lying to lawyer illegal

Question

It's against the law to lie to a lawyer, isn't it?

This will vary by state, but I understand that almost any attorney admitted to practice in at least one court (that would be most attorneys by far) is an officer of that court. If a particular lie is perjury (thus a violation of law, which defines perjury differently in some different jurisdictions) when uttered to the government, then uttering that lie to an attorney who is an officer of a court of the same government is perjury. This would not be limited to attorneys acting for a government such as prosecutors or private attorneys general. It would not matter whether the lawyer is representing the person who thus lied, under consideration to provide representation, or neither. It probably would not matter whether the lie is being told in the jurisdiction where the lawyer is an officer of a court, the lawyer was admitted pro hac vice, i.e., for purposes limited to one case, 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 confidentiality privilege), the lawyer is retired (but not diisbarred), the lie involves fraud, or 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 probably matters whether the person who is lying knew or should have known that the person to be lied to is an attorney admitted to practice somewhere, or at least is an attorney.

I don't think it's possible to distinguish between lying to the government and lying to an individual who is part of that government, because there is no other way to lie to the government. Even if the lie were told in a letter addressed only to "Government, State of . . ., [capital city, state, and Zip code]" and a machine opened the letter, scanned it into a computer, and used artificial intelligence to parse it with the AI having been written as free open-source software by a nongovernment programmer, if a human being on behalf of the government acts on the letter (including by deciding not to act on it), the lie is to a human who programmed the parsing system and/or to a human who acted on the parsed letter.

Unless there's a law specifically exempting the liar from liability (criminal and civil) when lying to a lawyer (and it would be interesting to theorize about the rationale for such a law), how is it not illegal (unlawful) to lie to a lawyer under the above circumstances?

I have no case involving this possibility. I'm thinking of writing about this, and I've seen various discussions that it's not illegal except for fraud (fraud has at least one additional element that makes it harder to prove than perjury), but none of the discussions I saw cited a source in the law. On the other hand, while I don't follow developments in the law with a practicing lawyer's diligence, I haven't heard of, say, a case against a client for having lied to their lawyer (viz., "I didn't go to the bank" while confessing to the police about robbing it in person without recanting the confession), and I imagine a few lawyers would gladly sue people for perjury to them. On the other hand, and this is just my speculation, maybe most lawyers don't think there's much of a problem and that letting the courts decide would create more problems than it's worth.

Answer 1

No

A lawyer is considered an "officer of the court" in the sense that certain duties to the court are imposed on the lawyer. That does not give the lawyer authority as if the lawyer was part of the court staff, nor a law enforcement officer.

A statement can be prosecuted as perjury only if it is made under oath (or affirmation) in court, or if it is made "under penalty of perjury". This is generally done by a statement in a document signed, something like "I declare under penalty of perjury that all statements in the above document are true to the best of my knowledge and belief." It can also be done verbally, with the person making the statement agreeing that it is true and that this is subject to perjury prosecution if it is false. The exact wording will vary, but it must be clear and explicit.

Aside from that, false statements to a lawyer are not generally subject to prosecution for perjury, nor otherwise illegal. In some cases a lie in a business transaction may be fraud, which is actionable, and possibly criminal. But that will not have anything to do with whether the person lied to is or is not a lawyer.

This Wikipedia article says:

Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

...

The rules for perjury also apply when a person has made a statement under penalty of perjury even if the person has not been sworn or affirmed as a witness before an appropriate official. An example is the US income tax return, which, by law, must be signed as true and correct under penalty of perjury

The US Federal law on perjury, 18 U.S. Code § 1621 says:

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;

is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

Title 9 of the Maryland code, section 9-101 says:

(a) Prohibited.- A person may not willfully and falsely make an oath or affirmation as to a material fact:

(1) if the false swearing is perjury at common law;

(2) in an affidavit required by any state, federal, or local law;

(3) in an affidavit made to induce a court or officer to pass an account or claim;

(4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or

(5) in an affidavit or affirmation made under the Maryland Rules.

(b) Penalty.- A person who violates this section is guilty of the misdemeanor of perjury and on conviction is subject to imprisonment not exceeding 10 years.

Nothing about statements made to a lawyer not under oath or affirmation, or under penalty of perjury. Other US state laws are similar.

Answer 2

It is not illegal to lie to an individual, and it is illegal to lie in a 'matter'. The statutes are framed in terms of a circumstance such as being under oath of in an investigation. Fraud of course has separate rules.