To tell the truth

“Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”

Anyone who has ever watched a courtroom scene in a film or television show (or in real life) has heard these familiar words. The witness in the stand must swear to be honest before he will be allowed to testify.

But does the attorney doing the questioning have to swear to the same thing?

As it turns out, not exactly.

In a simulation that we did in one of our classes yesterday, we learned quite a bit about the legal profession’s code of ethics and how it differs from what we might call “ethics ethics”—that is, what we would ordinarily think of as right and wrong.

For instance, let’s imagine that a lawyer is defending a client who is accused of committing murder. If the accused criminal confesses the crime to his attorney, this will impose some limitations upon the lawyer. For example, he will no longer be able to call the defendant as a witness to testify on his own behalf, because this would be leading the defendant to perjure himself.

However, can the lawyer still defend the case and even bring other witnesses, all in an attempt to prove his client’s innocence?

Absolutely. That’s his job.

In a sense, this is something we should all be glad about. This is the true meaning of “innocent until proven guilty,” the fulcrum of the American justice system. In a legal sense, until a jury declares you guilty of the charged crime, you’re innocent—even if you actually committed the crime. While this might rub us the wrong way when someone else is in that chair, I think we’d all like similar deference afforded to us in the same situation.

Here’s the difficult thing for me, though: how does the attorney feel about all of this? How does he bring himself to fight his hardest for a man he knows has committed a crime? Many criminal defense attorneys write off these concerns by making reference to a “balanced” legal system in which everyone should get a fair chance. But I can tell you right now that if I knew someone had committed a rape or murder, I wouldn’t defend him for love or money.

There are other questions, though, that are not nearly so distinct. Consider again the precise formulation of the testimonial oath: 1) the truth, 2) the whole truth, and 3) nothing but the truth.

“The truth” means that you won’t lie, of course, and “nothing but the truth” means that nothing you say will be intended to mislead. (If you can’t say something true, don’t say anything at all.) These two parts of the oath are simple; it’s that middle section that can be truly tricky. “The whole truth” means not only that you won’t actively tell a lie, but also that you won’t passively leave any truth out.

It means that if someone asks you where you were yesterday, you shouldn’t omit the part where you saw your brother robbing the store next door. It means that if someone asks you whether you’ve received any gifts recently, you shouldn’t conveniently forget the bag full of cash when you mention the wicker basket and the fruitcake. It means, generally speaking, that you shouldn’t hide the answer you know the questioner is looking for.

In practice, however, this rule is broken frequently—often with alacrity. And if witnesses on the stand have no problem setting aside what Al Gore might term the “inconvenient truth,” it seems that members of my own profession are even more tight-lipped.

I had heard the jokes about Ethics of Lawyering being the shortest book in the English language, but I always dismissed these comments as needlessly inflammatory—until yesterday.

Yesterday, in the simulation I mentioned above, I represented a client suffering from an AIDS-like disease, who had apparently passed the disease to a partner whom she had not told about her condition. After receiving a letter from my client confessing what she had done, he had tested positive for the disease and was now threatening to sue for everything under the sun—assault, battery, IIED, NIED, wrongful death… you name it. After meeting with his attorney and negotiating a settlement that was, from my perspective, a very good outcome for my client, we ended the simulation and returned to the classroom to debrief.

There, I learned that the former partner never actually had the disease.

Apparently, his original attempt with a home testing kit had rendered a false positive, and subsequent lab tests had (unknown to me or my client) confirmed that he was completely healthy. Yet his attorney had no problem entering into a settlement discussion with me and walking away with $150,000 for his client.

I was shocked, to say the least. Even under the looser rules for ethical lawyering and professional conduct, this attorney had committed fraud (and perhaps also extortion) and had helped his client do the same. More surprising still, he seemed to have absolutely no problem with it after the fact.

Now, you might be thinking, Well, go figure… a lawyer who didn’t do the right thing and doesn’t care. What’s the big surprise? And I take your point. But I guess what surprised me here was that this fellow is a colleague of mine outside the context of this simulation. He and I get along well, I think of him as a genuinely nice guy, and if asked I would even say that he has a strong sense of right and wrong. In other words, I never even saw it coming.

The truth is, though, that while the rules of ethical lawyering do not expressly permit conduct like this, they do mislead a number of practitioners, who read them to say that attorneys are prohibited from revealing information that would be materially damaging to their client’s case. This may be the case in many situations, but not where their client’s case turns on (indeed, consists entirely of) perpetrating fraud.

A savvy practitioner will know that the other attorney could still have brought plenty of successful claims even if his client never had the disease. For example, for the month between the home test and the lab test, that client actually thought that he had a lethal disease, and this alone could give rise to claims for pain and suffering and/or intentional infliction of emotional distress—claims that often result in massive punitive damages.

Yet my negotiation counterpart felt compelled to advance all of his client’s interests, even when those interests included committing fraud. My question to him would be: if your case has a leg to stand on without misinformation, why flirt with fraud?

For those of you who may not believe in the “whole truth” school, I suppose it’s important to point out that this attorney never affirmatively said that his client had the disease. He knew, based on the materials of the case, that this is what I assumed, and he simply neglected to challenge this assumption. Perhaps, in this sense, you could say that his omission was my fault, not his. After all, I could have asked more pressing questions than I did.

However, this is not what the rules say. Under those rules, the burden to disclose is definitely on him. The fact that, despite this burden, fewer than the half of the attorneys in this simulation kept the information to themselves is extremely disappointing to me. I know that I can only control my own conduct, but the results in the classroom yesterday did not speak well for the future of the legal profession.

There is one ray of hope, though. Survey results show that as lawyers and businesspeople age and gain more experience, the use of such unethical tactics diminishes. Perhaps this is because these tactics prove to be ineffective in the long run, or perhaps it’s because there’s wisdom we acquire with age.

Whatever the reason, I, for one, will not be waiting for career advancement before I begin to tell the truth, the whole truth, and nothing but the truth…

… so help me God.

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4 Comments

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4 responses to “To tell the truth

  1. John David Ohlendorf

    Did opposing counsel affirmatively say that his client had aids, or just that he “tested positive for aids”? Either way, there’s a strong argument that he committed an ethical violation (which could result in penalties up to disbarment). If he affirmatively said his client had aids, he made a “false statement of material fact” to a third person–which is a clear ethical violation (2001 Model Rules 4.1(a)). Even if he just misleadingly stated that his client had “tested positive for aids,” that probably violates MR 4.1. 4.1 includes “misrepresentation” which can can occur by “failure to act,” or, as the Restatement puts it, “a statement can also be false because only partially true.” (Rest. 98).

    It’s true that if you came to believe something false without any misrepresentation on the part of opposing counsel, he has no duty to volunteer harmful facts (and has a duty of confidentiality to not volunteer such facts–unless the client is perpetrating a crime or fraud, in which case the lawyer may have a duty to volunteer facts, if not doing so would cause someone substantial bodily or financial harm: MR 41., 1.6); it’s your job to find these out–that’s the point of the adversary process. But a lawyer can’t knowingly mislead other parties or the court.

    What’s disappointing about this is that so many of your classmates were ok with misrepresenting the facts–of course, most of them probably haven’t had a course in professional responsibility, yet. I suppose they figured this is how lawyers are expected to act. In a way, then, the widespread belief that lawyers are unethical is becoming a self-fulfilling prophecy.

    • Thanks for your thoughtful comments, John. The original prompt for the negotiation said that my client had received a letter from her former partner, stating that he had tested positive for the disease and would be suing for the cost of treatment and other damages. Technically this was not a statement from opposing counsel, but I met with him on the basis of this statement by his client and my corresponding assumption. Again, I should have asked precisely what was the nature of the claim and how stipulated damages corresponded with actual expenses (i.e., no cost of treatment if no disease). This was error on my part. At the same time, I read MR 1.6(b)(2-3) and 4.1(b) to mean that if opposing counsel knows that sustaining my assumptions will permit (if not cause) his client to perpetrate fraud, he has an affirmative obligation to disclose. The instructors in the course and legal ethics boards agree—and rightly so, don’t you think?

  2. John David Ohlendorf

    Absolutely. If a frivolous or unsupported lawsuit falls under the definition of fraud (MR 1.0(d) refers you to the substantive law of the applicable jurisdiction–but I can’t imagine that it wouldn’t constitute fraud), and would result in “substantial” financial injury (1.0(l) unhelpfully defines “substantial” as meaning “of clear and weighty importance”–but I can’t imagine $150k wouldn’t qualify,) then 1.6(b)(2)&(3) say it’s not covered by the DOC, and 4.1 says he has an affirmative duty to disclose. Moreover, counsel needn’t be the one who personally made the false or misleading statement: comment [1] to MR 4.1 indicates that “[a] misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.” 1.2(d) also prohibits a lawyer from assisting a client in conduct the lawyer knows is fraudulent. And finally, 8.4(c) makes it professional misconduct to “engage in conduct involving dishonest, fraud, deceit or misrepresentation”–a category which comment [1] to MR 4.1 indicates is broader in scope than mere misrepresentation or direct falsehood. This conduct was unethical every-which-way from Sunday, even by Lawyer’s ethics.

    It is your duty to inquire zealously into the nature of the claim and the evidence supporting it (MR 1.3); that’s the nature of the adversary process. But the adversary process isn’t set up to work if the actors on either side resort to outright falsehood or deceit.

  3. Andrea

    Interesting post, James! As a social worker I find it useful to learn more about law and court processes…and you raise some good points and valid concerns! As for ethics, I think I’ll stick to the social work code. 🙂 Interestingly, it offers ethical responsibilites towards clients, colleagues, and practice settings.

    If you are interested in more info:
    http://www.socialworkers.org/pubs/code/code.asp

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