Law Talking Guy Talks Law: A Legal Goldwater Rule

Disclaimer: I may or may not be a professional law talking guy, I’m not your law talking guy though and you wouldn’t want me anyway.

An excerpt from the ABA Model Rules of Professional Conduct:

Rule 4.1 In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person;

One thing that the Trump impeachment saga has made clear to me is that the legal profession needs its own version of the Goldwater Rule. Said rule prevents psychiatrists from giving their professional opinion on people they’ve not personally worked with and gotten permission from. This prevents professionals from going on TV and using their authority to potentially give misleading information about things public figures.

For lawyers, things are a bit different. There’s no need to personally be involved in a case to give analysis on the issues. And since the only facts that matter are the ones in the official record, anyone who looks at that record has everything they need to give a proper opinion. Honestly since legal issues can be counter intuitive to laypeople, it’s good to have people breaking things down for the public.

The problem arises when those people lie. During the Trump impeachment process we’ve seen a host of lawyers telling the public (aka millions of third persons) things like “Abuse of power is not a crime”, a congressional investigation violates due process, the whistle blower complaint was written by a law firm and therefor can’t be trusted, that you can’t impeach in an election year, and more.

One thing that isn’t clear to laypeople, but is drummed into every 1L in the country, is that deliberately misstating the law or omitting relevant parts of the law is a violation of your ethical rules. Things like citing a case that’s been overturned without noting said overturning, hiding that your citation is a minority position, or even hiding that a minority of courts disagree with your citation are all sanctionable. But the caveat is that this only applies in legal proceedings or in other representation of a client.

Misleading the public in mass undermines the legal system as a whole. It convinces people that normal processes are partisan witch hunts. It teaches people to commit crimes, because they misunderstand the law. And it stokes fear in people that the law is a weapon.

So what do we do about lawyers like who flagrantly mislead the public about the state of the law, and aren’t actually working for the person who benefits from the lie? I believe that lawyers addressing mass audiences should be held to a comparable duty of candor as other lawyers representing clients or before tribunals.

First, bar associations need to be much stricter in cases involving talking to the media. While most TV lawyers (think Jeannine Pirro) aren’t representing a client, many of one’s making the rounds (think Rudy) certainly are. Their licences should be in jeopardy, but won’t be because bar associations are reluctant to punish lawyers for public speaking that only indirectly impacts said representation.

Secondly, there needs to be an additional rule that generally prohibits misleading the public about the state of the law. It should be a lower standard, because you can’t expect someone not directly involved in a matter to be as knowledgeable on said matter. And it would need to be clear that it was a willful violation or one where believing it to be true would be malpractice.

So here’s my proposed rule:

Rule 4.1-1 A lawyer shall not knowingly or recklessly make a materially false or incomplete statement of law to a third person or the public in general

I don’t think this would solve everything, but it might help with some things. The bar associations would have to get much stricter about enforcing their rules, especially with regards to repeated violations. And such changes take a long time. But maybe if we stop letting people lie to the public, the public would stop treating us like liars.