[License-discuss] [License-review] Evolving the License Review process for OSI

John Cowan cowan at ccil.org
Sat May 25 20:01:40 UTC 2019

On Sat, May 25, 2019 at 1:52 PM Bruce Perens via License-discuss <
license-discuss at lists.opensource.org> wrote:

It's this fellows job to represent his employer to the best of his ability
> and to tell the story that is most advantageous to them. He is not under
> oath, and I don't believe that even outright lies are out of scope for him.

On the contrary, there are very very few situations in which lawyers are
allowed to knowingly lie when not on oath.  Knowingly lying on oath is
criminal for anyone, but lawyers aren't normally asked to testify; when
they are, they must either know they are telling the truth, or have made a
credible investigation to determine the truth, something not required of
other witnesses.  Indeed, mere silence is against a lawyer's professional
responsibilities when it assists in the commission of a crime or fraud: in
particular, a lawyer who knows of his own knowledge that their client is
going to testify falsely has the duty not to present such evidence, as it
would be a fraud on the tribunal, or to disclose it if the evidence has
already been presented.  Similarly, a lawyer who knows of case law adverse
to his client must disclose it to the judge if his adversary has missed
it.  Of course, a lawyer who does not *know* that a client is lying to him
is entitled to present the client's side of the case.

 About the only major exception is during negotations:  a lawyer may say
that the client will not settle for less than $1000, when in fact the
client is willing to settle for $500.  On the other hand, saying that the
client is uninsured when they are in fact insured is completely unethical.

That is not to say that some lawyers do not merely assist their clients to
commit crimes or frauds, but advise them to do so, or even conspire with
them on ways and means of doing so.  But courts come down like a ton of
bricks on these activities when they find out about them.

Similarly, I believe that license submitters will tell the story as it is
> most advantageous to them, and that attorneys are honor bound to represent
> their clients to the best of their ability, even if that involves
> rhetorical trickery, etc.

Rhetoric is one thing, misrepresentation another.  And there is simply no
such thing as a duty of "zealous advocacy"; the duties of a lawyer are
competence, diligence,

In short, what you are saying is not true, and a statement of that form is
not an ad hominem or otherwise impermissible attack.  "Measures, not men."
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