Lawyers and the Lies They Tell

Abstract

Noting that the First Amendment protects lies about the government made in the public square, this article explores whether lawyers’ free speech rights ought to be different from that of other speakers. The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of lawyers’ fiduciary relationships with courts and clients. But how much more demanding can the law be when it comes to lawyers’ speech — in this case, false political speech? Applying the current First Amendment framework, we question the bar’s assumption that lawyers’ speech outside of these contexts can be regulated more restrictively than others. We disagree with the premise that lawyers do not deserve the same robust protection for disfavored speech that the First Amendment affords speakers in general. The constitutional case law invites us to identify and scrutinize the bar’s regulatory assumptions and rationales, including the idea that all lies reflect a dishonest character that presages future dishonesty in law practice, or that all lawyers’ lies diminish public respect for the profession. We argue that the bar’s rationales do not hold up well on close examination.

Keywords: First Amendment, Legal Profession, Free Speech, Professional Responsibility