrained every trial is about learning the truth. Obviously it’s not or we wouldn’t allow damaging evidence to be discarded because of the means it’s obtained.
Prosecutors have a position and they care only about presenting things that prove guilt. They only will present anything otherwise, if they can refute it. This is what is termed “the sin of ommission.”
The defense is the same way.
This leads to misleading and “subjective” lies. The fact that judges are almost always lawyers perverts the system even more, as judges have the same mentality.
It reminds me of of a dialog from the “Dick Van Dyke Show,”
Rob) I didn’t lie to you, you jumped to a conclusion
Laura) You LED me to that conclusion
Rob) I may have led you to the edge but jumping was your own idea.
Lawyers (in my jurisdiction, although Americans might do things differently) make definitive assertions to the court much less often than you might think. They typically don’t express themselves as though they are personally confirming the truth of their client’s view of things.
If it is undisputed that there was, say, a car accident, then a lawyer will say “There was a car accident” in direct terms. Where, however, it is a matter of controversy, such as who was driving the vehicle, a lawyer will typically express himself by saying something like “You will accept my client’s evidence that he was not the driver because…” or “You might think he could not have been the driver because…”. Rarely will a lawyer baldly assert “My client was not the driver” where the issue is controversial.
This tradition serves to distance the lawyer from the client, and to avoid the prospect that the lawyer is “giving evidence from the Bar table”. Lawyers ought not pledge their own honour to their client’s cause.
Accepting that a lie is an untruth told knowingly, then matters of interpretation or impression, even when reasonable people might disagree, are not usually capable of being lies.
Where lawyers sometimes (foolishly) lie is in matters where their direct knowledge of something is under discussion, such as when a judge asks the lawyer whether any witness claimed to have seen whether the driver was wearing glasses. Careless answers given without checking which are later proved wrong are severely frowned upon and are destructive of reputation, but are not necessarily lies (as opposed to overconfidence in one’s memory).
But saying outright that you observed your client sign a document when you did not, or that you sent a letter when you did not, or that the date on a document is accurate when it is not, will get one struck off.
The case Princhester referred to above was one (IIRC)where in the course of settlement negotiations, a lawyer for a patient said to have suffered injury by medical negligence concealed from a representative of the defendant medical organisation the fact that the patient was, aside from the negligence the subject of the litigation, in parlous health, thus allowing the defendant to (wrongly) calculate damages on the basis of a normal life expectancy, to the detriment of the defendant.
Sins of omission like this can get you struck off.
The allegations (which were proven to the satisfaction of the relevant regulator) went further. He presented a claim for future economic loss based on a normal life expectancy knowing that his client had a terminal illness (which illness was unrelated to the injury the subject of the claim).
Where are you?
When I was practicing, back when dinosaurs roamed the earth, one of my fellow defense attorneys had the absolute worst reputation for this. He was, quite simply, a liar – not so much about the facts relating to his clients’ cases, but about his own conduct. The example Bearflag gave above about representing he had given notice to opposing counsel? That was a weekly event for this guy. He had zero time-management skill, and would often find himself scheduled in two different courtrooms at the same time – sometimes in the same building and sometimes in different counties. When whichever appearance he chose to disregard came back to bite him, he would concoct a series of increasingly elaborate excuses, from sudden illness to death of a family member. I recall hearing that his mother had died four times in eighteen months.
I wasn’t there the day it all came crashing down for him, but I heard from many that were: a judge that had heard one too many excuses asked him for details about exactly where the funeral was going to be held, then asked the deputies to keep everyone seated while she went back to her chambers and got on the phone. She ended up fining him a couple thousand for summary contempt and making complaint to the bar, which ended up recommending a 90-day suspension and he never came back from it – I understand that other … problems … came to light while he was transferring work to other attorneys prior to beginning his suspension.
CORRECTION: he wasn’t struck off he was just fined.
I tried to check before posting above but couldn’t find the case - couldn’t remember the name of practitioner (now I have). And I have confirmed that he was fined, although the sum of the fine was very substantial.
And (having read previous posts of yours over time) I am not far from you.