The simple answer is maybe. But even the act of avoiding information that would inform the lawyer that his assertion or argument in court is false, does not make a case for accusing the Lawyer of lying. This is very frustrating for most people.
Lying is an intentional act. In order to legally accuse someone of lying they must know for a fact that the words coming out of their mouth are untrue. It is definitely not enough that you know that what they said or argued was false. And it is not sufficient that they have reasons to suspect that those words are not true. The reason for this splitting of hairs is that everyone is entitled to have an attorney advocate for their position and interest, regardless of whatever they have done. That means, by definition, that the lawyer is required to advocate and argue the best possible interpretation of the facts that have been presented to the court.
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Therefore such argument is protected by litigation immunity unless the attorney can be proven to have actually known that what they were saying, in court, was false. The fact that the attorney’s behavior was part of an overall scheme with an illegal purpose, is not necessarily sufficient to allow the attorney to be held liable on the basis of lying to the court. And because of the broad interpretation of litigation immunity, even the participation in the illegal scheme appears to be protected by litigation immunity — an interpretation that I strongly oppose but which is the consensus view in the courts. This often leads to some anomalous results. But it is the only way that the system can work.
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Like every other institution in a democratic republic, it is far from perfect and requires constant adjustment and correction. None of the institutions ever get it right. But in our form of government, it is the tension between the various stakeholders, institutions, and parties that gradually forms a body of law in which most members of society have confidence. The way the courts have handled foreclosures for the past 25 years has undermined confidence in our judicial institutions. The way the executive branch has handled enforcement of existing laws in connection with the fake claims of securitization of debt also undermines confidence in our institutions.
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And the failure or refusal of any institution to actually conduct a penetrating inquiry into the fake claims of securitization is especially aggravating to citizens across the land who have been affected, directly or indirectly, by what is, in essence, a Ponzi scheme. That failure has been grossly unfair to consumers and homeowners. Instead of the government doing its job in protecting consumers, the entire burden of doing that is on the consumers themselves, none of whom have the resources of the federal or state governments that are supposed to be protecting them.
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Efforts to mobilize consumers have largely failed because most consumers don’t realize the trouble that is affecting them and that will produce negative consequences in the future. So the period of time in which consumers could be very effective in threatening the so-called securitization scheme often passes without any action at all from the consumer. The consumer only wakes up when the bullets start flying and they find themselves in court denying allegations that they have previously admitted and correspondence and by behavior.
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