On February 20, fifteen law professors filed an ethics complaint against Kellyanne Conway with the DC Bar. On March 9, an ACLU lawyer filed a complaint against Jeff Sessions with the Alabama Bar, and on March 29 more than 2,000 lawyers filed another complaint against him. The complaints alleged that these federal officials, who are also lawyers, violated legal-ethics rules against lying. These complaints raise a broader question that people in the explicitly anti-Trump legal community ought to consider carefully: what is the proper scope of bar discipline for administration officials who lie?
I got to thinking about this question on a sunny Saturday afternoon that I spent in a windowless basement enjoying the DC Bar’s mandatory ethics training for new lawyers. During a surprisingly engaging lecture by the District’s disciplinary counsel—basically the prosecutor in disciplinary proceedings for DC lawyers—we new lawyers learned that lawyers never take their lawyer hats off. (We were enlightened on this point by a bright-orange trucker’s hat, which remained firmly on the disciplinary counsel’s head throughout the lecture.) The District’s rules forbid lawyers to “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” That applies whether the lawyer is in court or on CNN.
A lawyer, we learned, cannot defend a charge of dishonesty merely by saying “I wasn’t acting as a lawyer when I did that.” Lawyers (and aspiring lawyers) have been disciplined for lying on their resumes, plagiarizing their theses, and fabricating stories for The Atlantic.
Regulating lying is tricky business, though. Lying, according to one judge—and this seems obviously true—is essential to human self-expression. Generally, the First Amendment forbids government regulation of lies on the basis of their content and without regard to particular, historically recognized harms that certain lies, such as fraud and defamation, cause. The government, including state bar associations, can’t regulate false speech in order to promote a generalized interest in truthfulness. Bar discipline for dishonesty, then, must be strictly consistent with the permissible purposes of regulating attorneys’ false speech. So what purposes are those?
Despite the dumb jokes your uncle tells at Thanksgiving, the practice of law depends on the presumed honesty of its practitioners. And although there’s scant empirical support for the proposition, almost everyone assumes that those who lied in the past are more likely to lie in the future. Lying is detrimental to the practice of law—and lying lawyers make people distrust the bar. The bar, then, is justified in reprimanding its members for lying on the grounds that they’re more likely to jeopardize the public with their mendacity and that they’re more likely to call the integrity of the profession into question. No conduct is categorically beyond the reach of bar discipline: the capacity in which a lawyer tells a lie is not dispositive of whether she can be disciplined for it.
Ethics experts were nonetheless quick to criticize the complaint against Kellyanne Conway. (Here, here, and here.) In Steven Lubet's view, the complaint was “dangerously misguided” because it would set the precedent that ordinary political lying is the proper subject of regulation by state bars. Consider the implications, Lubet warns, for Illinois attorney Barack Obama’s statement that “if you like your healthcare plan, you can keep it.”
So too, I’d suggest, for the empirically ridiculous claims of climate-change denier, and Oklahoma lawyer, Scott Pruitt. This is stuff that we want in the public debate, even if it's false. We therefore ought to worry when state bars police it for veracity. And, much as it pains me to say this, I’ll confess that I think the complaint against Kellyanne Conway is basically meritless, for some of the reasons the critics listed.
But none of these criticisms address, let alone answer, the important question here: when should a state bar sanction a lying government official?
You might be tempted to say “never.” But that would be inconsistent with the rationale for regulating lawyers’ honesty in the first place, and it would be a departure from decades of consistent practice. Nixon was eventually disbarred for lying; Eliot Abrams was disciplined for lying even though he was not under oath when he did so; and Bill Clinton was fined and suspended from the practice of law for giving misleading testimony even though he denied knowingly saying something untrue. Lawyers don’t get to take off their lawyer hats.
And you might be tempted to say “always,” or at least “without regard to whether the alleged liar is a government official or political operative.” This view is consistent with the rationales for attorney discipline, and it’s both internally coherent and superficially appealing. If lawyers are supposed to be honest, then they can’t lie, whatever the circumstances. (Tricky questions about the distinction between “public” acts of dishonesty and private ones will come up. I don’t think anyone argues that I should be disbarred because I said I didn’t eat the plums in the fridge.) But this would make it impossible for lawyers to work in politics—people in politics lie and, perhaps, they should lie—and that would mark a significant departure from the modern American conception of the lawyer’s role in civil and political society. There’s an argument for a system in which lawyers are necessarily cloistered from the mess of day-to-day political mendacity. But that isn’t our system.
There’s also a serious argument that bar discipline for non-practice dishonesty is unconstitutional—or at least unconstitutional in many of its applications. In United States v. Alvarez, the Supreme Court held that the Stolen Valor Act, which criminalized falsely claiming to have earned certain military awards, was unconstitutional. The Court held that the government’s interest in protecting the value and integrity of military medals was insufficient to justify criminalizing lying about them. Although the government’s interest in regulating the integrity of the legal profession—a profession that, after all, is practiced exclusively through communication—might justify restrictions on speech that are unconstitutional in other contexts, it might not. This hinges partly on the status of commercial speech and on the proper standard for assessing profession-specific regulations of speech. I’ll leave the answer to those questions for another day.
So for now we need a way to distinguish between ordinary, garden-variety acts of political duplicity and professionally unacceptable ones. Saying “well they weren’t practicing law when they lied” won’t do it. But neither, for obvious reasons, will saying “anytime a politician says something false she gets disciplined.”
Still, there are some easy cases. Take Jeff Sessions. I won’t prejudge the merits, but the complaint against him obviously states a claim worthy of attorney discipline. If the allegations in the complaint are true, Sessions lied, under oath, to the Senate. That’s perjury. But even informal lies, outside Senate meeting rooms, cannot be categorically exempt from regulation, unless we’re willing to go so far as to say that state bars can’t regulate non-practice dishonesty.
The regulation of lying, then, must be strictly consistent with the permissible purposes of the regulation—in this case, maintaining a well-functioning and well-respected bar. So what sorts of lies negatively reflect on one’s capacity to practice law? That’s a tough question and I’ll offer only preliminary thoughts.
In my view, the test has to be some version of “lies that are extraordinary given the circumstances,” but, of course, that’s extremely broad and vague. Lies that an ordinary person would not tell, even if she were in the same position as the to-be-disciplined lawyer, and that provoke non-politically-motivated disgust among the legal-services-consuming public are a start. As are lies that have well-defined negative consequences, such as lies that frustrate official actions, or lies that inure to the financial benefit of the liar.
As I said earlier, people in politics lie. And although people in ordinary American politics don’t generally lie until there’s no truth but the leader, these days plenty of Americans experience no disgust whatsoever when they’re told about alternative facts, Chinese climate-change conspiracies, 400-pound guys hacking the DNC, and the rest of it. Non-politically-motivated disgust may be hard to come by.
Still, there might still be some lies that people won’t tolerate. Even from lawyers.