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Is it Malpractice When a Lawyer Lies?

MANY PEOPLE THINK LAWYERS ARE LIARS.

The image of the “lying lawyer” pervades the popular culture, and the idea isn’t new. The character of Dick the Butcher in Shakespeare’s Henry VI famously says, “The first thing we do, let’s kill all the lawyers.” (Henry VI, Part II, act IV, Scene II, Line 73.)

Ironically, Shakespeare’s famous line was not a call to violence against corruption; in fact, it was said by a man who hoped to overthrow justice by removing the people who ensured it would be done: the (non-corrupt) lawyers.

However, lawyers–like other people–do sometimes lie. The question is

WHEN DOES A LAWYER’S LIE BECOME MALPRACTICE OR CREATE LIABILITY FOR THE LAWYER? 

14C16 Communication

The following situations may–but do not always–subject a lawyer to liability:

1. Material Misrepresentations to a Client Which Breach a Duty, Causing Damages. The standard test for legal negligence applies to a lie a lawyer tells a client. Since the relationship between attorney and client is fiduciary in nature, attorneys are held to a fiduciary standard when it comes to misrepresentations made to a client.

As a general rule, attorneys should not knowingly lie or conceal material facts from a client.

2. Intentional Misrepresentations Made to Third Parties.  California courts have held that “Misrepresentation is not a part of proper legal assistance, [but] vigorous argument often is. Thus, lawyers are civilly liable to clients and nonclients for fraudulent misrepresentation.” (Shafer v. Berger et al (2003) 17 CA4th 54,69-70)

A lawyer may not knowingly make a false misrepresentation of facts to a non-client with the intent to induce reliance on the lie, under circumstances where a reasonable person would rely on the false statement.

3. Negligent Misrepresentations in Negotiations. If a lawyer makes an intentional or negligent misrepresentation of a material fact during negotiations, with the intent that the people who hearing the lie will depend upon it, the attorney may be held liable to the people to whom the misrepresentation was made. However, this applies only to statements the lawyer makes (a) without a reasonable basis for believing the statements are true, and (b) with the intent that the hearer will act or rely upon them.

However, lawyers may engage in “puffing,” and make statements regarding the client’s negotiating goals or willingness to compromise, and these statements are not generally considered “false statements of material fact” which create malpractice or negligence liability for the lawyer.

4. Statements Made to Opposing Counsel. An attorney may not lie or make knowingly false representations to opposing counsel with the intent of influencing opposing parties in a negotiation, litigation, or other legal matter.

5. Fraud/Promissory Fraud. Attorneys may not commit fraud or promissory fraud in the course of representing clients. (Promissory Fraud means a promise made to induce a person’s reliance or action, which the person making the promise has no intent to actually perform.)

WHAT SHOULD YOU DO IF YOU BELIEVE YOUR LAWYER LIED?

Consult experienced malpractice counsel immediately.

Misrepresentations and failures to disclose do not automatically constitute actionable malpractice. Zealous representation of a client may require an attorney to make strategic decisions regarding disclosures and other facts. However, as a general rule, an attorney has a duty to keep the client informed and not to lie or withhold important information.

Do not use this blog post–or any other informational article–as a way to make a decision about your legal rights. Always consult a specialist promptly, as failure to do so may impact your legal rights.

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