On Lies and Lawyering

Lies surround us every day. But everybody wants to be an “honest” lawyer. Or at least everybody says they do. But does “honest” mean you can’t ever lie?

The United States v. Alvarez decision handed down last Thursday (the other decision handed down that day got a bit more publicity) reinforced the notion that the government cannot outlaw a simple lie, no matter how disgraceful it is. I started thinking about “honest” lawyering and the relationship between it and truth-telling. I’ve concluded that while lawyers should think a lot about how honest they are, or aren’t, they really don’t need to worry about never telling a lie.

In fact, that would be a terrible idea.

Why we must lie, often

The Alvarez case came to SCOTUS through the 9th circuit, where Chief Judge Kozinski wrote a fantastic opinion. In it, he explains why many types of lies are not only protected speech, but are in fact necessary for society to function:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”) .  .  .

Just to make it through the day, lawyers need to lie too, to clients, and others:

To protect happy hour (sorry I missed your call at 6; I was at my daughter’s recital); To avoid hurt feelings (sure, those clothes are okay for court); to avoid recriminations (the jury foreman obviously hated you for some reason); to calm fears (the workhouse is not as bad as you’ve heard); to secure a client (of course you should divorce her, and the kids will be just fine); for career advancement (I’m soooo lucky to work for a brilliant partner like you); to grow one’s reputation (I love that tie, your honor); to close a deal (no way would they ever sue over this); to get paid (yes, I will go after your 401(k) if you don’t pay my $1,500 fee). . .

and on and on.

So give yourself a break. If you’re a dishonest lawyer, it’s not because you are not a vessel through which the truth continuously flows like liquid gold. Your dishonesty is a wee bit more complicated than that.

(photo: young woman putting off a mask from Shutterstock)

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  • Abdiel

    I couldn’t disagree more with you or the honorable Chief Judge Kozinski. Lies are not necessary to get through life or to practice law. I would rather be known as a person who only tells the truth, regardless of the consequences than someone who occasionally lies to make things easier for myself or others. Look at Kozinski, for instance, after what he wrote, his credibility is shot. How do you know if one of his decisions is based on his honest take of the law or to preserve his marital harmony? Or because he lost a bet? The more I think about this, the angrier I get. I don’t see one instance in the quote sited above that couldn’t or shouldn’t be handled with perfect honesty. “Do you live around here?” how about: “None of your business where I live.” or “Who are you and why do you want to know?” or making a call on your cell phone “Yes, 911, there is a stranger walking around this neighborhood who looks suspicious, please send a patrol car, here’s his description . . .” or just walking away, without saying anything? Every other excuse listed is a horrible reason for lying. If you practice law, or medicine, or accounting, you better be able to deliver hard news honestly, frankly, and even bluntly.

    I am actually hoping that we are being pranked here and that nobody could seriously say “living means lying.”

    • William Chuang

      Doctor to a terminal patient: “Yeah, I think you’re screwed. Give up all hope and wait until you drop dead.” vs “You never know what happens; you have to try and fight it.” (Doctor *knows* the guy is screwed.)

      Lawyer to client: “No, I don’t know why the jury hated you” vs “You were wearing jeans to court and kept on calling the Judge ‘man’, of course you lost, you moron.”

      Lawyer to judge: “No, I don’t have a problem with the way you run your courtroom” v. “You are a judge and shouldn’t be calling my client an asshole on the record.”

      Lawyer to prospective client who wants to sue Obama for stealing his plan to save the world economy: “No, I’m not ready to take on the powers that be; yes, you’re right, I’m afraid of them going after my family just like they killed your daughter” vs “You are crazy. Please leave before I call the police.” [True story.]

      • Abdiel

        Doctor to terminal patient: “I am sorry to say that your condition is terminal. You may have three months, you may have 12, it is hard to say, but there is nothing more we can do. The nurse will come in and talk to you about your options for hospice care and some other resources to help you and your family cope and prepare.”

        Lawyer to Client: “I told you not to dress that way or to talk that way. This is what happens when you ignore my advice.”

        True Story:
        Abdiel to Judge during meeting in Judge’s chambers with opposing counsel, Judge expressed his concerns about how he just handled our case (hearing on contempt in divorce case): “Not speaking specifically about these parties, but in general I would have to agree that the way you handled it is usually the only practical option. However, I am concerned that you take on the attorneys’ role at times and end up stepping on our feet.” Everything I told him was exactly how I felt about it. The other attorney said nothing. The judge smiled and nodded at me after my gentle criticism, because people will always respect the truth over being coddled by what are usually obvious falsehoods.

        I will say this–when someone is not asking an honest question, things can get tricky. if that judge had not genuinely wanted to know our opinions, and was just looking for validation, I might not have said anything. But I would not have said “I don’t have a problem with the way you run your courtroom.” And, no, saying nothing would not have been a lie or dishonest.

        I have plenty of faults. I have been dishonest too many times in my life. I am not a saint. But the more committed I have become to being honest, the easier it is to be honest and that harder is becomes to lie. Even little white lies. If you don’t have the backbone to tell clients, or other attorneys, or judges, the honest truth about what you think, choose a different profession. This one demands more of you.

  • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

    Thanks for your comment. Apparently, you are one of the saints Kozinski is referring to.

  • Abdiel

    Mock all you want. The more committed we are to being honest, the easier it becomes. The more committed we are to find justifications for lying, the easier it becomes. A “terrible idea” to never worry about lying? I think you should share your thoughts on this with the national commercial bank you work for. See how long they keep you around. Unless you don’t work for a commercial bank, you just say that to make life easier for you. You know, advance your career by making it look like you’re big stuff. To grow your reputation.

  • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

    I wasn’t mocking you. I appreciate your interest and passion. I just agree with Kozinski that if you spend your waking hours trying to be sure to tell the truth (as you see it) to everyone every second of the day, you are either a saint or utterly insufferable. Or both. And probably exhausted. And please re-read my post. I wrote that lawyers should not worry about always telling the truth (as they see it). That’s quite different than endorsing lying for cynical reasons. Oh, and if I were to create an imaginary job, it would be one much more exciting than working at a bank.

    • Joe Nobody

      “I wasn’t mocking you.”
      Just after you advocated lying.

      Of. Course. You. Weren’t.

      I agree, your proffesion demands you be cheats, scumbags. It applies when you move from practice to the bench, and to office as a politician who are mostly ex-lawyers. You need to be completely comfortable arguing whatever position your hired client wants in congress. Then make more activies illegal, and the government more complex to deal with so the average joe needs more lawyers.

      Otherwise ALL of you would be making a mere $60/hour and no one would care.

      • Abdiel

        Joe,

        Normally I would respond to your opinion of lawyers by saying most of the lawyers I know are as honest and ethical as the average non-lawyer. We get bad reps because of many misunderstandings about what we do and why and because people see the notoriously dishonest lawyers as something we all are. But if Andy and William are typical of their generation of lawyers, I may have to re-think my response. (I say their “generation” because based on Andy’s picture, I may be old enough to be his father.)

  • William Chuang

    Abdiel, you strike me as a grouch.

  • http://utahcrimlaw.blogspot.com Joshua Baron

    I know that I am not always emotionally mature enough for the truth. Thank goodness for the people who know me well enough to lie to me once in a while so that I don’t quit and work as a homeless person.

  • Abdiel

    Not grouchy. Disgusted.

  • http://blog.simplejustice.us shg

    Whoa, to discuss lying as an absolute, polar extremes is silly. There is a fundamental difference between “acceptance lies” (lies that have no impact on any material issue, such as “yes, that dinner was delicious” when it was only mediocre), and material lies.

    I tend to side closer to Abdiel on the subject. Not to the extentof being pointless hurtful, but to the extent of trying to improve and correct both myself and others by facing up to truths, even if they are painful. They can be put as gently as possible, perhaps with some humor to take away some sting, but the fact is that if truth isn’t told when it matters, we create more problems than we resolve.

    Take the dying patient, for instance. If he knows he’s terminal, he can get his house in order, say his good-byes, come to grips with whatever earthly issues he feel need attention, and then pass away knowing that he’s done all he could. Would you steal that from him with a lie?

    Same with law. Everybody isn’t a winner, and sometimes we need to tell our clients they’re dead wrong. If we don’t, who will? If we sugar-coat it, are we not deceiving the client, even if only in part?

    It’s hard to tell the truth. People don’t like you for being the bearer of harsh reality. But without it, we’re living in a fools paradise.

    • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

      My post was not meant to suggest that anybody (lawyer or not) has a license to lie whenever he feels like it, but to point out that Kozinski is right; we all fudge the truth frequently just so we can put up with each other.
      I was imagining someone who feels that being a lawyer instead of, say, a carpenter, requires complete honesty at all times. I wasn’t surprised that the post drew zero comments for quite a while, as I thought maybe I’d just stated the obvious. Then along came Abdiel to take the position of the all-truth-all-the-time lawyer that I’d imagined as fictional. However, Abdiel’s most recent comment makes me think he really isn’t as militant about it as he first appeared.
      I’d like more truth-telling too, generally. But I think the lawyer’s biggest moral (as opposed to “ethical” re the rules) conundrum is the question of whether the lawyer is lying to himself that what’s good for the lawyer is good for the client. Self-deception is the real problem, because it makes our lies to others feel like the truth.

  • http://blog.simplejustice.us shg

    I think you’re on to something, Andy, with the self-deception problem, which I view as an element of the Happysphere dilemma. Perhaps your next post?

    • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

      I think that your idea that my idea is a good idea for a post is a good idea. My next post is a review of Tamanaha’s book. It’s late because I had to wait longer for my copy from the publisher than certain big-shots had to wait. But thanks for the idea; it’s on deck.

      • http://blog.simplejustice.us shg

        Heh. I’m working on my next one, Scalia and Garner’s tome, Reading Law. It’s was darn nice of the good justice to inscribe the advance review copy to “his fav blawger.” Darn nice indeed.

        • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

          When your book is published I expect the same treatment.

        • http://lawyerist.com/author/samglover/ Sam Glover

          Apparently we didn’t merit a copy.

          • http://Lawyerist.com Andy Mergendahl

            I did have to beg for a copy of Tamanaha’s book. But I’m stunned Scalia doesn’t have Lawyerist on his “faves” list.

            • http://lawyerist.com/author/samglover/ Sam Glover

              I don’t recall the Constitution mentioning “blogging” or “the internet,” so he probably denies our existence.