Journalistic/Blogger Ethics Question

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115 Responses

  1. Mike Masnick says:

    A basic request of "Off the record" has no official or legal bearing. It is an agreement between the two of you. The "cost" of breaking that agreement is the potential loss of trust, but that's about it, and from the sound of it, this is not someone that you would need in the future as a source. It possibly could lead others to be wary of going off the record with you in the future, but that risk is probably minimal given that (1) the blogging you do requires very little off the record sources and (2) the reason for going back on the off-the-record promise has quite reasonable justifications.

    I would think that, as a lawyer, your duty to making sure someone is not lying in court outweighs the duty to keep your word to the tipster.

  2. kenmce says:

    Your information is all secondhand. You don't actually know what happened. You probably should not interfere. You should try to keep your word even if they are somehow doing something slimy.

  3. Wick Deer says:

    Is your hypothetical blogger an attorney? If so, he should check his jurisdiction's rules about his duty as an officer of the court requires disclosure to the tribunal to whom the misrepresentation was made? If not, I would honor the promise of confidentiality.

  4. IANAL, but I do have people who come to me in confidence either as a blogger/journalist or in lay pastoral counseling contexts. I'm used to keeping secrets, but my sincere offer confidentiality is not a license for future wrong acts.

    Given the hypothetical you present, I my probable first step would be to let the person and/or his lawyer know that I have caught them in a lie and give them the opportunity to correct things. If they didn't and if the court filing was the lie, I'd find a way to get the truth to the opposing side.

  5. Are you asking for a friend?

  6. Is an incorrect representation actually lying to the court? e.g. Suppose John Doe is on trial for murder, and has admitted to his defense attorney that he actually did it. If his lawyer attempts to convince the jury that Joe Doughnuts is actually the murderer, is that unethical, provided he does not rely on any perjured testimony to make that argument?

  7. Jhartranft says:

    If the blogger is an attorney, I think his/her obligations as an officer of the court, outweigh the journalist code of conduct. Not even the lawyer-client privilege allows a lawyer to ignore false testimony. If the blogger isn't a lawyer, I would consider this to be a situation where a journalist has been "burned" by his/her source.

  8. TerryTowels says:

    So, which comes first legally, the Journalist hat, or the Lawyer hat? Is there a written contract with the informant?

    IANAL but seem like basic legal stuff.

  9. David says:

    It would depend on what I did with that information, and with any other information I got from the source. If I had published other on-the-record interviews with them, I would be completely comfortable saying "hey, Person X, who I talked to for This Story In The Past, turns out to have given me false information. It doesn't directly contradict anything I wrote, but I can't be sure that the other things they said were any more trustworthy. Heads up."

  10. Kevin Jones says:

    Pretty sure that in English law, anything you have to offer is mere conjecture, zero fucks given by anyone. It's a no-brainer, keep yer trap shut, all you have is a suspicion.

  11. David says:

    (At the same time, I wouldn't approach the court directly unless I had a strong reason to believe they WERE being truthful in the off-the-record conversation. People who lie, lie. I'm not going to assume they would be more willing to lie to a court than to get a reporter's trust.)

  12. Steve Szmidt says:

    You know how there is a separation in accounting between your personal money and the company's. If you are found to not keep the lines separate you can easily be found, by IRS, to have broken the separation of the two and get audited as one, for example.

    I feel there is an important separation between off the record and an official story. Also the idea that a journalist cannot be subpoenad to give up sources. And I don't think that one wants to erase that line without very good cause. Could become a slippery slope.

    Of course ethics is personal, to whom do you owe your allegence?

    Ultimately you need to be able to live with yourself and "walk tall".

    People often confess things to me that may not fall within the laws of the land. Being that the law is not really trying, nor succeeding very much, in instilling that sense of right and wrong, I usually ask them straight what do they think about their actions or inactions?

    I get them to review their own values and if not very good ask them how that works out in the long run for them? Maybe ask how something else, more survival, could work. In other words I try to point them in the direction of what is creating the most positive results vs the worst. Do I ever tell someone about what they have done? Not if it has been said in confidence and I never break that.

    I've spoken to killers, gang members and more ordinary people and basically we are all the same, but some have not had the right help starting out, to put it mildly. Under it all some have not so good ways of crying for help, while others are afraid to be more wrong than they already feel they are and cannot "afford" being told they are wrong and will fight anyone suggesting they are.

    How about this person, can you in any way gently influence him/her?

    No doubt you have already looked at the above and whatever is said here is only giving you other's views whom may not at all have your idea of right and wrong. In the end I think you need to be on your own on this.

  13. SarahW says:

    Off the record is off the record, so I'd just contact the source and ask him about it if it were bothering me, and ask for an explanation. Is there no room for misunderstanding in your original communication, or change of understanding in this contradiction?

  14. Luke says:

    Is it possible that what the tipster told you was simply wrong, misunderstood or could have been remembered incorrectly?

    Interesting dilemna if you believe the person to definitively be lying, but I would point out that "off the record" is nothing like the Seal of the Confessional. If you aren't worried about future sources wanted to speak to you off the record you should come forth either to the judge or to the opposing attorney.

  15. lelnet says:

    Do you _know_ that what they told you is the truth, and what they're telling the court is a lie? I'm guessing "no", both because the contrary assumption seems implausible and because if you _did_ know for relatively-sure, I'm pretty sure you wouldn't need to get advice on the ethics of the situation from the internet. You are, after all, a member of the bar, and presumably know what duties attach to that role in a situation like this. (Either way, you're a lawyer and I'm not, so please don't interpret anything I'm saying as if I were trying to give you legal advice, because I assume you know those rules and I know that I don't. Ethical advice only.)

    So, what you have here isn't really _knowledge_ of misrepresentation to the court, but _suspicion_ of it.

    That being said, you're not a reporter. You're not going out there in the world, investigating original news and building stories on the testimony of third-party sources. You're a blogger. You do commentary. It's not like drying up the supply of inside-scoop tips flowing your way is going to impair your ability to do what you do here. (Nor, I suspect, would it impair your ability to do what you do for money.)

    "Off the record" doesn't carry any moral weight, in my mind, under these circumstances. If you think you should tell someone, tell someone, and feel no guilt about it. If, on the other hand, you prefer to simply assume that you're the one this person lied to, and stay out of it, then barring the sort of _legal_ duty that I'm not going to try and talk about, I'd say you're just as justified in staying out of things.

  16. Ken White says:

    1. My sources are an email from this person saying X, and a filing by this person's lawyers saying not-X.

    2. X and not-X are the only two options. It's possible, I suppose, the person doesn't understand the significance of X vs. not-X.

    3. The court in which the not-X statement is being made is in another jurisdiction in which I am not admitted.

  17. R. Penner says:

    I am not a lawyer or journalist, but I do know a little something about lying.

    Is it possible that the lawyer is confused about the situation ala Rashomon? Is it possible that the lawyer is not lying but just playing telephone (by which I mean Chinese Whispers) with a complex story that by ordinary sloppiness the lawyer and client now disagree?

    Is is possible out a desire to tweak your nose that the client was lying to you and the lawyer is telling the truth? (This is the only scenario I have for the client lying to you and telling a less self-flattering story than the lawyer.)

    Is it possible that the lawyer is telling lies but is not the liar? I am not a lawyer, but if your client says that the bank loot was dropped in his lap by a zebra and he was arrested before he had a chance to bring the zebra to the attention of the police, how much duty do you have to try and disprove the zebra story?

    I am not a lawyer and don't know if you are bound as an officer of the court to speak up, but is speaking to just the lawyer outside the hearing of the court and opposing counsel an appropriate way to proceed. Or would one lawyer be compelled to file with the court and both counsels that court-asserted facts are contraindicated by private correspondence?

  18. R. Penner says:

    Thanks for clearing up part of this, Ken.

    Also, Sasha Volokh found this gem:

    http://www.volokh.com/2013/06/19/the-rashomon-effect-in-the-great-schism-of-1378/

  19. Shelby says:

    If you aren't admitted to appear before the court, then you aren't an officer of that court and have no particular obligation to it beyond that of an ordinary citizen. (I know Ken knows this; non-lawyers may not. And there may be caveats.) The only obligation is a freely-made one to a source.

    It's at least as likely they lied to you as to the court — if nothing else, the court can hurt them a lot more if it catches them in a lie.

    I'd err on the side of staying quiet, unless you are persuaded they lied to you. Sources who lie to reporters should get burned; it appears to me that a lie invalidates the agreement. That doesn't mean you have any duty to burn the source, but it would be a public benefit in teaching sources they can't lie to reporters and expect the reporters to cover their butts.

  20. Shawn L. says:

    I guess a lot of it depends on the nature of what X and not X are, the consequences at stake, and what your relationship is with the source.

    If you feel you had been lied to, that weighs against the source. Going off the record ought to be in the service of helping you get to truth. If the source violates that part of the OTR quid pro quo, publicly pointing out the inconsistency may be a good thing, if its important. If its a trivial matter, just file it away so you can better judge future statements from this source.

  21. Kevin Lyda says:

    It is important for for journalists to be able to keep their sources confidential so that they may be able to report inconvenient truths (for those in power) to the public. That means that journalists should do all that they can to protect the identities of truthful sources AND that they should out sources that they determine have peddled lies.

    Determining that a source has lied is not simple. Say the political opponent of a source makes a claim that tells you that the source lied. The political opponent could be lying. You'd need to do legwork to determine if the source actually lied.

    But in the case you describe, it seems pretty clear the source lied. It might be an idea to try to contact the source to get an explanation. If after that it's clear the source lied, I'd write an article retracting any stories that cited that aspect of the source's claims. And I'd point to the statements made by the source's attorney to explain the retraction.

    Truthful anonymous sources make a positive contribution to journalism. Lying ones generally exist as another conduit for spin.

  22. TerryTowels says:

    I realize I may have sounded simplistic ("basic lawyer stuff") and apologize if I offended. It's just I've found that the really smart can overthink things sometimes…….

  23. Ben says:

    If someone tells you off the record that they're going to murder someone tomorrow, you do the decent thing and call the cops on them the minute they're out of hearing. In principle is this any different? That seems more a line drawing problem than one of principle – what's the potential harm to the other party of you not telling the court the truth? If someone's going to end up in jail over this, or there's a serious charge in the offing or something… then, yeah, tell. Someone's lifestyle and reputation may be on the line.

    Assuming that the harm to the other side isn't going to be significant however:

    On the one hand, I don't think that a promise made where the assumption is that the other person is honest is valid when the person turns out not to be honest. Honesty on their part is one of the implied conditions of reciprocity inherent in most of our interactions. To my mind, no promise is ever a one way street.

    However, I tend to think that what you give people they'll come to believe they're entitled to. And I'd be verrrryyyyy cautious about encouraging courts to think that they're entitled to the contents of things said in any sort of confidence.

    So assuming that the harm to the other party isn't great, then I don't think that you owe them a promise – but I think that you should probably keep your mouth shut anyway (especially since the paired assumption to the harm not being great is that the gain for justice would be small.)

  24. granny weatherwax says:

    As presented, this is not an ethical dilemma. There is simply too little information and besides, ethics is not a game of top-trumps based on professional allegiance. We are much more than our jobs, even given the glitter of career.

    Work out what is right based on the situation and how it could effect people. Professional rules of conduct are there as an aid to thought, not a replacement of it.

  25. Mike says:

    Duffy?

    Maybe your answer is to inform the attorney of the discrepancy, since they may not be aware of the misrepresentation or may be aware and have an explanation that resolves the discrepancy

  26. Adin says:

    As a blogger and part time counselor, I honor confidentiality unless it involves physically hurting someone (including themselves). If they choose to lie in court (or even to me), its really none of my business. If its something important that effects me personally (and I have a continuing relationship with them), I will say something to the person.

    Otherwise, it will just effect my future relationship with the person and how much I trust them/what they say.

  27. AlphaCentauri says:

    I don't know how deeply you want to get into this, but my gut impulse would be to confront the source with the discrepancy and ask him to explain himself. Ideally, I would want to do it in a three-way conference (esp. via skype or in person) with the source's attorney. Ask the source himself to describe to his attorney what he told you.

    Lying to two people, especially two people like attorneys who are perceived as authority figures, is more difficult for people who are trying to avoid thinking too hard about what they're doing wrong. A sociopath won't care, but if someone is just in denial, you may be able to knock some sense into them. That's the idea behind group interventions with alcoholics and addicts.

    If you can convince him to tell the truth on his own volition, that removes any ethical issues with you revealing his confidence to anyone other than his own attorney. (Since this matter directly involves the case the attorney is representing him in, I would not consider it revealing a confidence to expand the shared knowledge to that attorney.) If he isn't willing, contacting him repeatedly to confront him may make him worried enough about what you'll do that he decides to stop perjuring himself in case you do speak out.

  28. Brett Thomas says:

    Leaving aside ethics, I think a big issue is journalistic reputation. When you promise a source that what he says is "off the record", you are promising not to report on that without his permission (or if it becomes "on the record" elsewhere).

    If you break that promise (even justifiably, ethically), it will reduce the likelihood that future sources will speak to you "off the record".

    I would also think an ethical thing to do might be to call your source and ask him to comment on it on the record. If he does so, you can report on his comments.

  29. Luke says:

    I sent this link to a friend of mine who is a journalist and this was his response: "Off the record is off the record – even if you are called to testify under oath. That kind of accountability is one of the few things that secures the journalist-source relationship, and that trust cannot be breached without jeopardizing your credibility."

  30. Nicko says:

    Oh no! You're bringing in the moral angle.
    Fry the liar.

  31. anne mouse says:

    I had very brief careers in law and journalism – nobody would accuse me of playing in the big leagues in either one.

    As a journalist, the point of an "off the record" conversation is to try to corroborate what you learn, with documents or *on* the record conversations. You may be thinking of 4th amendment jurisprudence in which (you surely know this far better than me, I never studied criminal procedure) you are largely foreclosed from following up on knowledge gained as a result of an illegal search. This is a protection against searches, which are an act of violence by the state. There is no such danger when sources voluntarily chat with journalists.

    In journalistic ethics, "off the record" generally means something like "off the record until at least one of us is dead." Much like the attorney confidentiality rule, there are widely recognized (but far from universally agreed) exceptions for imminent and grave threats, which are unlikely to apply here. If you want to be a good journalist, you shouldn't even mention that this conversation took place, lest somebody guess who you talked to and what they talked about.
    Of course there's the larger journalistic ethics issue about whether a journalist's loyalty to a source can cloud their judgement as to their duty to their readers. Personally, I never had any entirely off-the-record conversations with any source. I would honor a source's requests not to repeat inflammatory personal opinions or obvious mistakes, but that was as far as I ever went.

  32. Black Betty says:

    Ken,

    1. Whether the communication is off the record or not is irrelevant. Technically, the person you communicated with is a source. And you must honor your agreement with your "source" if you value your reputation and your integrity as a journalist.

    2. As a lawyer, it is not for you to decide whether or not his attorney is telling the truth. You must assume he/she is. Most attorneys won't openly lie in a court of law (unless they are bankruptcy attorneys practicing in Delaware or Porn Trolls). So most likely your source is the dishonest one. And in truth, your source would have to have acted in concert at the very least if the attorney did lie.

    So…you can do NOTHING. I realize this is uncomfortable, but it is price you pay for being in the journalism business. Nothing is mess-free. Have no more dealings with this source and report honestly on him in the future.

  33. Black Betty says:

    Ken,

    I would also add, that if you expose your source…you risk discrediting this blog and everyone associated with it. Remember that. It isn't about the lie. It's about you living up to your word.

  34. different Jess says:

    What assumptions does the court make about "a filing by this person's lawyers"? Does a filing state propositions of fact? Perhaps it just lays out a framework of an argument, into which such propositions can be plugged during testimony? (In this way a filing would be similar to an opening statement?) What are the consequences if a proposition of fact stated in a filing is found to be false? If it's perjury, whose perjury is it?

    Obviously, IANAL.

  35. skidmark says:

    There is no such thing as "off the record" in life. Under certain circumstances a person may be able or even obliged under statute to keep certain information confidential. Elsewise the matter is probably best resolved pragmatically under the notion of competing harms.

    The issue is the contradiction between what your source shared with you previously and what your source's attorney is now stating on behalf of his client. Your obligation appears twofold – first to your readers to make them aware of the existence of the contradiction, and second to your source to allow them to resolve the matter to your satisfaction. Should your source not wish to resolve the matter to your satisfaction you have an obligation to let your readers know that.

    As for revealing the "off the record" information itself – that is probably best decided by how well you can remain faithful to your readers without revealing the specific information.

    stay safe.

  36. different Jess says:

    Haha, I get the impression that some of these comments are made by "professional" journalists. Here's a clue, journos: your profession is widely held in lower regard than the legal profession. The reasons are many, but they are summarized by the observation that the vast majority of your output is a barely literate hash of press releases and emotional appeals. You claim the truth is your highest priority, yet every one of you regularly sacrifices that to convenience, commerce, the conventional wisdom, etc. Also, we're subjected to your product every day, while fortunately most of us avoid seeing lawyers' work most of the time.

    In short, when you make lofty statements about Ken's various duties as a journalist, the rest of us will take those with a heaping dose of salt.

  37. Tom says:

    I assume "not-X" makes your correspondent look good in court. When somebody says to you "ok, I might have fucked up in way X, but not in all those other ways" when it's "off the record" and then says "I didn't fuck up in any way, including X" in court, that somebody is lying to you.

    IANAJ/B, but it was always my understanding that the "off the record" agreement was truth-for-anonymity. Seems like your source has failed to perform and you're off the hook, looking-in-the-mirror-wise.

    As for the burning-bridges issue for future sources, "I'll maintain your confidence unless I find out you were lying to me (<em.see, e.g., [this post]" seems like a promise reliable sources would accept and a warning to self-serving dicks or desperate schmucks.

  38. LrdDimwit says:

    So there are a lot of complex issues here, and I have some loosely-connected thoughts about them. Note: I am neither a lawyer nor a blogger/journalist.

    1) Supposing this were something different, like doctor-patient confidentiality or lawyer-client privilege. The answer here would be clear: keep your mouth shut, unless doing so poses a credible threat of imminent harm to someone (say as a mobster telling you 'yeah, if I were you, I'd just go ahead and assume that the witness … will never testify')

    2) By agreeing to an off-the-record conversation you have essentially created an obligation similar in nature to these others. Does it bother you that defense lawyers often know someone is guilty, but work tirelessly to ensure a 'not guilty' verdict because they know the state cannot prove it? Does it bother you that prosecutors pursue cases when they honestly believe the accused to be guilty, even if they know the evidence is very weak (but not legally insufficient)?

    3) So I think you have to treat this situation as you would attorney-client privilege or doctor-patient confidentiality. Will any third party potentially lose large sums of money over this? Or be physically injured? If the answer is yes, then I think you should talk. But I think the answer isn't yes, or you wouldn't have bothered asking for advice.

    4) So I think the key here is realize – when you agree to talk to someone off the record, you are creating a potentially-distasteful obligation to the other party. In the future, be aware that when someone asks you to agree to talk off-the-record, one of the reasons for this request may turn out to be little different than asking you to cover for their lies.

    5) So a party to a court case asked to talk to you off the record. You agreed. They told you a story about the case. Then they told a different story to the court about the same case. The problem here is you agreeing to talk off-the-record in the first place. I'm trying real hard to avoid saying 'you should have known better', but it's not working – you should have known better. Talking about a pending case? You're a lawyer, you know that nobody should ever do that. There are a lot of reasons someone might in general want to talk off-the-record, but in this particular case a high probability is that the reason was "I want to say things that, if the court knew about them, would hurt my case". By agreeing to the request under the circumstances, you put on a straightjacket and gave the other guy a chance to tie your hands.

  39. M. Alan Thomas II says:

    I think that the people suggesting that you bring this to the attention of the source and their lawyer have the best argument. This does not violate any requirement of silence on your part and does not directly testify against them while still allowing their lawyer the opportunity to reconsider the truth of their statement to the court and take any corrective action that they deem necessary.

  40. Tom says:

    Aaaand of course Shawn L. and Kevin Lyda beat me to it.

    My people have an honored tradition of skimming comments once enough people have ignored what, to us, is obviously the fucking point. . .

  41. Black Betty says:

    Different Jess,

    And yet…he's not asking you for advice, is he? You know, if you want to crap all over the people who came here to help Ken, maybe you should put up your resume. Tell everyone here what qualifies you to offer advice on this subject.

  42. naught_for_naught says:

    My opinion? Off the record is just that. It's off the record. If bloggers want to be considered journalists in the best sense of the word, they have to uphold the principles of the profession. Respect confidentiality is no less sacrosanct for journalists than it is for doctors, lawyers and members of the clergy. It feels kind of dirty to watch someone bold-face lie in court, but, as you well know, the legal process has mechanisms to uncover deception. You have to let it work.

  43. chembot says:

    So to sum up most of the comments here: "No snitches." This sort of argument is simply another manifestation of the bystander effect. How is justice to be served in our legal system if truth is not to be admitted into evidence? If the truth is a material fact in the case upon which someones life, liberty, or property are at stake, the facts should come out. A journalistic source should have a reasonable expectation that "off the record" conversations will be kept confidential, but there should be no expectation that the journalist will cover for perjury.

    A little application of the golden rule is in order for those folk in the "no snitches, nunya bidness" crowd: How would you like to be on the wrong side of an adverse judgement and risk having fines levied or your own reputation soiled because somebody withheld the truth?

  44. Quiet Lurcker says:

    Ken – a 'lie' implies intent to deceive (dictionary, I know, but please bear with me). In this discrepancy between your source and his/her counsel, are you absolutely positive that there is an intent to deceive, instead of simple misunderstanding/misstatement? Example: my neighbor and I each report a hit-run caused by X vehicle with such-and-so licence. I describe the vehicle as dark blue, my neighbor as black. The car turns out to be black. Was I lying – intentionally giving wrong information? Answer: no; I didn't see clearly or did not remember correctly. No intent to lie or deceive there, just my poor eyesight and or memory.

    If and only if you KNOW beyond question (or, beyond the shadow of a doubt, to quote you lawyer types) that there is a lie (in the dictionary sense and as exemplified above) then next, ask WHO is lying? The source? The lawyer? Bite the bullet here, and at least consider the possibility. I know of the existence of FRCP #11, and I'm sure there are similar/corresponding rules at the state and probably local level. If the counsel is lying to the court – again, I admit not likely, but it's a big universe, and nearly anything's possible – then I'd at least consider taking it up with the counsel and giving him/her an opportunity to put it right, then if still troubled, talk it over with another lawyer you trust and if that lawyer says to do so, then approach the court (judge?) directly.

    If the source is lying, then say/do nothing publicly, but treat all further utterances by the source as suspect until proven one way or other.

    I know that takes work, but as far as I can tell, it's about the best approach.

  45. Rachelle says:

    My thoughts are that it depends on the ramifications of the lie. Is the lie about parking tickets or is the lie going to result in another person going to jail for a good long time?

    My inclination is that if no one specifically asks me…it's none of my business… until the accretion point of which only you can be the judge, then you make sure the information gets to the right spot.

  46. Black Betty says:

    Well Chembot, what about a priest or a doctor? What about a psychiatric professional? Are they obligated to come forward and reveal your secrets if they think you've committed perjury? What if you told the truth in court, but lied to them?

    You no obligation to be truthful to your shrink. However they DO have an obligation to keep your conversations confidential. So what happens if they reveal untruths about you in a court of law and get you unjustly sent to prison? What then?

  47. David says:

    2. X and not-X are the only two options. It's possible, I suppose, the person doesn't understand the significance of X vs. not-X.

    Maybe he's an Intuitionist.

  48. Jim March says:

    First thing is, you as a blogger have ALL of the same rights to freedom of the press that mainstream journalists have.

    Here's the proof:

    http://www.pennumbra.com/issues/pdfs/160-2/Volokh.pdf

    So forget about asking as a "blogger" and ask what the case law is for a traditional journalist in this circumstances.

  49. GreenKnight says:

    A. You're a lawyer. Do you do criminal law? Can you imagine if the thin blue wall of silence, aka the thin blue wall of obstruction of justice pervaded society?

    How well would criminal law work if mainstream ethics were the ethics of police officers on certain Canadian and American forces? If people refused testify about what co-workers, colleagues, people in a similar profession on the far side of the country, a competing gang, all bound by a thin blue wall of silence ethics?

    B. Keep your mouth shut and keep yourself out of trouble. The ghetto version of the blue wall of silence which varies by being more expansive.

    Mainstream society would function as well as a ghetto if we all followed that rule.

    On the other hand, yes if this is about a parking ticket or something truly trivial, it isn't our job to right every petty wrong in the world.

    C. Suppose X lied to you (and told the truth to the court). Why would they lie to you? To mislead your investigation? To have you mislead the public? To make your opinions look foolish?

    What do you owe a liar who tries to make you look stupid? Nothing.

    D. Suppose X told you the truth. Why would they tell you the truth off the record?

    You're not a priest, you're not their doctor, you're not their lawyer. You're a blogger.

    If the journalist's promise is absolute, a promise to not repeat the truth can prevent a journalist investigating a story and revealing the facts.

    E. Why do professional journalists have ethics that prevent them revealing a source?

    Its good business. The arguments for such ethics have nothing to do with right or wrong, nothing to do with natural justice.

    They have everything to do with keeping the highways of leaks open.

    Basically the ethics are what is good for business, not what is good for the public.

    Should bloggers be adopting the ethics of professional journalists when the professional journalists ethics are based on what is good for business?

    F. Balance of power. Journalists have publicly discussed the quandary where authorized government officials leak lies after telling journalists the truth off the record. I don't know if they reached a conclusion.

    These are just additional thoughts to add to the thoughts of others. I partly agree with what some of the others have already posted, but there is more to the issue than just doing what journalists do or doing what lawyers do.

    We're entering a world where half the population is a blogger in some sense of the word. Blogger ethics could be the ethics of half the population.

    I don't have a conclusion on what you should do.

  50. GreenKnight says:

    "You no obligation to be truthful to your shrink. However they DO have an obligation to keep your conversations confidential."

    Isn't your shrink, your MD and your priest required to come forward to the police if he thinks you're an imminent threat to the life or safety of someone.

    At least in Canada I think that is how it is for those client relationships.

  51. chembot says:

    Ah, but you see, we are not talking about a confessional, nor are we talking about a medical confidentiality. But I will take the bait all the same. What if the priest has learned details of an embezzlement scheme by a source who has halfway grown a conscience? What if the doctor has reason to suspect child abuse when a kid is brought in with a black eye? What if you tell your shrink in a fit of paranoid delusion that you will kill all of the 5 foot tall penguins hanging around the local church? We can all come up with hypotheticals designed for moral one upsmanship, but that was not the purpose of my previous comment.

    It is of course possible for someone to lie thoroughly to someone in private and yet be completely truthful in public. Indeed, we are obviously dealing with an incomplete set of information based upon the story above. However, It is proper to ask where the greater motivation is: to tell a lie in an off the record conversation that may never be remarked upon again, or to twist a fact to avoid an adverse judgement in a civil proceeding.

    Presumably, this story above relates to a civil case of some variety. Again I ask: Which of the folk here would enjoy facing liens or other financial impairment, loss of property, loss of custody, or any number of other legal punishments because the court was acting on improper information.

    One final thought. This is an odd argument to me:

    "So what happens if they reveal untruths about you in a court of law and get you unjustly sent to prison? What then?"

    So here we have a situation where telling untruths on behalf of another person is morally wrong, but a person telling an untruth on their own behalf is acceptable as long as they don't get caught. I would argue both are unacceptable and should be punished.

    However, I realize I may have come off a bit old testament in my last post. What I would likely do in this situation is confront them and give them a opportunity to do the right thing. If they fail to grow a conscience, the matter would get escalated appropriately. Alternatively, if they do a good job of convincing me that I was played for a sucker, they would no longer be a source and would warn others away.

  52. AlphaCentauri says:

    IANAL, but … Although journalists regard their commitment to protect their sources as sacrosanct and will go to jail to protect them, my understanding is that there isn't consistent legal recognition of that right. If Ken were actually called to testify, my understanding is that in many jurisdictions he would be in contempt of court if he refused. Failing to come forward would be different than refusal to respond to a subpoena, of course, but journalists do not have the same level of privilege as lawyers, priests, doctors/psychiatrists, etc.

    In this case, Ken's status as an attorney is important. This was a matter with legal implications for the source. He didn't go to any random blog; he didn't go to Clark; he went to Ken, an attorney-blogger. When he told Ken something in confidence, Ken was listening both a journalist and someone with knowledge of law. Ken may not have taken the guy on as a client, but he can't un-know his knowledge of law. His profession is what he knows and who he is, not just what he does at work.

    Ken has information that is now incriminating due to the possible perjury. If he were his attorney, Ken would advise the guy not to perjure himself, and he clearly feels led to continue to be involved here. Having been sucked into matters this far, he needs to at least advise the guy not to perjure himself, and he needs to take action to make sure the matter is handed off to another equally competent professional to continue to advise the guy going forward before Ken will feel comfortable washing his hands of the matter. So he needs to share with the guy's attorney. Then the attorney who is actually representing the guy can carry the responsibility from then on.

    It's like a doctor with an unstable patient at change of shift, or a babysitter whose employers aren't home from the movie. There is a duty to make sure your responsibility is handed off before you can quit.

  53. Aaron Weiss says:

    It seems like you have to sort out your two hats here. As a journalist/blogger, you're bound by your ethical obligation to keep the conversation out of your blog posts. As an attorney, you're bound by your ethical obligations as an officer of the court.

    Since I'm a journalist and not an attorney, I'll defer to your interpretation of legal ethics and whether it requires you to tell the court any time you believe someone is knowingly misrepresenting facts to the court.

    As a matter of journalistic ethics, you should not violate the off-the-record agreement in your blog posts. But absent any discussion about your two hats, I don't think going off the record should preclude you from your ethical obligations as an attorney.

    This, by the way, is why veteran investigative journalists always include a clause when granting anonymity to a source: I'll go to jail to protect your identity, so long as you're truthful with me. If you lie to me, our agreement is null and void.

  54. Joel says:

    I am uncertain as to how the information can be presented to the court case, but am disinclined to keep the contents secret. If this was a serious situation, I would try to find a way to introduce the specific statement related to the lie, not break the entire promise of secrecy.

  55. Tarrou says:

    If a journalist: Is the tipster a republican or a democrat? If democrat, keep quiet. If republican, write scathing expose and inform the judge.

    If blogger: post cats.

  56. Black Betty says:

    Chembot,

    I don't see you as Old Testiment. And I do admire your moral stance. Under any other circumstance, I would turn the bastard over. I am even imagining this to be a very specific bastard to make the exercise that much more unpalatable.

    However, this is the one line. Nearly every state in the country has some form of a shield law for journalists. This is pretty cut and dry.

    Ken cannot do anything about his source's lie. Or the fraudulent filing/motion. It's unfortunate. And my personal advice to Ken, is to have no future dealings with this source. His reputation and that of this site is what matters. Not this person. If he exposes this man, Ken and his associates here will pay the price.

    Think about it this way: If Ken has already written about this person, chances are this man's reputation is not very good anyway. So what benefit would be attained by providing the public with the truth? If you carefully consider it…it actually won't effect his case. So, what good would exposing him really do?

    I suspect that Ken is hoping someone will provide him a cogent argument for exposing this man. But he can't do it.

    And Ken, if you're reading this…it will all come out in the wash. I have a sense of this.

  57. Colin says:

    There is, of course, a third alternative, which is the source told you the truth and then – perhaps after realizing the implications of the truth – lied to his/her attorney. The attorney may have a good faith belief that his/her representation to the court is accurate.

  58. Carl says:

    Here you exhibit the tension of a journalist v. an officer of the court. Since you do not represent your source, your duty is that of the journalist (i.e., you mouth remains under seal).

  59. a_random_guy says:

    Seems to me that there are three issues here, which I will get to. First, to cut to the chase, I come to a rather different conclusion than many posters: I think the hypothetical blogger should honor his confidentiality agreement.

    1. First, it's a matter of personal ethics. Someone told me something in confidence, it's *my* honor at stake. It doesn't matter what I think of the other person, or their lawyer.

    2. Any revelation is unlikely to bring any sort of result. Imagine: some uninvolved person informs the court that, many months ago they were told something that might be relevant to the case. They have no evidence of whatever it is, just the word (possibly just the *verbal* word with no record) of someone talking off the record. The court is going to pay no attention to this whatsoever.

    3. Lastly, the truth is a very elastic thing. If you tell the same story to two different people whom you know will have a different personal "take" to the story, you tell the story differently. Neither is a lie, you may just emphasize different things; put things in a different light. Add to this the fallibility of human memory, and our stories change in our own memories over time. In this case, the "story" has been filtered not only through the original person, but also through the blogger on one side and the attorney on the other. Unless we are talking about an absolutely black-and-white fact, there may be no (deliberate) misrepresentation at all.

    In short, there may be nothing at all going on, if there is getting involved is unlikely to help, and will certainly be a violation of personal ethics. Sit back, relax, and keep out of it…

  60. digitaurus says:

    Everybody lies. (c) House M.D.

    On the basis of what you have told us, it is at least equally as likely that they were lying to you as to the court. So the interesting question is – why do you seem so sure they were lying to the court ? Three possibilities occur to me:

    1. You are holding something back from us. You have some kind of additional evidence that supports the story told to you. If so, perhaps you should present that evidence to someone.

    2. You are engaging in wishful thinking. You have an emotional attachment to one side of the case – presumably the side that aligns with what you were told. You WANT it to be true.

    3. You are mistaking bloggers for catholic priests.

    Which brings us back to the beginning – everybody lies, even (especially ?) in "off the record" conversations.

  61. Richard P Smythe says:

    Isn't an honest open approach infinitely more acceptable than a closeted dishonest approach.

    What you suggest is lying to uphold a reputation when the lying itself destroys the reputation.

  62. Another anonymous NAL says:

    I thought I'd throw my 2 cents in. I am not a lawyer or a journalist, but here's the thing: most people aren't.

    Ken, you've described this source as someone "who has been thrust into the spotlight" and allowed as how "the person doesn't understand the significance of X vs. not-X". So my thinking is this source is just somebody who, faced with the drama of a court case and the excitement of internet attention, lost track of a basic piece of legal advice. To wit: "SHUTUPSHUTUPSHUTUPSHUTUP."

    That said, it seems like the thing to do now is to contact the source and make sure he or she understands what the problem is: "If you lied to me, what's our confidentiality based on? If you lied to the court, you should at least inform your lawyer before a judge finds out…"

    Depending on the ramifications of the lie (is the wrong person going to jail?) any public actions like retractions or court notifications can be taken after this. But it seems to me the source needs to be straightened out first.

  63. James Pollock says:

    "Off the record" is a contract. You know what that means…

  64. Lesley Kemp says:

    I'm a simple gal and believe honesty is the best policy. Lies can have serious repercussions and wreck lives. If hypothetically someone were to come to you and 'off the record' admit to murder would you be ethically bound to remain silent?

  65. Saribro says:

    If someone makes public claims about certain facts, then any mention of them by said someone in previous communications are no longer "off the record". When the person in question goes "on record" about certain facts, then any "off the record" agreements about these facts are void.
    To me personally, this only relates to the facts in question, and any other information from the same "off the record" communication remains as such. I know other people who disagree and would consider the entire communication as fair game once a single aspect is public.

  66. jim says:

    Trust is hard. A whistle blower breaks his promise because the information he has reveals something so important that his obligation to protect the world at large overwhelms his promise to keep the secret. It's not just a promise to keep a secret – a whistle blower faces overwhelming sanctions. Promising confidentiality to an individual is a reputation thing – the sanction can only be your reputation. How easily do you make the promise? How strong is your promise? How much can you be trusted? This figures prominently in Bruce Schneier's _Liars and Outliers_ which I recommend.

  67. Speed says:

    If your source wanted to keep a secret he shouldn't have told anyone, even you. If he needed help or advice he should have talked to someone who is required by law to keep the conversation private (doctor, lawyer) … which could have cost money. He may end up getting what he paid for. Convention and the law have already set standards and requirements.

    The error here was Ken White's by saying he would keep the conversation private (off the record) without realizing what the consequences might be "down the road." The cost to Ken may be reputational (he violated a "trust") but he will have learned a lesson — don't have off-the-record conversations outside of his law practice.

    The guy has lied either to Ken or to the court. He is not trustworthy and doesn't deserve protection. Speak out, Ken.

  68. flip says:

    I personally would simply contact the tipster and put the two statements side by side. They might not even be aware that they contradicted themselves; or it gives them a chance to straighten the whole thing out once they realise they've been caught in the lie.

  69. Chad H. says:

    I guess this all comes down to whether you feel you have an obligation to report a possible crime in progress… Usually its understand you do not (but if questioned are expected to cooperate with the police).

    However if one is writing, for example, a log that has a major focus on the law AND you are aware of court misconduct, particularly if you or one of your co-blogees is an officer of the court… Then I would suggest that in most situations you have an obligation to report this misconduct.

  70. BJC says:

    As a lawyer who now works in journalism, my first thought was to the attorney ethical rules, where technically you have to rat out any other lawyer who is in violation. In my mind, that beats any promise made as a journalist. However, the place to lodge that complaint is with the appropriate bar, not with the judge.

    The problem is, as commenters said before, that we don't know if the lawyer or the client is lying, so it's hard to tell if a fraud on the court has actually been committed. In this circumstance, I lean against disclosure, but would suggest a call to the appropriate bar counsel advice service.

  71. AlphaCentauri says:

    It seems to me that if someone tells a journalist something "off the record," they don't have any expectation that the facts will be kept secret, only the source. Journalists then would not believe what they were told without confirmation from at least one other source.

    Also, if this fellow was so indiscreet as to tell you something he shouldn't have discussed with anyone but his lawyer, I'm betting he's told others.

    It may be possible to confirm the facts in another way without revealing the reason why you went digging.

  72. AlphaCentauri says:

    And of course, since you've published this column, the NSA is probably pulling all your emails to see if there's anything interesting ;)

  73. Jesse from Tulsa says:

    If you do not know the truth of the matter – I would hesitate to interfere. It is just as likely that he lied to you as it is that his attorney is lying to the Court (or he lied to his attorney who is then representing the information to the Court). In that you do not really know the truth of the matter, the only relevance you have to the Court is to caste doubt on his character for truthfulness (unless something else coupled with what he told you results in a definitive answer). The basic proposition is: do I run to the Court and said "one time he told me something different!"

    I question if you would have standing to go to the Court sua sponte and tell your story anyway. Perhaps you could get in touch with opposing counsel if it came to that?

    I understand your dilemma, it might depend on the context/gravity of the possible misrepresentation. As you feel the need to get feedback, I'm guessing it is something significant. In my jurisdiction the Bar offers an ethical hotline that you can call for advice (non-binding, not a get out of jail free card advice… but from the Bar's ethic's counsel so it has guidance). Perhaps your Bar has the same?

  74. Quantum Mechanic says:

    However, this is the one line. Nearly every state in the country has some form of a shield law for journalists. This is pretty cut and dry.

    That's pretty damned repulsive and disgusting. Said laws should either be immediately repealed or in the alternative, the same rights should be given to everyone, rather than being limited to the priesthood of journos.

  75. Steve Szmidt says:

    The other side to this is to not to receive confidential information from someone who you are not willing to protect in the first place. The thing to do is to say sorry but I don't work off the record, anything you tell me might be used.

  76. Richard Betel says:

    Look, he's either lied to you or the court. If he's lying to the court, it would be unethical to allow him to prevail against his legal opponents based on a lie. You have a duty to bring the lie to light.
    If he's honest in court and lying to you, you need to ask yourself what he hoped to gain from it, and if he did? I'm gonna guess that he hoped you wouldn't report on something, or at least would "soften" the message because of his off-the-record comments.

    In any case, what I would do is contact him (and probably his lawyer) and say "did you lie to me or the court?" and see how they respond. If you are not satisfied with the response, I'd publicly expose the discrepancy.

  77. Xoshe says:

    While you probably already know the answer to this, given the information provided I can only come to the conclusion of "If it's been a few months, is it really a lie?"

    What I mean is that people change, be it from day-to-day or year-to-year. Even if someone says "I will never do [blah]", never is a long time and circumstances can change to require said person to do [blah].

    Of course, this doesn't apply to situations where someone is making a description vice an intent ("I did these actions" vs "I won't make this statement"), which goes back to myself not having the whole picture.

    So, to put it simply, unless it was pretty egregious, given the above details I would probably stay mum on the situation.

  78. You're specifically asking about journalism ethics, not legal ethics or the laws affecting journalism, so that's how I'll answer: You agreed to keep the conversation off the record, so you now have an ethical obligation to keep the conversation a secret.

    It doesn't matter that your source is now lying to other people, your ethical responsibility remains the same. Journalists have sources that lie to other people all the time — corporate officers who lie to the public, husbands who lie to their wives, politicians who lie to, well, everybody. The politicians are especially notorious for leaking things to journalists and then publicly denouncing their opponents for the leaks. Reporters are still ethically obligated to not reveal the information they received off the record.

    Of course, you are under no obligation to offer to have future off-the-record conversations with this person, and given his unethical behavior, that might be a wise. You could insist on staying on the record entirely, or you could make your off-the-record agreement conditional on him not lying to a court or to the public. However, he's unlikely to agree to that, since part of the reason most people go off the record is that they intend to lie to someone and they don't want you ruining it for them.

    However, there may be a way out of your dilemma: A journalist's obligation of confidentiality to a source is not like a lawyer's obligation of confidentiality to a client. If your client is accused of having sex with sheep, confidentiality prevents you from posting about his confession on your blog. Furthermore, if the prosecutor offers a video in court of your client having sex with sheep, then even though it's now a matter of public record, your obligation to act in your client's interest should probably prevent you from posting that video on YouTube.

    Journalistic confidentiality doesn't work that way. It's not intended to protect wrongdoers who confess a secret off the record, it's intended to protect sources of information. That your source is also a wrongdoer is incidental: You still must protect his identity as a source.

    However, you are under no obligation to protect his secret. If tomorrow someone else comes forward and tells you the exact same secret about your source that he told you, but not off-the-record, then there is nothing unethical about reporting it because you're still not revealing the original person as your source. In fact, knowing the secret, it is entirely ethical for you to seek out confirmation of your source's story from other people or from public or private records, and then publish that information, as long as you don't reveal your source in the process.

    I suppose it's a bit like having this guy's testimony excluded from evidence: If you want to tell the court that this guy is lying without violating journalistic ethics, you have to uncover the same information from some other source.

  79. LT says:

    And this is one of the reasons I hesitate to start a blog.

    As a social worker, my ethical obligation was to keep my mouth shut and honor client confidentiality – unless 1) I perceived a clear threat to someone (my client told me they planned to kill someone, make meth, etc.) or 2) I had good suspicions of abuse in the home (generally child or elder). Then all confidentiality flew out the window and it became hello cops/CPS, we have a problem. (I've done that multiple times- all those examples are sadly real.)

    Now, in my current line of work, it's a question of 'is this person doing something that could be a threat to my employer'. If so, hello authorities. (Not had to do this yet, thankfully.)

    In your position- personally, I'd have to fall back on those values I'd learned before. If the guy was lying about a serious crime where someone was physically hurt, I'd probably break the oath of silence. If not . . . I suppose I'd keep my mouth shut. It'd make me wary of anything that person said in the future, though. I can see the validity of both sides of the argument being presented in the comments here.

    Frankly, I'm glad I'm not you right now. Sorry, Ken. @Jesse from Tulsa has a point- does your Bar have an ethics hotline?

  80. Laura K says:

    Ken, as usual I'm learning a lot from this. I hope it works out.
    GrannyWeatherwax, I had to salute you for one of the cooler online nom de types I've ever seen.

  81. Gabriel says:

    There's something about lying about a fact in court which feels to me like agreements regarding the confidentiality of that information might be weakened or broken. I wonder if there's an analogue here to contracts regarding stolen property.

    You can't make any effective agreements with people who don't honor agreements. When someone proves himself to be dishonorable I think that brings into question all of the agreements previously made with him.

  82. Toastar says:

    Journalistic ethics require not revealing this information.

    I would not mention it unless you are legally compelled to give testimony. But why would you be put in that position?

    If you were involved in the case in anyway, you should have made that aware to the informant before he told you, and then he shouldn't of said anything.

    Obviously there are exceptions perhaps for things like high felonies(e.g. "I Murdered my wife")

  83. Michael says:

    I'm a newspaper reporter. Here's what I'd do.

    First, contact the source and bring up your concerns to them. That should be your first step.

    If you feel that they lied to you to "play you" and get publicity out there, then by all means reveal the truth. Give them the chance to reveal it themself first.

    If you think the lawyer is lying, I'd say tough. You were told the truth off the record and you are honor bound to that statement. You can write posts about this person being a liar, but do not cite your secret source.

    One piece of advice I got for Off The Record details is do not let them tell you a phony on the record statement and print that. Print no known lies.

  84. Dan Weber says:

    unordered (and conflicting) thoughts:

    1.

    Journalists are not above reproach. Protection of sources is indeed important, but it's not the most important thing in the world, because journalists are not the most important thing in the world.

    (Journalists think they are the most important profession in the world. Not because they are egotists, but because they are human. Lawyers, engineers, soldiers, teachers, scientists: they all think their profession is most important.)

    I know Ken knows that leaks can be both good and bad, as he has blogged about it before. Journalists love other groups that leak but despise leaks from within their own group, even if that leak from within their group could serve the larger justice. (And, again, that's because they are only human with normal human in-group out-group feelings.)

    2.

    If this were doctor-patient or priest-confessor confidentiality, I don't think there would be an issue about keeping quiet — unless a third-party were going to be put into harm in the future. Keep tight-lipped about past sins, but blab about future harm.

    3.

    Doing the right thing is sometimes hard. That's why it called "doing the right thing" and not "doing the easy thing."

    4.

    As a hypothetical, imagine the order of events were reversed. The source says X in court, and then not-X to you later. How does that change thinking?

  85. chembot says:

    How brave and forthwright these journalists are. Their integrity about "off the record" communications is absolute. Is this really the journalists code of ethics, to cover for perjury and aid possible fraud on a court? Even if the other party in this suit gets wrongfully legally screwed because a material truth about the case was withheld, well that is too bad. We have journalistic ethics to worry about here! No snitches!

    The consequence of withholding a material truth from the court do not affect only the source. If this were a criminal proceeding, would it be OK to uphold this kind of journalistic integrity and allow someone to wrongly go to jail? If not, why is it any more ethical in a civil proceeding to allow someone to wrongly face an adverse judgement based on an untruth? If it is ethical for journalists to actively subvert the justice system, how can we be mad when cops "hang together" to screw a defendant because even though they don't have the evidence they "know they did it"?

    I think that a colorable argument can be made that the proper channels to address this may not necessarily involve going to the judge to out them directly, yet knowingly subverting the legal system and allowing a false judgement to occur is to allow a greater wrong to be perpetrated than to rat out a shady source.

  86. Greg says:

    1) If you feel the "not-X" claim was simply to "look good" and you got played, then the "trust" implied in the relationship was already broken by the source.

    [It seems many don't realize that the trust is a two-way relationship, and if the source uses you, *they* already broke the implicit deal. If that's the case, you simply have no further obligation, and IMO, perhaps owe a duty to the reader much greater than the source.]

    So, if option #1 is correct, IMO, they deserve to be burned badly, and it shouldn't trouble you at all. You'll lose them as a source, but did you want to be someone's tool, even if it gets you great but often inaccurate stories? [IMO, NO!]

    #2) The lawyer is lying. If that's the case, you don't have any obligation to the lawyer, and IMO, he deserves to get burned too.

    I'd perhaps give some advance notice to the source so he can correct the lawyer – but if he doesn't, then we're back to the broken trust issue – and again the source is the one who has broken the trust relationship.


    Sources are nice, but they get "off-the-record" status for truly candid information. If they're just using you and hiding behind "off-the-record" to use you as a tool, then IMO, they don't get a pass.

    Sources that lie to look good have already violated the trust and so the "blogger" or reporter has no further obligation to the source.

    This all assumes that the source is aware they are lying. [Which you appear to have clarified as pretty black and white.]

    -Greg

  87. chembot says:

    tl:dr version: Both sides in a case have a right to a fair hearing, even if one of the sides in the case is occupied by a total douchebag that is unsympathetic to most. A wrongly convicted person is the most tragic result our legal system can produce. Why should making that result easier to be produced be considered ethical just because it involves a journalist and their supposed integrity?

  88. pjcamp says:

    If you're going to do that, you need to make it clear beforehand that any lies or apparent lies that come to light are not going to be protected by your off-the-record promise. If you didn't do that from the beginning, so that the person knows what they are actually agreeing to, not what they appear to be agreeing to, then you're basically doing the same thing you criticize the cops for doing in your many comments on the theme "Never talk to the police without your lawyer."

  89. adam says:

    oy. can i just say that i'm glad i'm neither a blogger/journalist or lawyer?

  90. George William Herbert says:

    I am neither an attorney nor a journalist.

    My two cents: As a human being, the first thing I would do is ask the person and their attorney to clarify, pointing out the discrepancy, and indicating that the apparent contradiction is putting you in an ethical bind.

  91. ChrisTS says:

    As an ethicist:

    Contact the source and the source's attorney. See what they do.

    If they do nothing satisfactory, burn them both. (Tell them you will do so, first.)

    You are not obligated to keep a confidence if the source lies to you.

    You are not obligated to sit back and watch the law be twisted in ways that will cause the wrong party to lose.

    In the future, make it very clear to anyone who seeks to go 'off record' they you will reveal their lies if they lie to you.

  92. luis says:

    some people already said it:

    off the record is off the record. unless you warned the source that any lies uncovered would void that premise you should not interfere

    also as someone else said, unless you have true knowledge of what really happened, then it is all hearsay and should not be basis to breach your "off the record" agreement

    the fact that one of the parties do not deserve your trust doe snot make it right to get yourself donw to their level

  93. barry says:

    I think the person hat trumps either the journalist or lawyer hats. When the hat of infallibility is out being cleaned, you get to choose to wear whichever other hat you like.

    One important consideration is the intent of the lie. Did they tell you X 'off the record' in an attempt to prevent you from saying something you might have otherwise said you suspected? ie. was it part of a devious plan to promote the 'on the record' not-X story? ie. were you being used/manipulated?

    I really dislike people asking me "will you do me a favor?" and expecting an answer before they tell me what it is. The 'off the record' request sounds similar, and goes against the whole 'read it before you sign it' advice.

    Another consideration is who the lie helps or harms. Is the very much 'on the record' not-X story being used to prevent damage to him/herself, or being used to damage someone else?

    When it's really cold, I think the wool beanie is the best hat. On the other hand, some lies do seem accidental, and some liars just do it out of habit. (are we allowed to bet on who it is?)

  94. Merissa says:

    I wouldn't hesitate to blab. I'd probably blab on principle, actually.

  95. adam says:

    If journalist feels that there is a lot at stake or that an important matter of justice hangs on the truth in this matter, then (as others have said) I think journalist should confront source and ask for an explanation. Let's say what source told journalist is the truth. Then I think journalist can attempt to put pressure on source to make things right. If source refuses, then journalist must decide just what is at stake and whether to speak up. Journalist can make clear to source that it is source (and/or source's attorney) who has put journalist in this position. If it is not a matter of grave consequence, and if I were journalist, then I probably wouldn't say anything and simply re-emphasize to source that I have chosen to honor my commitment to confidentiality, but that I now know source to be a scumbag who is complicit with lies to the court (yes, I think it is perfectly legitimate for those who prove trustworthy to put ethical pressure on those who prove untrustworthy, especially the untrustworthy who is expecting the trustworthiness of the trustworthy). If it is a matter of grave consequence, I might have to conclude that disclosing the truth is a greater moral obligation than confidentiality. Hopefully, your hypothetical is not such a scenario.

    If source lied to journalist, then journalist might write about source's untrustworthiness, but not by disclosing what was stated off the record (as was also suggested by others).

    If the whole thing is relatively minor, then journalist should just drop the matter. But I suppose you are not posing this hypothetical for a matter that would be relatively minor. And whatever the case, I think it is entirely reasonable for journalist to confront source about the matter and seek an explanation.

  96. Black Betty says:

    Ken,

    After having read over all of the comments, I'd like to augment my advice. Mark Draughn has the best solution.

    1. Do not violate your confidentiality. Do not reveal your source. However…

    2. Draughn is correct. You can verify his lie through other means and report on THAT. You don't need your source, to publicly expose your source's lie to the court. Clearly, this man likes to talk. So who else did he talk to? And what trail of evidence did he leave in his wake? Find it.

    You don't have to choose between your integrity as a journalist and your commitment to the law as an officer of the court. You just have to put in a little extra work.

  97. chembot says:

    One final comment of my own. We as a society allow journalists to get away with a number of things that would otherwise be considered baseless hearsay, rumor mongering, and so forth because the truths they reveal are first and foremost an act of social hygiene. Witnesses would often not be willing to inform upon those in power if they were to be immediate be subject to having their personal lives destroyed and the journalist does great service in providing a public target to shield these whistleblowers.

    In this case however, what act of social hygiene is achieved by shielding a lie? Is it integrity to protect a false statement? Is the pursuit of journalism not also the pursuit of truth? Or are facts and circumstance only situationally relevant? To hear some commenters here tell it, you would think that journalists have a code of omerta similar to the mafia. At least the mafia is honest about what it is doing and doesn't try to adorn their code of silence with the trappings of moral rectitude.

    (Sorry bud, I swore a vow of silence. Hope you brought the lube! By the way, don't drop the soap…)

  98. Mithras says:

    I would think that it depends on the degree of difference and potential perjury.

    Comedian Eddie Izzard had a bit about this:

    "So there must be a difference in the level of perjury. Perjury One is when you're saying there's no Holocaust when, you know, 10 million people have died in it, and Perjury Nine, is when you said you shagged someone and you didn't."

    So, in this, I would say that it would depend on how material to the case it is, and how significant it is – how likely it would be to alter the outcome of the case.

    Obviously, this is a judgement call, but if they told you "I bought stock in X", but are telling a court that "they didn't buy stock in X", if it's an insider trading case, then I think you might feel compelled to come forward. But if it's one side or the other trying to tie the witness to the case in a certain way, and there's already other evidence tying him (thus making this just another piece), then you might not have a moral obligation to come forward.

    I speak only for a third party's viewpoint here.

    My personal moral code requires that I would inform, at a minimum, the judge.

  99. Frank says:

    Seems to me that if you tell someone that you'll do something, you'll do it. Honor has its price.

  100. Dan Weber says:

    http://i.imgur.com/Lhx2uBD.png

    So be it! Thy path is chosen!

  101. Gare Reeve says:

    Disclaimer #1: I am not a lawyer.
    Disclaimer #2: I am not a journalist.
    Disclaimer #3: I am not a blogger.
    Disclaimer #4: This is all SOLELY my opinion, and not a result of any in-depth study of journalistic ethics.
    Disclaimer #5: I am not yet 40, and, therefore, probably don't know sh*t. Keep all of that in mind.

    I feel that the dilemma really rests on whether staying silent advances the cause of evil. If your source is lying to the court, will somebody become a victim of injustice? Will somebody be wrongfully convicted of a crime? Will a victim of a crime be denied justice because their victimizer got away with lying in court? Will somebody have a civil judgement wrongfully go against them? In other words, will somebody suffer unjustly because you failed to speak up when you had information that would have served the cause of justice?

    Whenever I hear of somebody allowing an injustice to happen in order to serve some greater good, I think of this: http://www.wbur.org/2010/06/30/louis-greco

    Moreover, if he lied to you, did those false claims influence events to the source's advantage? If so, then deliberately he screwed you over, and voided any protection he might have otherwise been entitled to.

    That being said, I'd talk to the source and his attorney, point out the discrepancy, and your knowledge of it, and see if this is perhaps a case of simple stupidity rather than malice.

  102. Wayne Borean says:

    1. My sources are an email from this person saying X, and a filing by this person's lawyers saying not-X.

    2. X and not-X are the only two options. It's possible, I suppose, the person doesn't understand the significance of X vs. not-X.

    3. The court in which the not-X statement is being made is in another jurisdiction in which I am not admitted.

    That's a fun one. I try to avoid promising anyone anything.

    But I also avoid talking about a lot of stuff. There's lots of things I've been told. I have no idea if they are true, untrue, partially true, or delusions. If I can't prove it, I avoid writing about it (unless it is opinion, and even then I try to cite sources).

    And I'm not a lawyer.

    I don't have any idea what would be right. It would depend upon exactly what you were told about what. How serious is the situation? If it is a murder investigation, I'd be likely to spill the beans to the prosecutor or police. Otherwise, I don't know. I really don't know.

    Wayne

  103. AlphaCentauri says:

    You could pass the information on to a reporter. Off the record.

  104. Dion starfire says:

    Either way it turns out, this would make a very interesting story, if it could be done in a way that protects the other parties' anonymity and your original source agreed that you could tell this story.

  105. Peter H says:

    I'm not fully versed about the confidentiality rules regarding attorney client privilege or attorney work product privilege, but would it be possible to send a letter to the attorney who filed the "not-X" statement which is contradicted by the guy's e-mails to you, and include the guy's emails with it? The guy's attorney has an ethical obligation then to inform the court of the false statement (if it was false), while still being bound by confidentiality of attorney-client relationship if he didn't try and lie to the court.

  106. Xenocles says:

    As a non-journalist/lawyer but a man who likes to think of himself as honorable:

    This person has asked for your confidence in the matter. However, assuming he has lied (which is to say, deliberately) in a material and provable way, he has shown himself unworthy of your confidence. Absent other information, I might confront him with the lie and give him a chance to explain himself. If his explanation is unsatisfactory I would tell him that I consider our agreement to be void and that I intend to act on the matter according to my own conscience in a few (with a hard limit set according to the scope and urgency of the situation) days. With that your obligation to him is ended.

  107. Anon Coward says:

    To spill the beans, or not to spill the beans, that is the question.
    How many times have journalists gone to jail to protect sources? Even some really scummy sources?

    The question here is are you a journalist, or are you an officer of the court. If you are a officer of the court, you have a clear duty to inform the court of evidence, pleadings, or information submitted as fact that are untrue. If you are an officer of the court, you know the difference between hearsay and evidence. Someone telling you something months ago in confidence, even if at first hand, is not to my mind a clear "true" statement. They could have lied in the past, they could be lying now. You don't know. All you know is that it's inconstant.

    If you are not an officer of the court, you have no duty to the court. You do have a duty to your sources. If you rat this guy out, who in their right mind is going to give you background off the record in the future? They don't know if what you have is true or not, all they know is that you broke a promise to maintain confidentiality.

  108. AlphaCentauri says:

    The other issue is did he understand that you have a duty as an officer of the court that may take preference over promises to keep something off the record? If he wanted to speak to a lawyer in confidence, he should have retained you.

  109. AlphaCentauri says:

    ooops, "precedence." You know what I meant.

  110. Renee Marie Jones says:

    Off the record is off the record. Your word is your word. You do not give up your source. Next time you should think twice, then think again, before you agree to talk "off the record."

  111. CSB says:

    As someone who asked that question in Journalism classes so long ago (which is a springboard into anything you desire, provided you get out of Journalism), I should point out that if someone tells you something 'off the record' and there are lawyers pointing out something different on that exact same thing, that should give you an inkling that no matter what, something is not right. Either you were lied to (in which case, the source is burned) or there's perjury afoot (in which case, you should be able to find a record of that misdoing without burning your source).

    I suppose you should think of it as building your case without a certain piece of evidence. You (hopefully) have other avenues to tease apart your off-record source and what's been admitted in court.

    Talk to your source. Bring up the filing, and say it's nagging at the back of your mind (because it's clear that it does) and see if they clarify. If they stammer, stutter, and backpedal, then you know something's up. If they affirm what they said and clarify it, then you know something's up on the other end.

  112. eddie says:

    I don't see that journalism has anything to do with this. Journalists like to act as if they have some kind of special code of ethics, but they are not a special class of people. They are under the same obligations that you or I are, and we are entitled to the same privileges that they are.

    You should uphold your promises, explicit and implied.

    If you agreed to be told something off the record, then you promised not to divulge that you were told that thing by that person. Uphold your promise. This isn't a journalist thing, it's a promise-keeping-person thing.

    If, in your honest opinion, your agreement included the implicit clause "unless I find out that you've lied to me, or I find out you're lying to others" then you can freely reveal your source. But you'll need to use your own honest judgement (and be brutally honest with yourself) about whether a) that clause was part of your agreement as mutually understood by both of you and b) whether that clause has been breached.

  113. eddie says:

    Rereading your original post, it seems you are mostly concerned about your potential obligations to the court. I certainly can't advise you as to what those are, but perhaps I can offer an instructive analogy.

    If the person in question had sent you the emails in question with no expectation or agreement that they would remain confidential, but for some reason you didn't feel like divulging them… would your obligation to the court compel you to bring them to the court's attention despite your reluctance to do so?

    If so, then that same obligation to the court overrides your confidentiality agreement with your source and you must burn them. If not, then not and you must keep their confidence.

  114. David says:

    Well, let's take a look at the effects of each scenario:

    Choice A: He lied to you.

    What effects would come out of you keeping this secret?

    I suppose HE would be positively benefited, since people won't know he's a liar. You wouldn't have some slight harm come to your reputation from people thinking you should have kept the confidence.

    On the flip side, if you reveal his lie, society will benefit from knowing he is a liar. People in general will be discouraged from telling lies off the record. Although perhaps some people will be discouraged from saying things off the record at all, for fear they will not be believed or that they may want to lie in the future.

    If he told you the truth and is lying to the court, then the above applies, plus:

    If you keep it a secret that he is lying to the court, then he is benefiting from the court not knowing the truth about the situation.

    If you reveal the lie, then the other side of the case is benefited from the truth coming out about what happened.

    Realistically, I very much doubt he told you some flattering lie about himself and then revealed the ugly truth to the court – if you thought THAT was the case, you probably wouldn't be bringing it up. Most likely he told you the truth and then found that truth to be inconvenient to his case.

    I'd also like to say that if he indeed lied to you, you have no obligation to him whatsoever. Protecting the ability to lie off the record is not a good thing – there's no POINT to off the record comments if they're just going to be lies.

    And furthermore, HE WENT ON THE RECORD when he made this filing. You cannot be on the record and off the record at the same time on the same statement.

    Personally I'd contact him and ask him to explain. He'd need to give me a VERY good reason why I shouldn't say anything. Is there any possibility he has a moral motive for lying? Maybe you can't think of one, but it's too late to take it back once you make it public. Give him a courtesy call first.

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