Do lawyers need to be reminded not to lie to a federal agency?
As reported earlier this week on Law 360, the staff of the Federal Trade Commission has issued a wake-up call to lawyers who practice before the agency, warning them that intentionally misleading the Commission could lead to “public reprimands, sanctions and even disbarment” from Commission practice.
The warning came in an FTC blog post you can read here. The blog post notes that most lawyers who come before the FTC are honest, but “for a few,” there may be “perceived opportunities to seek an advantage in the debate through misrepresentation of key facts.” The post says that there have been instances when “internal documents expressly contradict representations made by counsel and clients during investigations,” and “where the innocent explanation” for such inconsistencies “seemed implausible.”
The blog post details the several FTC rules, codified in the CFR, that prohibit giving false information to the Commission at any stage of any proceeding, and authorize the agency to sanction lawyers who violate the rules.
Our three take-aways from this interesting piece:
First, it is startling that lawyers apparently need a tutorial on the “duty of candor and professionalism” owed to the Commission and its staff. In its adjudicative role, the FTC is a “tribunal” under Model Rule 1.0(m), and therefore, Model Rule 3.3 (“Candor toward the Tribunal”) would apply. And in any event, all the other numerous ethics rules against lying apply, too. See Model Rules 3.4 (fairness to opposing party and counsel), 4.1 (truthfulness in statements to others), 4.4 (respect for rights of third persons), 8.4 (dishonesty, fraud, deceit and misrepresentation). Lawyers representing clients in regulatory proceedings do not shed the Rules of Professional Conduct at the agency door.
2. Agencies have ethics rules, too.
While you don’t escape the guiderails of the Rules of Professional Conduct, administrative agencies also have their own ethics rules, as the FTC blog post notes. Agencies with rules for lawyer conduct include the Patent and Trademark Office and the Securities and Exchange Commission. There are many others. See George M. Cohen, The Laws of Agency Lawyering, 84 Fordham L. Rev. 1963, 1978 (2016) (noting 46 federal agencies with rules regulating conduct of lawyers). As Cohen notes, lawyers practicing before agencies “must comply with state ethics rules … And they must consider how the agency’s own rules may impact their ethical obligations under the general ethics rules.”
The third notable thing about the FTC’s pronouncement is that it appeared in the blog published by the agency’s Bureau of Competition staff, titled Competition Matters. I guess we shouldn’t be surprised that a federal government agency chose to use the medium of a blog to issue an important policy reminder to practitioners — blogs of all kinds have been go-to sources of information for a long time now. Litigants cite blogs in their briefs. (Although here is an article criticizing the trend.) This blog, I’m proud to say, has been cited in two law review articles (here and here [sub. req.]) and in a law school case book.
In many contexts, you can’t beat a blog when it comes to putting out timely and useful content. We hope you continue to enjoy reading this one! Just remember to keep on the straight and narrow when you’re before an agency.