The Model Rules currently contain at least four distinct conceptions of what it means for a lawyer to be honest. Moreover, the levels of honesty that the ethical rules demand have changed markedly in recent times. This article explores why, for the lawyers of today, being “honest” seems to be so complicated.
The exploration begins by reviewing recent changes in the honesty concepts embodied in the Model Rules, particularly the new duty to reveal confidential information that lawyers have under Rule 4.1. Attention then turns to what it means to be “honest” in the context of our modern exaggerated version of the adversary system. The article shows how the present rules practically force lawyers to seek legal advantages that their clients do not deserve and to treat the errors of others as fair game for exploitation.
Finally, the article considers where the recent trajectory of the Model Rules might be leading. Using as an example a standard textbook case in which lawyers skillfully managed to secure a huge and seemingly unmerited advantage for their client, it contrasts what it would be like to live in a world of truly honest lawyers.
Humbach, John A., "Shifting Paradigms of Lawyer Honesty" (2009). Pace Law Faculty Publications. Paper 639.