
When is it okay for a lawyer to lie? (2018) - lazugod
https://www.americanbar.org/news/abanews/publications/youraba/2018/december-2018/when-is-it-okay-for-a-lawyer-to-lie--/
======
parsimo2010
These are interesting scenarios, but let's not forget that the rules are only
binding under the threat of being caught and punished. They aren't like the
laws of physics. So if a lawyer isn't supposed to engage in trickery, they
might do so anyway, especially if they think they can get away with it and
their client happens to be a rich criminal who pays them extra to do shady
stuff.

Source: Lawyers wouldn't have the reputation they do if all the members of the
club had integrity.

~~~
ta1234567890
> Lawyers wouldn't have the reputation they do if all the members of the club
> had integrity.

Some anecdotes:

\- A company I started, hired a big-brand SV legal firm, super expensive. We
thought they would be great. But we were so little to them, it was sometimes
even hard to get a timely response. In the end we stopped using them, but not
before we signed a bunch of documents they reviewed and told us were fine to
sign, when in reality those contracts left us fatally exposed (and were in
great part responsible for the downfall of the company later).

\- Had a complaint filed against me personally earlier this year. The
complaint has some truths twisted to paint a mostly false story, but it also
has plenty of lies and omissions. The lawyer(s) that wrote the complaint knew
what they were doing, yet no one is ever going to get punished for it.

\- Looking for lawyers to defend the case (and in previous experiences), I
realized that most lawyers have certain formulas or patterns they follow for
specific types of situations that they already know how to address, if you
don't fall into those, then they'll either pretty much fail at the job, not do
what they actually should do (sometimes even if you ask them directly), or
just refuse you as a client. It is very hard to find a lawyer that will
actually take the time to really listen to you, understand your
story/situation and then work on a personalized strategy/solution.

I think that any lawyer that intentionally mis-represents stuff in their work,
or tries to shoehorn their clients into their formulas, or just half-asses
their job, are seriously lacking in integrity. And by my experience, this
seems to be the case for 50%+ of lawyers. A lot of them will probably do a ton
of damage both to their clients and their counterparties, and they will never
be held responsible.

~~~
dependenttypes
I do not want to dismiss what you are saying (in fact I find it extremely
interesting) but don't 80%+ of people in all professions (or even out in
society) just suck? I am more surprised that you consider 50% to be the
minimum of bad lawyers rather than a higher percentage.

~~~
ikeboy
80% of doctors don't suck.

It's not that lawyers suck, per se. It's that you're dealing with an
adversary, and if you get a 50th percentile lawyer to go against a 90th
percentile lawyer, well, you could still win if you've got a good case, but
it's certainly not as likely as the reverse. In many cases you get what you
pay for.

~~~
srtjstjsj
80% of doctors (especially cheap ones like the lawyers mentioned above) would
fail to get optimal results in complex scenarios like presented above, just
like the lawyers.

~~~
ikeboy
The doctors wouldn't be put in that position, though. While lawyers will often
gladly take a case that they have a low chance of winning without fully
disclosing that.

------
Iv
It has been several years ago that I discovered that despite a similar
philosophy behind law-writing and programming, these worlds are very far apart
and every year, even when I thought my cynicism was stable, the gap continues
to widen.

This is from the American Bar Association, it is the opposite of a blog post
you would end with IANAL. Yet, we read (at the end) that even professional
lawyers are "struggling" with understanding why a given accepted practice is
ok given the laws and obligation. And this on no small matter: it is about
hiding that the plaintiff died before the trial. And it is not clear whether
it is ok or not.

I had the "chance" to discuss with lawyers specialized in intellectual
property. They did not even understand their subject or the imprecision of
law. Every time I try to dig into legal issues surrounding IP I end up with
the impression that the difference between a lawyer and a layperson is that
the lawyer just is more up to date with what was made up in court recently.

Lawyers are going to help you if you are in a case that has happened tens of
times in the past but is going to be clueless in a genuinely new situation.
Just as the judge will be.

Recently I read about the licensing issues around deep learning models, the
definitions of fair use and derivative works. We are used to IETF standards
and IEEE specs. Even RFCs are usually pretty precise in how they define
things. Laws are crappy when put to that standard. They are just there to
provide arguments in a mud-slinging negotiation.

~~~
pabs3
If you have any more info about the licensing issues around deep learning
models, I'd be very interested to read it.

In exchange, here is a link to the Debian Deep Learning Team's Machine
Learning policy:

[https://salsa.debian.org/deeplearning-team/ml-
policy](https://salsa.debian.org/deeplearning-team/ml-policy)

~~~
Iv
Well, I'd be happy to have someone to chat with and exchange ideas about it. I
am currently digging that rabbit hole that seems to be basically uncharted
waters.

I would like to find a way to make true open source deep learning models.

Debian legal newsletter [1] and lwn[2] have interesting takes on the relevance
of GPL. To them, putting a trained model under the GPL implicates that you
have to open your dataset too, which are the "sources". That seems somehow
consensual but I still think it is debatable and could need clarification.

I also dug around the question whether a trained model can actually be
copyrightable if the training code and the dataset are free. This is akin to a
"compilation" operation that adds no creative input (anyway applying copyright
to source code is already a bit of a hack). There is a pretty strong ground to
argue that they are similar to "compilation of facts" which come with very
little protection.

I am now wondering if open source can actually work for deep learning: if
trained models are not copyrightable, open source licenses require strong
copyright protection to be implemented. Maybe a DL model is not protected
enough for that.

Finally, I am reassured by recent fair use rulings that a model will probably
not be considered a derived work of its dataset and that proprietary data can
legally be used to produce an unencumbered model but the legal uncertainty
still exists.

If you are interested in helping me trying to figure out how to protect
crucial models so that the first AGI will be beneficial to all and open
sourced, I'd be very happy to have someone poke holes into my ideas.

[1] [https://lists.debian.org/debian-
legal/2009/05/msg00028.html](https://lists.debian.org/debian-
legal/2009/05/msg00028.html) [2]
[https://lwn.net/Articles/760142/](https://lwn.net/Articles/760142/)

~~~
pabs3
The Debian ML policy linked above goes a fair way to making truly open source
deep learning models. The biggest problem with the policy is they do not
address the economic disparity that means only folks with a lot of money can
train a model even if they had all the training software, drivers and source
data under a free license etc. Perhaps Debian can get enough donated compute
time that we can solve this though.

The products of compilation seem to be copyrightable, otherwise software
piracy wouldn't be prosecutable. Perhaps the same would apply to trained
models.

Do you have a link to those fair use rulings? Also note that fair use is an
American concept and doesn't apply in many countries, some of which have
similar but more restricted concepts. Also, I wouldn't consider a model
produced under your example as a free model, that would be more of a
ToxicCandy model in the Debian ML Policy parlance.

~~~
pabs3
Some links to Debian mailing list discussions:

[https://lists.debian.org/msgid-
search/33417ce2bcf9b6a0efaf47...](https://lists.debian.org/msgid-
search/33417ce2bcf9b6a0efaf4771b83c6df1@debian.org)
[https://lists.debian.org/msgid-
search/20190608184309.GA10146...](https://lists.debian.org/msgid-
search/20190608184309.GA10146@goofy.osamu.debian.net)
[https://lists.debian.org/msgid-
search/f544829dcd6c0f92ea11cd...](https://lists.debian.org/msgid-
search/f544829dcd6c0f92ea11cdb25543bdac@debian.org)
[https://lists.debian.org/msgid-
search/20180712123524.GA25751...](https://lists.debian.org/msgid-
search/20180712123524.GA25751@Asuna)

~~~
Iv
Thanks! It really gave some good insights!

------
notafraudster
I was bummed to see the examples, which I reproduce here to highlight their
obviousness (or their, uh, being noncontroversial):

1\. Can a lawyer who suspects the opposing party of breaking an agreement
engage in plain-clothes trickery to figure out if that's true? Yes.

2\. Is a lawyer obligated to essentially testify [respond to a judge's
inquiry] in a manner that incriminates their client based on private
information? No, thought when they do respond to the inquiry they should be
vague rather than affirmatively lying.

3\. Do prosecutors need to drop charges if, after a plea deal is signed,
information comes up that would inhibit prosecuting the case in the absence of
a plea deal? No, but this feels scummy.

~~~
beervirus
I think 3 turns on the fact that this is more specific than just “information
that would inhibit prosecuting the case.” That would include exculpatory
evidence, which the prosecutor _would_ have to turn over.

~~~
sooheon
If a fact need not be disclosed in the midst of prosecution, why is it a
requirement to prosecute in the first place?

~~~
vkou
It's a soft requirement, because the witness will be 'necessary'[1] in court
_in the particular circumstances of this particular crime_. If the prosecutor
had a stronger case (Say, a different witness, or CCTV evidence, etc, etc,
etc), then this particular witness would not be necessary.

[1] In the opinion of the average criminal lawyer, assuming that the case is
litigated correctly, and that the jury isn't entirely composed of utter mouth-
drooling morons prejudiced against the defendant.

------
SMAAART
I few months ago I was in court, I was suing 2 related parties and I was pro-
se. One of the lawyers of one of the defendants lied 3 times in front of the
judge, when I called him upon it, the judge didn't bling.

This was civil court, not small claims.

Oh well.

~~~
mcherm
Was there clear and obvious evidence of the lies, or was it largely your
testimony?

If there was clear and obvious evidence of the lies then you can submit a
complaint to the bar (or whatever the disciplinary body is for lawyers in your
state). The judge is NOT actually the one with the authority to enforce these
professional obligations.

~~~
paxys
The judge doesn't enforce professional obligations but absolutely enforces
perjury. Of course the real question is why was the lawyer testifying at all?

~~~
matthewheath
It doesn't sound like the lawyer was testifying? They can certainly lie in
their presentation of the case, during summing up, etc.

------
50208
My wife is an attorney, family law, and it's clear from the years of stories
and discussions on what's she has dealt with that most attorneys lie with
impunity ... and so do the litigants going to court! The judges generally
don't hold the liars accountable, the attorneys don't hold the other attorneys
accountable, and no one holds the judges accountable ... and with no real
accountability, it's a free for all. If the State Bars would hold their own
members to their own supposed standard we'd be in a much better place.

------
NotSammyHagar
It was interesting to read the scenarios but the result was only
disappointing. I'm a non-lawyer expecting there to be complicated nuances that
lawyers can use to explain their 'honesty'. Misdeeds by prosecutors (as in
ignoring police lying on the stand because they need support from them for
their next cases), not disclosing information like in this case cause me to
take a very careful consideration of what a lawyer tells me.

------
mwexler
I find it interesting in the US that we hold lawyers to the high standard of
no lying, while law enforcement officers are given more latitude, esp in
interrogation situations.

Seeing it in TV shows and movies, which often have officers and detectives
lying about knowledge, evidence, other witness statements, all to get info, I
assumed that it was fictional. In many cases, though not all, it appears to be
allowed within limits in real life. See, for example,
[https://www.google.com/amp/s/www.adamsluka.com/amp/can-
the-p...](https://www.google.com/amp/s/www.adamsluka.com/amp/can-the-police-
lie-to-me.html).

This doesn't mean all cops are liars, and they still shouldn't commit perjury,
but it's an interesting comparison to me. I guess it's a reflection of the
advocate/adversary approach that is often a part of the legal process.

~~~
pc86
Non-AMP link: [https://www.adamsluka.com/can-the-police-lie-to-
me.html](https://www.adamsluka.com/can-the-police-lie-to-me.html)

------
supernova87a
I just have to say, that is one horrible font for a website.

~~~
sooheon
Could not read without reader mode, which is rare for me in 2020.

------
flowerlad
How is a court-appointed defense attorney supposed to do his job if he knows
his client is guilty?

~~~
yardie
They would have to sit back, tell their client to plead the 5th, and let the
prosecutor do their job of proving a crime was committed by the suspect beyond
reasonable doubt.

I watched the OJ Simpson trial when I was a kid. I was sure he was guilty. I
think his lawyers thought so as well. Once they realized the LAPD had tampered
with the crime scene and the evidence they used that wedge to open the door
for reasonable doubt. And they absolutely hammered at it for months. By the
end the jury was full of doubt.

Most public defenders don't have the resources for that kind of defense. And
most assume their client is guilty. Which is why plea bargains are prevalent.

~~~
sokoloff
An alternate explanation for the prevalence of plea bargains is that many
defendants are actually guilty of something, that guilt is likely enough
provable to not be worth the risk, and we’ve allowed sentencing guidelines and
charge-stacking practices to amplify that risk to the point where it’s game
theoretic sensible to take a light plea deal. I’m not nearly convinced that
public defender assumption of guilt is a significant driving factor.

~~~
Viliam1234
Unfortunately, there are reasons to accept a plea bargain even if you are
perfectly innocent.

First, reality is not important per se, only how the judge and the jury see
it. If you know you didn't do something, but there is evidence pointing
towards you, and you have a reason to believe that people judging you would be
convinced by it... it makes sense to accept a smaller punishment (for
something you didn't do) rather than risk years of prison (for something you
didn't do).

Second, the process itself is already a punishment. How many times can you be
absent from your job because you are at the court, before you lose the job?
How much will it cost you to pay for the lawyer, for travel, etc. If you are
poor, it can make more sense to accept a smaller punishment for something you
didn't do, rather than ruin your life in an attempt to prove your innocence.

------
WalterBright
Holly Golightly: How do I look?

Paul Varjak: Very good. I must say, I’m amazed.

------
paxys
Scenarios 1 & 2 are pretty obvious, and 3 is not about the lawyer at all.
Makes sense though since you're unlikely to hear any criticism of the
profession in a publication by the ABA.

~~~
elliekelly
The third scenario is about a lawyer - the prosecutor.

------
pseingatl
Always. See, _The Grammar of Money_ , by Felous.

------
anamax
Should prosecutors be able to add incriminating statements to a confession
transcript? (I'm talking about damning statements that the defendant didn't
make.)

The CA Attorney General at the time said yes. A CA Appeals Court said no.

[https://caselaw.findlaw.com/ca-court-of-
appeal/1695398.html](https://caselaw.findlaw.com/ca-court-of-
appeal/1695398.html)

~~~
dehrmann
I can't quite tell, but Kamala Harris might have been the AG in question.

That wasn't what the AG argued; the AG argued that case shouldn't be
_dismissed_ on those grounds. The question is closer to if the prosecutor adds
incriminating statements to a confession transcript, is that grounds for
dismissal.

~~~
tsimionescu
Yup:

> Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
> General, R. Todd Marshall and Larenda R. Delaini, Deputy Attorneys General,
> for Plaintiff and Appellant. Richard A. Levy, under appointment by the Court
> of Appeal, for Defendant and Respondent.

------
IncRnd
How does an attorney sleep? First he lies on one side, then he lies on the
other.

Source: An attorney told me.

------
altmind
> Everyone knows that lawyers are not allowed to lie — to clients, courts or
> third parties.

What a great point for lose people reading the article; from the first
sentence.

------
a3n
When do you want it to be ok?

