Lying to a Lawyer as Possible Perjury

By Nick Levinson

Is it against the law to lie to a lawyer? Just wondering, and here’s my theory:

An attorney usually gets admitted to at least one court, to practice law. Once admitted, the lawyer is (I think always) an officer of the court. The court is part of the government. Thus, the lawyer is an officer of the government. Lying to the government is always lying to a person acting on behalf of the government. An officer of the government is such a person acting on behalf of the government. (If the lie is uttered to an agency per se, such as by mail addressed only to the agency as a whole with no identification of an individual in the agency, then it has been uttered to whomever, in the course of their official duties with that agency, was the utteree of the lie, such as by reading it in the mail; even if the mail was opened, scanned, and parsed by machinery, the utteree is whomever operated the machinery.) Therefore, a lie uttered to that lawyer is a lie to the government of which the court is part. That government is usually governed by law against perjury and that law varies between governments. Thus, if the lie is within the substantive parameters of the law against perjury, the law forbids lying to the lawyer.

It wouldn’t matter if the statement was made in an affidavit or otherwise sworn to or affirmed as true or if the subject matter was under a law requiring the statement to be true.

It wouldn’t matter if the lawyer does not have an active practice, the lawyer only advises other lawyers and does not represent anyone (such as by performing legal research without a privilege (for confidentiality)), or the lawyer is retired (but not disbarred). It wouldn’t matter if the lawyer tells anyone else the content of the statement that is a lie without the lawyer personally intending to lie (as in "my client said . . ."). It wouldn’t matter if the lawyer is a otherwise a government official or is a private attorney general. It wouldn’t matter if the lawyer is under consideration for an attorney-client relationship or is in an attorney-client relationship in either direction or not at all. However, if not at all, then proof that the person lying knew at the time that the recipient is a lawyer admitted to practice in a court of the relevant jurisdiction, even if only pro hac vice, would be required. If a nonlawyer in court pro se is thereby an officer of the court, lying to the pro se party, in an otherwise identical situation, would also be perjury.

Prosecuting such a crime might be difficult or impossible, especially if the prosecutor could seem to have a conflict of interest in essentially protecting a defense lawyer, but if whatever is a crime is thereby also a civil offense (I imagine it is) then the lie can be the subject of a lawsuit. In a civil suit, potentially more people would have standing, such as, likely, the lawyer to whom lied.

Some cases are clearly unlawful; most people would agree on them. Examples are lying to the lawyer for an opposing party while conducting a deposition or lying to a lawyer whose job is for the government, such for a State administrative agency official. The question here is about lying to one’s own attorney or to a lawyer casually met without a relationship but while knowing the person one has met is a lawyer.

Fraud may result from lying or simply misleading. Fraud has at least one more element to it. Fraud can be unlawful. The question here is about lying that does not necessarily constitute fraud.

In current events, the possibility that some President of the United States might lie to an attorney representing him or who would be representing him would have to include the possibility of temporary immunity from arrest or civil suit during the Presidential tenure.

I haven’t heard of this being done or even threatened and I don’t know if it’s a sound legal theory. Maybe there’s a common law exception that prevents taking this to court, although common law under State law is amendable by each State and thus common law may vary among States.