Lawyers and the Lies They Tell

89 Pages Posted: 13 Dec 2021 Last revised: 9 Jun 2022

See all articles by Bruce A. Green

Bruce A. Green

Fordham University School of Law

Rebecca Roiphe

New York Law School

Date Written: December 10, 2021

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

Suggested Citation

Green, Bruce A. and Roiphe, Rebecca, Lawyers and the Lies They Tell (December 10, 2021). Washington University Journal of Law and Policy, Vol. 69, 2022, NYLS Legal Studies Research Paper No. 3982663, Available at SSRN: https://ssrn.com/abstract=3982663

Bruce A. Green

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

Rebecca Roiphe (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2804 (Phone)

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