This article addresses a profoundly troubling area of legal ethics, the meaning and scope of lawyers’ duty of honesty. Why troubling? Because while the governing Rules of Professional Conduct are crystal clear—honesty is not only the best, but the only permissible policy—there are in fact circumstances where the law, beyond the ethics rules, permits lawyers to engage in certain kinds of conduct, either directly or through the use of agents acting on their behalf, that can only be described as dishonest. Generally, when this subject is discussed in any depth, lawyers seem to fall into one of four groups.
Some lawyers take the position that the ethics rules’ absolute prohibition of dishonesty on the part of lawyers should govern in all circumstances, without exception. Next to the purists are the lawyers who argue that the only permissible exception should be for government lawyers, particularly prosecutors, who, while prohibited themselves from engaging in deceit, should be permitted—as the law generally provides—to use and direct agents to engage in dishonesty to the extent necessary to apprehend and prosecute miscreants.
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