Lawyers are bound by strong ethical duties, such as the duty of candor. It is generally accepted that a lawyer’s duty of candor and obligation to be honest applies when a lawyer is appearing in court, engaged in public life, or acting within the community. Lawyers sometimes face grievances or reprimand from the bar when they act in a way that reflects poorly on the profession as a whole or suggests that lawyers are not trustworthy.

In May 2024, the District of Columbia Board on Professional Responsibility recommended that former New York City mayor Rudy Giuliani’s license to practice law be revoked in light of his post-election activity. Primarily, the bar focused not just on the allegations that Mr. Giuliani had engaged in frivolous litigation, but the view that he had not been honest regarding whether there was factual or legal support for his claims, explaining: “We recognize that disbarment has not been imposed in other frivolous litigation cases, but none of those cases involve the aggravating factors presented here. … We conclude that disbarment is the only sanction that will protect the public, the courts, and the integrity of the legal profession, and deter other lawyers from launching similarly baseless claims in the pursuit of such wide-ranging yet completely unjustified relief.” The Board of Professional Conduct ultimately concluded that Mr. Giuliani was unable to provide sufficient “objectively reliable evidence” to support his claims. Thus, lawyers are well-served by understanding where the lines are when it comes to the duty of candor and the obligation to be truthful. Here are some tips.

Mere Puffery Is Permitted

Although bars can be critical of lawyers’ violation of their duty of candor, the rules typically recognize that lawyers will not run afoul of the ethical requirements unless they know that evidence they are presenting to a tribunal is false. Arguments, statements, and evidence submitted to a tribunal must comply with ABA Model Rule of Professional Conduct 3.3, which provides, in relevant part: “A lawyer shall not knowingly: make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Bars and courts also recognize, however, that lawyers are permitted to engage in “puffery” without violating any requirements of truthfulness or candor. It is assumed that most people can tell the difference between mere puffery (or “spin”) and other statements that could mislead the public. A lawyer being bullish about the value of their case or strengths of their position is not the same as introducing evidence that a lawyer knows is false.

The distinction between exaggeration, bravado, or puffery, on one hand, and deception, fraud, or misdirection, on the other, is also illustrated by states’ laws against false advertising for lawyers. For example, in Georgia, OCGA 10-1-424.1 restricts solicitation in media of legal services and prohibits lawyers from soliciting in media in a way that fails to “accurately reflect[] the legal services, abilities, practice areas, scope of work, success rate, claim or case management and oversight, or fees of a person.” In this way, states recognize the harm that can result when lawyers are not truthful or candid in their statements to the public.

Candor Is Important at All Times

Although the requirement for candor is generally understood to prohibit lawyers from taking positions that are contrary to law or outside the bounds of reasonable advocacy, lawyers are permitted to advocate for a change in existing law, even where the law does not support the position they are taking. Lawyers are typically required to acknowledge the lack of legal support for their position, but courts and bars recognize that this is different than filing a frivolous lawsuit or making arguments that are contrary to court orders.

There are other times where a lawyer may provide information to a court, reasonably believing the facts or evidence to be true, that the lawyer later finds out is misleading or inaccurate. Sometimes, for example, a lawyer may reasonably rely on a client to supply facts in support of a position taken, only to learn later that the evidence was manufactured or misleading. In those instances, the lawyer may be required to “take reasonable remedial measures” to remedy the record.

Lawyers may also be obligated to maintain candor even when they are not acting as counsel in a matter. Indeed, lawyers are often held to a higher standard as private citizens or in other professional capacities. Thus, a lawyer is called upon to be candid with other professionals (such as when the lawyer is being represented by another lawyer in a legal dispute) and truthful when acting as witnesses or otherwise presenting their opinions in public.

Ethical Requirements for Truthfulness

Comment 2 to Rule 3.3 of the Model Rules of Professional Conduct discusses the risk of lawyers acting to “undermine[] the integrity of the adjudicative process” and notes in Comment 12 that “[l]awyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process.”

For this reason, lawyers can be subject to bar grievances for essentially engaging in “conduct unbecoming,” that is, behavior that suggests a level of dishonesty on the part of the lawyer or that otherwise demeans the profession. As an example, the Georgia bar in particular recognizes that grievances may be appropriate for incidents evidencing untruthfulness, even when a lawyer is not acting in a purely professional capacity, such as “willful failure to file an income tax return” or “moral turpitude.” See Comment [3] to Georgia Rule 8.4.

State bars are concerned with ensuring the public’s faith in the legal profession and they do so by enforcing lawyers’ duty of candor, which can be applicable in a lawyer’s personal and professional life.