Can a Lawyer Lie to a Witness to Get Evidence to Help a Client?
A lawyer defending a serious criminal case got a phone call from a person claiming he had information that would help the defense. The potential witness asked the lawyer if the phone conversation was being recorded. He was told it was not. Another lawyer deflected the conversation saying he was on a speaker phone indicating there was a witness to the conversation. The interview proceeded and was recorded.
Both lawyers were referred to the lawyers Professional Responsibility Board (PRB) for discipline. Ethical Rule 4.1 provides “in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to third person” and Rule 8.4 punishing “dishonesty.” The rules apply to anyone working for a lawyer, too. The PRB found the lawyers violated rule 4.1, but not 8.4 and ordered a private reprimand. They appealed.
All the Justices agreed that the lawyers had violated Rule 4.1 and should be given a private reprimand. Although it is permissible to record a call without consent, the lawyers had lied to get their evidence. A private reprimand was approved because the lawyers acted only to protect their client in a serious criminal case, and it was an isolated instance.
But trouble developed on two other fronts: (1) a decision finding such a recording to be unethical under 4.1 might have serious implications for prosecuting attorneys and law enforcement officers working for them. Crime is often uncovered by duplicitous means; (2) if the conduct also violated rule 8.4, would lawyers be subject to discipline for any dishonesty, say giving a false reason for turning down a dinner date?
Justices Skoglund, Johnson, and Burgess decided to convene a committee made up of prosecutors, defense attorneys, and law enforcement to fashion a rule like 4.1 to be applied to law enforcement. They also decided Rule 8.4 was not violated because that rule only applied to dishonesty that implicated a lawyers’ fitness to practice law, that is, showed character trait for deceit. Law practice they said creates “difficult ethical problems that arise from” conflicting loyalty to clients and the lawyer’s one interest in remaining an upright person.”
Chief Justice Reiber and Justice Dooley dissented. They were OK with the Committee, but they believed Rule 8.4 had been violated. “Bold faced lying” they said was dishonest, and reflected on the lawyers’ moral fitness to practice law. The severity and frequency of dishonest conduct can be taken into account in determining how to punish a lawyer, they reasoned, but it cannot be excused, or limited to conduct reflecting only on the lawyer’s professional duties.
Thorny ethical issues split the Court. In Re PRB docket 2007-046 2009 VT 115.
