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When is it okay for a lawyer to lie? (2018)

americanbar.org

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Re: When is it okay for a lawyer to lie? (2018)

#31

Post by woofie11 »

elliekelly wrote: post #28
nordsieck wrote: post #25

Earlier quoted context omitted.

> Lawyers wouldn't have the reputation they do if all the members of the club had integrity. While it's true that some lawyers are unethical some of the time, it seems highly unlikely that lawyers are unethical as often as their reputation suggests. A much more likely explanation is: 1. The complexity of the law. 2. The incongruity between the law and many people's ethical codes. 3. The skill gradient that exists amo…

And TV. Real life lawyering isn’t nearly interesting enough so writers have to zhush it up by having lawyer characters operate in the grey area or completely cross the line as a matter of course. It’s more exciting that way!

The way real lawyers are unethical and the way TV lawyers are unethical is completely different.

Real lawyers will mostly do things like inflate hours, inflate conflicts, exaggerate expected outcomes, and generally blow things up so as to maximize billable hours rather than acting in the interests of their client. That doesn't make good TV either.

Re: When is it okay for a lawyer to lie? (2018)

#33

Post by CobrastanJorji »

rayiner wrote: post #20
parsimo2010 wrote: post #7

These are interesting scenarios, but let's not forget that the rules are only binding under the threat of being caught and punished. They aren't like the laws of physics. So if a lawyer isn't supposed to engage in trickery, they might do so anyway, especially if they think they can get away with it and their client happens to be a rich criminal who pays them extra to do shady stuff. Source: Lawyers wouldn't have the…

There are a number of structural mechanisms that make “getting away with it” difficult. First, the process is adversarial—there is another side with huge incentives to discover any fabrication. Second, there is an ethical duty to reveal misconduct in your knowledge, under punishment of penalties to yourself. It’s not enough for a rich criminal to pay off a lawyer; they have to pay off everyone else who might know. Th…

What is this "destroy a person's entire livelihood" thing? For prosecutorial misconduct, it's nearly impossible to sue the prosecutor. They have the same qualified immunity police officers enjoy, and incidents of state bars punishing prosecutors for misconduct are nearly nonexistent.

Re: When is it okay for a lawyer to lie? (2018)

#35

Post by woofie11 »

rayiner wrote: post #20
parsimo2010 wrote: post #7

These are interesting scenarios, but let's not forget that the rules are only binding under the threat of being caught and punished. They aren't like the laws of physics. So if a lawyer isn't supposed to engage in trickery, they might do so anyway, especially if they think they can get away with it and their client happens to be a rich criminal who pays them extra to do shady stuff. Source: Lawyers wouldn't have the…

There are a number of structural mechanisms that make “getting away with it” difficult. First, the process is adversarial—there is another side with huge incentives to discover any fabrication. Second, there is an ethical duty to reveal misconduct in your knowledge, under punishment of penalties to yourself. It’s not enough for a rich criminal to pay off a lawyer; they have to pay off everyone else who might know. Th…

Have you ever tried filing a misconduct compliant with a bar association? You'll get just about as far as a police violence compliant with the local PD. The bar is there to serve the lawyers, like any guild or union. For the most part, there are no checks on lawyer ethics.

Re: When is it okay for a lawyer to lie? (2018)

#37

Post by Iv »

It has been several years ago that I discovered that despite a similar philosophy behind law-writing and programming, these worlds are very far apart and every year, even when I thought my cynicism was stable, the gap continues to widen.

This is from the American Bar Association, it is the opposite of a blog post you would end with IANAL. Yet, we read (at the end) that even professional lawyers are "struggling" with understanding why a given accepted practice is ok given the laws and obligation. And this on no small matter: it is about hiding that the plaintiff died before the trial. And it is not clear whether it is ok or not.

I had the "chance" to discuss with lawyers specialized in intellectual property. They did not even understand their subject or the imprecision of law. Every time I try to dig into legal issues surrounding IP I end up with the impression that the difference between a lawyer and a layperson is that the lawyer just is more up to date with what was made up in court recently.

Lawyers are going to help you if you are in a case that has happened tens of times in the past but is going to be clueless in a genuinely new situation. Just as the judge will be.

Recently I read about the licensing issues around deep learning models, the definitions of fair use and derivative works. We are used to IETF standards and IEEE specs. Even RFCs are usually pretty precise in how they define things. Laws are crappy when put to that standard. They are just there to provide arguments in a mud-slinging negotiation.

Re: When is it okay for a lawyer to lie? (2018)

#38

Post by gamblor956 »

woofie11 wrote: post #35
rayiner wrote: post #20

Earlier quoted context omitted.

There are a number of structural mechanisms that make “getting away with it” difficult. First, the process is adversarial—there is another side with huge incentives to discover any fabrication. Second, there is an ethical duty to reveal misconduct in your knowledge, under punishment of penalties to yourself. It’s not enough for a rich criminal to pay off a lawyer; they have to pay off everyone else who might know. Th…

Have you ever tried filing a misconduct compliant with a bar association? You'll get just about as far as a police violence compliant with the local PD. The bar is there to serve the lawyers, like any guild or union. For the most part, there are no checks on lawyer ethics.

I've actually served on the ethics committee for the bar association. We discipline lawyers all the time.

The bar does not exist to serve lawyers, it exists to regulate them.

Re: When is it okay for a lawyer to lie? (2018)

#39

Post by nmfisher »

umvi wrote: post #12
parsimo2010 wrote: post #7

These are interesting scenarios, but let's not forget that the rules are only binding under the threat of being caught and punished. They aren't like the laws of physics. So if a lawyer isn't supposed to engage in trickery, they might do so anyway, especially if they think they can get away with it and their client happens to be a rich criminal who pays them extra to do shady stuff. Source: Lawyers wouldn't have the…

Yeah, I didn't realize how downright nefarious lawyers can be until I read "Bad Blood" and thought to myself "How is what David Boies does to help Theranos legal? This seems extremely unethical at the very least, and highly illegal at most"

As someone who (in an earlier life) started off in the profession, here's a dirty little secret - I'd say around 2/3 of lawyers get by on pure bluff, bluster and intimidation. I'm talking shouting on phone calls, slamming fists on tables, threatening letters, and so on.

Once you have the slightest clue about the law, it's easy to just laugh it off. The problem is, most people don't know any better, so these tactics are incredibly effective a lot of the time.

However, you do get a truly lethal combination when you combine an asshole lawyer with a well-funded client. That's not because it's some highly intelligent, sophisticated legal team who can craft superior legal arguments. Rather, it's because they can simply brute-force their way through by outspending you.

It doesn't matter how legally "right" you are if you're not willing/able to spend the money in court to prove it. A lot of people take advantage of that, including the asshole lawyer (who, of course, profits from it).

Re: When is it okay for a lawyer to lie? (2018)

#40

Post by tptacek »

woofie11 wrote: post #35
rayiner wrote: post #20

Earlier quoted context omitted.

There are a number of structural mechanisms that make “getting away with it” difficult. First, the process is adversarial—there is another side with huge incentives to discover any fabrication. Second, there is an ethical duty to reveal misconduct in your knowledge, under punishment of penalties to yourself. It’s not enough for a rich criminal to pay off a lawyer; they have to pay off everyone else who might know. Th…

Have you ever tried filing a misconduct compliant with a bar association? You'll get just about as far as a police violence compliant with the local PD. The bar is there to serve the lawyers, like any guild or union. For the most part, there are no checks on lawyer ethics.

Isn't the bar association a guild or union? The state court system hears serious ethics complaints.
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