Two of the nation’s leading bar associations recently issued warnings about attorneys who mislead the public, make baseless charges, or blatantly lie about highly charged matters to be resolved in court. Both associations were responding to false claims made by attorneys for former President Donald Trump about the search of his Mar-a-Lago resident, challenging its lawfulness and the integrity of the federal government.
Some of the statements have been shown to be verifiably false, while the rest lacked a scintilla of evidence. Yet confronted with contrary facts, none of those attorneys provided support for their statements or corrected the record. Words are consequential, the associations underscored—they can invoke violence directed at judges, FBI agents, and everyone involved in law enforcement.
Such lies by lawyers are nothing new. They continue a rampant pattern of lies offered in court and in the public sphere by election deniers.
The New York City Bar Association’s report starkly reiterated that attorneys should not “make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect.” Nor should attorneys, especially in “a highly charged environment of public interest,” make comments about “the judicial processes or judicial officers” that “they know to be demonstrably misleading or palpably false.”
A week earlier, the New York County Lawyers’ Association called out the danger of threats and antisemitic slurs aimed at the federal magistrate judge who issued the Mar-a-Lago warrant, as well as the identification of two FBI agents involved in the search, and the subsequent armed attack on the FBI’s Cincinnati office.
First Amendment Issues
Such warnings implicitly raise a crucial First Amendment question: Do lawyers’ lies have the same First Amendment protections as lies by others?
As I explained in A Right to Lie? Presidents, Other Liars, and the First Amendment, the Speech Clause impedes the state’s power to punish most lies. Long-standing exceptions to that principle include regulation of defamation, exemplified in current lawsuits brought by Dominion Voting Systems and Smartmatic against Fox News and others.
However, First Amendment protection for knowing falsehoods does not amount to an affirmative “right to lie.” The state violates the Constitution when it punishes speech simply because a court believes it to be false. The US Supreme Court has indicated that the government may only punish verifiable false statements of fact that harm others or unjustly benefit the liar.
The First Amendment may create an insuperable obstacle to state regulation of lies attorneys tell about pending proceedings, but it does not apply to private discipline by professional organizations. Arguably, as the New York City Bar suggested, attorneys waive some of their First Amendment rights to lie about public events and submit to the jurisdiction of the bar association as a condition of their license to practice law.
Who Was Involved
It is important to distinguish several settings in which lawyers might knowingly misrepresent the facts.
First, lawyers who represent clients in the dispute must be truthful in all statements to a court as well as to third parties, including the public. The ABA Model Rules of Professional Conduct prohibits attorneys from making false statements of fact or law before a legal tribunal as well as to the public.
A federal judge in Michigan explained in sanctioning Trump attorney Sidney Powell for her lies about the 2020 election and referring her to the Texas bar for professional discipline that “conjecture” and “speculation” are “neither permitted nor welcomed in a court of law.”
Referencing a 1991 Supreme Court opinion, she added, “it is well-established that an attorney’s freedom of speech is circumscribed upon ‘entering’ the courtroom.” In court, attorneys do not retain “personal First Amendment rights” because they are just doing their jobs. The legal definition of lies does not include conjecture, opinion, and the like, but courts require more of attorneys than not technically lying—assertions must be backed by evidence.
Of course the Michigan court did not mean to suggest that lawyers representing clients can lie outside of judicial proceedings. Powell carefully limited her fabrications to extrajudicial settings. She was cautious in court filings, and even asked the court to disregard her public statements as too incredible to be taken seriously.
Indeed, a New York appellate court upheld the suspension of Rudy Giuliani’s law license in part because of his false statements of material fact or law to third persons, that is, the general public. Giuliani “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large” while trying to overturn the 2020 presidential election results.
Who Wasn’t Involved
A third and more nuanced situation involves lawyers who are not involved in the controversy. The Model Rules of Professional Conduct generally apply to attorneys “in the course of representing a client,” and the Supreme Court’s conclusion that lawyers doing their jobs in court lack First Amendment rights does not seem to apply to attorneys without a client who speak about matters of public concern.
But the New York City Bar exhorted “all attorneys” to refrain from falsehoods. The specific setting and the lawyer’s choice of “hat” may matter. If speaking as “myself,” a concerned citizen, or as a legal opinion commentator, the scope for prevarication may be wider than if the lawyer speaks as the chair of the judiciary committee.
On what ground can we demand lawyers stay within the boundaries of professional propriety? This brings us to the quintessential features of the legal profession.
Upon admission to practice each lawyer is considered “a public citizen having special responsibility for the quality of justice.” As the Model Rules of Professional Conduct explain, “Lawyers play a vital role in the preservation of society.” That is why we hold ourselves to high aspirational standards, even when we may lack effective means of enforcement.
The New York bar associations were right to rebuke flagrant falsehoods that target the very rule of law. We should all take those warnings seriously.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Catherine J. Ross is Lyle T. Alverson Professor of Law at the George Washington University Law School. She specializes in constitutional law with particular emphasis on the First Amendment, and family law. She is the author of “A Right to Lie? Presidents, Other Liars, and the First Amendment.”