When an attorney recognizes the client is lying

A sinking feeling...

The clues: At first, the attorney believed his wealthy client’s sad story about a former worker who was a contractor who rarely showed up at the office, but for no reason at all, resigned with a two-week notice and then—for no reason at all—filed a wage claim.

The client characterisized the worker as “crazy.”

Then came the mountain of evidence:
Timesheets, emails, notes from meetings with the client/employer, document after document showing the worker was managed as an employee. Later in the process, the final blow: A federal decision that the worker was an employee.

Even more embarrassing, the worker, during the wage claim process, kept offering to submit his evidence to a forensic examiner of the employer’s choosing, and also presented documents from another person who worked for the client, and who also filed a wage claim (that resulted in the client being forced to pay back stolen wages).

Income tax documents showed that the client paid this worker very poorly, and that the worker was financially dependent on the client.

Wait a minute: Why did the client receive a two-week notice from the worker? That's not the procedure for contractors. That's something employees do.

That was when the attorney got that sinking feeling that his wealthy client was lying.

FAQ - Frequently Asked Questions

Two avenues for the attorney?

Searching online for "the client is lying" may yield two lines of thought:

• If the question is "What should an attorney do if he recognizes his client is guilty?" then the answer is in the "zealous defense" vein.
• However, if the question is "What if an attorney recognizes his client is lying?" then the answers are "Counsel the client, refuse to give false evidence, seek withdrawal from the relationship, disclose what's going on to the court."

What is the dividing line?

The difference turns on a core distinction in legal ethics:

• Being “guilty” (or legally liable) is not the same as...
• Lying to the court or offering false evidence

The governing framework in most U.S. jurisdictions is based on the American Bar Association Model Rules of Professional Conduct (many states adopt versions of them).

Below is the structural difference...

If the client is “guilty”

An attorney may still:

• Provide a zealous defense
• Require the opposing side to meet its burden of proof
• Argue legal defenses
• Negotiate settlement
• Challenge procedural defects

This is allowed because:

• The lawyer’s duty is to provide competent representation.
• A client’s admission of liability does not eliminate their right to counsel.
• The lawyer is not required to “punish” their client.
• The lawyer does not have to volunteer damaging facts.

What the lawyer cannot do is mislead the court. But simply defending someone who committed a wrong is not unethical.

Example:
An employer privately admits they failed to pay overtime. The attorney may:

• Challenge the calculation of damages
• Argue statutory interpretation
• Negotiate settlement
• Assert legal defenses

That is lawful advocacy.

If the client is lying (or intends to lie)

This triggers a different set of duties.

The lawyer’s obligations include:

Duty of 'candor to the tribunal'

Under ABA Model Rule 3.3, a lawyer:

• Cannot knowingly present false evidence
• Cannot allow false testimony
• Cannot make false statements of fact or law to a court

Duty not to assist fraud

Under ABA Model Rule 1.2(d), a lawyer cannot assist a client in criminal or fraudulent conduct.

If a client says:

I want to testify that we paid all wages”

... and the lawyer knows that is false, the lawyer cannot allow the client to present a lie as sworn testimony.

How do the situations differ?

Because these are different ethical categories:

“Zealous defense” does not mean:

• Fabricating facts
• Submitting false documents
• Allowing perjury

It means:

• Force the other side to prove its case
• Assert lawful defenses
• Protect the client’s procedural rights

Special wrinkle: employer context

If the client is a corporation, ABA Model Rule 1.13 applies:

• The lawyer represents the organization, not the individual manager.
• If corporate officers are committing fraud, the lawyer may have to report “up the ladder.”
• In certain situations, external disclosure may be permitted or required.

The underlying principle

The adversarial system tolerates:

• Representing wrongdoers
  
  But it does not tolerate:
• Deceiving the court.

So the dividing line is not guilt — it is dishonesty in the litigation process.

If a lawyer knows their client is lying, their ethical duty requires them to first try persuading the client to correct the false information; if the client refuses, the lawyer must take remedial action, which can involve withdrawing from the case, and potentially disclosing the lie to the court, especially if the lie involves perjury or fraud to subvert the justice system. Lawyers must not knowingly present false evidence or testimony and have a duty to rectify fraud.

Public interest: If an attorney does not directly intervene with a client who lies, it is possible that the lack of corrective action would allow the client to continue behavior that harms the people that the client meets. The ethical rules governing attorneys are designed primarily to protect the integrity of the legal system, which in turn serves the public interest. They do not exist mainly to protect lawyers or even individual clients. They exist to stabilize the adversarial process.