The Duty of Candor from a Data Science Point of View

This article was written with John Giraldi PhD .

No one in law school teaches you how to make misrepresentations or how to lie – whether about the facts, the law, or both. No one in law school teaches you how to engage in dilatory tactics during a legal proceeding. No one. There are no law school courses in legal obfuscation training students how to create smoke and mirrors to conceal the facts or the law in a proceeding. There is no Legal Obfuscation 101, Obstruction & the Law 101, or “How to Appear Candid When You’re Really Not, and You Really Don’t Want to Be.”

How is it, then, that some lawyers, either on their own or at the direction of their clients, either make misrepresentations or engage in dilatory legal strategies that have the purpose of delaying and, perhaps even derailing, the outcomes of legal proceedings – outcomes that affect the bodies of laws we use to frame civil, economic and other rights of both individuals and businesses? Regardless of the answer to the question, what is clear is that when lawyers affect the course and potential outcome of a legal proceeding by introducing misrepresentations, fake facts, and delay tactics, they create a “bias” in that legal proceeding which may materially affect the outcome(s) of that legal proceeding. In turn, the outcomes of that legal proceeding become precedents, albeit flawed. Other judges and litigants may use those legal precedents to make decisions or support arguments. So, by obstructing courts or other litigants through misstatements or delay tactics, obfuscating clients and the lawyers create biases in the bodies of law that we, as residents of the U.S., a state and a locality, treasure. And when the bodies of law are deleteriously affected, how our civil, economic, and other rights are interpreted, enforced, and vindicated is also deleteriously affected.

As the most recent example of this, consider the 53-page order issued by Judge Vince Chhabria of the U.S. District Court for the Northern District of California in?In re Facebook, Inc. Consumer Privacy User Profile Litig.?(18-md-02843-VC (N.D. Cal. Feb. 9, 2023)), granting sanctions of almost $1,000,000 against both Facebook and its legal counsel. In the Order,?Judge Chhabria?not only chastised Facebook and its legal counsel but Judge Chhabria also recognized the conduct of Facebook and its legal counsel is “not uncommon in our court system.”?Professor Dennis Crouch of the University of Missouri School of Law, in his LinkedIn post, acknowledged the “powerful language” of Judge Chhabria.

“This case is an example of a wealthy client (Facebook) and its high-powered law firm (Gibson Dunn) using delay, misdirection, and frivolous arguments to make litigation unfairly difficult and expensive for their opponents. Unfortunately, this sort of conduct is not uncommon in our court system. But it was unusually egregious and persistent here.”

The importance of the privacy, civic engagement and other issues in?In re Facebook, Inc. Consumer Privacy User Profile Litig.?are likely not lost on anyone. After all, the litigation addresses the unraveling of Cambridge Analytica, but only after it exploited personal data of millions of individuals in the U.S. that was made available through the Facebook platform to influence (or to attempt to influence) the outcome of the 2020 U.S. elections, with the result being that many question the integrity of the 2020 elections. While the filings in?In re Facebook, Inc. Consumer Privacy User Profile Litig.?are compelling, our favorite narrative of the Facebook-Cambridge Analytica scandal is the book Mindf*ck: Cambridge Analytica and the Plot to Break America, written by Christopher Wyle.

And, of course, it is disappointing that a client like Facebook and its lawyers would engage in delay, misdirection, and frivolous arguments to make litigation unfairly difficult.?Interestingly, in his testimony during the Hearing Before the U.S. House of Representatives Committee on Energy and Commerce Subcommittee on Consumer Protection & Commerce and Communications & Technology, on March 25, 2021, Mark Zuckerberg championed Facebook’s efforts to “combat misinformation” on its platform:

“People want to see accurate information on Facebook, and so do we. That’s why we have made fighting misinformation and providing people with authoritative information a priority for the company. We have recalibrated our products and built global partnerships to combat misinformation on a massive scale.”

So, ultimately, Facebook, or Zuckerberg, wants “accurate information” on Facebook, but apparently not in court cases that affect Facebook and, therefore, not in our legal system – a system that is one of the fundamental underpinnings of our democratic process.?

And, perhaps, what is most surprising is that Judge Chhabria describes the conduct as “not uncommon in our court system.” While we are not na?ve, the need of clients and their lawyers to engage in delay, misdirection, and frivolous arguments to make litigation unfairly difficult and expensive for their opponents seems, at best, enigmatic and, at worst, professionally paradoxical. After all, how can a self-regulating profession that holds itself up to various sets of ethical standards and rules of professional conduct “teach” – by example, practice, or otherwise – the “not uncommon” behavior described by Judge Chhabria?

As law school students, one receives quite a bit of instruction on how to find and ascertain what the law is and how to apply the law to the facts presented in a particular case. The accreditation standards of the American Bar Association require educational content that addresses ethical and responsible participation in the legal profession. This education content, for example, may take the form of a three-credit, semester-long “Professional Responsibility” course. In fact, at Harvard Law School, as is the case with many other law schools, a “Professional Responsibility” class is a mandatory J.D. requirement, and the class usually involves taking a semester-long walk through the?ABA Model Rules of Professional Conduct, including, among many others:

• Rule 3.2 – Expediting Litigation: A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
• Rule 3.3 – Candor Toward the Tribunal: (a) A lawyer shall not knowingly: … (1) 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; …
• Rule 3.4 – Fairness to Opposing Party and Counsel: A lawyer shall not: … (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; …

In addition, each state has its analog of the ABA Model Rules, e.g., the?New York Rules of Professional Conduct?and the?California Rules of Professional Conduct. So, by the time we students and "lawyers-in-training" leave law school and then pass the bar exam, they are very familiar with at least one version of the Rules of Professional Conduct.?

So, again the question is:??

How is it that some lawyers, either on their own or at the direction of their clients, make misrepresentations or engage in dilatory legal strategies that have the purpose of delaying and, perhaps even derailing, the outcomes of legal proceedings – outcomes that affect the bodies of laws we use to frame civil, economic and other rights of both individuals and businesses?

And equally important questions are:

Where, how, and why do lawyers learn to make misrepresentations or use dilatory legal strategies if not in law school?

Many people, within and outside of the legal profession, have asked these and similar questions, and there is no shortage of takes or views on the answers.?Take, for example, the perspective of Bruce Green, Stein Professor of Law and Director at Fordham Law School, Louis Stein Center for Law and Ethics.?Professor Green shared his perspective during a ABA-sponsored webinar entitled, “Lies, Damned Lies, and Alternative Facts.”

“As a general practice,’’ said Green, “lawyers aren’t supposed to lie. But there are hard questions about when you must be forthcoming and when is it okay to engage in a little trickery. These questions raise a bit of tension between, on the one hand, the lawyer’s obligation to the client and confidentiality and, on the other hand, the lawyer’s obligation to integrity and the candor to the court and opposing parties.”

In addition, another lawyer, Mark Perlmutter, devoted a book to addressing the question:?“Why do we [lawyers] attempt to pull the wool over the eyes of a judge or jury?”

Stay tuned for further thoughts on these questions in our forthcoming series of essays. For now, our goal is to explain why the “not uncommon” conduct like that of Facebook and its lawyers is not only frustrating for the opposing side in a particular legal proceeding, such as the plaintiffs in?In re Facebook, Inc. Consumer Privacy User Profile Litig., but the “not uncommon” conduct is also harmful to the bodies of law, legal precedent and our legal system as a whole.

Data Science and the Law

Each decision (e.g., order, summary order, memorandum opinion, published opinion, unpublished opinion) of a court is a data point, and a collection of decisions, or case law, is a set of data points on which other decisions are made and on which litigants and their lawyers rely to make arguments.?We often term this “collection of decisions” or “set of data points” as legal precedent, the interpretative underpinning of our laws in the U.S.; legal precedent is the cornerstone of our legal system. Yet, data-based decisions, and collections of those decisions, are only as good as the data used to make the decisions.?

Lawyers engaging in and violating their duty of candor, among other responsibilities, and creating biases in the legal process of generating court decisions, or case law, which forms the body of legal precedent on which we all rely, is analogous to the following data-based process in the self-driving car context:

Imagine a self-driving Tesla being trained on a four-lane highway with the two left-most lanes devoted to left turns in a particular intersection. Every day before the Tesla drives by that particular intersection, someone deliberately re-positions the lane markers for left-most lanes so that those lane markers are in a position different from their actual position, e.g., each training day, the lane markers are moved to the left by 5 degrees. After the Tesla drives by, the lane markets for those left-most turning lanes are returned to their actual position.

During training, the Tesla learns to recognize the lane markings for the two left-most turning lanes in their altered, or “biased,” positions. However, when the Tesla encounters the intersection on its own and in rush-hour traffic, with the lane markers for the two-left most turning lanes in their actual positions, the Tesla will follow the altered, or “biased,” lane markers on which the Tesla was trained, not the actual lane markers. Under these circumstances, as one might expect, in making a left turn, the Tesla will likely miss the turning lanes altogether or swerve unexpectedly to avoid a vehicle in its path, potentially causing an accident or endangering other drivers on the road.

This example illustrates how biased training data used in training a self-driving Tesla can lead to unpredictable and potentially dangerous outcomes when the self-driving vehicle encounters real-world traffic lanes that differ from those presented in its training data. Training self-driving cars on unbiased data that reflect actual roadways is crucial.?

Similarly, engaging in dishonesty, obfuscation, or dilatory tactics like Facebook (or numerous others, as Judge Chhabria reminds us) undermines the legal system by introducing “bias” into the data that are our case law, bodies of law, and legal precedent.?We must ensure the integrity of legal processes to minimize biases and inaccuracies in the resulting legal precedent, and perhaps, most importantly, to instill the trust of all of us in our legal system. With the advent of AI-backed systems and their deployment throughout our legal system, it will undoubtedly become more difficult for everyone to engage in delay, misdirection, and frivolous arguments.?Until, then, we should collaboratively look at how we can protect the transparency of legal proceedings and the quality of information used in those legal proceedings so that the litigants and other stakeholders in those proceedings appreciate that the outcomes of their proceedings affect the laws that govern, and affect, all of us.?As we continue to harness fully the power of data science and AI-based analytical tools, the “Duty of Candor” will no longer be hued in shades of gray but will be measured with increasing degrees of clarity so that all of us can trust in the data-based decisions and outcomes of our legal system.