Does A Lawyer’s Right To Lie In Certain Jurisdictions Give An Unfair Advantage In International Arbitration?
While the impact of different legal cultures on international arbitration is a topic that is frequently explored, since it impacts such issues as discovery, the scope of the written procedure and the scope of the oral proceedings, one basic issue that is seldom examined is whether the right to lie for lawyers in certain jurisdictions gives their clients an unfair advantage.
Since there is no supra-national authority to oversee the conduct of lawyers over the course of an international arbitration, it is largely up to local bar associations to oversee attorney conduct with respect to international arbitrations and to adopt appropriate measures and sanctions when counsel has violated legal ethics. Given the vast differences with respect to such basic issues as whether a lawyer can lie about factual matters, however, it does seem that clients with lawyers from certain jurisdictions can obtain an unfair advantage.
For instance, an American lawyer will be severely disciplined for knowingly lying about factual matters over the course of a legal dispute, whereas lying about factual matters is perfectly acceptable for a French lawyer and not the slightest violation of ethical rules.
On the other hand, it is an ethical violation for French lawyers to accuse another lawyer of lying, even when they are clearly doing so, since this is contrary to the principle of délicatesse (essentially, being polite).
While it is unclear whether or not lawyers from different jurisdictions actually take advantage of their right to lie more often than lawyers in jurisdictions where this is strictly prohibited, and the ability to lie is not necessarily an advantage in all legal proceedings, such differences do suggest that the choice of counsel has a real impact on the tactics that can be used.
The noose appears to be tightening with respect to certain lawyers’ right to lie, however. Arbitral institutions such as the LCIA have begun to impose ethical codes on counsel taking part in international arbitration, forbidding conduct that is perfectly acceptable for lawyers from certain jurisdictions, such as lying about factual issues, by providing that legal representatives may not “knowingly make any false statement to the Arbitral Tribunal.” It would be unsurprising if other institutions eventually issued standards to prohibit such conduct as lying, in order to ensure minimum ethical standards for international arbitrations and a more even playing field for the Parties, regardless of the ethical standards to which their counsel are bound.
Until a global body to enforce ethical standards exists, however, or all major institutions impose similar ethical standards, a client would not be wrong to think that the ethical rules of the lawyer could have a real impact on the scope of tactics that may or may not be used with respect to a given case.
While legal counsel in international arbitrations are typically members of more than one bar, and subject to the most stringent ethical rules to which they are bound, the ethical standards to which counsel are bound can have a real impact on a case.