Chapter 66 – When THE BAR LIES, Part I

There is a difference between lying to the court and advocating for your client. That issue, that conflict may arise when the BAR is represented on a matter or when the BAR has hired counsel to represent attorneys being sued for malpractice or even, as in my case, for defamation.

So what happens when the BAR counsel lies for the benefit of the BAR?  And what happens to a Judge who knows the BAR is lying in their complaint or answer but embraces the argument with a wink to the BAR? Lets Explore what might just happen. This is a three part analysis and in all cases we will rely heavily in material cited from Alex B. Long, “Attorney Deceit Statutes Promoting Professionalism Through Criminal Prosecutions and Treble Damages.”

“There can be little doubt that the legal profession has a problem in terms of the public’s perception of lawyers’ honesty and the profession’s ability and willingness to police its members. Although there may be dispute within the legal profession as to just how widespread attorney deceit is within the practice of law, surveys consistently reveal that the public has a low opinion of lawyers’ honesty. When discussing the lawyer disciplinary process, commentators also frequently make note of the public’s skepticism regarding whether the legal profession is willing to draft and enforce professional ethics rules in the public’s interest, rather than the interest of the profession itself.

For some time now, those who closely watch the legal profession have warned that if the legal profession does not do a better job of addressing the public’s concerns over dishonest and unethical behavior among lawyers, legislators and external agencies may step in and take away some or all of the legal profession’s traditional authority to regulate itself.

One of the difficulties in regulating dishonest conduct by attorneys is that it is often difficult to draw the line between engaging in prohibited dishonesty and fulfilling one’s ethical obligations to a client. And this is where this story must begin.

“Deceit” is not a word typically used in connection with the initiation of a legal action or the filing of a motion. However, knowingly making false allegations in a complaint or motion certainly meets the definition of deceptive conduct in that it represents an attempt to mislead a court. Thus, at least in the general sense of the term, it is a form of fraud upon the court.

Deceit in Motion Practice, deceit in discovery, deceit in negotiations, and more will be addressed in remaining parts of this analysis, focusing on the torts and remedies against attorneys who lie to achieve an acceptable end. The lie is the means. The win is the end. But our judicial system is built on the expectation of truth. I can tell you that it is uncommon for my opponents to be telling the truth let alone predominantly telling the truth.

In my most recent experience, while I found the BAR’s attorneys representing Linda Marshall and Joel Christiansen, to be friendly and professional, one of those particular attorneys did not hesitate to engage in the same muckraking that Marshall typically engages in. I’ve always considered it a statement of weakness with respect to the merits when an attorney engages in muckraking or character attacks, but it seems to work. More importantly though, I was saddened by the misrepresentation of the meaning of the anti-slapp statutes here in Oregon. When Judges don’t actually read the briefs or don’t understand them, they are drawn to the people they believe have more credibility. Pro Se litigants do not come with that credibility but members of the Bar do and its this opportunity that entices an attorney to mislead the court.

The BAR LIES. Lets explore more.

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