Mere Puffery Is Permitted
Although bars can be critical of lawyers’ violation of their duty of candor, the rules typically recognize that lawyers will not run afoul of the ethical requirements unless they know that evidence they are presenting to a tribunal is false. Arguments, statements, and evidence submitted to a tribunal must comply with ABA Model Rule of Professional Conduct 3.3, which provides, in relevant part: “A lawyer shall not knowingly: make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Bars and courts also recognize, however, that lawyers are permitted to engage in “puffery” without violating any requirements of truthfulness or candor. It is assumed that most people can tell the difference between mere puffery (or “spin”) and other statements that could mislead the public. A lawyer being bullish about the value of their case or strengths of their position is not the same as introducing evidence that a lawyer knows is false.
The distinction between exaggeration, bravado, or puffery, on one hand, and deception, fraud, or misdirection, on the other, is also illustrated by states’ laws against false advertising for lawyers. For example, in Georgia, OCGA 10-1-424.1 restricts solicitation in media of legal services and prohibits lawyers from soliciting in media in a way that fails to “accurately reflect” the legal services, abilities, practice areas, scope of work, success rate, claim or case management and oversight, or fees of a person.” In this way, states recognize the harm that can result when lawyers are not truthful or candid in their statements to the public.