I’m Not, Not Lying to You: A (Very Brief) Discussion of Categorical and Contextual Approaches to Lawyer-Lying

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Liam McMillin, Managing Editor, University of Cincinnati Law Review

I will try not to lie to you. You may not believe me, but I’ll do my best to tell you the truth. In this particular situation, I have no reason to not be truthful.

This is not always the case, of course. Lawyers are often put in situations where being objectively truthful is not beneficial to them or their clients. How should lawyers handle these situations, especially those that do not involve the court? When presented with a situation in which lying to a third-party would be incredibly beneficial to their client, what is a lawyer to do?

Regarding communications between a lawyer and opposing counsel or third-parties,[1] the text of the Model Rules of Professional Conduct (“Model Rules”) is straightforward: Rule 4.1 reads, in part: “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 . . .”[2] To violate Rule 4.1, a lawyer needs to make a statement to a third-party that is both “false” and “material.”[3] To determine whether a statement is of law or fact, the Model Rules tell us to look to the circumstances.[4] How we interpret those circumstances, or rather, when a false statement because a false statement of fact under Rule 4.1, is the important question here: is there ever a time where it is “okay” to lie?

In William H. Simon’s article, Virtuous Lying: A Critique of Quasi-Categorical Moralism,[5] he describes a situation where he told a lie—regarding what I would consider is a non-material matter—to get his client much needed emergency assistance. Simon pushes back against what he describes as “quasi-categorical moralism,” or the idea that lying is always morally wrong, and “only where a lie is a last resort can one even begin to consider whether it is morally justified.”[6] Even then, as Simon describes, a quasi-categorical moralist would find that the lie cannot be morally justified.

To Simon, this approach is logically inconsistent. Sissela Bok, his emblematic quasi-categorial moralist, he argues, “never succeeds in finding a resting place between the uninteresting claim that one shouldn’t lie without moral reason and the untenable claim that, when one has such reason, it is presumptively trumped by a duty of honesty.”[7] Simon, a self-described contextual moralist, spends the majority of his article working through Bok’s “uninteresting” and “untenable” claims, and while worth a read and analysis in its own right, this short Note addresses one particular concept Simon raises, namely that of credibility.[8]

Simon discusses credibility in the context of the “costs” of lying-as-a-lawyer. He finds Bok’s argument—that when someone lies, they lose credibility—lacking. For Bok, lying is a threat to a person’s credibility for truthfulness and honesty, or as Simon puts it, “credibility-as-honesty.”[9] For Simon, the more important form of credibility—“credibility-as-power,” as he puts it—is the credibility of a person to have the capacity and power to fulfill the intentions of the statement.[10] A credible threat, as he reminds us, is not just a threat that “the speaker is sincerely committed to, but also one that she is likely to bring about.”[11] This credibility-as-power is especially important to lawyers, “especially those in practices oriented towards redistributive or reformist values.”[12]

For Simon, it seems, telling a lie to advance the needs of his client may threaten his credibility for honesty, but is morally justified by the support that lie provides for his credibility to act powerfully on behalf of his client. As a contextual moralist, this is all the justification that he needs to lie to a third party: the benefit to his client, and the strengthening of his credibility-as-power is worth any of the other potential “costs.”

Simon is on to something here. Understanding the context of the statement—what is behind it, around it, in front of it—matters almost as much as the statement itself. Simon would argue, using his hypothetical, that the purpose of the statement, why the statement is being made at all, can trump the objective truthfulness of the statement itself. Even the Model Rules seem to acknowledge this, at least implicitly. The Rules include guidance as to statements of fact in the context of Rule 4.1: “[w]hether a particular statement should be regarded as one of fact can depend on the circumstances.”[13] As way of example, the Rules mention the contexts of negotiations, estimations of price/value, or the existence of undisclosed principals. If whether a statement is a “fact” is contextual, why not also whether or not the statement is “false”?

What the categorical approach to lawyer-lying assumes is that there is a truth, and therefore a statement that does not match that truth is false, or a lie. But the truth is rarely so objective, rarely so specific, and rarely so “true.” Any lawyer or law student who has participated in any of the many adversarial aspects of the legal field knows that while the stated goal is to have each side make their arguments and the “finder of fact”—for our purposes, the “finder of truth”—discerns the objective truth, this is rarely the case. Instead, it is the more persuasive, the more coherent “truth” that is victorious.

Once this is understood, the lawyer is presented with two options: ignore or dispute this reality, or embrace it. In the context of communications with third-parties, quasi-categorical moralists, who would usually employ the former option, are left with a difficult choice: either they hold fast to their love of an objective truth, ignoring the realities of our adversarial system, or they are forced to say that the context of the adversarial is different than that of third-party interactions.

This is not “gotcha journalism,” and this latter option is not an impossible position for quasi-categorical moralists to hold. The Model Rules recognize that statements made in an adversarial setting, “to the tribunal,” are different in context than those made to third-parties: there are different rules for each.[14] But what the quasi-categorical moralist approach misses is that a logical expansion of the variation between contexts makes for a better understanding of the lawyer’s role when representing a client.

As Simon draws out, credibility-as-power, in many instances, should be given more weight than credibility-as-honesty. Simon here recognizes that being true to the client, in some situations, is more important than being true to an objective truth. What those “situations” are depends on the context, of course, but what Simon is advocating for is an understanding that a blind adherence to an invisible objective truth does not make better lawyers.

Instead, people who recognize that truth is rarely so objective make better lawyers. This does not mean that those lawyers lie more. What it does mean is that when they do, they have good reason to do so. This Note does not attempt to lay out what those “reasons” could or should be. What this Note attempts to do is provide a rationale for looking at contexts differently. Rather than blind followers of a concept of an objective truth, we should instead exist in the world, not above it, operating as supposed harbingers of truth.[15] The three extra years of schooling and the passing the Uniform Bar Exam does not make lawyers more (or less) apt to know and hold the truth. What it does provide lawyers is the opportunity to examine and engage with these questions every day. The problem with any categorical approach, quasi or not, is that it precludes any actual engagement with these ideas. What a contextual approach provides, at the very least, is more opportunities to ask these questions and search for answers. When I make a statement to a third party, what else is at play here? What are the consequences of my statement in this particular situation? Who is harmed? Who is benefited?

This is encompassed, implicitly, in Rule 4.1. For a statement to violate Rule 4.1, the statement must regard a “material” fact.[16] This, combined with the various examples discussed in Comment 2, indicates a contextual understanding of the Rule already.[17] What this Note proposes is solely an expansion of that contextual approach, applying it also to “false.” Lawyers should recognize that lawyering is a practical occupation, and there are situations where being true to our clients is more important to being true to truth. The consequences of those choices in those situations are real and should be considered carefully; this Note is not advocating for more lying, only a more contextual understanding of such situations.

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[1] The scope of this Note is focused solely on lies made to third-parties while representing a client, and does not include statements made to the tribunal (covered by Rule 3.3), regarding the falsification of evidence (covered by Rule 3.4(b)), or false statements related to bar admission or other disciplinary matters (covered by Rule 8.1). See generally Model Rules of Prof’l Conduct r. 3.3, 3.4(b), and 8.1 (Am. Bar Ass’n, 2019).

[2] Model Rules of Prof’l Conduct r. 4.1 (Am. Bar Ass’n, 2019) [hereinafter Rule 4.1].

[3] Id.

[4] Id., cmt. 2.

[5] William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433 (1999).

[6] Id. at 436.

[7] Id. at 447.

[8] Id. at 435, 437.

[9] Id. at 439.

[10] Id. at 440.

[11] Id.

[12] Id.

[13] Rule 4.1, cmt. 2.

[14] Model Rules of Prof’l Conduct r. 3.3 (Am. Bar Ass’n, 2019) (addressing statements made in the adversarial setting); Rule 4.1.

[15] Much of this idea comes from Emerson’s concept of the “Scholar,” or “Man Thinking,” from his address at Cambridge titled “The American Scholar.” Ralph Waldo Emerson, Essays & Lectures Library of America 63 (1983). As Emerson puts it, there is a tendency for people to divide themselves, to categorize themselves and thus “amputate” the other areas from themselves. An attorney, says Emerson, becomes “a statute-book,” separate from the world in which he lives.

[16] Rule 4.1

[17] Id.