Friday, August 13, 2010

How to succeed in television without really trying.

Criminal justice reporter Radley Balko has an interesting post on how to succeed as a television pundit in the twenty-first century: just lie or make stuff up.

Mr. Balko's post deals with Wendy Murphy. Ms. Murphy is a "former child abuse and sex crimes prosecutor who teaches at New England Law/Boston." She also apparently makes a habit of going on TV and, at a minimum, making stuff up. As Mr. Balko details, she claims that only 2 percent of sex offenders are on sex offender registries (there doesn't appear to be a study supporting that claim); that half of the inmates in California prisons are illegal immigrants (the actual number is around twelve percent); a series of demonstrably false statements about the Duke lacrosse players rape case (for which Fox News took a swipe at her); and propounds a belief that illegal immigrants do not love their children but instead view their children as commodities.

A blog post or media story about pundits telling lies or making stuff up would normally not interest me. Such a story would seem to fall into the category of "dog bites man". Except that Ms. Murphy is an active attorney in Massachusetts and therefore subject to the Massachusetts Rules of Professional Conduct. Those rules frown on lawyers making false statements. For example, Rules 3.3 and 3.4 prohibit a lawyer from making false statements in court or from offering evidence that a lawyer knows is false. Additionally, under Rule 7.1 a lawyer shall not make false or misleading statements about the lawyer's services. Rule 8.1 prohibits a lawyer from making a false statement in connection with a bar admission application or a disciplinary matter. Rule 8.2 prohibits false statements about the qualifications or integrity of judges, magistrates, or candidates for judicial office.

You may be saying to yourself, "O.K., there is a general policy towards not lying. But, Ms. Murphy hasn't violated any specific rule." That leads us to Rule 7.3, which says that "in soliciting professional employment, a lawyer shall not . . . shall not make a false or misleading communication." If programs on which she appears ask Ms. Murphy what she is going to say before they decide to bring her on, this rule may cause Ms. Murphy some trouble. Since we don't know how she solicits work, the charitable thing may be to assume she doesn't tell falsehoods prior to getting on the program and making stuff up.

Ms. Murphy's antics raise some questions. If a lawyer is going to go on television (or posts on a blog about the law), what is the scope of their obligation of candor (if any) and what are people's expectations for truth from lawyer pundits? While, I know that lawyers compare unfavorably to catfish, I prefer that members of our profession not go on TV and give folks even more reasons to dislike us.

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